JURIST Guest Columnist Attorney Benson Varghese of Varghese Summersett, discusses Texas’ new cyberbullying law …

Back in the day, a schoolyard bully was a student’s worst nightmare. Now, it’s cyberbullies that teens fear the most.

Not only can cyberbullies remain anonymous, but they can strike at all hours of the day and night. With just a few keystrokes, they can threaten, taunt, harass and humiliate their target, causing severe emotional distress that, in some instances, has even led to suicide. According to the Center for Disease Control, suicide is the second leading cause of death for American teenagers and young adults.

In the past, there was little law enforcement and school districts in Texas could do to deter cyberbullying. That’s about to change. Come September 1, student cyberbullying will officially be illegal in Texas and school districts will have more power to intervene in cyberbullying cases.

Here’s what every parent, student, educator and lawyer needs to know about the new cyberbullying law in Texas.

1. The new law is referred to as “David’s Law” in honor of a teenager who committed suicide.
The legislation is named in honor of David Molak, a San Antonio teenager who committed suicide in January 2016 in the backyard of his parents’ home after enduring extreme and prolonged cyberbullying. His death was the result of cyberbullying that began at one school and continued even after he transferred to another school. No charges were ever filed due to the fact that the bullying was not physical and there was insufficient evidence to meet the elements of the online harassment statute. The Molak family sought change through legislation, specifically Senate Bill 179, which now makes cyberbullying a punishable offense.

2. Cyberbullying is the high-tech version of bullying.
Cyberbullying is basically the electronic version of bullying. It occurs when an individual engages in bullying through the use of any electronic communication device, including a phone, computer, camera, e-mail, instant message, text message, social media or website. Some examples of cyberbullying could include:

• Sending viscous text messages, emails or instant messages about a student
• Spreading rumors or gossip by posting it to social networking sites
• Taking and sending embarrassing pictures or videos without permission
• Creating a fake profile and pretending to be another student

3. The definition of “bullying” is found in the Texas Education Code.
Under Section 37.0832 of the Education Code, “bullying” is defined as an act or pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves written or verbal expression, expression through electronic means, or physical conduct, that:

1. will physically harm another student, damage a student’s property, or place a student in fear of harm;
2. is severe, persistent, or pervasive enough to create an intimidating, threatening or abusive educational environment for the student;
3. disrupts the educational process or orderly operation of a class room or school; or
4. infringes on the rights of the victim.

4. The new law applies to bullying that is school-related.
It’s important to point out that David’s law doesn’t apply to workplace bullying. It pertains to student bullying that occurs:

• on school property;
• during school sponsored or school-related activities on or off school property;
• on a school bus or vehicle used to transport students to or from school or a school-sponsored or school-related activities.

David’s law also applies to cyberbullying that occurs off campus and outside a school related activity if:

• it interferes with a student’s educational opportunities; or
• substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.

5. School districts must beef up their bullying policies.
The law requires school districts to include cyberbullying in their district policies and to adopt districtwide policies and procedures that:

• prohibit bullying of a student;
• prohibit retaliation against anyone who provides information about a bullying incident;
• establish a procedure for notifying parents and guardians about bullying incidents;
• establish actions students should take to obtain assistance and intervention in response to bullying;
• set out available counseling options for victims, perpetrators, and witnesses of bullying;
• establish a way for students to anonymously report bullying; establish procedures for investigating and verifying reported incidents of bullying;
• prohibit disciplinary measures on a student who is a victim of bullying and used reasonable self-defense in response to the bullying;
• ensures that discipline for bullying a student with disabilities complies with federal law, including the Individual with Disabilities Education Act.

6. Parents must be notified if their child is a victim or perpetrator of bullying.
David’s law requires school officials to notify a victim’s parent or guardian within three business days after a bullying incident. School officials must also notify the parent or guardian of the alleged bully within a reasonable amount of time.

7. The new law allows individuals to get a restraining order to stop the cyberbullying.
Cyberbullying victims may seek quick relief against the cyberbully from the courts, which could issue a temporary restraining order, temporary injunction or permanent injunction to prevent further cyberbullying. The order can also compel a parent or guardian to take action to stop the perpetrators from cyberbullying.

8. Cyberbullies can face fine, jail time and expulsion.
The new legislation amends Texas Penal Code 42.07, making cyberbullying a Class B misdemeanor punishable by up 180 days in jail and a maximum $2,000 fine. The offense becomes a Class A misdemeanor if the offender has a previous conviction for cyberbullying or if the victim was under 18 years old and targeted with the intent to make the victim commit suicide or hurt themselves. A Class A misdemeanor is punishable by up to a year in jail and a maximum $4,000 fine. Cyberbullies can also face expulsion or be sent to alternative school.

Prior to the passage of this law, cyberbullying did not carry any criminal penalties. In 2011, lawmakers added the term “cyberbullying” to the Texas Education Code under the bullying umbrella, but the provision did not make the act illegal. Instead, it required school districts to develop policies to prevent and intervene in bullying and cyberbullying. Now that this law has been passed, individuals face potential fines and jail time for cyberbullying.

9. The new law goes into effect on September 1, 2017.
On June 9, 2016, Texas Gov. Gregg Abbott signed Senate Bill 179 into law, criminalizing cyberbullying. This law, along with all of the other recently passed legislation, goes into effect on September 1, 2017.

Attorney Benson Varghese is the Managing Partner of Varghese Summersett, a criminal defense firm based in Fort Worth, Texas. He is also a prolific writer and speaker on a variety of topics related to criminal law. He writes regularly at his own Versus Texas blog.

Suggested citation: Benson Varghese, Nine Things You Need to Know about Texas’ New Cyberbullying Law, JURIST – Academic Commentary, August 30, 2017, http://jurist.org/forum/2017/08/benson-varghese-cyberbully-texas.php.