BILL ANALYSIS



C.S.H.B. 126
By: Danburg
3-13-95
Committee Report (Substituted)


BACKGROUND

Currently, Chapter 15, Code of Criminal Procedure, does not
regulate the use of polygraph examinations on victims charging
defendants with certain sexual offenses.  The instrument cannot
detect deception by itself; rather, the results of the test depend
heavily on the interaction between the examiner and the person
undergoing the test.  The examiner must infer deception or
truthfulness by the subject's physiological responses to various
questions.  Correct guilty detections range from 17 to 100 percent. 
For greater accuracy, the voluntary cooperation of the individual
is recommended.

PURPOSE

If enacted, H.B. 126 would prohibit peace officers from requiring
submission to a polygraph examination for persons charging certain
sexual assault offenses.  In addition, H.B. 126 would require
attorneys representing the state and requesting submission to
polygraph exams to provide certain information to the complainant
regarding the voluntary nature of submission to a polygraph exam.

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.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 15, Code of Criminal Procedure (ARREST
UNDER WARRANT), by adding Article 15.051, as follows:

     Art. 15.051.  POLYGRAPH EXAMINATION OF COMPLAINANT PROHIBITED.

     (a) Prohibits a peace officer from requiring a polygraph
     examination of a person who charges or seeks to charge in a
     complaint certain offenses, including indecency with a child,
     sexual assault, aggravated sexual assault, and prohibited
     sexual conduct (Sections 21.11, 22.011, 22.021, and 25.02,
     Penal Code).

     (b) Requires an attorney representing the state, if requesting
     a polygraph exam of a person who charges or seeks to charge in
     a complaint the commission of an offense listed in Subsection
     (a), to inform the complainant that the exam is not required
     and that a complaint may not be dismissed solely:

           (1) because the complainant did not take the polygraph
           exam; or

           (2) on the basis of the results of a polygraph exam
           taken by the complainant.

     (c) Prohibits an attorney representing the state to take a
     polygraph exam of a person charging an offense listed in
     Subsection (a) unless the attorney provides the information in
     Subsection (b) to the person and the person signs a statement
     indicating an understanding of the information.

     (d) Prohibits a complaint from being dismissed solely:

           (1) because a complainant did not take a polygraph exam;
           or

           (2) on the basis of the results of a polygraph exam
           taken by the complainant.

SECTION 2.  Effective date:  September 1, 1995.

SECTION 3.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

As introduced, H.B. 126 would prohibit both peace officers and
attorneys for the state from requiring submission to a polygraph
examination for persons charging certain sexual assault offenses. 
The committee substitute still prohibits peace officers from
administering polygraph exams, but allows attorneys for the state
to request, but not require, complainants to take a polygraph exam. 
The attorney for the state must inform the complainant that the
exam is not required and that a complaint may not be dismissed: 
(1) because a complainant did not take the polygraph exam or (2) on
the basis of the results of the polygraph exam.  The complainant
must sign a statement indicating an understanding of the
information regarding the voluntary nature of submitting to the
exam and the fact that the case cannot be dismissed because of
certain circumstances surrounding the polygraph.

SUMMARY OF COMMITTEE ACTION

H.B. 126 was considered in a public hearing on March 13, 1995.  At
that meeting a complete committee substitute was offered by Rep.
Greenberg.  

The Chair recognized a minor to testify in favor of the bill.  The
rules had been suspended on the house floor on March 13, 1995 to
allow the minor to testify without revealing the minor's identity
or submitting a witness affidavit form.  The rules also were
suspended to allow the committee to exclude the name of the witness
or other identifying information from the minutes, from other
records, and the committee report on H.B. 126. 

The following persons testified in favor of the bill:

     Mark Clark, representing the Combined Law Enforcement
     Associations of Texas (CLEAT);
     Sandra Canfield, representing herself; and
     Lacey Sloan, representing the Texas Association Against Sexual
     Assault.

The following persons testified on the bill:

     Sheriff Dan Smith, representing the Sheriff's Association
     Legislative Committee;
     Bryan M. Perot, representing the State of Texas Polygraph
     Examiners Board; and
     Michael C. Gougler, representing the Texas Department of
     Public Safety.

The following persons testified against the bill:

     Gordon W. Moore, representing the Texas Association of Law
     Enforcement Polygraph Investigators;
     Ernie Hulsey, representing the Texas Association of Polygraph
     Examiners; and
     Charles Johnson, representing the Texas Police Chiefs
     Association.

The following person testified against the bill but in favor of the
substitute:

     Sgt. Julie T. O'Brien, representing herself.

On March 13, 1995 the substitute for H.B. 126 was adopted.  H.B.
126 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.