89R4215 AJZ-F
By: Hull H.B. No. 1686
A BILL TO BE ENTITLED
AN ACT
relating to victims of sex offenses, sex-based human trafficking
offenses, or acts of a sexual nature and to the confidentiality of
or restrictions on the availability of certain property, material,
or information regarding those victims, offenses, or acts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.435, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.435. PROHIBITED USE OF EVIDENCE FROM FORENSIC
MEDICAL EXAMINATION PERFORMED ON VICTIM OF SEXUAL ASSAULT OR OTHER
SEX OFFENSE; PLACEMENT UNDER SEAL. (a) Evidence collected during a
forensic medical examination conducted under Subchapter G, Chapter
56A, may not be used to investigate or prosecute a misdemeanor
offense, or an offense under Subchapter D, Chapter 481, Health and
Safety Code, alleged to have been committed by the victim from whom
the evidence was collected.
(b) 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 any property or material
related to or derived from evidence described by Subsection (a),
including a visual image or a recording made as part of the
examination.
(c) The court shall place property or material described by
Subsection (a) under seal of the court on the conclusion of the
hearing or proceeding.
(d) The attorney representing the state shall be provided
access to property or material described by Subsection (a). In the
manner provided by Article 39.152, 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 described by Subsection (a).
(e) A court that places under seal property or material
described by Subsection (a) may issue an order lifting the seal on a
finding that the order is in the best interest of the public.
SECTION 2. The heading to Article 38.451, Code of Criminal
Procedure, is amended to read as follows:
Art. 38.451. EVIDENCE DEPICTING INVASIVE VISUAL RECORDING
[OF CHILD].
SECTION 3. Article 38.451(a), Code of Criminal Procedure,
is amended to read as follows:
(a) During the course of a criminal hearing or proceeding
concerning an offense under Section 21.15, Penal Code, [that was
committed against a child younger than 14 years of age,] the court
may [shall] not make available or allow to be made available for
[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, [of a child younger than 14 years of
age] and that was seized by law enforcement based on a reasonable
suspicion that an offense under that subsection has been committed.
SECTION 4. Article 39.14(a), Code of Criminal Procedure, is
amended to read as follows:
(a) Subject to the restrictions provided by Section
264.408, Family Code, Subchapter D, Chapter 420, Government Code,
and Articles [Article] 39.15, 39.151, 39.152, and 39.153 of this
code, as soon as practicable after receiving a timely request from
the defendant the state shall produce and permit the inspection and
the electronic duplication, copying, and photographing, by or on
behalf of the defendant, of any offense reports, any designated
documents, papers, written or recorded statements of the defendant
or a witness, including witness statements of law enforcement
officers but not including the work product of counsel for the state
in the case and their investigators and their notes or report, or
any designated books, accounts, letters, photographs, or objects or
other tangible things not otherwise privileged that constitute or
contain evidence material to any matter involved in the action and
that are in the possession, custody, or control of the state or any
person under contract with the state. The state may provide to the
defendant electronic duplicates of any documents or other
information described by this article. The rights granted to the
defendant under this article do not extend to written
communications between the state and an agent, representative, or
employee of the state. This article does not authorize the removal
of the documents, items, or information from the possession of the
state, and any inspection shall be in the presence of a
representative of the state.
SECTION 5. The heading to Article 39.151, Code of Criminal
Procedure, is amended to read as follows:
Art. 39.151. DISCOVERY OF EVIDENCE DEPICTING INVASIVE
VISUAL RECORDING [OF CHILD].
SECTION 6. Article 39.151(a), Code of Criminal Procedure,
is amended to read as follows:
(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, [of a child younger than 14 years of age] and that was seized
by law enforcement based on a reasonable suspicion that an offense
under that subsection has been committed.
SECTION 7. Chapter 39, Code of Criminal Procedure, is
amended by adding Articles 39.152 and 39.153 to read as follows:
Art. 39.152. DISCOVERY OF PROPERTY OR MATERIAL FROM
FORENSIC MEDICAL EXAMINATION PERFORMED ON VICTIM OF SEXUAL ASSAULT
OR OTHER SEX OFFENSE. (a) In the manner provided by this article, a
court shall allow discovery of property or material that
constitutes or contains a visual image or a recording that was made
as part of a forensic medical examination.
(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 38.435.
(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.
Art. 39.153. DISCOVERY OF COMMUNICATION OR RECORD THAT IS
CONFIDENTIAL OR PRIVILEGED BY LAW. (a) This article applies only
to a communication or record collected during the investigation of
an offense under:
(1) Section 21.02, 21.11, 21.15, 22.011, 22.012, or
22.021, Penal Code;
(2) Section 20A.02(a)(3), (4), (7), or (8), Penal
Code; or
(3) Section 20A.03, Penal Code, if the offense is
based partly or wholly on conduct that constitutes an offense
described by Subdivision (2).
(b) In the manner provided by this article, a court shall
allow discovery of a communication or record described by
Subsection (a) that is otherwise confidential or privileged by law.
(c) Not later than the 30th day before the date the trial is
scheduled to begin, a defendant in a criminal action for an offense
described by Subsection (a) may make a motion for disclosure of a
communication or record that is confidential or privileged by law.
The motion must include a supporting affidavit showing reasonable
grounds to believe the confidential or privileged communication or
record contains exculpatory evidence.
(d) The defendant shall serve the motion on the attorney
representing the state, the victim or the victim's representative,
and the person who is the subject of the grant of confidentiality or
who holds the privilege with regard to the communication or record
at issue.
(e) The court shall provide the victim the opportunity to
retain counsel to respond to the defendant's motion.
(f) After a hearing on the defendant's motion, the court
shall order the confidential or privileged communication or record
to be produced for the court under seal and shall examine the
communication or record in camera if the court finds by a
preponderance of the evidence that:
(1) there is a good-faith, specific, and reasonable
basis for believing that the confidential or privileged
communication or record is relevant, material, and exculpatory on
the issue of guilt for the offense charged; and
(2) the confidential or privileged communication or
record would not be duplicative of other evidence or information
available or already obtained by the defendant.
(g) The court shall disclose to the defendant and to the
state only the evidence that the court finds to be exculpatory on
the issue of guilt for the offense charged.
SECTION 8. Article 58.102, Code of Criminal Procedure, is
amended to read as follows:
Art. 58.102. DESIGNATION OF PSEUDONYM; PSEUDONYM FORM. (a)
A victim may choose a pseudonym to be used instead of the victim's
name to designate the victim in all public files and records
concerning the offense, including police summary reports, press
releases, and records of judicial proceedings. A victim who elects
to use a pseudonym as provided by this subchapter must complete a
pseudonym form developed under Subsection (b) and return the form
to the law enforcement agency investigating the offense or to the
office of the attorney representing the state prosecuting the
offense.
(b) The Sexual Assault Prevention and Crisis Services
Program of the office of the attorney general shall develop and
distribute to all law enforcement agencies of the state and to each
office of the attorney representing the state a pseudonym form to
record the name, address, telephone number, and pseudonym of a
victim.
SECTION 9. Article 58.103, Code of Criminal Procedure, is
amended to read as follows:
Art. 58.103. VICTIM INFORMATION CONFIDENTIAL. (a) A
victim who completes a pseudonym form and returns the form to the
law enforcement agency investigating the offense or to the office
of the attorney representing the state prosecuting the offense may
not be required to disclose the victim's name, address, and
telephone number in connection with the investigation or
prosecution of the offense.
(b) A law enforcement agency or an office of the attorney
representing the state receiving a pseudonym form under Subsection
(a) shall send a copy of the form to each other agency or office
investigating or prosecuting the offense.
(c) A completed and returned pseudonym form is confidential
and may not be disclosed to any person other than a defendant in the
case or the defendant's attorney, except as provided by Subsection
(b) or by [on an] order of a court. The court finding required by
Article 58.104 is not required to disclose the confidential
pseudonym form to the defendant in the case or to the defendant's
attorney.
(d) A [(c) If a victim completes a pseudonym form and
returns the form to a law enforcement agency under Article
58.102(a), the] law enforcement agency receiving the form or a copy
of the form shall:
(1) remove the victim's name and substitute the
pseudonym for the name on all reports, files, and records in the
agency's possession; and
(2) [notify the attorney representing the state of the
pseudonym and that the victim has elected to be designated by the
pseudonym; and
[(3)] maintain the form in a manner that protects the
confidentiality of the information contained on the form.
(e) An office of the attorney representing the state
receiving the form or a copy of the form shall:
(1) remove the victim's name and substitute the
pseudonym for the name on all reports, files, and records in the
office's possession;
(2) maintain the form in a manner that protects the
confidentiality of the information contained on the form; and
(3) [(d) An attorney representing the state who
receives notice that a victim has elected to be designated by a
pseudonym shall] ensure that the victim is designated by the
pseudonym in all legal proceedings concerning the offense.
SECTION 10. Chapter 21, Government Code, is amended by
adding Section 21.014 to read as follows:
Sec. 21.014. ELECTRONIC TRANSMISSION OF COURT PROCEEDINGS
IN CERTAIN CASES PROHIBITED. (a) This section applies to the
following:
(1) criminal or civil court proceedings relating to an
offense under:
(A) Section 21.02, 21.11, 21.15, 22.011, 22.012,
or 22.021, Penal Code;
(B) Section 20A.02(a)(3), (4), (7), or (8), Penal
Code; or
(C) Section 20A.03, Penal Code, if the offense is
based partly or wholly on conduct that constitutes an offense
described by Paragraph (B); and
(2) court proceedings relating to:
(A) a protective order under Chapter 7B, Code of
Criminal Procedure;
(B) a magistrate's order for emergency
protection issued under Article 17.292, Code of Criminal Procedure;
(C) a protective order issued under Section
6.504, Family Code; or
(D) a protective order issued under Chapter 85,
Family Code.
(b) A court may not allow the electronic transmission or
broadcasting of court proceedings described by Subsection (a) in
which evidence or testimony is offered that depicts or describes
acts of a sexual nature unless the court provides notice to and
receives express consent for the transmission or broadcasting from:
(1) the victim or the parent, conservator, or guardian
of the victim, as applicable;
(2) the attorney representing the state; and
(3) the defendant.
SECTION 11. Subchapter C, Chapter 552, Government Code, is
amended by adding Section 552.1082 to read as follows:
Sec. 552.1082. EXCEPTION: CERTAIN ELECTRONIC INFORMATION
HELD BY PROSECUTOR, LAW ENFORCEMENT AGENCY, OR CORRECTIONS AGENCY.
(a) Information held by a prosecutor, law enforcement agency, or
corrections agency is excepted from the requirements of Section
552.021 if the information:
(1) was obtained, or is a copy of information
obtained, from:
(A) an electronic communication device;
(B) a computer, tablet, or other similar device;
or
(C) a disk, flash drive, or other electronic
storage device;
(2) was obtained by any prosecutor, law enforcement
agency, or corrections agency:
(A) during the course of the detection,
investigation, or prosecution of an offense under:
(i) Section 21.02, 21.11, 21.15, 22.011,
22.012, or 22.021, Penal Code;
(ii) Section 20A.02(a)(3), (4), (7), or
(8), Penal Code; or
(iii) Section 20A.03, Penal Code, if the
offense is based partly or wholly on conduct that constitutes an
offense described by Subparagraph (ii); and
(B) in a manner related to the detection,
investigation, or prosecution of a crime described by Paragraph
(A); and
(3) was not written or produced by a prosecutor, law
enforcement agency, or corrections agency.
(b) Subject to Subsection (c), a governmental body may
redact information described by Subsection (a) from any information
the governmental body discloses under Section 552.021 without the
necessity of requesting a decision from the attorney general under
Subchapter G.
(c) A governmental body that redacts or withholds
information under Subsection (b) shall provide a written notice to
the requestor:
(1) stating that information is being withheld from
the requestor as provided by this section;
(2) identifying the device described by Subsection
(a)(1) from which the information was obtained; and
(3) including, if known, the name of the person who
owned or possessed the device from which the information was
obtained at the time the device was obtained by a prosecutor, law
enforcement agency, or corrections agency.
SECTION 12. (a) Articles 38.435, 38.451, 39.14, and
39.151, Code of Criminal Procedure, as amended by this Act, and
Articles 39.152 and 39.153, Code of Criminal Procedure, and Section
21.014, Government Code, as added by this Act, apply only to a court
hearing or proceeding that commences on or after the effective date
of this Act. A court hearing or proceeding that commences before
the effective date of this Act is governed by the law in effect on
the date the hearing or proceeding commenced, and the former law is
continued in effect for that purpose.
(b) Section 552.1082, Government Code, as added by this Act,
applies only to a request for public information received by a
governmental body on or after the effective date of this Act.
SECTION 13. This Act takes effect September 1, 2025.