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AN ACT
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relating to the testimony of children in criminal cases. |
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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 38.074 to read as follows: |
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Art. 38.074. TESTIMONY OF CHILD IN PROSECUTION OF OFFENSE |
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Sec. 1. In this article: |
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(1) "Child" has the meaning assigned by Section |
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22.011(c), Penal Code. |
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(2) "Support person" means any person whose presence |
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would contribute to the welfare and well-being of a child. |
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Sec. 2. This article applies to the testimony of a child in |
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any hearing or proceeding in the prosecution of any offense, other |
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than the testimony of a child in a hearing or proceeding in a |
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criminal case in which that child is the defendant. |
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Sec. 3. (a) A court shall: |
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(1) administer an oath to a child in a manner that |
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allows the child to fully understand the child's duty to tell the |
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truth; |
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(2) ensure that questions asked of the child are |
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stated in language appropriate to the child's age; |
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(3) explain to the child that the child has the right |
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to have the court notified if the child is unable to understand any |
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question and to have a question restated in a form that the child |
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does understand; |
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(4) ensure that a child testifies only at a time of day |
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when the child is best able to understand the questions and to |
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undergo the proceedings without being traumatized, including: |
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(A) limiting the duration of the child's |
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testimony; |
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(B) limiting the timing of the child's testimony |
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to the child's normal school hours; or |
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(C) ordering a recess during the child's |
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testimony when necessary for the energy, comfort, or attention span |
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of the child; and |
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(5) prevent intimidation or harassment of the child by |
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any party and, for that purpose, rephrase as appropriate any |
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question asked of the child. |
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(b) On the motion of any party, or a parent, managing |
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conservator, guardian, or guardian ad litem of a child or special |
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advocate for a child, the court shall allow the child to have a toy, |
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blanket, or similar comforting item in the child's possession while |
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testifying or allow a support person to be present in close |
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proximity to the child during the child's testimony if the court |
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finds by a preponderance of the evidence that: |
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(1) the child cannot reliably testify without the |
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possession of the item or presence of the support person, as |
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applicable; and |
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(2) granting the motion is not likely to prejudice the |
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trier of fact in evaluating the child's testimony. |
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(c) A support person who is present during a child's |
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testimony may not: |
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(1) obscure the child from the view of the defendant or |
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the trier of fact; |
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(2) provide the child with an answer to any question |
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asked of the child; or |
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(3) assist or influence the testimony of the child. |
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(d) The court may set any other conditions and limitations |
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on the taking of the testimony of a child that it finds just and |
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appropriate, considering the interests of the child, the rights of |
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the defendant, and any other relevant factors. |
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SECTION 2. The change in law made by this Act applies to a |
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criminal proceeding that commences on or after the effective date |
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of this Act. A criminal proceeding that commences before the |
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effective date of this Act is covered by the law in effect when the |
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proceeding commenced, and the former law is continued in effect for |
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that purpose. |
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SECTION 3. This Act takes effect September 1, 2011. |
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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. 578 passed the Senate on |
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May 12, 2011, 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. 578 passed the House on |
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May 23, 2011, by the following vote: Yeas 142, Nays 0, one |
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present 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 |