By Combs H.B. No. 1902
74R6670 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to providing notice and permitting participation in the
1-3 criminal justice process by victims and others adversely affected
1-4 by certain criminal conduct.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. (a) Chapter 36, Code of Criminal Procedure, is
1-7 amended by adding Article 36.03 to read as follows:
1-8 Art. 36.03. EXCLUSION OF WITNESS. (a) A court on its own
1-9 motion or on the request of a party may exclude a witness so that
1-10 the witness cannot hear the testimony of another witness.
1-11 (b) This article does not authorize exclusion of:
1-12 (1) a party who is a natural person;
1-13 (2) an officer or employee of a defendant that is not
1-14 a natural person, if the officer or employee is designated as the
1-15 representative of the defendant by the defendant's attorney;
1-16 (3) a person whose presence is shown by a party to be
1-17 essential to the presentation of the party's cause; or
1-18 (4) the victim, a guardian of a victim, a close
1-19 relative of a deceased victim, unless:
1-20 (A) the victim, guardian, or close relative is
1-21 to testify; and
1-22 (B) the court determines that the testimony of
1-23 the victim, guardian, or close relative would be materially
1-24 affected if that person were to hear the testimony of another
2-1 witness.
2-2 (c) If under Subsection (b)(4) the judge grants a motion to
2-3 exclude a witness or excludes a witness on the judge's own motion,
2-4 the judge must enter a written order. The order must include the
2-5 judge's reasons for excluding the witness.
2-6 (d) In this article, "victim," "guardian of a victim," and
2-7 "close relative of a deceased victim" have the meanings assigned by
2-8 Article 56.01.
2-9 (b) Under the terms of Section 22.109(b), Government Code,
2-10 Rule 613, Texas Rules of Criminal Evidence, is disapproved.
2-11 SECTION 2. Article 42.037(a), Code of Criminal Procedure, is
2-12 amended to read as follows:
2-13 (a) In addition to <or, in the case of a misdemeanor, in
2-14 lieu of> any fine authorized by law, the court that sentences a
2-15 defendant convicted of an offense may order the defendant to make
2-16 restitution to any victim of the offense. Restitution is remedial
2-17 in nature, designed to make the victim whole, and not intended as
2-18 punishment. If the court does not order restitution or orders
2-19 partial restitution under this subsection, the court shall state on
2-20 the record the reasons for not making the order or for the limited
2-21 order.
2-22 SECTION 3. Article 56.01, Code of Criminal Procedure, is
2-23 amended to read as follows:
2-24 Art. 56.01. DEFINITIONS. In this chapter:
2-25 (1) "Close relative of a deceased victim" means a
2-26 person who was the spouse of a deceased victim at the time of the
2-27 victim's death or who is a parent or adult brother, sister, or
3-1 child of the deceased victim.
3-2 (2) "Guardian of a victim" means a person who is the
3-3 legal guardian of the victim, whether or not the legal relationship
3-4 between the guardian and victim exists because of the age of the
3-5 victim or the physical or mental incompetency of the victim.
3-6 (3) "Secondary victim" means a person other than a
3-7 victim, guardian of a victim, or close relative of a deceased
3-8 victim who receives services as a result of a reaction to or need
3-9 arising from a crime directed against a family member, friend, or
3-10 loved one.
3-11 (4) "Victim" means a person who is the victim of
3-12 sexual assault, kidnapping, or aggravated robbery or who has
3-13 suffered bodily injury or death as a result of the criminal conduct
3-14 of another.
3-15 SECTION 4. Subsections (a) and (b), Article 56.02, Code of
3-16 Criminal Procedure, are amended to read as follows:
3-17 (a) A victim, secondary victim, guardian of a victim, or
3-18 close relative of a deceased victim is entitled to the following
3-19 rights within the criminal justice system:
3-20 (1) the right to receive from law enforcement agencies
3-21 adequate protection from harm and threats of harm arising from
3-22 cooperation with prosecution efforts;
3-23 (2) the right to have the magistrate take the safety
3-24 of the victim or his family into consideration as an element in
3-25 fixing the amount of bail for the accused;
3-26 (3) the right, if requested, to be informed by the
3-27 attorney representing the state or the attorney's designated
4-1 representative of:
4-2 (A) relevant court proceedings, including
4-3 appellate proceedings, and to be informed if those <court>
4-4 proceedings have been canceled or rescheduled prior to the event;
4-5 and
4-6 (B) any decision in a court proceeding,
4-7 immediately after the decision is filed and entered;
4-8 (4) the right to be informed, when requested, by a
4-9 peace officer concerning the defendant's right to bail and the
4-10 procedures in criminal investigations and by the district
4-11 attorney's office concerning the general procedures in the criminal
4-12 justice system, including general procedures in guilty plea
4-13 negotiations and arrangements, restitution, and the appeals and
4-14 parole process;
4-15 (5) the right to provide pertinent information to a
4-16 probation department conducting a presentencing investigation
4-17 concerning the impact of the offense on the victim and his family
4-18 by testimony, written statement, or any other manner prior to any
4-19 sentencing of the offender;
4-20 (6) the right to receive information regarding
4-21 compensation to victims of crime as provided by Subchapter B of
4-22 this chapter <the Crime Victims Compensation Act (Article 8309-1,
4-23 Vernon's Texas Civil Statutes)>, including information related to
4-24 the costs that may be compensated under that subchapter <Act> and
4-25 the amount of compensation, eligibility for compensation, and
4-26 procedures for application for compensation under that subchapter
4-27 <Act>, the payment for a medical examination under Article 56.06 of
5-1 this code for a victim of a sexual assault, and when requested, to
5-2 referral to available social service agencies that may offer
5-3 additional assistance;
5-4 (7) the right to be informed, upon request, of parole
5-5 procedures, to participate in the parole process, to be notified,
5-6 if requested, of parole proceedings concerning a defendant in the
5-7 victim's case, to provide to the Board of Pardons and Paroles for
5-8 inclusion in the defendant's file information to be considered by
5-9 the board prior to the parole of any defendant convicted of any
5-10 crime subject to this Act, and to be notified, if requested, of the
5-11 defendant's release;
5-12 (8) the right to be provided with a waiting area,
5-13 separate or secure from other witnesses, including the offender and
5-14 relatives of the offender, before testifying in any proceeding
5-15 concerning the offender; if a separate waiting area is not
5-16 available, other safeguards should be taken to minimize the
5-17 victim's contact with the offender and the offender's relatives and
5-18 witnesses, before and during court proceedings;
5-19 (9) the right to prompt return of any property of the
5-20 victim that is held by a law enforcement agency or the attorney for
5-21 the state as evidence when the property is no longer required for
5-22 that purpose;
5-23 (10) the right to have the attorney for the state
5-24 notify the employer of the victim, if requested, of the necessity
5-25 of the victim's cooperation and testimony in a proceeding that may
5-26 necessitate the absence of the victim from work for good cause;
5-27 <and>
6-1 (11) the right to counseling, on request, regarding
6-2 acquired immune deficiency syndrome (AIDS) and human
6-3 immunodeficiency virus (HIV) infection and testing for acquired
6-4 immune deficiency syndrome (AIDS), human immunodeficiency virus
6-5 (HIV) infection, antibodies to HIV, or infection with any other
6-6 probable causative agent of AIDS, if the offense is an offense
6-7 under Section 21.11(a)(1), 22.011, or 22.021, Penal Code;
6-8 (12) the right to request victim-offender mediation
6-9 coordinated by the Texas Department of Criminal Justice;
6-10 (13) the right:
6-11 (A) except as provided by Article 36.03 of this
6-12 code, to be present at all public court proceedings related to the
6-13 offense; or
6-14 (B) if excluded by the judge under Article 36.03
6-15 of this code, to receive from the judge signed copies of the
6-16 exclusion order and the reasons cited by the judge in granting the
6-17 motion to exclude;
6-18 (14) the right to be informed of the uses of a victim
6-19 impact statement and the statement's purpose in the criminal
6-20 justice system, to complete the victim impact statement, and to
6-21 have the victim impact statement considered:
6-22 (A) by the attorney representing the state and
6-23 the judge before sentencing or before a plea bargain agreement is
6-24 accepted; and
6-25 (B) by the Board of Pardons and Paroles before
6-26 an inmate is released on parole; and
6-27 (15) the right to restitution, as guaranteed by
7-1 Section 30, Article I, Texas Constitution.
7-2 (b) The Office of Court Administration for the Texas
7-3 Judicial System shall adopt rules establishing the form and content
7-4 of notices and information required to be provided under
7-5 Subsections (a)(3) and (a)(13) of this section. <A victim is
7-6 entitled to the right to be present at all public court proceedings
7-7 related to the offense, subject to the approval of the judge in the
7-8 case.>
7-9 SECTION 5. This Act takes effect September 1, 1995.
7-10 SECTION 6. The importance of this legislation and the
7-11 crowded condition of the calendars in both houses create an
7-12 emergency and an imperative public necessity that the
7-13 constitutional rule requiring bills to be read on three several
7-14 days in each house be suspended, and this rule is hereby suspended.