By: Rodriguez S.B. No. 1360
(In the Senate - Filed March 7, 2013; March 18, 2013, read
first time and referred to Committee on Criminal Justice;
April 25, 2013, reported favorably by the following vote: Yeas 5,
Nays 0; April 25, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the punishment for the offense of tampering with a
witness and the evidence that may be offered to show that offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 36.05, Penal Code, is
amended to read as follows:
(a) A person commits an offense if, with intent to influence
the witness, he offers, confers, or agrees to confer any benefit on
a witness or prospective witness in an official proceeding, or he
coerces a witness or a prospective witness in an official
proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document,
or thing;
(3) to elude legal process summoning him to testify or
supply evidence;
(4) to absent himself from an official proceeding to
which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the
prosecution of another.
SECTION 2. Section 36.05, Penal Code, is amended by adding
Subsections (e-1), (e-2), and (e-3) to read as follows:
(e-1) Notwithstanding Subsection (d), if the underlying
official proceeding involves family violence, as defined by Section
71.004, Family Code, an offense under this section is the greater
of:
(1) a felony of the third degree; or
(2) the most serious offense charged in the criminal
case.
(e-2) Notwithstanding Subsections (d) and (e-1), if the
underlying official proceeding involves family violence, as
defined by Section 71.004, Family Code, and it is shown at the trial
of the offense that the defendant has previously been convicted of
an offense involving family violence under the laws of this state or
another state, an offense under this section is the greater of:
(1) a felony of the second degree; or
(2) the most serious offense charged in the criminal
case.
(e-3) For purposes of Subsection (a), a person is considered
to coerce a witness or prospective witness if the person commits an
act of family violence as defined by Section 71.004, Family Code,
that is perpetrated, in part, with the intent to cause the witness's
or prospective witness's unavailability or failure to comply and
the offense is punishable under Subsection (e-1) or (e-2), as
applicable.
SECTION 3. Chapter 38, Code of Criminal Procedure, is
amended by adding Articles 38.48 and 38.49 to read as follows:
Art. 38.48. EVIDENCE IN PROSECUTION FOR TAMPERING WITH
WITNESS OR PROSPECTIVE WITNESS INVOLVING FAMILY VIOLENCE.
(a) This article applies to the prosecution of an offense under
Section 36.05, Penal Code, in which:
(1) the underlying official proceeding involved
family violence, as defined by Section 71.004, Family Code; or
(2) the actor is alleged to have violated Section
36.05, Penal Code, by committing an act of family violence against a
witness or prospective witness.
(b) In the prosecution of an offense described by Subsection
(a), subject to the Texas Rules of Evidence or other applicable law,
each party may offer testimony or other evidence of all relevant
facts and circumstances that would assist the trier of fact in
determining whether the actor's conduct coerced the witness or
prospective witness, including the nature of the relationship
between the actor and the witness or prospective witness.
Art. 38.49. FORFEITURE BY WRONGDOING. (a) A party to a
criminal case who wrongfully procures the unavailability of a
witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving
the trier of fact of relevant evidence and testimony; and
(2) forfeits the party's right to object to the
admissibility of evidence or statements based on the unavailability
of the witness as provided by this article through forfeiture by
wrongdoing.
(b) Evidence and statements related to a party that has
engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of a witness or prospective witness are
admissible and may be used by the offering party to make a showing
of forfeiture by wrongdoing under this article, subject to
Subsection (c).
(c) In determining the admissibility of the evidence or
statements described by Subsection (b), the court shall determine,
out of the presence of the jury, whether forfeiture by wrongdoing
occurred by a preponderance of the evidence. If practicable, the
court shall make the determination under this subsection before
trial using the procedures under Article 28.01 of this code and Rule
104, Texas Rules of Evidence.
(d) The party offering the evidence or statements described
by Subsection (b) is not required to show that:
(1) the actor's sole intent was to wrongfully cause the
witness's or prospective witness's unavailability;
(2) the actions of the actor constituted a criminal
offense; or
(3) any statements offered are reliable.
(e) A conviction for an offense under Section 36.05 or
36.06, Penal Code, creates a presumption of forfeiture by
wrongdoing under this article.
(f) Rule 403, Texas Rules of Evidence, applies to this
article. This article does not permit the presentation of
character evidence that would otherwise be inadmissible under the
Texas Rules of Evidence or other applicable law.
SECTION 4. 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 5. This Act takes effect September 1, 2013.
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