SB 1993/HB3557 Opposition Toolkit

Defend democracy. Protect dissent. 

Contents

Hashtags

These are some initial ideas - please feel free to add more/comment!

  • #StopSB1993
  • #StopHB3557
  • #StopSB1993/HB1997
  • #ProtectFreeSpeech
  • #ProtectDissent
  • #protectrighttoprotest
  • #protectdemocracy

Status:

Hearing info: SB1993 committee has heard testimony from the public and is still pending. HB3557 (the same ALEC bill language but in the House) has passed the committee and is now in House Calendars waiting to be heard & voted upon by general House membership.

Can you organize persons to call & email their representatives, senators, and the senate committee and to visit representative and senator offices at the Capital?  Seeing actual people show up makes a big difference. Do you have other ideas to raise public outrage and response? Lorretta.glover@gmail.com or at 432-294-2810

Talking Points 

                                                                                                                                     

  • There is a broad and growing consensus that Texas need to reverse course on the trend of over-criminalization. This legislation goes in the wrong direction.

  • Freedom of speech is a sacred American tradition, protected by the Constitution, and should not be thwarted by unjust laws and policies.
  • This bill is for one purpose and one purpose only: to threaten anybody and any organization that wants to speak out or protest oil and gas pipeline projects or other facilities deemed ‘critical infrastructure’. This means especially people whose property those pipelines might cross, or people who are concerned about the climate change impacts of fossil fuels.
  • Free speech and free assembly are bedrock values of our democracy and these laws could have a chilling effect on our rights.

  • SB1993/HB3557 could impede landowners’ rights to advocate for the protection of their own land.
  • If certain provisions are not removed, landowners with infrastructure on their property could be prosecuted harshly on this bill for harmless acts.
  • Threats of felony charges will hang heavy over landowners’ heads should this bill pass, making eminent domain condemnation much easier for industry. No landowner wants to risk becoming a felon just by saying “no.”

  • SB1993/HB3557 may be unconstitutional and could lead to costly, unnecessary lawsuits
  • Broad provisions create liability for protesters and protest organizers in a way that can frequently violate the First Amendment, criminalize forms of peaceful protest, and may be unconstitutionally vague.
  • If the vicarious liability section is not removed, employers, churches, non-profit groups could be held liable if they “compensate” people in any way, even if the organization was not involved and had no knowledge of the person’s actions.
  • These provisions could also create confusion for prosecutors and law enforcement, potentially leading them to take unconstitutional actions, opening up state and local authorities to being sued by protesters who have had their constitutional rights violated.

  • SB1993/HB3557 will be ineffective in protecting critical infrastructure, but it will chill criticism of environmental concerns or corporate wrongdoing
  • This bill doesn’t actually make people safer. Rather, it allows energy companies to trample on those who disagree with them. If legislators really want to make us safer, they should adequately maintain our roads and bridges and ensure infrastructure is secure from cyber-attacks.
  • To be liable for a crime in general, one must have the intent to commit the damage. Imposing criminal liability on organizations who might have educated folks on the issue or encouraged people to take lawful action by speaking out or assembling vastly expands criminal liability beyond any reasonable bounds.

  • SB1993/HB3557 will apply to other types of critical infrastructure beyond oil & gas.

  • Texas already has laws on the books that cover vandalism and trespass; these laws are duplicative and unnecessary
  • Chapter 30 of the Texas Legal code already provides provisions for prosecuting individuals who trespass on critical infrastructure facilities

  • SB1993/HB3557 will disproportionately affect some of the most underrepresented communities, criminalizing their right to protest         
  • Bills like SB1993/HB3557 target many already marginalized voices, in reaction to some of the most high-profile protests in recent history. Native Americans—women, in particular—are playing an important role as “water protectors” in protests against pipelines; low-income communities of color are most affected by unchecked environmental pollution; family farms and ranches have the most to lose by unfair land-grabs for large infrastructure projects.
  • These communities have a right to peacefully resist environmentally unsafe and unjust policies, and unchecked corporate abuse.                        

                        

(see sample action alert next page)

        

Sample Action Alert

SUBJECT: Urgent Action Needed to Protect Free Speech in Texas!

DESCRIPTION: Call [WHO] NOW and urge them to vote NO on SB1993/HB3557 - big oil’s anti-protest law

BODY:

Dear *[FNAME]*,

 Texas Senate and House could vote to advance Senate Bill 1993 (SB1993) & House Bill 3557 (HB3557), dangerous laws that threaten the first amendment rights of individuals and advocacy organizations concerned with facilities deemed ‘critical infrastructure’.

If approved, the new law would have a terrifying chilling effect on our constitutional right to protest. The law turns peaceful protest into felonies punishable by upwards of 20 years in prison with fines upwards of $10,000 for individuals, and liabilities for organizations involved in protests up to 100 times that penalty.

For example: under this proposed law, if an individual involved in a protest temporarily impeded workers’ ability to access a pipeline construction site, any organization involved in the protest or that simply compensated one of the protestors some way with our without knowledge of the event could be face fines of $1,000,000 or more!

Call your Senators and Representatives NOW and urge them to protect free speech and vote NO on SB1993/HB3557 !

You may also call the members of the Senate Committee while SB1993 is still pending.

Senate Committee Members to Call/Email to OPPOSE this bill:

SB1993/HB3557 is a dangerous threat to our democracy. Click here to call your state senators and representatives now and demand they vote NO!

In Louisiana, a similar bill passed into law in January has already resulted in over a dozen felony charges against peaceful protestors opposing Energy Transfer’s Bayou Bridge pipeline. The impacts of bills like this are real and immediate. Let’s make sure our state senators feel the pressure.

Thanks for all you do,

[SIGNED]

Call Script

Calls: Should be directed to TX state senators and TX state representatives

Sample script: I am calling [senator] to urge them to vote NO on Senate Bill 1993 & House Bill 3557. The proposed identical bills threaten free speech, freedom of assembly, and our democracy. If passed, the bill would criminalize our constitutionally protected right to protest. There are already laws on the books against trespass and vandalism - it is clear that this law is specifically designed to stifle free speech. Vote NO on SB1993/HB3557!


Senate Committee Members to Call/Write/Email to OPPOSE this bill:

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Legal Analysis

Now that the sub for HB3557 has been approved, the legal analysis for SB 1993 and HB 3557 are the same. These bills would create substantial criminal and civil liability for individuals and organizations for conduct around critical infrastructure, and as such is likely to chill anti-infrastructure demonstrations and protests.

SB 1993/HB 3557 creates two new, broadly-defined criminal offenses: “damage to critical infrastructure,” and “intent to damage critical infrastructure.” Importantly, the bill expands the definition of “critical infrastructure” to include a “facility that is being constructed and all of the equipment and appurtenances used during that construction” (Sec. 424.001). This broadens the reach of the bill beyond protests and demonstrations at existing pipelines and other infrastructure, which is broadly defined, and includes locations where infrastructure is under construction.

HB 3557 defines “damage to critical infrastructure” as either a) intentionally or knowingly damaging, destroying, vandalizing, defacing or tampering with critical infrastructure, or b) intentionally or knowingly impeding, inhibiting, or interfering with the operation of a critical infrastructure facility (Sec. 424.002). This is significant in the context of pipeline protests, many of which have aimed to peacefully hinder access to pipelines or pipeline construction projects. The latter part of the definition could be read to include, e.g., a peaceful protest or demonstration that “impedes” construction of a pipeline or other facility, or that “interferes” with access to a facility by blocking a road. Under the bill, “damage to critical infrastructure” is a second degree felony, punishable by up to 20 years in prison and a $10,000 fine.

The bill defines “intent to damage critical infrastructure” as entering onto or remaining on or in a critical infrastructure facility with the intent to commit “damage to critical infrastructure,” as defined above (Sec. 424.003). In other words, entering onto a critical infrastructure facility or construction site with the intent to impede, inhibit, or interfere with the facility or its construction could be charged under the bill. The provisions could thus capture peaceful protests and demonstrations that take place on or in a critical infrastructure site regardless of whether they actually impede, inhibit, or interfere with a facility or its construction. It is worth noting that the offense does not contain a requirement that an individual have knowledge that their entry onto the critical infrastructure site is prohibited, or that they do not have the property owner’s consent. The offense of “intent to damage critical infrastructure” is a state jail felony according to the bill, punishable by up to two years in jail and a $10,000 fine.

Additionally troubling, the bill creates harsh criminal penalties for organizations. Under the bill, an organization that is found guilty of damage to or intent to damage critical infrastructure is subject to a fine “equal to the maximum possible amount of the applicable fine multiplied by 100”—i.e., $1,000,000 (Secs. 424.002(d) and 424.003(d)). Individuals and organizations may face additional criminal penalties for the offenses: Under Section 424.002(e), if a defendant is convicted of either damage or intent to damage critical infrastructure, and property damage results, a court may order the defendant to pay restitution to the property owner.

The bill creates new civil and vicarious liability for individuals and organizations related to the criminal offenses, as well. A defendant who engages in either damage or intent to damage critical infrastructure is civilly liable to the property owner under Section 424.004. An organization “that compensates a person for engaging in” damage or intent to damage critical infrastructure is likewise civilly liable to the property owner under Section 424.005. Notably, there is no knowledge element—i.e., it does not say “that knowingly compensates a person”; as such, an organization that has compensated (in any way) a person who then goes and breaks the law could be held vicariously liable under this provision. For both individuals and organizations, the property owner may sue for and claim actual damages, court costs, reasonable attorney’s fees, and potentially exemplary damages (Sec. 424.006). This could amount to an extraordinary sum and is likely to further inhibit individuals’ and organizations’ willingness to engage in First Amendment activity around infrastructure sites.

Two provisions in the bill create some confusion about how prosecutors might apply the law: Sec. 424.002(c) and Sec. 424.003(c) provide that an actor prosecuted for either damage to or intent to damage critical infrastructure may be additionally prosecuted under any other law that criminalizes their conduct: “If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.” This provision is strange, as in most states there are no limits on a prosecutor compiling multiple charges. The limit arises at the conviction and sentencing stages: If an individual is convicted of an offense that includes another, lesser offense, they will only be convicted and sentenced for the greater offense. In the case of SB 1993, for instance, an individual charged with “damage critical infrastructure” could additionally be charged with property damage, but that would generally be permissible anyway and would not change the conviction or sentencing outcome. Experts on Texas criminal law would know more about the reason for this provision, if any, and its implications.  

These are the most concerning aspects of SB 1993/HB 3557. The extremely high criminal and civil penalties involved, breadth of the offenses as defined, and reach of the locations to include construction sites are likely to have a chilling effect on protest activity near existing or planned pipelines or other infrastructure.