By Wise H.B. No. 354
76R2275 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the manner in which the videotaping of or the
1-3 broadcasting by closed circuit television of the testimony of a
1-4 child who is the victim of or witness to an alleged offense is
1-5 conducted.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 1, Article 38.071, Code of Criminal
1-8 Procedure, is amended to read as follows:
1-9 Sec. 1. This article applies only to a hearing or proceeding
1-10 in the prosecution of an offense defined by any of the following
1-11 sections of the Penal Code if the offense is alleged to have been
1-12 committed against a child 16 [12] years of age or younger and if
1-13 the [trial] court finds that the child is unavailable to testify in
1-14 the presence of the defendant [at the trial of the offense, and
1-15 applies only to the statements or testimony of that child]:
1-16 (1) Section 21.11 (Indecency with a Child);
1-17 (2) Section 22.011 (Sexual Assault);
1-18 (3) Section 22.02 (Aggravated Assault);
1-19 (4) Section 22.021 (Aggravated Sexual Assault);
1-20 (5) Section 22.04(e) (Injury to a Child, Elderly
1-21 Individual, or Disabled Individual);
1-22 (6) Section 22.04(f) (Injury to a Child, Elderly
1-23 Individual, or Disabled Individual), if the conduct is committed
1-24 intentionally or knowingly;
2-1 (7) Section 25.02 (Prohibited Sexual Conduct); or
2-2 (8) Section 43.25 (Sexual Performance by a Child).
2-3 SECTION 2. Section 2(c), Article 38.071, Code of Criminal
2-4 Procedure, is amended to read as follows:
2-5 (c) A recording made under Subsection (a) of this section is
2-6 not admissible into evidence unless a recording made under
2-7 Subsection (b) is admitted at the same time if a recording under
2-8 Subsection (b) was requested prior to the time of the hearing or
2-9 proceeding [trial].
2-10 SECTION 3. Section 3(a), Article 38.071, Code of Criminal
2-11 Procedure, is amended to read as follows:
2-12 (a) On its own motion or on the motion of the attorney
2-13 representing the state or the attorney representing the defendant,
2-14 the court may order that the testimony of the child be taken
2-15 [during the trial] in a room other than the courtroom and be
2-16 televised by closed circuit equipment in the courtroom to be viewed
2-17 by the court and the finder of fact. To the extent practicable,
2-18 only the judge, the court reporter, the attorneys for the defendant
2-19 and for the state, persons necessary to operate the equipment, and
2-20 any person whose presence would contribute to the welfare and
2-21 well-being of the child may be present in the room with the child
2-22 during his testimony. Only the attorneys and the judge may
2-23 question the child. To the extent practicable, the persons
2-24 necessary to operate the equipment shall be confined to an adjacent
2-25 room or behind a screen or mirror that permits them to see and hear
2-26 the child during his testimony, but does not permit the child to
2-27 see or hear them. The court shall permit the defendant to observe
3-1 and hear the testimony of the child and to communicate
3-2 contemporaneously with his attorney during periods of recess or by
3-3 audio contact, but the court shall attempt to ensure that the child
3-4 cannot hear or see the defendant. The court shall permit the
3-5 attorney for the defendant adequate opportunity to confer with the
3-6 defendant during cross-examination of the child. On application of
3-7 the attorney for the defendant, the court may recess the proceeding
3-8 before or during cross-examination of the child for a reasonable
3-9 time to allow the attorney for the defendant to confer with the
3-10 defendant.
3-11 SECTION 4. Section 4(b), Article 38.071, Code of Criminal
3-12 Procedure, is amended to read as follows:
3-13 (b) The court may set any other conditions and limitations
3-14 on the taking of the testimony that it finds just and appropriate,
3-15 taking into consideration the interests of the child, the rights of
3-16 the defendant, and any other relevant factors. The court shall
3-17 also ensure that:
3-18 (1) the recording is both visual and aural and is
3-19 recorded on film or videotape or by other electronic means;
3-20 (2) the recording equipment was capable of making an
3-21 accurate recording, the operator was competent, the quality of the
3-22 recording is sufficient to allow the court and the finder of fact
3-23 to assess the demeanor of the child and the interviewer, and the
3-24 recording is accurate and is not altered;
3-25 (3) each voice on the recording is identified;
3-26 (4) the defendant, the attorneys for each party, and
3-27 the expert witnesses for each party are afforded an opportunity to
4-1 view the recording before it is shown in the courtroom;
4-2 (5) before giving his testimony, the child was placed
4-3 under oath or was otherwise admonished in a manner appropriate to
4-4 the child's age and maturity to testify truthfully;
4-5 (6) the court finds from the recording or through an
4-6 in camera examination of the child that the child was competent to
4-7 testify at the time the recording was made; and
4-8 (7) only one continuous recording of the child was
4-9 made or the necessity for pauses in the recordings or for multiple
4-10 recordings is established at the hearing or proceeding [trial].
4-11 SECTION 5. Sections 5(a) and (b), Article 38.071, Code of
4-12 Criminal Procedure, are amended to read as follows:
4-13 (a) On the motion of the attorney representing the state or
4-14 the attorney representing the defendant and on a finding by the
4-15 [trial] court that the following requirements have been
4-16 substantially satisfied, the recording of an oral statement of the
4-17 child made before a complaint has been filed or an indictment
4-18 returned charging any person with an offense to which this article
4-19 applies is admissible into evidence if:
4-20 (1) no attorney or peace officer was present when the
4-21 statement was made;
4-22 (2) the recording is both visual and aural and is
4-23 recorded on film or videotape or by other electronic means;
4-24 (3) the recording equipment was capable of making an
4-25 accurate recording, the operator of the equipment was competent,
4-26 the quality of the recording is sufficient to allow the court and
4-27 the finder of fact to assess the demeanor of the child and the
5-1 interviewer, and the recording is accurate and has not been
5-2 altered;
5-3 (4) the statement was not made in response to
5-4 questioning calculated to lead the child to make a particular
5-5 statement;
5-6 (5) every voice on the recording is identified;
5-7 (6) the person conducting the interview of the child
5-8 in the recording is expert in the handling, treatment, and
5-9 investigation of child abuse cases, present at the hearing or
5-10 proceeding, called by the state [as part of the state's case in
5-11 chief to testify at trial], and subject to cross-examination;
5-12 (7) immediately after a complaint was filed or an
5-13 indictment returned charging the defendant with an offense to which
5-14 this article applies, the attorney representing the state notified
5-15 the court, the defendant, and the attorney representing the
5-16 defendant of the existence of the recording [and that the recording
5-17 may be used at the trial of the offense];
5-18 (8) the defendant, the attorney for the defendant, and
5-19 the expert witnesses for the defendant were afforded an opportunity
5-20 to view the recording before it is offered into evidence and, if a
5-21 proceeding was requested as provided by Subsection (b) of this
5-22 section, in a proceeding conducted before a district court judge
5-23 but outside the presence of the jury were afforded an opportunity
5-24 to cross-examine the child as provided by Subsection (b) of this
5-25 section from any time immediately following the filing of the
5-26 complaint or the returning of an indictment charging the defendant
5-27 with an offense to which this article applies until the date the
6-1 hearing or proceeding [trial] begins;
6-2 (9) the recording of the cross-examination, if there
6-3 is one, is admissible under Subsection (b) of this section;
6-4 (10) before giving his testimony, the child was placed
6-5 under oath or was otherwise admonished in a manner appropriate to
6-6 the child's age and maturity to testify truthfully;
6-7 (11) the court finds from the recording or through an
6-8 in camera examination of the child that the child was competent to
6-9 testify at the time that the recording was made; and
6-10 (12) only one continuous recording of the child was
6-11 made or the necessity for pauses in the recordings or for multiple
6-12 recordings has been established at the hearing or proceeding
6-13 [trial].
6-14 (b) On the motion of the attorney representing the
6-15 defendant, a district court may order that the cross-examination of
6-16 the child be taken and be recorded before the judge of that court
6-17 at any time until a recording made in accordance with Subsection
6-18 (a) of this section has been introduced into evidence at the
6-19 hearing or proceeding [trial]. On a finding by the [trial] court
6-20 that the following requirements were satisfied, the recording of
6-21 the cross-examination of the child is admissible into evidence and
6-22 shall be viewed by the finder of fact only after the finder of fact
6-23 has viewed the recording authorized by Subsection (a) of this
6-24 section if:
6-25 (1) the recording is both visual and aural and is
6-26 recorded on film or videotape or by other electronic means;
6-27 (2) the recording equipment was capable of making an
7-1 accurate recording, the operator of the equipment was competent,
7-2 the quality of the recording is sufficient to allow the court and
7-3 the finder of fact to assess the demeanor of the child and the
7-4 attorney representing the defendant, and the recording is accurate
7-5 and has not been altered;
7-6 (3) every voice on the recording is identified;
7-7 (4) the defendant, the attorney representing the
7-8 defendant, the attorney representing the state, and the expert
7-9 witnesses for the defendant and the state were afforded an
7-10 opportunity to view the recording before the hearing or proceeding
7-11 [trial] began;
7-12 (5) the child was placed under oath before the
7-13 cross-examination began or was otherwise admonished in a manner
7-14 appropriate to the child's age and maturity to testify truthfully;
7-15 and
7-16 (6) only one continuous recording of the child was
7-17 made or the necessity for pauses in the recordings or for multiple
7-18 recordings was established at the hearing or proceeding [trial].
7-19 SECTION 6. Section 8(a), Article 38.071, Code of Criminal
7-20 Procedure, is amended to read as follows:
7-21 (a) In making a determination of unavailability under this
7-22 article, the court shall consider relevant factors including the
7-23 relationship of the defendant to the child, the character and
7-24 duration of the alleged offense, the age, maturity, and emotional
7-25 stability of the child, and the time elapsed since the alleged
7-26 offense, and whether the child is more likely than not to be
7-27 unavailable to testify because:
8-1 (1) of emotional or physical causes, including the
8-2 confrontation with the defendant [or the ordinary involvement as
8-3 complainant in the courtroom trial]; or
8-4 (2) the child would suffer undue psychological or
8-5 physical harm through his involvement at the hearing or proceeding
8-6 [trial].
8-7 SECTION 7. Section 9, Article 38.071, Code of Criminal
8-8 Procedure, is amended to read as follows:
8-9 Sec. 9. If the court finds the testimony taken under
8-10 Section 2 or 5 of this article is admissible into evidence or if
8-11 the court orders the testimony to be taken under Section 3 or 4 of
8-12 this article and if the identity of the perpetrator is a contested
8-13 issue, the child additionally must make an in-person identification
8-14 of the defendant either at or before the hearing or proceeding
8-15 [trial].
8-16 SECTION 8. Section 10, Article 38.071, Code of Criminal
8-17 Procedure, is amended to read as follows:
8-18 Sec. 10. In ordering a child to testify under this article,
8-19 the court shall take all reasonable steps necessary and available
8-20 to minimize undue psychological trauma to the child and to minimize
8-21 the emotional and physical stress to the child caused by relevant
8-22 factors, including the confrontation with the defendant and the
8-23 ordinary participation of the witness [complainant] in the
8-24 courtroom.
8-25 SECTION 9. This Act takes effect September 1, 1999.
8-26 SECTION 10. The importance of this legislation and the
8-27 crowded condition of the calendars in both houses create an
9-1 emergency and an imperative public necessity that the
9-2 constitutional rule requiring bills to be read on three several
9-3 days in each house be suspended, and this rule is hereby suspended.