Texas 2011 - 82nd Regular

Texas Senate Bill SB578 Compare Versions

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1	1	By: Fraser S.B. No. 578
2	2	(Hartnett, Gallego, Christian, Rodriguez, Carter, et al.)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the testimony of children in criminal cases.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 38, Code of Criminal Procedure, is
10	10	amended by adding Article 38.074 to read as follows:
11	11	Art. 38.074. TESTIMONY OF CHILD IN PROSECUTION OF OFFENSE
12	12	Sec. 1. In this article:
13	13	(1) "Child" has the meaning assigned by Section
14	14	22.011(c), Penal Code.
15	15	(2) "Support person" means any person whose presence
16	16	would contribute to the welfare and well-being of a child.
17	17	Sec. 2. This article applies to the testimony of a child in
18	18	any hearing or proceeding in the prosecution of any offense, other
19	19	than the testimony of a child in a hearing or proceeding in a
20	20	criminal case in which that child is the defendant.
21	21	Sec. 3. (a) A court shall:
22	22	(1) administer an oath to a child in a manner that
23	23	allows the child to fully understand the child's duty to tell the
24	24	truth;
25	25	(2) ensure that questions asked of the child are
26	26	stated in language appropriate to the child's age;
27	27	(3) explain to the child that the child has the right
28	28	to have the court notified if the child is unable to understand any
29	29	question and to have a question restated in a form that the child
30	30	does understand;
31	31	(4) ensure that a child testifies only at a time of day
32	32	when the child is best able to understand the questions and to
33	33	undergo the proceedings without being traumatized, including:
34	34	(A) limiting the duration of the child's
35	35	testimony;
36	36	(B) limiting the timing of the child's testimony
37	37	to the child's normal school hours; or
38	38	(C) ordering a recess during the child's
39	39	testimony when necessary for the energy, comfort, or attention span
40	40	of the child; and
41	41	(5) prevent intimidation or harassment of the child by
42	42	any party and, for that purpose, rephrase as appropriate any
43	43	question asked of the child.
44	44	(b) On the motion of any party, or a parent, managing
45	45	conservator, guardian, or guardian ad litem of a child or special
46	46	advocate for a child, the court shall allow the child to have a toy,
47	47	blanket, or similar comforting item in the child's possession while
48	48	testifying or allow a support person to be present in close
49	49	proximity to the child during the child's testimony if the court
50	50	finds by a preponderance of the evidence that:
51	51	(1) the child cannot reliably testify without the
52	52	possession of the item or presence of the support person, as
53	53	applicable; and
54	54	(2) granting the motion is not likely to prejudice the
55	55	trier of fact in evaluating the child's testimony.
56	56	(c) A support person who is present during a child's
57	57	testimony may not:
58	58	(1) obscure the child from the view of the defendant or
59	59	the trier of fact;
60	60	(2) provide the child with an answer to any question
61	61	asked of the child; or
62	62	(3) assist or influence the testimony of the child.
63	63	(d) The court may set any other conditions and limitations
64	64	on the taking of the testimony of a child that it finds just and
65	65	appropriate, considering the interests of the child, the rights of
66	66	the defendant, and any other relevant factors.
67	67	SECTION 2. The change in law made by this Act applies to a
68	68	criminal proceeding that commences on or after the effective date
69	69	of this Act. A criminal proceeding that commences before the
70	70	effective date of this Act is covered by the law in effect when the
71	71	proceeding commenced, and the former law is continued in effect for
72	72	that purpose.
73	73	SECTION 3. This Act takes effect September 1, 2011.