81R1581 SJM-F
By: Gallego H.B. No. 2067
A BILL TO BE ENTITLED
AN ACT
relating to the sealing of and discovery procedures relating to
evidence that constitutes child pornography in a criminal hearing
or proceeding.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.45 to read as follows:
Art. 38.45. EVIDENCE THAT CONSTITUTES CHILD PORNOGRAPHY.
(a) During the course of a criminal hearing or proceeding, the
court may not make available or allow to be made available for
copying or dissemination to the public property or material that
constitutes child pornography, as described by Section
43.26(a)(1), Penal Code.
(b) The court shall place property or material described by
Subsection (a) under seal of the court on conclusion of the criminal
hearing or proceeding.
(c) The attorney representing the state shall be provided
access to property or material described by Subsection (a). In the
manner provided by Article 39.15, 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
property or material described 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 2. Article 39.14(a), Code of Criminal Procedure, is
amended to read as follows:
(a) Upon motion of the defendant showing good cause therefor
and upon notice to the other parties, except as provided by Article
39.15, the court in which an action is pending shall order the State
before or during trial of a criminal action therein pending or on
trial to produce and permit the inspection and copying or
photographing by or on behalf of the defendant of any designated
documents, papers, written statement of the defendant, (except
written statements of witnesses and except the work product of
counsel in the case and their investigators and their notes or
report), books, accounts, letters, photographs, objects or
tangible things not privileged, which constitute or contain
evidence material to any matter involved in the action and which are
in the possession, custody or control of the State or any of its
agencies. The order shall specify the time, place and manner of
making the inspection and taking the copies and photographs of any
of the aforementioned documents or tangible evidence; provided,
however, that the rights herein granted shall not extend to written
communications between the State or any of its agents or
representatives or employees. Nothing in this Act shall authorize
the removal of such evidence from the possession of the State, and
any inspection shall be in the presence of a representative of the
State.
SECTION 3. Chapter 39, Code of Criminal Procedure, is
amended by adding Article 39.15 to read as follows:
Art. 39.15. DISCOVERY OF EVIDENCE THAT CONSTITUTES CHILD
PORNOGRAPHY. (a) In the manner provided by this article, a court
shall allow discovery under Article 39.14 of property or material
that constitutes child pornography, as described by Section
43.26(a)(1), Penal Code.
(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 38.45.
(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 4. This Act takes effect September 1, 2009.