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A BILL TO BE ENTITLED
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AN ACT
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relating to the admissibility of certain statements in the |
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prosecution of murder or capital murder. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.48 to read as follows: |
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Art. 38.48. HEARSAY STATEMENT; DECLARANT UNAVAILABLE IN |
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CERTAIN PROSECUTIONS BASED ON DEFENDANT'S INTENTIONAL WRONGDOING. |
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(a) Notwithstanding Rule 804(a), Texas Rules of Evidence, a |
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declarant who, because of death or then existing physical or mental |
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illness or infirmity, is unable to be present or to testify at a |
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hearing or proceeding in the prosecution of an offense under |
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Section 19.02 or 19.03, Penal Code, is considered to be unavailable |
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as a witness based on the defendant's intentional wrongdoing if the |
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circumstances causing the declarant's absence first occur or were |
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diagnosed after the date that an arrest warrant for the offense was |
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issued with respect to the defendant. |
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(b) A statement legally obtained from a declarant described |
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by Subsection (a) is not inadmissible because of the hearsay rule at |
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a hearing or proceeding described by that subsection if: |
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(1) on or before the 14th day before the date the |
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hearing or proceeding begins, the party intending to offer the |
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statement: |
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(A) notifies the adverse party of its intention |
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to do so; |
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(B) provides the adverse party with the name of |
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the witness through whom it intends to offer the statement; and |
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(C) provides the adverse party with a written |
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summary of the statement; and |
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(2) the trial court finds, in a hearing conducted |
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outside the presence of the jury, that the statement is reliable |
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based on the time, content, and circumstances of the statement. |
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SECTION 2. Under the terms of Section 22.109(b), Government |
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Code, Rule 804(a), Texas Rules of Evidence, is disapproved to the |
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extent that a declarant described by Article 38.48(a), Code of |
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Criminal Procedure, as added by this Act, is not considered to be |
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unavailable as a witness based on the defendant's intentional |
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wrongdoing. |
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SECTION 3. The change in law made by this Act applies only |
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to a criminal hearing or proceeding that commences on or after the |
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effective date of this Act. A criminal hearing or proceeding that |
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commences before the effective date of this Act is governed by the |
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law in effect on the date the hearing or proceeding commenced, and |
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the former law is continued in effect for that purpose. |
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SECTION 4. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2011. |