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AN ACT
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relating to the sealing of and discovery procedures relating to |
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evidence that constitutes child pornography in a criminal hearing |
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or proceeding. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.45 to read as follows: |
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Art. 38.45. EVIDENCE THAT CONSTITUTES CHILD PORNOGRAPHY. |
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(a) During the course of a criminal hearing or proceeding, the |
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court may not make available or allow to be made available for |
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copying or dissemination to the public property or material that |
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constitutes child pornography, as described by Section |
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43.26(a)(1), Penal Code. |
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(b) The court shall place property or material described by |
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Subsection (a) under seal of the court on conclusion of the criminal |
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hearing or proceeding. |
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(c) The attorney representing the state shall be provided |
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access to property or material described by Subsection (a). In the |
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manner provided by Article 39.15, the defendant, the defendant's |
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attorney, and any individual the defendant seeks to qualify to |
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provide expert testimony at trial shall be provided access to |
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property or material described by Subsection (a). |
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(d) A court that places property or material described by |
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Subsection (a) under seal may issue an order lifting the seal on a |
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finding that the order is in the best interest of the public. |
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SECTION 2. Subsection (a), Article 39.14, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) Upon motion of the defendant showing good cause therefor |
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and upon notice to the other parties, except as provided by Article |
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39.15, the court in which an action is pending shall order the State |
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before or during trial of a criminal action therein pending or on |
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trial to produce and permit the inspection and copying or |
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photographing by or on behalf of the defendant of any designated |
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documents, papers, written statement of the defendant, (except |
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written statements of witnesses and except the work product of |
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counsel in the case and their investigators and their notes or |
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report), books, accounts, letters, photographs, objects or |
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tangible things not privileged, which constitute or contain |
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evidence material to any matter involved in the action and which are |
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in the possession, custody or control of the State or any of its |
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agencies. The order shall specify the time, place and manner of |
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making the inspection and taking the copies and photographs of any |
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of the aforementioned documents or tangible evidence; provided, |
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however, that the rights herein granted shall not extend to written |
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communications between the State or any of its agents or |
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representatives or employees. Nothing in this Act shall authorize |
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the removal of such evidence from the possession of the State, and |
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any inspection shall be in the presence of a representative of the |
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State. |
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SECTION 3. Chapter 39, Code of Criminal Procedure, is |
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amended by adding Article 39.15 to read as follows: |
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Art. 39.15. DISCOVERY OF EVIDENCE THAT CONSTITUTES CHILD |
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PORNOGRAPHY. (a) In the manner provided by this article, a court |
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shall allow discovery under Article 39.14 of property or material |
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that constitutes child pornography, as described by Section |
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43.26(a)(1), Penal Code. |
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(b) Property or material described by Subsection (a) must |
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remain in the care, custody, or control of the court or the state as |
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provided by Article 38.45. |
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(c) A court shall deny any request by a defendant to copy, |
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photograph, duplicate, or otherwise reproduce any property or |
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material described by Subsection (a), provided that the state makes |
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the property or material reasonably available to the defendant. |
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(d) For purposes of Subsection (c), property or material is |
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considered to be reasonably available to the defendant if, at a |
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facility under the control of the state, the state provides ample |
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opportunity for the inspection, viewing, and examination of the |
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property or material by the defendant, the defendant's attorney, |
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and any individual the defendant seeks to qualify to provide expert |
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testimony at trial. |
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SECTION 4. This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 595 passed the Senate on |
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April 16, 2009, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 595 passed the House on |
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May 18, 2009, by the following vote: Yeas 141, Nays 0, one present |
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not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |