SRC-CDH C.S.S.B. 873 75(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 873
By: Shapiro
Criminal Justice
4-18-97
Committee Report (Substituted)


DIGEST 

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.  The limitations barring all but
certain sexual and sexually assaultive offenses would be lifted, and the
court would be authorized to allow a child to testify via closed circuit
in all types of cases.  C.S.S.B. 873 would also require a court to
consider certain relevant factors in making a determination of
unavailability, and to hear evidence and make certain specific findings
before authorizing the use of a closed circuit system.  Finally, this bill
deletes existing statutory law regarding the recording of an oral
statement of a child outside of the courtroom for showing in the
courtroom, and the admissibility of those recordings into evidence.     

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

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Article 38.071, Code of Criminal Procedure, as follows:

Art. 38.071.  New heading:  TESTIMONY OF CHILD VICTIM OR WITNESS  

Sec. 1.  Provides that this article applies only to the statements or
testimony of a child 12 years of age or younger in a proceeding in the
prosecution of an offense alleged to have been committed against a child
12 years of age or younger or to a proceeding in the prosecution of an
offense in which a child 12 years of age or younger is a witness, and only
if the trial court finds that the child is unavailable to testify in the
courtroom.  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.  

Sec. 2.  Requires the court, in making a determination of unavailability,
to consider the relationship of the defendant to the child; the character
and duration of the alleged offense; the child's age, maturity, and
emotional stability; the time elapsed since the alleged offense; and
whether the child is more likely than not to be unavailable to testify
because of certain factors.  Provides that a determination of
unavailability can be made after an earlier determination of availability,
and that a determination of availability can be made after an earlier
determination of unavailability.  Deletes existing provisions regarding
the recording of an oral statement of a child.     

 Sec. 3.  Sets forth the terms by which the court, on a finding of good
cause, is authorized to order that the testimony of the child be taken
during the trial in a room other than the courtroom and televised by
closed circuit equipment.  Requires a trial court to hear evidence and
make certain specific findings before authorizing the use of a closed
circuit system to transmit a child's testimony.  Requires the court, if
the closed circuit system used is a oneway system, to permit the defendant
to observe and hear the testimony of the child and to communicate with his
or her attorney during certain periods.  Deletes existing text regarding
confinement of the persons necessary to operate the equipment.  Deletes
the requirement that the court attempt to ensure that the child cannot
hear or see the defendant.  Makes conforming changes.      

Sec. 4.  Deletes existing Sections 4- 6 and 8-13, and redesignates former
Section 7 as Section 4. 

SECTION 2. Effective date:  September 1, 1997.

SECTION 3. Emergency clause. 

SUMMARY OF COMMITTEE CHANGES

SECTION 1.

Amends the heading for Article 38.071, Code of Criminal Procedure.

Amends Section 1 to change the terms by which the testimony of a child who
is the victim of or witness to an alleged offense may be taken in certain
criminal proceedings.   

Amends Section 2 to require the court to consider certain relevant factors
in making a determination of unavailability.  Provides that a
determination of unavailability can be made after an earlier determination
of availability, and a determination of availability can be made after an
earlier determination of unavailability.  Deletes existing text regarding
the recording of an oral statement of a child.   

Amends Section 3 to authorize the court, on a finding of good cause, to
order that a child's testimony be taken during the trial in a room other
than the courtroom and televised by closed circuit equipment in the
courtroom.  Requires a trial court to hear evidence and make certain
specific findings before authorizing the use of a closed circuit system.
Sets forth the procedure to be followed if the system is a one-way system.
Deletes existing text regarding the persons necessary to operate the
equipment and the court's responsibility to ensure that the child cannot
hear or see the defendant.   

Deletes former Sections 4-6 and 8-13, and redesignates former Section 7 as
4.