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.