HB1975 - Relating to victims of sex offenses, sex-based human trafficking offenses, or acts of a sexual nature and to the confidentiality of or restrictions on the availability of certain property, material, or information regarding those victims, offenses, or acts.

      By: Cook H.B. No. 1975       A BILL TO BE ENTITLED   AN ACT   relating to victims of sex offenses, sex-based human trafficking   offenses, or acts of a sexual nature and to the confidentiality of   or restrictions on the availability of certain property, material,   or information regarding those victims, offenses, or acts.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Article 38.435, Code of Criminal Procedure, is   amended to read as follows:          Art. 38.435.  PROHIBITED USE OF EVIDENCE FROM FORENSIC   MEDICAL EXAMINATION PERFORMED ON VICTIM OF SEXUAL ASSAULT OR OTHER   SEX OFFENSE; PLACEMENT UNDER SEAL .   (a)  Evidence collected during a   forensic medical examination conducted under Subchapter G, Chapter   56A, may not be used to investigate or prosecute a misdemeanor   offense, or an offense under Subchapter D, Chapter 481, Health and   Safety Code, alleged to have been committed by the victim from whom   the evidence was collected.           (b)     During the course of a criminal hearing or proceeding,   the court may not make available or allow to be made available for   copying or dissemination to the public any property or material   related to or derived from evidence described by Subsection (a),   including a visual image or a recording made as part of the   examination.           (c)     The court shall place property or material described by   Subsection (a) under seal of the court on the conclusion of the   hearing or proceeding.           (d)     The attorney representing the state shall be provided   access to property or material described by Subsection (a).   In the   manner provided by Article 39.152, the defendant, the defendant's   attorney, and any individual the defendant seeks to qualify to   provide expert testimony at trial shall be provided access to the   property or material described by Subsection (a).           (e)     A court that places under seal property or material   described by Subsection (a) may issue an order lifting the seal on a   finding that the order is in the best interest of the public.          SECTION 2.  The heading to Article 38.451, Code of Criminal   Procedure, is amended to read as follows:          Art. 38.451.  EVIDENCE DEPICTING INVASIVE VISUAL RECORDING   [ OF CHILD ].          SECTION 3.  Article 38.451(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  During the course of a criminal hearing or proceeding   concerning an offense under Section 21.15, Penal Code, [ that was   committed against a child younger than 14 years of age, ] the court   may [ shall ] not make available or allow to be made available for   [ the ] copying or dissemination to the public property or material   that constitutes or contains a visual image, as described by   Section 21.15(b), Penal Code, [ of a child younger than 14 years of   age ] and that was seized by law enforcement based on a reasonable   suspicion that an offense under that subsection has been committed.          SECTION 4.  Article 39.14(a), Code of Criminal Procedure, is   amended to read as follows:          (a)  Subject to the restrictions provided by Section   264.408, Family Code, Subchapter D, Chapter 420, Government Code,   and Articles [ Article ] 39.15 , 39.151, 39.152, and 39.153 of this   code, as soon as practicable after receiving a timely request from   the defendant the state shall produce and permit the inspection and   the electronic duplication, copying, and photographing, by or on   behalf of the defendant, of any offense reports, any designated   documents, papers, written or recorded statements of the defendant   or a witness, including witness statements of law enforcement   officers but not including the work product of counsel for the state   in the case and their investigators and their notes or report, or   any designated books, accounts, letters, photographs, or objects or   other tangible things not otherwise privileged that constitute or   contain evidence material to any matter involved in the action and   that are in the possession, custody, or control of the state or any   person under contract with the state.  The state may provide to the   defendant electronic duplicates of any documents or other   information described by this article.  The rights granted to the   defendant under this article do not extend to written   communications between the state and an agent, representative, or   employee of the state.  This article does not authorize the removal   of the documents, items, or information from the possession of the   state, and any inspection shall be in the presence of a   representative of the state.          SECTION 5.  The heading to Article 39.151, Code of Criminal   Procedure, is amended to read as follows:          Art. 39.151.  DISCOVERY OF EVIDENCE DEPICTING INVASIVE   VISUAL RECORDING [ OF CHILD ].          SECTION 6.  Article 39.151(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  In the manner provided by this article, a court shall   allow discovery of property or material that constitutes or   contains a visual image, as described by Section 21.15(b), Penal   Code, [ of a child younger than 14 years of age ] and that was seized   by law enforcement based on a reasonable suspicion that an offense   under that subsection has been committed.          SECTION 7.  Chapter 39, Code of Criminal Procedure, is   amended by adding Articles 39.152 and 39.153 to read as follows:           Art.   39.152.     DISCOVERY OF PROPERTY OR MATERIAL FROM   FORENSIC MEDICAL EXAMINATION PERFORMED ON VICTIM OF SEXUAL ASSAULT   OR OTHER SEX OFFENSE. (a)   In the manner provided by this article, a   court shall allow discovery of property or material that   constitutes or contains a visual image or a recording that was made   as part of a forensic medical examination.           (b)     Property or material described by Subsection (a) must   remain in the care, custody, or control of the court or the state,   as provided by Article 38.435.           (c)     A court shall deny any request by a defendant to copy,   photograph, duplicate, or otherwise reproduce any property or   material described by Subsection (a), provided that the state makes   the property or material reasonably available to the defendant.           (d)     For purposes of Subsection (c), property or material is   considered to be reasonably available to the defendant if, at a   facility under the control of the state, the state provides ample   opportunity for the inspection, viewing, and examination of the   property or material by the defendant, the defendant's attorney,   and any individual the defendant seeks to qualify to provide expert   testimony at trial.           Art.   39.153.     DISCOVERY OF COMMUNICATION OR RECORD THAT IS   CONFIDENTIAL OR PRIVILEGED BY LAW. (a)   This article applies only   to a communication or record collected during the investigation of   an offense under:                 (1)     Section 21.02, 21.11, 21.15, 22.011, 22.012, or   22.021, Penal Code;                 (2)     Section 20A.02(a)(3), (4), (7), or (8), Penal   Code; or                 (3)     Section 20A.03, Penal Code, if the offense is   based partly or wholly on conduct that constitutes an offense   described by Subdivision (2).           (b)     In the manner provided by this article, a court shall   allow discovery of a communication or record described by   Subsection (a) that is otherwise confidential or privileged by law.           (c)     Not later than the 30th day before the date the trial is   scheduled to begin, a defendant in a criminal action for an offense   described by Subsection (a) may make a motion for disclosure of a   communication or record that is confidential or privileged by law.   The motion must include a supporting affidavit showing reasonable   grounds to believe the confidential or privileged communication or   record contains exculpatory evidence.           (d)     The defendant shall serve the motion on the attorney   representing the state, the victim or the victim's representative,   and the person who is the subject of the grant of confidentiality or   who holds the privilege with regard to the communication or record   at issue.           (e)     The court shall provide the victim the opportunity to   retain counsel to respond to the defendant's motion.           (f)     After a hearing on the defendant's motion, the court   shall order the confidential or privileged communication or record   to be produced for the court under seal and shall examine the   communication or record in camera if the court finds by a   preponderance of the evidence that:                 (1)     there is a good-faith, specific, and reasonable   basis for believing that the confidential or privileged   communication or record is relevant, material, and exculpatory on   the issue of guilt for the offense charged; and                 (2)     the confidential or privileged communication or   record would not be duplicative of other evidence or information   available or already obtained by the defendant.           (g)     The court shall disclose to the defendant and to the   state only the evidence that the court finds to be exculpatory on   the issue of guilt for the offense charged.          SECTION 8.  Article 58.102, Code of Criminal Procedure, is   amended to read as follows:          Art. 58.102.  DESIGNATION OF PSEUDONYM; PSEUDONYM FORM.  (a)     A victim may choose a pseudonym to be used instead of the victim's   name to designate the victim in all public files and records   concerning the offense, including police summary reports, press   releases, and records of judicial proceedings.  A victim who elects   to use a pseudonym as provided by this subchapter must complete a   pseudonym form developed under Subsection (b) and return the form   to the law enforcement agency investigating the offense or to the   office of the attorney representing the state prosecuting the   offense .          (b)  The Sexual Assault Prevention and Crisis Services   Program of the office of the attorney general shall develop and   distribute to all law enforcement agencies of the state and to each   office of the attorney representing the state a pseudonym form to   record the name, address, telephone number, and pseudonym of a   victim.          SECTION 9.  Article 58.103, Code of Criminal Procedure, is   amended to read as follows:          Art. 58.103.  VICTIM INFORMATION CONFIDENTIAL. (a)  A   victim who completes a pseudonym form and returns the form to the   law enforcement agency investigating the offense or to the office   of the attorney representing the state prosecuting the offense may   not be required to disclose the victim's name, address, and   telephone number in connection with the investigation or   prosecution of the offense.          (b)   A law enforcement agency or an office of the attorney   representing the state receiving a pseudonym form under Subsection   (a) shall send a copy of the form to each other agency or office   investigating or prosecuting the offense.           (c)   A completed and returned pseudonym form is confidential   and may not be disclosed to any person other than a defendant in the   case or the defendant's attorney, except as provided by Subsection   (b) or by [ on an ] order of a court.  The court finding required by   Article 58.104 is not required to disclose the confidential   pseudonym form to the defendant in the case or to the defendant's   attorney.           (d)  A [ (c)   If a victim completes a pseudonym form and   returns the form to a law enforcement agency under Article   58.102(a), the ] law enforcement agency receiving the f [Text truncated for display. 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