By Danburg H.B. No. 1950 74R3356 DLF-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to evidence of certain sexual conduct in civil or criminal 1-3 proceedings. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 18, Civil Practice and Remedies Code, is 1-6 amended by adding Subchapter D to read as follows: 1-7 SUBCHAPTER D. EVIDENCE OF CERTAIN SEXUAL CONDUCT 1-8 Sec. 18.081. CERTAIN EVIDENCE OF SEXUAL CONDUCT 1-9 INADMISSIBLE. Except as provided by Section 18.082, in any action 1-10 to recover damages resulting from sexual misconduct, the following 1-11 evidence is inadmissible: 1-12 (1) evidence offered to prove or relevant only to 1-13 whether the alleged victim of the sexual misconduct engaged in 1-14 other sexual conduct; and 1-15 (2) evidence offered to prove or relevant only to 1-16 whether the alleged victim of the sexual misconduct has a 1-17 predisposition for a specified sexual behavior. 1-18 Sec. 18.082. EXCEPTION. (a) Evidence that is inadmissible 1-19 under Section 18.081 is admissible if: 1-20 (1) the evidence is otherwise admissible under the 1-21 Texas Rules of Civil Evidence; and 1-22 (2) the court finds that the probative value of the 1-23 evidence substantially outweighs the danger of: 1-24 (A) harm to the alleged victim; or 2-1 (B) unfair prejudice to any party. 2-2 (b) If the evidence to be admitted under Subsection (a) 2-3 relates to the reputation of the alleged victim, the evidence is 2-4 admissible only if the alleged victim's reputation has been placed 2-5 in controversy by the alleged victim or by a party seeking to 2-6 recover damages arising from an injury to the alleged victim. 2-7 Sec. 18.083. MOTION FOR ADMISSION OF EVIDENCE. (a) 2-8 Evidence may be admitted under Section 18.082 only on motion of the 2-9 party offering the evidence. 2-10 (b) A motion under this section must be made not later than 2-11 the 14th day before the date set for trial, unless the court, for 2-12 good cause shown, orders that the motion be filed at a different 2-13 time. 2-14 (c) The motion must describe the evidence to be offered and 2-15 state the purpose for which the evidence is to be offered. 2-16 (d) The moving party shall serve the motion on all parties 2-17 to the action, and if the alleged victim is not a party to the 2-18 action, on the alleged victim. If a guardian has been appointed 2-19 for the alleged victim, the moving party shall serve the guardian. 2-20 Sec. 18.084. HEARING. (a) A court may not order admission 2-21 of evidence excluded under Section 18.081 except after a hearing. 2-22 (b) A court shall hold a hearing under this section in 2-23 camera and all parties and the alleged victim shall be offered an 2-24 opportunity to be heard. 2-25 (c) Except as ordered by the court, the motion, any related 2-26 documents, and any record of the in camera hearing shall be sealed 2-27 and remain under seal. 3-1 Sec. 18.085. CONFLICT WITH TEXAS RULES OF CIVIL EVIDENCE. 3-2 Notwithstanding Section 22.004, Government Code, this subchapter 3-3 may not be modified or repealed by a rule adopted by the supreme 3-4 court. 3-5 SECTION 2. Chapter 38, Code of Criminal Procedure, is 3-6 amended by adding Article 38.075 to read as follows: 3-7 Art. 38.075. CERTAIN EVIDENCE OF SEXUAL CONDUCT 3-8 INADMISSIBLE. (a) Except as provided by Subsection (b), in a 3-9 prosecution for a sexual offense, the following evidence is 3-10 inadmissible: 3-11 (1) evidence offered to prove or relevant only to 3-12 whether the alleged victim engaged in other sexual conduct; and 3-13 (2) evidence offered to prove or relevant only to 3-14 whether the alleged victim has a predisposition for a specified 3-15 sexual behavior. 3-16 (b) Evidence that is inadmissible under Subsection (a) is 3-17 admissible if: 3-18 (1) the evidence is otherwise admissible under the 3-19 Texas Rules of Criminal Evidence; and 3-20 (2) the evidence relates to: 3-21 (A) specific instances of sexual behavior of the 3-22 alleged victim offered to provide that a person other than the 3-23 accused was the source of: 3-24 (i) an injury to the victim alleged to 3-25 have occurred during the commission of the offense; or 3-26 (ii) semen or other physical evidence; 3-27 (B) specific instances of sexual behavior of the 4-1 alleged victim with respect to the person accused offered by the 4-2 prosecution or offered to prove consent by the alleged victim; or 4-3 (C) any other evidence the exclusion of which 4-4 would result in a violation of a right of the accused protected by 4-5 the United States Constitution or the Texas Constitution. 4-6 (c) If the evidence to be admitted under Subsection (b) 4-7 relates to the reputation of the alleged victim, the evidence is 4-8 admissible only if the alleged victim's reputation has been placed 4-9 in controversy by the alleged victim or by the prosecution. 4-10 (d) Evidence may be admitted under this article only on 4-11 motion of the party offering the evidence. 4-12 (e) A motion under this article must be made not later than 4-13 the 14th day before the date set for trial, unless the court, for 4-14 good cause shown, orders that the motion be filed at a different 4-15 time. 4-16 (f) The motion must describe the evidence to be offered and 4-17 state the purpose for which the evidence is to be offered. 4-18 (g) The moving party shall serve the motion on all parties 4-19 to the action and on the alleged victim. If a guardian has been 4-20 appointed for the alleged victim, the moving party shall serve the 4-21 guardian. 4-22 (h) A court may not order admission of evidence excluded 4-23 under Subsection (a) of this article except after a hearing. 4-24 (i) A court shall hold a hearing under this section in 4-25 camera and all parties and the alleged victim shall be offered an 4-26 opportunity to be heard. 4-27 (j) Except as ordered by the court, the motion, any related 5-1 documents, and any record of the in camera hearing shall be sealed 5-2 and remain under seal. 5-3 (k) In this article, "sexual offense" includes: 5-4 (1) aggravated sexual assault; 5-5 (2) sexual assault; or 5-6 (3) indecency with a child. 5-7 SECTION 3. Under the terms of Section 22.109(b), Government 5-8 Code, Rule 412, Texas Rules of Criminal Evidence, is disapproved. 5-9 SECTION 4. (a) This Act takes effect September 1, 1995. 5-10 (b) Section 1 of this Act applies only to the trial of an 5-11 action that begins on or after the effective date of this Act. 5-12 (c) Section 2 of this Act applies only to a criminal 5-13 proceeding that begins on or after the effective date of this Act. 5-14 (d) A trial or criminal proceeding that began before the 5-15 effective date of this Act is governed by the law as it existed 5-16 immediately before the effective date of this Act, and that law is 5-17 continued in effect for that purpose. 5-18 SECTION 5. The importance of this legislation and the 5-19 crowded condition of the calendars in both houses create an 5-20 emergency and an imperative public necessity that the 5-21 constitutional rule requiring bills to be read on three several 5-22 days in each house be suspended, and this rule is hereby suspended.