AEZ C.S.S.B. 873 75(R)    BILL ANALYSIS


CRIMINAL JURISPRUDENCE
C.S.S.B. 873
By: Shapiro (Allen)
5-20-97
Committee Report (Substituted)


BACKGROUND 

Currently, the statute allowing closed circuit testimony for children
limits its use by restricting testimony to a child under the age of 12 who
is the victim of one of several enumerated offenses, including child abuse
and child sex abuse crimes.  This legislation would allow the trial court
to determine when it is appropriate for a child to testify by closed
circuit equipment, based on the court's finding that a child is
unavailable to testify in the courtroom, and would apply only to the
statements or testimony of a child in a court proceeding, or to a court
proceeding in which a child is a witness.  

PURPOSE

As proposed, C.S.S.B. 873 establishes the manner in which the testimony of
a child who is the victim of, or witness to, an alleged offense may be
taken in certain criminal proceedings.   

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 Article 38.071, Code of Criminal Procedure, as follows:

Provides that this article applies only to a hearing or proceeding in
which a child younger than 13 years of age testifies about an offense and
the court finds that the child is unavailable to testify in the presence
of the defendant.  Deletes  existing provisions  making this article apply
to a proceeding in the prosecution of certain offenses committed by a
child 12 years of age or younger if the trial court finds that the child
is unavailable to testify. 

SECTION 2.

Amends Section 2(c), Article 38.071, Code of Criminal Procedure, to
provide that a recording made under Subsection (a) is not admissible into
evidence unless a recording made under Subsection (b) is admitted at the
same time, if a recording was requested prior to the time of the hearing
or proceeding, rather than prior to time of trial. 

SECTION 3.

Amends Section 3(a), Article 38.071, Code of Criminal Procedure to set
forth the terms by which the court is authorized to order that the
testimony of the child be taken in certain rooms and televised by closed
circuit equipment, rather than being taken during the trial under the same
circumstances. 

SECTION 4. 

Makes conforming changes.


 

SECTION 5.

Amends Sections 5(a) and (b), Article 38.071, Code of Criminal Procedure,
to set forth the terms by which the recording of an oral statement of the
child made before a complaint has been filed or an indictment returned is
admissible into evidence if the person conducting the interview of the
child in the recording is called by the state, rather than called by the
state as part of the state's case in chief to testify at trial; and the
attorney representing the state notified the attorney representing the
defendant of the existence of the recording, rather than notifying the
same that the recording may be used at the trial of the offense.  Makes
conforming changes. 

SECTION 6.

Amends Section 8(a), Article 38.071, Code of Criminal Procedure, by
deleting the requirement  that the court, in making a determination of
unavailability, consider  the ordinary involvement as complainant in the
courtroom.  Makes conforming changes. 

SECTION 7.

Amends Section 9, Article 38.071, Code of Criminal Procedure by making
conforming changes. 

SECTION 8.

Amends Section 10, Article 38.071, Code of Criminal Procedure, to require
the court, in ordering a child to testify, to take reasonable steps
necessary to minimize psychological trauma to the child caused by factors
such as the ordinary participation of the witness, rather than
complainant, in the courtroom. 

SECTION 9.

Effective date:  September 1, 1997.

SECTION 10.

 Emergency Clause.


COMPARISON OF ORIGINAL TO SUBSTITUTE

The original bill amended the hearing for Article 38.071, the substitute
does not.  The original applied to the testimony of a child 12 years of
younger, the substitute applies to a child younger than 13 years of age.
The original bill required the court to consider certain relevant factors
in making a determination of unavailability and deleted existing text
regarding the recording of an oral statement of a child.  The substitute
does not.  The substitute sets forth the terms by which the court is
authorized to order that the testimony of the child be taken in certain
rooms and televised by closed circuit equipment, rather than being taken
during the trial under the same circumstances.  The original bill deleted
language regarding the persons necessary to operate the equipment and the
court's responsibility to ensure that the child cannot hear or see the
defendant.  The original bill deleted former Sections 4-6, and 8-13.  The
substitute does not.