89R4215 AJZ-F

By: Hull H.B. No. 1686

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 form or a copy of the form shall:

(1) remove the victim's name and substitute the pseudonym for the name on all reports, files, and records in the agency's possession; and

(2) [notify the attorney representing the state of the pseudonym and that the victim has elected to be designated by the pseudonym; and

[(3)] maintain the form in a manner that protects the confidentiality of the information contained on the form.

(e) An office of the attorney representing the state receiving the form or a copy of the form shall:

(1) remove the victim's name and substitute the pseudonym for the name on all reports, files, and records in the office's possession;

(2) maintain the form in a manner that protects the confidentiality of the information contained on the form; and

(3) [(d) An attorney representing the state who receives notice that a victim has elected to be designated by a pseudonym shall] ensure that the victim is designated by the pseudonym in all legal proceedings concerning the offense.

SECTION 10. Chapter 21, Government Code, is amended by adding Section 21.014 to read as follows:

Sec. 21.014. ELECTRONIC TRANSMISSION OF COURT PROCEEDINGS IN CERTAIN CASES PROHIBITED. (a) This section applies to the following:

(1) criminal or civil court proceedings relating to an offense under:

(A) Section 21.02, 21.11, 21.15, 22.011, 22.012, or 22.021, Penal Code;

(B) Section 20A.02(a)(3), (4), (7), or (8), Penal Code; or

(C) Section 20A.03, Penal Code, if the offense is based partly or wholly on conduct that constitutes an offense described by Paragraph (B); and

(2) court proceedings relating to:

(A) a protective order under Chapter 7B, Code of Criminal Procedure;

(B) a magistrate's order for emergency protection issued under Article 17.292, Code of Criminal Procedure;

(C) a protective order issued under Section 6.504, Family Code; or

(D) a protective order issued under Chapter 85, Family Code.

(b) A court may not allow the electronic transmission or broadcasting of court proceedings described by Subsection (a) in which evidence or testimony is offered that depicts or describes acts of a sexual nature unless the court provides notice to and receives express consent for the transmission or broadcasting from:

(1) the victim or the parent, conservator, or guardian of the victim, as applicable;

(2) the attorney representing the state; and

(3) the defendant.

SECTION 11. Subchapter C, Chapter 552, Government Code, is amended by adding Section 552.1082 to read as follows:

Sec. 552.1082. EXCEPTION: CERTAIN ELECTRONIC INFORMATION HELD BY PROSECUTOR, LAW ENFORCEMENT AGENCY, OR CORRECTIONS AGENCY. (a) Information held by a prosecutor, law enforcement agency, or corrections agency is excepted from the requirements of Section 552.021 if the information:

(1) was obtained, or is a copy of information obtained, from:

(A) an electronic communication device;

(B) a computer, tablet, or other similar device; or

(C) a disk, flash drive, or other electronic storage device;

(2) was obtained by any prosecutor, law enforcement agency, or corrections agency:

(A) during the course of the detection, investigation, or prosecution of an offense under:

(i) Section 21.02, 21.11, 21.15, 22.011, 22.012, or 22.021, Penal Code;

(ii) Section 20A.02(a)(3), (4), (7), or (8), Penal Code; or

(iii) Section 20A.03, Penal Code, if the offense is based partly or wholly on conduct that constitutes an offense described by Subparagraph (ii); and

(B) in a manner related to the detection, investigation, or prosecution of a crime described by Paragraph (A); and

(3) was not written or produced by a prosecutor, law enforcement agency, or corrections agency.

(b) Subject to Subsection (c), a governmental body may redact information described by Subsection (a) from any information the governmental body discloses under Section 552.021 without the necessity of requesting a decision from the attorney general under Subchapter G.

(c) A governmental body that redacts or withholds information under Subsection (b) shall provide a written notice to the requestor:

(1) stating that information is being withheld from the requestor as provided by this section;

(2) identifying the device described by Subsection (a)(1) from which the information was obtained; and

(3) including, if known, the name of the person who owned or possessed the device from which the information was obtained at the time the device was obtained by a prosecutor, law enforcement agency, or corrections agency.

SECTION 12. (a) Articles 38.435, 38.451, 39.14, and 39.151, Code of Criminal Procedure, as amended by this Act, and Articles 39.152 and 39.153, Code of Criminal Procedure, and Section 21.014, Government Code, as added by this Act, apply only to a court hearing or proceeding that commences on or after the effective date of this Act. A court hearing or proceeding that commences before the effective date of this Act is governed by the law in effect on the date the hearing or proceeding commenced, and the former law is continued in effect for that purpose.

(b) Section 552.1082, Government Code, as added by this Act, applies only to a request for public information received by a governmental body on or after the effective date of this Act.

SECTION 13. This Act takes effect September 1, 2025.