BILL ANALYSIS

C.S.H.B. 5277

By: Bucy

Criminal Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

In Texas, court proceedings are supposed to be publicly accessible. Access to public hearings is meant to ensure equal treatment for defendants and promote legal transparency. Sometimes witnessing these hearings is the only way to ensure that a defendant's due process rights are respected. Some counties in Texas have not been providing public access to bail hearings. Additionally, it may be difficult for individuals interested in observing public hearings to find the necessary information to observe these hearings. C.S.H.B 5277 seeks to address these issues by requiring magistrate court proceedings to occur in a way that is publicly accessible and requires live streaming or videoconference when personal attendance is not possible. The legislation also requires certain information regarding the proceedings to be published on the court's website or at the location where the proceeding will be held.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 5277 amends the Code of Criminal Procedure to specify that the proceedings and trials in all courts that must be public include a proceeding in front of a magistrate following an arrest. The bill requires a court for each such proceeding conducted before a magistrate, to publish as soon as practicable before the proceeding the following information on its website or at the location where the proceeding will be held:

· the manner in which the public may inquire about a specific arrested person or proceeding;

· the time, if known, and location of the proceeding; and

· the manner in which the public may access the proceeding, including the website link for the live stream or videoconference, if applicable.

The bill requires a court that as of January 1, 2024, does not have the physical capability to provide in-person public access to such a proceeding to provide public access by live stream or videoconference. The live stream or videoconference must allow members of the public to clearly see and hear the proceeding.

C.S.H.B. 5277 prohibits its provisions from being construed as prohibiting a judge from placing reasonable limits on in-person access to the court for safety or to prevent overcrowding.

C.S.H.B. 5277 authorizes any person, including a member of the media, or the attorney general to file a petition for a writ of mandamus or apply for other appropriate equitable relief to enforce the right of the public to access a proceeding in accordance with the bill's provisions. The bill requires the petition or application to be filed in a district court in the county in which the court conducting the applicable proceeding is located or, if filed by the attorney general, a district court in Travis County.

C.S.H.B. 5277 applies only to a criminal proceeding that commences on or after January 1, 2024.

EFFECTIVE DATE

September 1, 2023.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 5277 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

Whereas the introduced made its provisions applicable with respect to each criminal proceeding in Texas, the substitute makes its provisions applicable to each proceeding conducted before a magistrate following an arrest. While both the introduced and the substitute require an applicable court to publish certain information regarding a proceeding conducted before a magistrate on the court's website, the substitute includes the location where the proceeding will be held as an alternative permissible location for publishing the information, whereas the introduced did not include any such alternative.

The substitute revises the information in the introduced required to be published by the court as follows:

· whereas the introduced required a defendant's name to be published, the substitute requires the court to publish the manner in which the public may inquire about a specific arrested person or proceeding;

· while both the introduced and substitute require the manner in which the public may access the proceeding to be published, the substitute specifies that this includes publishing the website link for the live stream or videoconference, if applicable, whereas the introduced specified that it includes through videoconference technology for a proceeding that is closed under its provisions or for a proceeding in a court that does not have the physical capacity to provide sufficient in-person public access to a proceeding;

· the substitute includes a specification absent from the introduced that the requirement to publish the time of the proceeding applies if the time is known; and

· whereas the introduced included the purpose of the proceeding in the information required to be posted, the substitute did not.

The substitute omits provisions included in the introduced that authorize a court to order a proceeding to be closed  to some or all of the public, on motion of a party to the proceeding if the court determines the following:

· there exists a reasonable and substantial basis for believing that public access to the proceeding could harm or prejudice the party;

· the evidence supporting the closure is specific to the proceeding; and

· the harm or prejudice can be remedied only by excluding some or all of the public from the proceeding.

The substitute omits provisions included in the introduced that authorized such an order to close the proceeding only to the extent necessary to remedy the harm or prejudice and required a court that orders a proceeding to be closed to issue written findings of fact and conclusions of law stating that the evidence of potential harm or prejudice to a party clearly outweighs the public interest in the proceeding being open to the public as otherwise required under its provisions.

Whereas the introduced required a court that as of January 1, 2024, does not have the physical capacity to provide sufficient in-person public access to a proceeding to provide public access by videoconference technology, the substitute requires a court that does not have the physical capability as of that date to provide in-person public access to a proceeding before a magistrate to provide that access by live stream or videoconference. Additionally, while the introduced required the technology to include communication access realtime translation captioning and to allow members of the public to discern the demeanor of the judge, the defendant, and any other participant in the proceeding, the substitute requires the live stream or videoconference to allow members of the public to clearly see and hear the proceeding and does not include a requirement regarding translation captioning.

While both the introduced and substitute prohibit the bill's provisions from being construed as prohibiting a judge from placing reasonable limits on in-person access to the court to prevent overcrowding, the substitute also includes safety as a purpose for which a judge places such limits under that prohibition, whereas the introduced did not mention safety purposes.

The substitute omits provisions included in the introduced that authorized a district court in which an applicable petition or application is filed for purposes of enforcing the right of the public to access a proceeding to award a plaintiff who substantially prevails in the action court costs and reasonable attorney's fees and that establish the considerations the court must make in doing so.