By: Menéndez S.B. No. 1317

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution of the offense of invasive visual recording.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Section 21.15, Penal Code, is amended to read as follows:

Sec. 21.15. INVASIVE [IMPROPER PHOTOGRAPHY OR] VISUAL RECORDING.

SECTION 2. Sections 21.15(a) and (b), Penal Code, are amended to read as follows:

(a) In this section:

(1) "Female breast" means any portion of the female breast below the top of the areola.

(2) "Intimate area" means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person.

(3) "Changing room" means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas.

(4) "Promote"[, "promote"] has the meaning assigned by Section 43.21.

(b) A person commits an offense if, without the other person's consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view; [another at a location that is not a bathroom or private dressing room:

[(A) without the other person's consent; and

[(B) with intent to arouse or gratify the sexual desire of any person;]

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room [another at a location that is a bathroom or private dressing room:

[(A) without the other person's consent; and

[(B) with intent to:

[(i) invade the privacy of the other person; or

[(ii) arouse or gratify the sexual desire of any person]; or

(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).

SECTION 3. Chapter 38, Code of Criminal Procedure, is amended by adding Article 38.451 to read as follows:

Art. 38.451. EVIDENCE DEPICTING INVASIVE VISUAL RECORDING. (a) During the course of a criminal hearing or proceeding concerning an offense under Section 21.15, Penal Code, the court shall not make available or allow to be made available the copying or dissemination to the public property or material that constitutes or contains a visual image, as described by Section 21.15(b), Penal Code, that was seized by law enforcement based on a reasonable suspicion that an offense under that subsection has been committed.

(b) The court shall place property or material described by Subsection (a) under seal of the court on the conclusion of the hearing or proceeding.

(c) The attorney representing the state shall be provided access to the property or material described by Subsection (a). In the manner provided by Article 39.151, the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial shall be provided access to the property or material provided by Subsection (a).

(d) A court that places property or material described by Subsection (a) under seal may issue an order lifting the seal on a finding that the order is in the best interest of the public.

SECTION 4. Chapter 39, Code of Criminal Procedure, is amended by adding Article 39.151 to read as follows:

Art. 39.151. DISCOVERY OF EVIDENCE DEPICTING INVASIVE VISUAL RECORDING. (a) In the manner provided by this article, a court shall allow discovery of property or material that constitutes or contains a visual image, as described by Section 21.15(b), Penal Code, that was seized by law enforcement based on a reasonable suspicion that an offense under that subsection has been committed.

(b) Property or material described by Subsection (a) must remain in the care, custody, or control of the court or the state as provided by Article 38.451.

(c) A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material described by Subsection (a), provided that the state makes the property or material reasonably available to the defendant.

(d) For purposes of Subsection (c), property or material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial.

SECTION 5. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2015.