BILL ANALYSIS C.S.H.B. 1686 By: Hull Criminal Jurisprudence Committee Report (Substituted) BACKGROUND AND PURPOSE One of the primary barriers for a survivor of sexual assault who is seeking justice is fear over the loss of privacy. The bill author has informed the committee that survivors already bear the burden of the most egregious invasion of personal autonomy, and to be forced into sharing private and personal information in the public sphere is often too much for a victim of sexual violence, which can jeopardize a successful prosecution. However, measures that provide some basic safeguards to survivors' privacy may encourage their continued participation in the criminal justice process, lead to an increase in successful prosecutions, and reduce the trauma and public nature of the judicial experience for survivors. C.S.H.B. 1686 seeks to provide those safeguards to sexual assault survivors throughout the criminal justice process by prohibiting the livestreaming of trials relating to sexual crimes unless the requisite consent is given, providing the right to request usage of a pseudonym in the prosecution phase, and safeguarding certain evidence of forensic medical examination and invasive visual recordings. CRIMINAL JUSTICE IMPACT It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS C.S.H.B. 1686 amends the Code of Criminal Procedure to set out provisions relating to the discovery of evidence depicting an invasive visual recording of a person 14 years of age or older and the discovery of property or material from a forensic medical examination performed on certain victims. The bill revises provisions relating to information of victims of sexual offenses and to the duties of peace officers regarding interactions with those victims. Discovery of Evidence Depicting Invasive Visual Recording of a Person 14 Years of Age or Older C.S.H.B. 1686 requires a court, in a manner provided by the bill, to allow discovery of property or material that constitutes or contains an invasive visual image of a person 14 years of age or older and that was seized by law enforcement based on a reasonable suspicion that the offense of invasive visual recording has been committed. The bill requires the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney during the discovery of evidence. Any such property or material that is produced during discovery and not offered as and admitted to evidence must either be returned to the state or destroyed at the time of the final disposition of the case. These bill provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Discovery of Property or Material From Forensic Medical Examination C.S.H.B. 1686 requires a court, in the manner provided by the bill, to allow the 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. The bill requires the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney during the discovery of evidence. Any such property or material that is produced during discovery and not offered as and admitted to evidence must either be returned to the state or destroyed at the time of the final disposition of the case. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Prohibited Use of Certain Evidence From Forensic Medical Examination C.S.H.B. 1686 prohibits a court, during the course of a criminal hearing or proceeding, from making available or allowing to be made available for copying or dissemination to the public any property or material related to or derived from evidence collected during a forensic medical examination of a sexual assault victim, including a visual image or a recording made as part of the examination. The bill requires the court to place that property or material under seal of the court on the conclusion of the hearing or proceeding. A court that places under seal such property or material may issue an order lifting the seal on a finding that the order is in the best interest of the public. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Evidence Depicting Invasive Visual Recordings C.S.H.B. 1686 extends the applicability of the prohibition against a court, during the course of a criminal hearing or proceeding concerning an invasive visual recording offense, from making available or allowing to be made available for copying or dissemination to the public property or material that constitutes or contains a visual image of a child younger than 14 years of age and that was seized by law enforcement based on a reasonable suspicion that such an offense has been committed by removing the restriction of that applicability to such property or material that constitutes or contains a visual image of a child younger than 14 years of age. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Pseudonym Forms C.S.H.B. 1686 gives a sex offense victim who completes a pseudonym form the option to return that form to the office of the state's attorney prosecuting the offense as an alternative to returning the form to the law enforcement agency investigating the offense. The bill expands the requirement for the Sexual Assault Prevention and Crisis Services Program to develop and distribute a pseudonym form to all law enforcement agencies of the state by requiring the program to also distribute the form to each state's attorney's office. C.S.H.B. 1686 prohibits a victim who completes a pseudonym form and returns that form to the state's attorney from being required to disclose their name, address, and telephone number in connection with the investigation or prosecution of the offense. The bill requires a law enforcement agency or a state's attorney receiving a pseudonym form to send a copy of that form to each other agency or office investigating or prosecuting the offense. The bill requires a state's attorney's office receiving the form or a copy of the form to do the following: remove the victim's name and substitute the pseudonym for the name on all reports, files, and records in the office's possession; and maintain the form in a manner that protects the confidentiality of the information contained on the form. Duties of Peace Officers Regarding Victims of Sexual Assault C.S.H.B. 1686 expands the contents of the written notice provided to adult victims of sexual assault by an investigating or responding peace officer to include information about the rights and procedures under statutory provisions governing the confidentiality of identifying information and medical records of certain crime victims. Accordingly, the bill includes among the statements that such a notice must contain to be considered sufficient a statement notifying the victim of their right, if a defendant is arrested for a crime against the victim involving certain sexual crimes, stalking, or trafficking, to request, using such procedures, a pseudonym to be used instead of the victim's name in all public files and records concerning the offense. These provisions apply only to a peace officer's investigation or response that occurs on or after the bill's effective date. A peace officer's investigation or response that occurs before the bill's effective date is governed by the law in effect on the date the investigation was conducted or the response was made, and the former law is continued in effect for that purpose. Electronic Transmission of Certain Court Proceedings C.S.H.B. 1686 amends the Government Code to require a court, before allowing the electronic transmission or broadcasting of court proceedings in which evidence or testimony is offered that depicts or describes acts of a sexual nature, to provide notice to and receive express consent for the transmission or broadcasting from the victim or the parent, conservator, or guardian of the victim, as applicable, the state's attorney, and the defendant. This requirement applies to the following: criminal or civil court proceedings relating to an offense of: o continuous sexual abuse of a young child or disabled individual, indecency with a child, invasive visual recording, sexual assault, indecent assault, or aggravated sexual assault; o trafficking of persons offense involving an actor who: traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in certain prostitution offenses; traffics a child or disabled individual and by any means causes the trafficked child or disabled individual to engage in, or become the victim of, certain sexual offenses, assaultive offenses, or public indecency offenses; or receives a benefit from participating in a venture that involves such trafficking conduct or engages in sexual conduct with such a trafficked person, child, or disabled individual; or o continuous trafficking of persons, if the offense is based partly or wholly on conduct that constitutes an offense relating to the aforementioned trafficking offenses; and court proceedings relating to: o a protective order for victims of sexual assault or abuse, indecent assault, stalking, or trafficking, a stalking protective order, or a protective order prohibiting an offense motivated by bias or prejudice; o a magistrate's order for emergency protection; o a temporary protective order issued on the motion of a party to a suit for dissolution of a marriage; or o a protective order issued on a finding that family violence has occurred. This requirement applies only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before that date 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. EFFECTIVE DATE September 1, 2025. COMPARISON OF INTRODUCED AND SUBSTITUTE While C.S.H.B. 1686 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill. Discovery of Evidence Depicting Invasive Visual Recording The introduced extended the applicability of the requirement for a court to allow discovery of property or material that constitutes or contains a visual image of a child younger than 14 years of age and that was seized by law enforcement based on a reasonable suspicion that an invasive visual recording offense has been committed to such property or material that constitutes or contains a visual image of any person by removing the restriction of that applicability to such property or material that constitutes or contains a visual image of a child younger than 14 years of age, which the substitute does not do. Instead, the substitute sets out provisions requiring a court to allow discovery of property or material that constitutes or contains an invasive visual image of a person 14 years of age or older and that was seized by law enforcement based on a reasonable suspicion that an invasive visual recording offense has been committed and providing for the manner in which the court must do so. Discovery of Property or Material From Forensic Medical Examination Performed on Victims of Sexual Assault Both the introduced and substitute provided for the 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. However, the substitute does the following: omits from the introduced: o the requirement for such property or material to remain in the care, custody, or control of the court or the state; o the requirement for a court to deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any such property or material provided that the state makes the property or material reasonably available to the defendant; and o a provision establishing that 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; and includes the following provisions absent from the introduced: o a requirement for the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney for discovery; and o a requirement for any such property or material produced for discovery and not offered as and admitted to evidence to either be returned to the state or destroyed at the time of the final disposition of the case. Prohibited Use of Certain Evidence From Forensic Medical Examination The substitute omits the following requirements that were present in the introduced: for the state's attorney to be provided access to evidence collected during a forensic medical examination of a sexual assault victim; and for the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial to be provided access to the applicable evidence in the manner provided by the introduced version's provisions relating to the discovery of property or material from a forensic medical examination performed on a victim of sexual assault or other sex offense. Discovery of Communication or Record That is Confidential or Privileged by Law The substitute omits provisions from the introduced that did the following: require a court to allow discovery of a communication or record collected during the investigation of certain sexual or trafficking offenses that is otherwise confidential or privileged by law; authorize a defendant in a criminal action for an applicable offense, not later than the 30th day before the date the trial is scheduled to begin, to make a motion for the disclosure of a communication or record that is confidential or privileged by law, including a supporting affidavit showing reasonable grounds to believe the confidential or privileged communication or record contains exculpatory evidence; require the defendant to serve the motion on the state's attorney, 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; require the court to provide the victim the opportunity to retain counsel to respond to the defendant's motion; require the court, after a hearing on the defendant's motion, to order the confidential or privileged communication record to be produced for the court under seal and examine the communication or record in camera if the court finds by a preponderance of the evidence that: o 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 o the confidential or privileged communication or record would not be duplicative of other evidence or information available or already obtained by the defendant; and require the court to 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. Duties of Peace Officers Regarding Victims of Sexual Assault The substitute includes provisions absent from the introduced expanding the contents of the written notice provided to adult victims of sexual assault by an investigating or responding peace officer to include information about the rights and procedures under statutory provisions governing the confidentiality of identifying information and medical records of certain crime victims. The substitute also contains a provision absent from the introduced including among the statements that such a notice must contain to be considered sufficient a statement notifying the victim of their right, if a defendant is arrested for a crime against the victim involving certain sexual crimes, stalking, or trafficking, to request, using such procedures, a pseudonym to be used instead of the victim's name in all public files and records concerning the offense. Accordingly, the substitute includes a related procedural provision absent from the introduced establishing the application of the bill's provisions to a peace officer's investigation or response. Availability of Public Information The substitute omits provisions from the introduced that did the following: except the information held by a prosecutor, law enforcement agency, or corrections agency from the requirement for public information to be made available to the public at a minimum during normal business hours if the information meets certain criteria; authorize a governmental body to redact such information held by a prosecutor, law enforcement agency, or corrections agency from any information the governmental body discloses under statutory provisions relating to the availability of public information without the necessity of requesting a decision from the attorney general; require a governmental body that redacts or withholds that information to provide a written notice to the requestor: o stating that the information is being withheld from the requestor; o identifying the device from which the information was obtained; and o 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; and make the aforementioned provisions applicable only to a request for public information received by a governmental body on or after the bill's effective date.
BILL ANALYSIS
# BILL ANALYSIS
C.S.H.B. 1686
By: Hull
Criminal Jurisprudence
Committee Report (Substituted)
C.S.H.B. 1686
By: Hull
Criminal Jurisprudence
Committee Report (Substituted)
BACKGROUND AND PURPOSE One of the primary barriers for a survivor of sexual assault who is seeking justice is fear over the loss of privacy. The bill author has informed the committee that survivors already bear the burden of the most egregious invasion of personal autonomy, and to be forced into sharing private and personal information in the public sphere is often too much for a victim of sexual violence, which can jeopardize a successful prosecution. However, measures that provide some basic safeguards to survivors' privacy may encourage their continued participation in the criminal justice process, lead to an increase in successful prosecutions, and reduce the trauma and public nature of the judicial experience for survivors. C.S.H.B. 1686 seeks to provide those safeguards to sexual assault survivors throughout the criminal justice process by prohibiting the livestreaming of trials relating to sexual crimes unless the requisite consent is given, providing the right to request usage of a pseudonym in the prosecution phase, and safeguarding certain evidence of forensic medical examination and invasive visual recordings.
CRIMINAL JUSTICE IMPACT It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.
RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
ANALYSIS C.S.H.B. 1686 amends the Code of Criminal Procedure to set out provisions relating to the discovery of evidence depicting an invasive visual recording of a person 14 years of age or older and the discovery of property or material from a forensic medical examination performed on certain victims. The bill revises provisions relating to information of victims of sexual offenses and to the duties of peace officers regarding interactions with those victims. Discovery of Evidence Depicting Invasive Visual Recording of a Person 14 Years of Age or Older C.S.H.B. 1686 requires a court, in a manner provided by the bill, to allow discovery of property or material that constitutes or contains an invasive visual image of a person 14 years of age or older and that was seized by law enforcement based on a reasonable suspicion that the offense of invasive visual recording has been committed. The bill requires the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney during the discovery of evidence. Any such property or material that is produced during discovery and not offered as and admitted to evidence must either be returned to the state or destroyed at the time of the final disposition of the case. These bill provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Discovery of Property or Material From Forensic Medical Examination C.S.H.B. 1686 requires a court, in the manner provided by the bill, to allow the 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. The bill requires the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney during the discovery of evidence. Any such property or material that is produced during discovery and not offered as and admitted to evidence must either be returned to the state or destroyed at the time of the final disposition of the case. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Prohibited Use of Certain Evidence From Forensic Medical Examination C.S.H.B. 1686 prohibits a court, during the course of a criminal hearing or proceeding, from making available or allowing to be made available for copying or dissemination to the public any property or material related to or derived from evidence collected during a forensic medical examination of a sexual assault victim, including a visual image or a recording made as part of the examination. The bill requires the court to place that property or material under seal of the court on the conclusion of the hearing or proceeding. A court that places under seal such property or material may issue an order lifting the seal on a finding that the order is in the best interest of the public. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Evidence Depicting Invasive Visual Recordings C.S.H.B. 1686 extends the applicability of the prohibition against a court, during the course of a criminal hearing or proceeding concerning an invasive visual recording offense, from making available or allowing to be made available for copying or dissemination to the public property or material that constitutes or contains a visual image of a child younger than 14 years of age and that was seized by law enforcement based on a reasonable suspicion that such an offense has been committed by removing the restriction of that applicability to such property or material that constitutes or contains a visual image of a child younger than 14 years of age. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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. Pseudonym Forms C.S.H.B. 1686 gives a sex offense victim who completes a pseudonym form the option to return that form to the office of the state's attorney prosecuting the offense as an alternative to returning the form to the law enforcement agency investigating the offense. The bill expands the requirement for the Sexual Assault Prevention and Crisis Services Program to develop and distribute a pseudonym form to all law enforcement agencies of the state by requiring the program to also distribute the form to each state's attorney's office. C.S.H.B. 1686 prohibits a victim who completes a pseudonym form and returns that form to the state's attorney from being required to disclose their name, address, and telephone number in connection with the investigation or prosecution of the offense. The bill requires a law enforcement agency or a state's attorney receiving a pseudonym form to send a copy of that form to each other agency or office investigating or prosecuting the offense. The bill requires a state's attorney's office receiving the form or a copy of the form to do the following: remove the victim's name and substitute the pseudonym for the name on all reports, files, and records in the office's possession; and maintain the form in a manner that protects the confidentiality of the information contained on the form. Duties of Peace Officers Regarding Victims of Sexual Assault C.S.H.B. 1686 expands the contents of the written notice provided to adult victims of sexual assault by an investigating or responding peace officer to include information about the rights and procedures under statutory provisions governing the confidentiality of identifying information and medical records of certain crime victims. Accordingly, the bill includes among the statements that such a notice must contain to be considered sufficient a statement notifying the victim of their right, if a defendant is arrested for a crime against the victim involving certain sexual crimes, stalking, or trafficking, to request, using such procedures, a pseudonym to be used instead of the victim's name in all public files and records concerning the offense. These provisions apply only to a peace officer's investigation or response that occurs on or after the bill's effective date. A peace officer's investigation or response that occurs before the bill's effective date is governed by the law in effect on the date the investigation was conducted or the response was made, and the former law is continued in effect for that purpose. Electronic Transmission of Certain Court Proceedings C.S.H.B. 1686 amends the Government Code to require a court, before allowing the electronic transmission or broadcasting of court proceedings in which evidence or testimony is offered that depicts or describes acts of a sexual nature, to provide notice to and receive express consent for the transmission or broadcasting from the victim or the parent, conservator, or guardian of the victim, as applicable, the state's attorney, and the defendant. This requirement applies to the following: criminal or civil court proceedings relating to an offense of: o continuous sexual abuse of a young child or disabled individual, indecency with a child, invasive visual recording, sexual assault, indecent assault, or aggravated sexual assault; o trafficking of persons offense involving an actor who: traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in certain prostitution offenses; traffics a child or disabled individual and by any means causes the trafficked child or disabled individual to engage in, or become the victim of, certain sexual offenses, assaultive offenses, or public indecency offenses; or receives a benefit from participating in a venture that involves such trafficking conduct or engages in sexual conduct with such a trafficked person, child, or disabled individual; or o continuous trafficking of persons, if the offense is based partly or wholly on conduct that constitutes an offense relating to the aforementioned trafficking offenses; and court proceedings relating to: o a protective order for victims of sexual assault or abuse, indecent assault, stalking, or trafficking, a stalking protective order, or a protective order prohibiting an offense motivated by bias or prejudice; o a magistrate's order for emergency protection; o a temporary protective order issued on the motion of a party to a suit for dissolution of a marriage; or o a protective order issued on a finding that family violence has occurred. This requirement applies only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before that date 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.
EFFECTIVE DATE September 1, 2025.
COMPARISON OF INTRODUCED AND SUBSTITUTE While C.S.H.B. 1686 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill. Discovery of Evidence Depicting Invasive Visual Recording The introduced extended the applicability of the requirement for a court to allow discovery of property or material that constitutes or contains a visual image of a child younger than 14 years of age and that was seized by law enforcement based on a reasonable suspicion that an invasive visual recording offense has been committed to such property or material that constitutes or contains a visual image of any person by removing the restriction of that applicability to such property or material that constitutes or contains a visual image of a child younger than 14 years of age, which the substitute does not do. Instead, the substitute sets out provisions requiring a court to allow discovery of property or material that constitutes or contains an invasive visual image of a person 14 years of age or older and that was seized by law enforcement based on a reasonable suspicion that an invasive visual recording offense has been committed and providing for the manner in which the court must do so. Discovery of Property or Material From Forensic Medical Examination Performed on Victims of Sexual Assault Both the introduced and substitute provided for the 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. However, the substitute does the following: omits from the introduced: o the requirement for such property or material to remain in the care, custody, or control of the court or the state; o the requirement for a court to deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any such property or material provided that the state makes the property or material reasonably available to the defendant; and o a provision establishing that 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; and includes the following provisions absent from the introduced: o a requirement for the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney for discovery; and o a requirement for any such property or material produced for discovery and not offered as and admitted to evidence to either be returned to the state or destroyed at the time of the final disposition of the case. Prohibited Use of Certain Evidence From Forensic Medical Examination The substitute omits the following requirements that were present in the introduced: for the state's attorney to be provided access to evidence collected during a forensic medical examination of a sexual assault victim; and for the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial to be provided access to the applicable evidence in the manner provided by the introduced version's provisions relating to the discovery of property or material from a forensic medical examination performed on a victim of sexual assault or other sex offense. Discovery of Communication or Record That is Confidential or Privileged by Law The substitute omits provisions from the introduced that did the following: require a court to allow discovery of a communication or record collected during the investigation of certain sexual or trafficking offenses that is otherwise confidential or privileged by law; authorize a defendant in a criminal action for an applicable offense, not later than the 30th day before the date the trial is scheduled to begin, to make a motion for the disclosure of a communication or record that is confidential or privileged by law, including a supporting affidavit showing reasonable grounds to believe the confidential or privileged communication or record contains exculpatory evidence; require the defendant to serve the motion on the state's attorney, 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; require the court to provide the victim the opportunity to retain counsel to respond to the defendant's motion; require the court, after a hearing on the defendant's motion, to order the confidential or privileged communication record to be produced for the court under seal and examine the communication or record in camera if the court finds by a preponderance of the evidence that: o 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 o the confidential or privileged communication or record would not be duplicative of other evidence or information available or already obtained by the defendant; and require the court to 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. Duties of Peace Officers Regarding Victims of Sexual Assault The substitute includes provisions absent from the introduced expanding the contents of the written notice provided to adult victims of sexual assault by an investigating or responding peace officer to include information about the rights and procedures under statutory provisions governing the confidentiality of identifying information and medical records of certain crime victims. The substitute also contains a provision absent from the introduced including among the statements that such a notice must contain to be considered sufficient a statement notifying the victim of their right, if a defendant is arrested for a crime against the victim involving certain sexual crimes, stalking, or trafficking, to request, using such procedures, a pseudonym to be used instead of the victim's name in all public files and records concerning the offense. Accordingly, the substitute includes a related procedural provision absent from the introduced establishing the application of the bill's provisions to a peace officer's investigation or response. Availability of Public Information The substitute omits provisions from the introduced that did the following: except the information held by a prosecutor, law enforcement agency, or corrections agency from the requirement for public information to be made available to the public at a minimum during normal business hours if the information meets certain criteria; authorize a governmental body to redact such information held by a prosecutor, law enforcement agency, or corrections agency from any information the governmental body discloses under statutory provisions relating to the availability of public information without the necessity of requesting a decision from the attorney general; require a governmental body that redacts or withholds that information to provide a written notice to the requestor: o stating that the information is being withheld from the requestor; o identifying the device from which the information was obtained; and o 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; and make the aforementioned provisions applicable only to a request for public information received by a governmental body on or after the bill's effective date.
BACKGROUND AND PURPOSE
One of the primary barriers for a survivor of sexual assault who is seeking justice is fear over the loss of privacy. The bill author has informed the committee that survivors already bear the burden of the most egregious invasion of personal autonomy, and to be forced into sharing private and personal information in the public sphere is often too much for a victim of sexual violence, which can jeopardize a successful prosecution. However, measures that provide some basic safeguards to survivors' privacy may encourage their continued participation in the criminal justice process, lead to an increase in successful prosecutions, and reduce the trauma and public nature of the judicial experience for survivors. C.S.H.B. 1686 seeks to provide those safeguards to sexual assault survivors throughout the criminal justice process by prohibiting the livestreaming of trials relating to sexual crimes unless the requisite consent is given, providing the right to request usage of a pseudonym in the prosecution phase, and safeguarding certain evidence of forensic medical examination and invasive visual recordings.
CRIMINAL JUSTICE IMPACT
It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
ANALYSIS
C.S.H.B. 1686 amends the Code of Criminal Procedure to set out provisions relating to the discovery of evidence depicting an invasive visual recording of a person 14 years of age or older and the discovery of property or material from a forensic medical examination performed on certain victims. The bill revises provisions relating to information of victims of sexual offenses and to the duties of peace officers regarding interactions with those victims.
Discovery of Evidence Depicting Invasive Visual Recording of a Person 14 Years of Age or Older
C.S.H.B. 1686 requires a court, in a manner provided by the bill, to allow discovery of property or material that constitutes or contains an invasive visual image of a person 14 years of age or older and that was seized by law enforcement based on a reasonable suspicion that the offense of invasive visual recording has been committed. The bill requires the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney during the discovery of evidence. Any such property or material that is produced during discovery and not offered as and admitted to evidence must either be returned to the state or destroyed at the time of the final disposition of the case. These bill provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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.
Discovery of Property or Material From Forensic Medical Examination
C.S.H.B. 1686 requires a court, in the manner provided by the bill, to allow the 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. The bill requires the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney during the discovery of evidence. Any such property or material that is produced during discovery and not offered as and admitted to evidence must either be returned to the state or destroyed at the time of the final disposition of the case. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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.
Prohibited Use of Certain Evidence From Forensic Medical Examination
C.S.H.B. 1686 prohibits a court, during the course of a criminal hearing or proceeding, from making available or allowing to be made available for copying or dissemination to the public any property or material related to or derived from evidence collected during a forensic medical examination of a sexual assault victim, including a visual image or a recording made as part of the examination. The bill requires the court to place that property or material under seal of the court on the conclusion of the hearing or proceeding. A court that places under seal such property or material may issue an order lifting the seal on a finding that the order is in the best interest of the public. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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.
Evidence Depicting Invasive Visual Recordings
C.S.H.B. 1686 extends the applicability of the prohibition against a court, during the course of a criminal hearing or proceeding concerning an invasive visual recording offense, from making available or allowing to be made available for copying or dissemination to the public property or material that constitutes or contains a visual image of a child younger than 14 years of age and that was seized by law enforcement based on a reasonable suspicion that such an offense has been committed by removing the restriction of that applicability to such property or material that constitutes or contains a visual image of a child younger than 14 years of age. These provisions apply only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before the bill's effective date 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.
Pseudonym Forms
C.S.H.B. 1686 gives a sex offense victim who completes a pseudonym form the option to return that form to the office of the state's attorney prosecuting the offense as an alternative to returning the form to the law enforcement agency investigating the offense. The bill expands the requirement for the Sexual Assault Prevention and Crisis Services Program to develop and distribute a pseudonym form to all law enforcement agencies of the state by requiring the program to also distribute the form to each state's attorney's office.
C.S.H.B. 1686 prohibits a victim who completes a pseudonym form and returns that form to the state's attorney from being required to disclose their name, address, and telephone number in connection with the investigation or prosecution of the offense. The bill requires a law enforcement agency or a state's attorney receiving a pseudonym form to send a copy of that form to each other agency or office investigating or prosecuting the offense. The bill requires a state's attorney's office receiving the form or a copy of the form to do the following:
remove the victim's name and substitute the pseudonym for the name on all reports, files, and records in the office's possession; and
maintain the form in a manner that protects the confidentiality of the information contained on the form.
Duties of Peace Officers Regarding Victims of Sexual Assault
C.S.H.B. 1686 expands the contents of the written notice provided to adult victims of sexual assault by an investigating or responding peace officer to include information about the rights and procedures under statutory provisions governing the confidentiality of identifying information and medical records of certain crime victims. Accordingly, the bill includes among the statements that such a notice must contain to be considered sufficient a statement notifying the victim of their right, if a defendant is arrested for a crime against the victim involving certain sexual crimes, stalking, or trafficking, to request, using such procedures, a pseudonym to be used instead of the victim's name in all public files and records concerning the offense. These provisions apply only to a peace officer's investigation or response that occurs on or after the bill's effective date. A peace officer's investigation or response that occurs before the bill's effective date is governed by the law in effect on the date the investigation was conducted or the response was made, and the former law is continued in effect for that purpose.
Electronic Transmission of Certain Court Proceedings
C.S.H.B. 1686 amends the Government Code to require a court, before allowing the electronic transmission or broadcasting of court proceedings in which evidence or testimony is offered that depicts or describes acts of a sexual nature, to provide notice to and receive express consent for the transmission or broadcasting from the victim or the parent, conservator, or guardian of the victim, as applicable, the state's attorney, and the defendant. This requirement applies to the following:
criminal or civil court proceedings relating to an offense of:
o continuous sexual abuse of a young child or disabled individual, indecency with a child, invasive visual recording, sexual assault, indecent assault, or aggravated sexual assault;
o trafficking of persons offense involving an actor who:
traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in certain prostitution offenses;
traffics a child or disabled individual and by any means causes the trafficked child or disabled individual to engage in, or become the victim of, certain sexual offenses, assaultive offenses, or public indecency offenses; or
receives a benefit from participating in a venture that involves such trafficking conduct or engages in sexual conduct with such a trafficked person, child, or disabled individual; or
o continuous trafficking of persons, if the offense is based partly or wholly on conduct that constitutes an offense relating to the aforementioned trafficking offenses; and
court proceedings relating to:
o a protective order for victims of sexual assault or abuse, indecent assault, stalking, or trafficking, a stalking protective order, or a protective order prohibiting an offense motivated by bias or prejudice;
o a magistrate's order for emergency protection;
o a temporary protective order issued on the motion of a party to a suit for dissolution of a marriage; or
o a protective order issued on a finding that family violence has occurred.
This requirement applies only to a court hearing or proceeding that commences on or after the bill's effective date. A court hearing or proceeding that commences before that date 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.
EFFECTIVE DATE
September 1, 2025.
COMPARISON OF INTRODUCED AND SUBSTITUTE
While C.S.H.B. 1686 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.
Discovery of Evidence Depicting Invasive Visual Recording
The introduced extended the applicability of the requirement for a court to allow discovery of property or material that constitutes or contains a visual image of a child younger than 14 years of age and that was seized by law enforcement based on a reasonable suspicion that an invasive visual recording offense has been committed to such property or material that constitutes or contains a visual image of any person by removing the restriction of that applicability to such property or material that constitutes or contains a visual image of a child younger than 14 years of age, which the substitute does not do. Instead, the substitute sets out provisions requiring a court to allow discovery of property or material that constitutes or contains an invasive visual image of a person 14 years of age or older and that was seized by law enforcement based on a reasonable suspicion that an invasive visual recording offense has been committed and providing for the manner in which the court must do so.
Discovery of Property or Material From Forensic Medical Examination Performed on Victims of Sexual Assault
Both the introduced and substitute provided for the 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. However, the substitute does the following:
omits from the introduced:
o the requirement for such property or material to remain in the care, custody, or control of the court or the state;
o the requirement for a court to deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any such property or material provided that the state makes the property or material reasonably available to the defendant; and
o a provision establishing that 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; and
includes the following provisions absent from the introduced:
o a requirement for the court to enter a protective order that prohibits copying or dissemination of such property or material that is produced to the defendant or the defendant's attorney for discovery; and
o a requirement for any such property or material produced for discovery and not offered as and admitted to evidence to either be returned to the state or destroyed at the time of the final disposition of the case.
Prohibited Use of Certain Evidence From Forensic Medical Examination
The substitute omits the following requirements that were present in the introduced:
for the state's attorney to be provided access to evidence collected during a forensic medical examination of a sexual assault victim; and
for the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial to be provided access to the applicable evidence in the manner provided by the introduced version's provisions relating to the discovery of property or material from a forensic medical examination performed on a victim of sexual assault or other sex offense.
Discovery of Communication or Record That is Confidential or Privileged by Law
The substitute omits provisions from the introduced that did the following:
require a court to allow discovery of a communication or record collected during the investigation of certain sexual or trafficking offenses that is otherwise confidential or privileged by law;
authorize a defendant in a criminal action for an applicable offense, not later than the 30th day before the date the trial is scheduled to begin, to make a motion for the disclosure of a communication or record that is confidential or privileged by law, including a supporting affidavit showing reasonable grounds to believe the confidential or privileged communication or record contains exculpatory evidence;
require the defendant to serve the motion on the state's attorney, 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;
require the court to provide the victim the opportunity to retain counsel to respond to the defendant's motion;
require the court, after a hearing on the defendant's motion, to order the confidential or privileged communication record to be produced for the court under seal and examine the communication or record in camera if the court finds by a preponderance of the evidence that:
o 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
o the confidential or privileged communication or record would not be duplicative of other evidence or information available or already obtained by the defendant; and
require the court to 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.
Duties of Peace Officers Regarding Victims of Sexual Assault
The substitute includes provisions absent from the introduced expanding the contents of the written notice provided to adult victims of sexual assault by an investigating or responding peace officer to include information about the rights and procedures under statutory provisions governing the confidentiality of identifying information and medical records of certain crime victims. The substitute also contains a provision absent from the introduced including among the statements that such a notice must contain to be considered sufficient a statement notifying the victim of their right, if a defendant is arrested for a crime against the victim involving certain sexual crimes, stalking, or trafficking, to request, using such procedures, a pseudonym to be used instead of the victim's name in all public files and records concerning the offense. Accordingly, the substitute includes a related procedural provision absent from the introduced establishing the application of the bill's provisions to a peace officer's investigation or response.
Availability of Public Information
The substitute omits provisions from the introduced that did the following:
except the information held by a prosecutor, law enforcement agency, or corrections agency from the requirement for public information to be made available to the public at a minimum during normal business hours if the information meets certain criteria;
authorize a governmental body to redact such information held by a prosecutor, law enforcement agency, or corrections agency from any information the governmental body discloses under statutory provisions relating to the availability of public information without the necessity of requesting a decision from the attorney general;
require a governmental body that redacts or withholds that information to provide a written notice to the requestor:
o stating that the information is being withheld from the requestor;
o identifying the device from which the information was obtained; and
o 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; and
make the aforementioned provisions applicable only to a request for public information received by a governmental body on or after the bill's effective date.