1-1     By:  Shapiro                                            S.B. No. 24
 1-2           (In the Senate - Filed November 13, 2000; January 10, 2001,
 1-3     read first time and referred to Committee on Criminal Justice;
 1-4     February 5, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 4, Nays 1;
 1-6     February 5, 2001, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 24                  By:  Moncrief
 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.  Section 1, Article 38.071, Code of Criminal
1-15     Procedure, is amended to read as follows:
1-16           Sec. 1.  This article applies only to a hearing or proceeding
1-17     in which the court determines that a child younger than 13 years of
1-18     age would be unavailable to testify in the presence of the
1-19     defendant about [the prosecution of] an offense defined by any of
1-20     the following sections of the Penal Code [if the offense is alleged
1-21     to have been committed against a child 12 years of age or younger
1-22     and if the trial court finds that the child is unavailable to
1-23     testify at the trial of the offense, and applies only to the
1-24     statements or testimony of that child]:
1-25                 (1)  Section 19.02 (Murder);
1-26                 (2)  Section 19.03 (Capital Murder);
1-27                 (3)  Section 19.04 (Manslaughter);
1-28                 (4)  Section 20.04 (Aggravated Kidnapping);
1-29                 (5)  Section 21.11 (Indecency with a Child);
1-30                 (6) [(2)]  Section 22.011 (Sexual Assault);
1-31                 (7) [(3)]  Section 22.02 (Aggravated Assault);
1-32                 (8) [(4)]  Section 22.021 (Aggravated Sexual Assault);
1-33                 (9) [(5)]  Section 22.04(e) (Injury to a Child, Elderly
1-34     Individual, or Disabled Individual);
1-35                 (10) [(6)]  Section 22.04(f) (Injury to a Child,
1-36     Elderly Individual, or Disabled Individual), if the conduct is
1-37     committed intentionally or knowingly;
1-38                 (11) [(7)]  Section 25.02 (Prohibited Sexual Conduct);
1-39     [or]
1-40                 (12)  Section 29.03 (Aggravated Robbery); or
1-41                 (13) [(8)]  Section 43.25 (Sexual Performance by a
1-42     Child).
1-43           SECTION 2.  Subsection (c), Section 2, Article 38.071, Code
1-44     of Criminal Procedure, is amended to read as follows:
1-45           (c)  A recording made under Subsection (a) of this section is
1-46     not admissible into evidence unless a recording made under
1-47     Subsection (b) is admitted at the same time if a recording under
1-48     Subsection (b) was requested prior to the time of the hearing or
1-49     proceeding [trial].
1-50           SECTION 3.  Subsection (a), Section 3, Article 38.071, Code
1-51     of Criminal Procedure, is amended to read as follows:
1-52           (a)  On its own motion or on the motion of the attorney
1-53     representing the state or the attorney representing the defendant,
1-54     the court may order that the testimony of the child be taken
1-55     [during the trial] in a room other than the courtroom and be
1-56     televised by closed circuit equipment in the courtroom to be viewed
1-57     by the court and the finder of fact.  To the extent practicable,
1-58     only the judge, the court reporter, the attorneys for the defendant
1-59     and for the state, persons necessary to operate the equipment, and
1-60     any person whose presence would contribute to the welfare and
1-61     well-being of the child may be present in the room with the child
1-62     during his testimony.  Only the attorneys and the judge may
1-63     question the child.  To the extent practicable, the persons
1-64     necessary to operate the equipment shall be confined to an adjacent
 2-1     room or behind a screen or mirror that permits them to see and hear
 2-2     the child during his testimony, but does not permit the child to
 2-3     see or hear them.  The court shall permit the defendant to observe
 2-4     and hear the testimony of the child and to communicate
 2-5     contemporaneously with his attorney during periods of recess or by
 2-6     audio contact, but the court shall attempt to ensure that the child
 2-7     cannot hear or see the defendant.  The court shall permit the
 2-8     attorney for the defendant adequate opportunity to confer with the
 2-9     defendant during cross-examination of the child.  On application of
2-10     the attorney for the defendant, the court may recess the proceeding
2-11     before or during cross-examination of the child for a reasonable
2-12     time to allow the attorney for the defendant to confer with
2-13     defendant.
2-14           SECTION 4.  Subsections (a) and (b), Section 4, Article
2-15     38.071, Code of Criminal Procedure, are amended to read as follows:
2-16           (a)  After an indictment has been returned or a complaint
2-17     filed [charging the defendant with an offense to which this article
2-18     applies], on its own motion or on the motion of the attorney
2-19     representing the state or the attorney representing the defendant,
2-20     the court may order that the testimony of the child be taken
2-21     outside the courtroom and be recorded for showing in the courtroom
2-22     before the court and the finder of fact.  To the extent
2-23     practicable, only those persons permitted to be present at the
2-24     taking of testimony under Section 3 of this article may be present
2-25     during the taking of the child's testimony, and the persons
2-26     operating the equipment shall be confined from the child's sight
2-27     and hearing as provided by Section 3.  The court shall permit the
2-28     defendant to observe and hear the testimony of the child and to
2-29     communicate contemporaneously with his attorney during periods of
2-30     recess or by audio contact but shall attempt to ensure that the
2-31     child cannot hear or see the defendant.
2-32           (b)  The court may set any other conditions and limitations
2-33     on the taking of the testimony that it finds just and appropriate,
2-34     taking into consideration the interests of the child, the rights of
2-35     the defendant, and any other relevant factors.  The court shall
2-36     also ensure that:
2-37                 (1)  the recording is both visual and aural and is
2-38     recorded on film or videotape or by other electronic means;
2-39                 (2)  the recording equipment was capable of making an
2-40     accurate recording, the operator was competent, the quality of the
2-41     recording is sufficient to allow the court and the finder of fact
2-42     to assess the demeanor of the child and the interviewer, and the
2-43     recording is accurate and is not altered;
2-44                 (3)  each voice on the recording is identified;
2-45                 (4)  the defendant, the attorneys for each party, and
2-46     the expert witnesses for each party are afforded an opportunity to
2-47     view the recording before it is shown in the courtroom;
2-48                 (5)  before giving his testimony, the child was placed
2-49     under oath or was otherwise admonished in a manner appropriate to
2-50     the child's age and maturity to testify truthfully;
2-51                 (6)  the court finds from the recording or through an
2-52     in camera examination of the child that the child was competent to
2-53     testify at the time the recording was made; and
2-54                 (7)  only one continuous recording of the child was
2-55     made or the necessity for pauses in the recordings or for multiple
2-56     recordings is established at the hearing or proceeding [trial].
2-57           SECTION 5.  Subsections (a) and (b), Section 5, Article
2-58     38.071, Code of Criminal Procedure, are amended to read as follows:
2-59           (a)  On the motion of the attorney representing the state or
2-60     the attorney representing the defendant and on a finding by the
2-61     [trial] court that the following requirements have been
2-62     substantially satisfied, the recording of an oral statement of the
2-63     child made before a complaint has been filed or an indictment
2-64     returned [charging any person with an offense to which this article
2-65     applies] is admissible into evidence if:
2-66                 (1)  no attorney or peace officer was present when the
2-67     statement was made;
2-68                 (2)  the recording is both visual and aural and is
2-69     recorded on film or videotape or by other electronic means;
 3-1                 (3)  the recording equipment was capable of making an
 3-2     accurate recording, the operator of the equipment was competent,
 3-3     the quality of the recording is sufficient to allow the court and
 3-4     the finder of fact to assess the demeanor of the child and the
 3-5     interviewer, and the recording is accurate and has not been
 3-6     altered;
 3-7                 (4)  the statement was not made in response to
 3-8     questioning calculated to lead the child to make a particular
 3-9     statement;
3-10                 (5)  every voice on the recording is identified;
3-11                 (6)  the person conducting the interview of the child
3-12     in the recording is expert in the handling, treatment, and
3-13     investigation of child abuse cases, present at the hearing or
3-14     proceeding, called by the state [as part of the state's case in
3-15     chief to testify at trial], and subject to cross-examination;
3-16                 (7)  immediately after a complaint was filed or an
3-17     indictment returned [charging the defendant with an offense to
3-18     which this article applies], the attorney representing the state
3-19     notified the court, the defendant, and the attorney representing
3-20     the defendant of the existence of the recording [and that the
3-21     recording may be used at the trial of the offense];
3-22                 (8)  the defendant, the attorney for the defendant, and
3-23     the expert witnesses for the defendant were afforded an opportunity
3-24     to view the recording before it is offered into evidence and, if a
3-25     proceeding was requested as provided by Subsection (b) of this
3-26     section, in a proceeding conducted before a district court judge
3-27     but outside the presence of the jury were afforded an opportunity
3-28     to cross-examine the child as provided by Subsection (b) of this
3-29     section from any time immediately following the filing of the
3-30     complaint or the returning of an indictment charging the defendant
3-31     [with an offense to which this article applies] until the date the
3-32     hearing or proceeding [trial] begins;
3-33                 (9)  the recording of the cross-examination, if there
3-34     is one, is admissible under Subsection (b) of this section;
3-35                 (10)  before giving his testimony, the child was placed
3-36     under oath or was otherwise admonished in a manner appropriate to
3-37     the child's age and maturity to testify truthfully;
3-38                 (11)  the court finds from the recording or through an
3-39     in camera examination of the child that the child was competent to
3-40     testify at the time that the recording was made; and
3-41                 (12)  only one continuous recording of the child was
3-42     made or the necessity for pauses in the recordings or for multiple
3-43     recordings has been established at the hearing or proceeding
3-44     [trial].
3-45           (b)  On the motion of the attorney representing the
3-46     defendant, a district court may order that the cross-examination of
3-47     the child be taken and be recorded before the judge of that court
3-48     at any time until a recording made in accordance with Subsection
3-49     (a) of this section has been introduced into evidence at the
3-50     hearing or proceeding [trial].  On a finding by the [trial] court
3-51     that the following requirements were satisfied, the recording of
3-52     the cross-examination of the child is admissible into evidence and
3-53     shall be viewed by the finder of fact only after the finder of fact
3-54     has viewed the recording authorized by Subsection (a) of this
3-55     section if:
3-56                 (1)  the recording is both visual and aural and is
3-57     recorded on film or videotape or by other electronic means;
3-58                 (2)  the recording equipment was capable of making an
3-59     accurate recording, the operator of the equipment was competent,
3-60     the quality of the recording is sufficient to allow the court and
3-61     the finder of fact to assess the demeanor of the child and the
3-62     attorney representing the defendant, and the recording is accurate
3-63     and has not been altered;
3-64                 (3)  every voice on the recording is identified;
3-65                 (4)  the defendant, the attorney representing the
3-66     defendant, the attorney representing the state, and the expert
3-67     witnesses for the defendant and the state were afforded an
3-68     opportunity to view the recording before the hearing or proceeding
3-69     [trial] began;
 4-1                 (5)  the child was placed under oath before the
 4-2     cross-examination began or was otherwise admonished in a manner
 4-3     appropriate to the child's age and maturity to testify truthfully;
 4-4     and
 4-5                 (6)  only one continuous recording of the child was
 4-6     made or the necessity for pauses in the recordings or for multiple
 4-7     recordings was established at the hearing or proceeding [trial].
 4-8           SECTION 6.  Subsection (a), Section 8, Article 38.071, Code
 4-9     of Criminal Procedure, is amended to read as follows:
4-10           (a)  In making a determination of unavailability under this
4-11     article, the court shall consider relevant factors including the
4-12     relationship of the defendant to the child, the character and
4-13     duration of the alleged offense, the age, maturity, and emotional
4-14     stability of the child, and the time elapsed since the alleged
4-15     offense, and whether the child is more likely than not to be
4-16     unavailable to testify because:
4-17                 (1)  of emotional or physical causes, including the
4-18     confrontation with the defendant [or the ordinary involvement as
4-19     complainant in the courtroom trial]; or
4-20                 (2)  the child would suffer undue psychological or
4-21     physical harm through his involvement at the hearing or proceeding
4-22     [trial].
4-23           SECTION 7.  Section 9, Article 38.071, Code of Criminal
4-24     Procedure, is amended to read as follows:
4-25           Sec. 9.  If the court finds the testimony taken under Section
4-26     2 or 5 of this article is admissible into evidence or if the court
4-27     orders the testimony to be taken under Section 3 or 4 of this
4-28     article and if the identity of the perpetrator is a contested
4-29     issue, the child additionally must make an in-person identification
4-30     of the defendant either at or before the hearing or proceeding
4-31     [trial].
4-32           SECTION 8.  Section 10, Article 38.071, Code of Criminal
4-33     Procedure, is amended to read as follows:
4-34           Sec. 10.  In ordering a child to testify under this article,
4-35     the court shall take all reasonable steps necessary and available
4-36     to minimize undue psychological trauma to the child and to minimize
4-37     the emotional and physical stress to the child caused by relevant
4-38     factors, including the confrontation with the defendant and the
4-39     ordinary participation of the witness [complainant] in the
4-40     courtroom.
4-41           SECTION 9.  This Act takes effect September 1, 2001.
4-42                                  * * * * *