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.