BILL ANALYSIS



C.S.H.B. 35
By: Greenberg
3-20-95
Committee Report (Substituted)


BACKGROUND

Victims of domestic violence are often the only witnesses to the
violence.  Because of this, when a victim chooses not to testify in
a criminal proceeding, he or she may unintentionally weaken the
case against the perpetrator, and the case may be dismissed due to
lack of evidence.  Some believe that victims of domestic violence
are in relationships with unequal power structures and if given a
choice of whether or not to testify, the victim may be coerced by
the abuser into not testifying against the abuser.

Prosecutors are given little training in handling family violence
cases.  Many prosecutors do not know what is within their rights to
ask potential witnesses in settling these cases.  If additional
training were required, prosecutors would perhaps be able to
resolve family violence cases more efficiently and effectively.

PURPOSE

If enacted, C.S.H.B. 35 would remove a person's privilege not to be
called as a witness for the state against the person's spouse. 
This applies to cases in which the crime is against the person, a
minor child, or member of the household of either spouse.  C.S.H.B.
35 would also provide warnings on summons regarding coercing a
witness to testify falsely or withhold testimony; and would mandate
training for prosecutors in handling family violence cases.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill delegates rulemaking
authority to the Court of Criminal Appeals under SECTION 4 and
SECTION 6.   

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 38, Code of Criminal Procedure (EVIDENCE
IN CRIMINAL ACTIONS), by adding Article 38.10 as follows:

     Art. 38.10.  EXCEPTIONS TO THE SPOUSAL ADVERSE TESTIMONY
     PRIVILEGE.
     Provides that the privilege of a person's spouse not to be
     called as a witness for the state does not apply in any
     proceeding in which the person is charged with a crime against
     the spouse, a minor child, or member of the household of
     either spouse.

SECTION 2.  Amends Article 23.03, Code of Criminal Procedure
(Capias or Summons in Felony), by adding Subsection (d) as follows:

     (d) requires a summons issued to any person to state that it
     is a felony for a person to influence or coerce a witness
     intentionally to testify falsely or to harm or threaten a
     witness because of testimony that the witness might give.

SECTION 3.  Amends Section 23.101(a), Government Code (Primary
Priorities), by giving preference in the court's setting hearings
and trials to criminal actions involving a charge of family
violence, as defined by Section 71.01, Family Code.

SECTION 4.  Amends Subchapter B, Chapter 41, Government Code (STAFF
OF PROSECUTING ATTORNEY), by adding Section 41.110 as follows:

     Sec. 41.110.  TRAINING RELATED TO FAMILY VIOLENCE.  Requires
     the Court of Criminal Appeals to adopt rules regarding the
     training of prosecutors relating to cases involving a charge
     of family violence.

SECTION 5.  Disapproves Rule 504(2)(b)(1), Texas Rules of Criminal
Evidence (Privilege not to be called as a witness against spouse).

SECTION 6.  Requires the Court of Criminal Appeals to adopt the
rules required by Section 41.110, Government Code, as added by this
Act, no later than January 1, 1996.

SECTION 7.  Effective date:  September 1, 1995.

SECTION 8.  Emergency clause.

COMPARISON OF SUBSTITUTE TO ORIGINAL

SECTION 2 amends Article 23.03, Code of Criminal Procedure, by
adding Subsection (d) as follows:  requires a summons issued to any
person for a felony to include a statement regarding the nature of
an offense to influence or coerce a witness to testify falsely or
withhold testimony or to harm or threaten to harm a witness or
potential witness because of testimony given in a family violence
case.

SECTION 3 amends Section 23.101(a), Government Code, by giving
preference in the court's setting hearings and trials to criminal
actions involving a charge of family violence, as defined by
Section 71.01, Family Code.

SECTION 4 amends Subchapter B, Chapter 41, Government Code (STAFF
OF PROSECUTING ATTORNEY), by adding Section 41.110 as follows: 
TRAINING RELATED TO FAMILY VIOLENCE.  Requires the Court of
Criminal Appeals to adopt rules regarding the training of
prosecutors relating to cases involving a charge of family
violence.

SECTION 6 requires the Court of Criminal Appeals to adopt the rules
required by Section 41.110, Government Code, as added by this Act,
no later than January 1, 1996.

SUMMARY OF COMMITTEE ACTION

On February 27, 1995, H.B. 35 was considered in a public hearing. 
The following persons testified in favor of the bill: 
     
     Cindy Merrill, Assistant Harris County Prosecutor,
     representing herself;
     Debbie S. Holmes, representing herself;
     Lt. John Silva, Houston Police Dept, representing the City of
     Houston, Mayor Bob Lanier, and Police Chief Sam Nuchia;
     Alyson K. Minter, representing the Travis County Attorney's
     Office;
     Hannah Riddering, representing the Texas National Organization
     for Women;  and
     Shannon Noble, representing the Texas Women's Political
     Caucus.
 
The following persons testified on the bill:

     Deborah D. Tucker, representing the Texas Council on Family
     Violence.
     Vicki Isaacks, representing John Vance, Criminal District
     Attorney, Dallas County;

The following persons testified against the bill:

     Keith Hampton, representing the Texas Criminal Defense Lawyers
     Association;
     Laurie Blackburn, representing herself; 
     Jeanette Kinard, representing herself; and
     Lisa DeLong, representing herself.

H.B. 35 was left pending in committee.  On March 20, 1995, H.B. 35
was considered in a public hearing.  At that hearing a complete
committee substitute was offered by Rep. Greenberg.  The substitute
for H.B. 35 was adopted.  H.B. 35 was reported favorably, as
substituted, with the recommendation that it do pass and be
printed, by a record vote of 9 ayes, 0 nays, 0 pnv, and 0 absent.