1-1     By:  Shapiro                                           S.B. No. 873

 1-2           (In the Senate - Filed March 3, 1997; March 5, 1997, read

 1-3     first time and referred to Committee on Criminal Justice;

 1-4     April 22, 1997, reported adversely, with favorable Committee

 1-5     Substitute by the following vote:  Yeas 7, Nays 0; April 22, 1997,

 1-6     sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 873                  By:  Shapiro

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to the manner in which the testimony of a child who is the

1-11     victim of or witness to an alleged offense may be taken in certain

1-12     criminal proceedings.

1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-14           SECTION 1.  Article 38.071, Code of Criminal Procedure, is

1-15     amended to read as follows:

1-16           Art. 38.071.  TESTIMONY OF CHILD [WHO IS] VICTIM OR WITNESS

1-17     [OF OFFENSE]

1-18           Sec. 1.  This article applies only to the statements or

1-19     testimony of a child 12 years of age or younger in a proceeding in

1-20     the prosecution of an offense [defined by any of the following

1-21     sections of the Penal Code if the offense is] alleged to have been

1-22     committed against a child 12 years of age or younger or to a

1-23     proceeding in the prosecution of an offense in which a child 12

1-24     years of age or younger is a witness, and only if the trial court

1-25     finds that the child is unavailable to testify in the courtroom [at

1-26     the trial of the offense, and applies only to the statements or

1-27     testimony of that child:]

1-28                 [(1)  Section 21.11 (Indecency with a Child);]

1-29                 [(2)  Section 22.011 (Sexual Assault);]

1-30                 [(3)  Section 22.02 (Aggravated Assault);]

1-31                 [(4)  Section 22.021 (Aggravated Sexual Assault);]

1-32                 [(5)  Section 22.04(e) (Injury to a Child, Elderly

1-33     Individual, or Disabled Individual);]

1-34                 [(6)  Section 22.04(f) (Injury to a Child, Elderly

1-35     Individual, or Disabled Individual), if the conduct is committed

1-36     intentionally or knowingly;]

1-37                 [(7)  Section 25.02 (Prohibited Sexual Conduct); or]

1-38                 [(8)  Section 43.25 (Sexual Performance by a Child)].

1-39           Sec. 2.  (a)  In making a determination of unavailability

1-40     under this article, the court shall consider relevant factors

1-41     including the relationship of the defendant to the child, the

1-42     character and duration of the alleged offense, the age, maturity,

1-43     and emotional stability of the child, and the time elapsed since

1-44     the alleged offense and whether the child is more likely than not

1-45     to be unavailable to testify because:

1-46                 (1)  of emotional or physical causes, including the

1-47     confrontation with the defendant, as opposed to the ordinary

1-48     involvement as complainant or witness in the courtroom trial; or

1-49                 (2)  the child would suffer undue psychological or

1-50     physical harm through the child's testimony in the courtroom such

1-51     that the child cannot effectively communicate.

1-52           (b)  A determination of unavailability under this article can

1-53     be made after an earlier determination of availability.  A

1-54     determination of availability under this article can be made after

1-55     an earlier determination of unavailability.  [The recording of an

1-56     oral statement of the child made before the indictment is returned

1-57     or the complaint has been filed is admissible into evidence if the

1-58     court makes a determination that the factual issues of identity or

1-59     actual occurrence were fully and fairly inquired into in a detached

1-60     manner by a neutral individual experienced in child abuse cases

1-61     that seeks to find the truth of the matter.]

1-62           [(b)  If a recording is made under Subsection (a) of this

1-63     section and after an indictment is returned or a complaint has been

1-64     filed, by motion of the attorney representing the state or the

 2-1     attorney representing the defendant and on the approval of the

 2-2     court, both attorneys may propound written interrogatories that

 2-3     shall be presented by the same neutral individual who made the

 2-4     initial inquiries, if possible, and recorded under the same or

 2-5     similar circumstances of the original recording with the time and

 2-6     date of the inquiry clearly indicated in the recording.]

 2-7           [(c)  A recording made under Subsection (a) of this section

 2-8     is not admissible into evidence unless a recording made under

 2-9     Subsection (b) is admitted at the same time if a recording under

2-10     Subsection (b) was requested prior to time of trial.]

2-11           Sec. 3.  (a) On its own motion or on the motion of the

2-12     attorney representing the state or the attorney representing the

2-13     defendant, the court on a finding of good cause may order that the

2-14     testimony of the child be taken during the trial in a room other

2-15     than the courtroom and be televised by closed circuit equipment in

2-16     the courtroom to be viewed by the court and the trier [finder] of

2-17     fact.  Before authorizing the use of a closed circuit system to

2-18     transmit a child's testimony, a trial court must hear evidence and

2-19     make specific findings on the record that:

2-20                 (1)  the system is necessary to protect the child;

2-21                 (2)  the child would be traumatized by the defendant's

2-22     physical presence, not merely by being in the courtroom generally;

2-23     and

2-24                 (3)  the child would suffer undue psychological or

2-25     physical harm through the child's testimony in the courtroom such

2-26     that the child cannot effectively communicate.

2-27           (b)  To the extent practicable, only the judge, the court

2-28     reporter, the attorneys for the defendant and for the state,

2-29     persons necessary to operate the equipment, and any person whose

2-30     presence would contribute to the welfare and well-being of the

2-31     child may be present in the room with the child during his

2-32     testimony.  Only the attorneys and the judge may question the

2-33     child.  If the closed circuit system used is a one-way system, the

2-34     [To the extent practicable, the persons necessary to operate the

2-35     equipment shall be confined to an adjacent room or behind a screen

2-36     or mirror that permits them to see and hear the child during his

2-37     testimony, but does not permit the child to see or hear them.  The]

2-38     court shall permit the defendant to observe and hear the testimony

2-39     of the child and to communicate contemporaneously with his attorney

2-40     during periods of recess or by audio contact[, but the court shall

2-41     attempt to ensure that the child cannot hear or see the defendant].

2-42     The court shall permit the attorney for the defendant adequate

2-43     opportunity to confer with the defendant during cross-examination

2-44     of the child.  On application of the attorney for the defendant,

2-45     the court may recess the proceeding before or during

2-46     cross-examination of the child for a reasonable time to allow the

2-47     attorney for the defendant to confer with defendant.

2-48           (c) [(b)]  The court may set any other conditions and

2-49     limitations on the taking of the testimony that it finds just and

2-50     appropriate, taking into consideration the interests of the child,

2-51     the rights of the defendant, and any other relevant factors.

2-52           Sec. 4.  [(a)  After an indictment has been returned or a

2-53     complaint filed charging the defendant with an offense to which

2-54     this article applies, on its own motion or on the motion of the

2-55     attorney representing the state or the attorney representing the

2-56     defendant, the court may order that the testimony of the child be

2-57     taken outside the courtroom and be recorded for showing in the

2-58     courtroom before the court and the finder of fact.  To the extent

2-59     practicable, only those persons permitted to be present at the

2-60     taking of testimony under Section 3 of this article may be present

2-61     during the taking of the child's testimony, and the persons

2-62     operating the equipment shall be confined from the child's sight

2-63     and hearing as provided by Section 3.  The court shall permit the

2-64     defendant to observe and hear the testimony of the child and to

2-65     communicate contemporaneously with his attorney during periods of

2-66     recess or by audio contact but shall attempt to ensure that the

2-67     child cannot hear or see the defendant.]

2-68           [(b)  The court may set any other conditions and limitations

2-69     on the taking of the testimony that it finds just and appropriate,

 3-1     taking into consideration the interests of the child, the rights of

 3-2     the defendant, and any other relevant factors.  The court shall

 3-3     also ensure that:]

 3-4                 [(1)  the recording is both visual and aural and is

 3-5     recorded on film or videotape or by other electronic means;]

 3-6                 [(2)  the recording equipment was capable of making an

 3-7     accurate recording, the operator was competent, the quality of the

 3-8     recording is sufficient to allow the court and the finder of fact

 3-9     to assess the demeanor of the child and the interviewer, and the

3-10     recording is accurate and is not altered;]

3-11                 [(3)  each voice on the recording is identified;]

3-12                 [(4)  the defendant, the attorneys for each party, and

3-13     the expert witnesses for each party are afforded an opportunity to

3-14     view the recording before it is shown in the courtroom;]

3-15                 [(5)  before giving his testimony, the child was placed

3-16     under oath or was otherwise admonished in a manner appropriate to

3-17     the child's age and maturity to testify truthfully;]

3-18                 [(6)  the court finds from the recording or through an

3-19     in camera examination of the child that the child was competent to

3-20     testify at the time the recording was made; and]

3-21                 [(7)  only one continuous recording of the child was

3-22     made or the necessity for pauses in the recordings or for multiple

3-23     recordings is established at trial.]

3-24           [(c)  After a complaint has been filed or an indictment

3-25     returned charging the defendant, on the motion of the attorney

3-26     representing the state, the court may order that the deposition of

3-27     the child be taken outside of the courtroom in the same manner as a

3-28     deposition may be taken in a civil matter.  A deposition taken

3-29     under this subsection is admissible into evidence.]

3-30           [Sec. 5.  (a)  On the motion of the attorney representing the

3-31     state or the attorney representing the defendant and on a finding

3-32     by the trial court that the following requirements have been

3-33     substantially satisfied, the recording of an oral statement of the

3-34     child made before a complaint has been filed or an indictment

3-35     returned charging any person with an offense to which this article

3-36     applies is admissible into evidence if:]

3-37                 [(1)  no attorney or peace officer was present when the

3-38     statement was made;]

3-39                 [(2)  the recording is both visual and aural and is

3-40     recorded on film or videotape or by other electronic means;]

3-41                 [(3)  the recording equipment was capable of making an

3-42     accurate recording, the operator of the equipment was competent,

3-43     the quality of the recording is sufficient to allow the court and

3-44     the finder of fact to assess the demeanor of the child and the

3-45     interviewer, and the recording is accurate and has not been

3-46     altered;]

3-47                 [(4)  the statement was not made in response to

3-48     questioning calculated to lead the child to make a particular

3-49     statement;]

3-50                 [(5)  every voice on the recording is identified;]

3-51                 [(6)  the person conducting the interview of the child

3-52     in the recording is expert in the handling, treatment, and

3-53     investigation of child abuse cases, present at the proceeding,

3-54     called by the state as part of the state's case in chief to testify

3-55     at trial, and subject to cross-examination;]

3-56                 [(7)  immediately after a complaint was filed or an

3-57     indictment returned charging the defendant with an offense to which

3-58     this article applies, the attorney representing the state notified

3-59     the court, the defendant, and the attorney representing the

3-60     defendant of the existence of the recording and that the recording

3-61     may be used at the trial of the offense;]

3-62                 [(8)  the defendant, the attorney for the defendant,

3-63     and the expert witnesses for the defendant were afforded an

3-64     opportunity to view the recording before it is offered into

3-65     evidence and, if a proceeding was requested as provided by

3-66     Subsection (b) of this section, in a proceeding conducted before a

3-67     district court judge but outside the presence of the jury were

3-68     afforded an opportunity to cross-examine the child as provided by

3-69     Subsection (b) of this section from any time immediately following

 4-1     the filing of the complaint or the returning of an indictment

 4-2     charging the defendant with an offense to which this article

 4-3     applies until the date the trial begins;]

 4-4                 [(9)  the recording of the cross-examination, if there

 4-5     is one, is admissible under Subsection (b) of this section;]

 4-6                 [(10)  before giving his testimony, the child was

 4-7     placed under oath or was otherwise admonished in a manner

 4-8     appropriate to the child's age and maturity to testify truthfully;]

 4-9                 [(11)  the court finds from the recording or through an

4-10     in camera examination of the child that the child was competent to

4-11     testify at the time that the recording was made; and]

4-12                 [(12)  only one continuous recording of the child was

4-13     made or the necessity for pauses in the recordings or for multiple

4-14     recordings has been established at trial.]

4-15           [(b)  On the motion of the attorney representing the

4-16     defendant, a district court may order that the cross-examination of

4-17     the child be taken and be recorded before the judge of that court

4-18     at any time until a recording made in accordance with Subsection

4-19     (a) of this section has been introduced into evidence at the trial.

4-20     On a finding by the trial court that the following requirements

4-21     were satisfied, the recording of the cross-examination of the child

4-22     is admissible into evidence and shall be viewed by the finder of

4-23     fact only after the finder of fact has viewed the recording

4-24     authorized by Subsection (a) of this section if:]

4-25                 [(1)  the recording is both visual and aural and is

4-26     recorded on film or videotape or by other electronic means;]

4-27                 [(2)  the recording equipment was capable of making an

4-28     accurate recording, the operator of the equipment was competent,

4-29     the quality of the recording is sufficient to allow the court and

4-30     the finder of fact to assess the demeanor of the child and the

4-31     attorney representing the defendant, and the recording is accurate

4-32     and has not been altered;]

4-33                 [(3)  every voice on the recording is identified;]

4-34                 [(4)  the defendant, the attorney representing the

4-35     defendant, the attorney representing the state, and the expert

4-36     witnesses for the defendant and the state were afforded an

4-37     opportunity to view the recording before the trial began;]

4-38                 [(5)  the child was placed under oath before the

4-39     cross-examination began or was otherwise admonished in a manner

4-40     appropriate to the child's age and maturity to testify truthfully;

4-41     and]

4-42                 [(6)  only one continuous recording of the child was

4-43     made or the necessity for pauses in the recordings or for multiple

4-44     recordings was established at trial.]

4-45           [(c)  During cross-examination under Subsection (b) of this

4-46     section, to the extent practicable, only a district court judge,

4-47     the attorney representing the defendant, the attorney representing

4-48     the state, persons necessary to operate the equipment, and any

4-49     other person whose presence would contribute to the welfare and

4-50     well-being of the child may be present in the room with the child

4-51     during his testimony.  Only the attorneys and the judge may

4-52     question the child.  To the extent practicable, the persons

4-53     operating the equipment shall be confined to an adjacent room or

4-54     behind a screen or mirror that permits them to see and hear the

4-55     child during his testimony but does not permit the child to see or

4-56     hear them.  The court shall permit the defendant to observe and

4-57     hear the testimony of the child and to communicate

4-58     contemporaneously with his attorney during periods of recess or by

4-59     audio contact, but shall attempt to ensure that the child cannot

4-60     hear or see the defendant.]

4-61           [(d)  Under Subsection (b) of this section the district court

4-62     may set any other conditions and limitations on the taking of the

4-63     cross-examination of a child that it finds just and appropriate,

4-64     taking into consideration the interests of the child, the rights of

4-65     the defendant, and any other relevant factors.]

4-66           [Sec. 6.  If the court orders the testimony of a child to be

4-67     taken under Section 3 or 4 of this article or if the court finds

4-68     the testimony of the child taken under Section 2 or 5 of this

4-69     article is admissible into evidence, the child may not be required

 5-1     to testify in court at the proceeding for which the testimony was

 5-2     taken, unless the court finds there is good cause.]

 5-3           [Sec. 7.]  In making any determination of good cause under

 5-4     this article, the court shall consider the rights of the defendant,

 5-5     the interests of the child, the relationship of the defendant to

 5-6     the child, the character and duration of the alleged offense, any

 5-7     court finding related to the availability of the child to testify,

 5-8     the age, maturity, and emotional stability of the child, the time

 5-9     elapsed since the alleged offense, and any other relevant factors.

5-10           [Sec. 8.  (a)  In making a determination of unavailability

5-11     under this article, the court shall consider relevant factors

5-12     including the relationship of the defendant to the child, the

5-13     character and duration of the alleged offense, the age, maturity,

5-14     and emotional stability of the child, and the time elapsed since

5-15     the alleged offense, and whether the child is more likely than not

5-16     to be unavailable to testify because:]

5-17                 [(1)  of emotional or physical causes, including the

5-18     confrontation with the defendant or the ordinary involvement as

5-19     complainant in the courtroom trial; or]

5-20                 [(2)  the child would suffer undue psychological or

5-21     physical harm through his involvement at trial.]

5-22           [(b)  A determination of unavailability under this article

5-23     can be made after an earlier determination of availability.  A

5-24     determination of availability under this article can be made after

5-25     an earlier determination of unavailability.]

5-26           [Sec. 9.  If the court finds the testimony taken under

5-27     Section 2 or 5 of this article is admissible into evidence or if

5-28     the court orders the testimony to be taken under Section 3 or 4 of

5-29     this article and if the identity of the perpetrator is a contested

5-30     issue, the child additionally must make an in-person identification

5-31     of the defendant either at or before trial.]

5-32           [Sec. 10.  In ordering a child to testify under this article,

5-33     the court shall take all reasonable steps necessary and available

5-34     to minimize undue psychological trauma to the child and to minimize

5-35     the emotional and physical stress to the child caused by relevant

5-36     factors, including the confrontation with the defendant and the

5-37     ordinary participation of the complainant in the courtroom.]

5-38           [Sec. 11.  In a proceeding under Section 2, 3, or 4 or

5-39     Subsection (b) of Section 5 of this article, if the defendant is

5-40     not represented by counsel and the court finds that the defendant

5-41     is not able to obtain counsel for the purposes of the proceeding,

5-42     the court shall appoint counsel to represent the defendant at the

5-43     proceeding.]

5-44           [Sec. 12.  In this article, "cross-examination" has the same

5-45     meaning as in other legal proceedings in the state.]

5-46           [Sec. 13.  The attorney representing the state shall

5-47     determine whether to use the procedure provided in Section 2 of

5-48     this article or the procedure provided in Section 5 of this

5-49     article.]

5-50           SECTION 2.  This Act takes effect September 1, 1997.

5-51           SECTION 3.  The importance of this legislation and the

5-52     crowded condition of the calendars in both houses create an

5-53     emergency and an imperative public necessity that the

5-54     constitutional rule requiring bills to be read on three several

5-55     days in each house be suspended, and this rule is hereby suspended.

5-56                                  * * * * *