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A BILL TO BE ENTITLED
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AN ACT
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relating to the punishment for the offense of tampering with a |
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witness and the evidence that may be offered to show that offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsection (a), Section 36.05, Penal Code, is |
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amended to read as follows: |
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(a) A person commits an offense if, with intent to influence |
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the witness, he offers, confers, or agrees to confer any benefit on |
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a witness or prospective witness in an official proceeding, or he |
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coerces a witness or a prospective witness in an official |
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proceeding: |
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SECTION 2. Section 36.05, Penal Code, is amended by adding |
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Subsections (e-1), (e-2), and (e-3) to read as follows: |
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(e-1) Notwithstanding Subsection (d), if the underlying |
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official proceeding involves family violence, as defined by Section |
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71.004, Family Code, an offense under this section is the greater |
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of: |
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(1) a felony of the third degree; or |
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(2) the most serious offense charged in the criminal |
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case. |
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(e-2) Notwithstanding Subsections (d) and (e-1), if the |
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underlying official proceeding involves family violence, as |
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defined by Section 71.004, Family Code, and it is shown at the trial |
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of the offense that the defendant has previously been convicted of |
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an offense involving family violence under the laws of this state or |
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another state, an offense under this section is the greater of: |
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(1) a felony of the second degree; or |
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(2) the most serious offense charged in the criminal |
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case. |
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(e-3) For purposes of Subsection (a), a person is considered |
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to coerce a witness or prospective witness if the person commits an |
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act of family violence as defined by Section 71.004, Family Code, |
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that is perpetrated, in part, with the intent to cause the witness' |
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or prospective witness' unavailability or failure to comply and the |
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offense is punishable under Subsection (e-1) or (e-2), as |
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applicable. |
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SECTION 3. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Articles 38.48 and 38.49 to read as follows: |
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Art. 38.48. EVIDENCE IN PROSECUTION FOR TAMPERING WITH |
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WITNESS OR PROSPECTIVE WITNESS INVOLVING FAMILY VIOLENCE. (a) |
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This article applies to the prosecution of an offense under Section |
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36.05, Penal Code, in which: |
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(1) the underlying official proceeding involved |
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family violence, as defined by Section 71.004, Family Code; or |
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(2) the actor is alleged to have violated Section |
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36.05, Penal Code, by committing an act of family violence against a |
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witness or prospective witness. |
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(b) In the prosecution of an offense described by Subsection |
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(a), subject to the Texas Rules of Evidence or other applicable law, |
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each party may offer testimony or other evidence of all relevant |
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facts and circumstances that would assist the trier of fact in |
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determining whether the actor's conduct coerced the witness or |
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prospective witness, including the nature of the relationship |
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between the actor and the witness or prospective witness. |
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Art. 38.49. FORFEITURE BY WRONGDOING. (a) A party to a |
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criminal case who wrongfully procures the unavailability of a |
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witness or prospective witness: |
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(1) may not benefit from the wrongdoing by depriving |
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the trier of fact of relevant evidence and testimony; and |
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(2) forfeits the party's right to object to the |
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admissibility of evidence or statements based on the unavailability |
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of the witness as provided by this article through forfeiture by |
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wrongdoing. |
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(b) Evidence and statements related to a party that has |
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engaged or acquiesced in wrongdoing that was intended to, and did, |
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procure the unavailability of a witness or prospective witness are |
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admissible and may be used by the offering party to make a showing |
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of forfeiture by wrongdoing under this article, subject to |
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Subsection (c). |
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(c) In determining the admissibility of the evidence or |
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statements described by Subsection (b), the court shall determine, |
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out of the presence of the jury, whether forfeiture by wrongdoing |
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occurred by a preponderance of the evidence. If practicable, the |
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court shall make the determination under this subsection before |
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trial using the procedures under Article 28.01 of this code and Rule |
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104, Texas Rules of Evidence. |
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(d) The party offering the evidence or statements described |
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by Subsection (b) is not required to show that: |
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(1) the actor's sole intent was to wrongfully cause the |
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witness's or prospective witness's unavailability; |
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(2) the actions of the actor constituted a criminal |
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offense; or |
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(3) any statements offered are reliable. |
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(e) A conviction for an offense under Section 36.05 or |
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36.06, Penal Code, creates a presumption of forfeiture by |
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wrongdoing under this article. |
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(f) Rule 403, Texas Rules of Evidence, applies to this |
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article. This article does not permit the presentation of |
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character evidence that would otherwise be inadmissible under the |
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Texas Rules of Evidence or other applicable law. |
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SECTION 3. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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governed by the law in effect on the date the offense was committed, |
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and the former law is continued in effect for that purpose. For |
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purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 4. This Act takes effect September 1, 2013. |