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Senate Passes TSA "Anti-Groping" Bill Out of Committee

A Senate committee approved a new version of the TSA "anti-groping" bill today, which substitutes the language "probable cause" for "reasonable suspicion."

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Sen. Dan Patrick, R-Houston, laid out a new version of the TSA anti-groping bill in a Senate committee hearing this morning. One of the major changes: Federal officials would only need “reasonable suspicion,” rather than “probable cause,” to legally search an individual before granting access to a public building.

 “If [federal officials] do not have effective consent from the person it would be against the Texas law to touch a person in those areas of their body unless they have reasonable suspicion to do so,” said Patrick, the author of the Senate version of the bill. To have effective consent, TSA officials would have to describe how they are going to search the person and receive verbal permission before they could conduct a search.

On Friday, House Speaker Joe Straus said the House version of the bill would never be considered on the floor, "as written." Before the bill was scheduled to be debated, he asked Rep. David Simpson, R-Longview, the House author of the bill to change the language to "reasonable suspicion."

In a press release, Simpson said he had prepared an amendment "incorporating all suggestions by Attorney General Greg Abbott's office and those requested by the Speaker's team leaving just one item to the will of the House" - the proposal to change the language of the bill from "probable cause" to "reasonable suspicion." 

At the suggestion of the Attorney General, Patrick says the new version of the bill also provides a defense for prosecution if the official is “pursuant and consistent” with the U.S. Constitution.

Rob Kepple with the Texas County and District Attorneys Association told lawmakers the new language could create “a huge vagueness problem.” Federal officials would have to decide whether the Supreme Court would deem each search constitutional, he said, and recommended the language be removed.

Many of those who registered in favor of the bill announced they were not in favor of the changes when it was their turn to testify. “What the substitute bill does has essentially gutted and compromised on the things that are essentially important,” said Heather Fazio, with Texans for Accountable Government. “My biggest problem is the reasonable suspicion aspect of it.” 

In response, Patrick said lawmakers are working to “shine a light on this issue.” He apologized if “it’s not the perfect bill for you.”

During the hearing, lawmakers questioned the constitutionality and enforcement of the law. “From a practical perspective, how would the arrest occur and what would the local law enforcement need to do in order to arrest a federal agent that is a public servant?” asked Sen. Kirk Watson, D-Austin.

In order to prosecute federal officials, Kepple said state law enforcement would have to determine if effective consent was given and whether there was “reasonable suspicion” that the individual was committing a crime before the search was conducted. “The TSA agent might have thought there was, but there wasn’t, so a crime has occurred.”

“Aren’t we overly constraining the ability for our security agents to do their job?” asked Sen. Wendy Davis, D-Fort Worth, who said the law could make it difficult to conduct searches on people who have an unknown foreign object under their clothing, because there would not necessarily be suggestion of a crime.

The bill passed out of committee 5-to-2. Concerns about the committee substitute will need to be addressed on the Senate floor, said Sen. Jeff Wentworth, R-San Antonio, at the conclusion of the hearing. Committee Chairman Tommy Williams, R-The Woodlands, also said changes suggested by prosecutors at the hearing would have to be made to the bill in the form of amendments.

An alternative to the bill — a House resolution urging Congress to “take appropriate action to ensure acceptable treatment of the public by personnel of the Transportation Security Administration” — could be the subject of a hearing this afternoon.  

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