bill sealing forensic exam images in sex offense cases

The text as introduced · 2,642 words

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.