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A BILL TO BE ENTITLED
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AN ACT
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relating to the confidential and privileged communications and |
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records of victims of certain sexual assault offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Subchapter D, Chapter 420, |
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Government Code, is amended to read as follows: |
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SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS AND RECORDS |
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SECTION 2. Section 420.071, Government Code, is amended to |
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read as follows: |
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Sec. 420.071. CONFIDENTIAL COMMUNICATIONS AND RECORDS; |
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PRIVILEGE. (a) Any [A] communication, including an oral or written |
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communication, between an employee or volunteer of a sexual assault |
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program [advocate] and a survivor [, or a person claiming to be a
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survivor,] that is made in the course of advising, counseling, or |
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assisting [providing sexual assault advocacy services to] the |
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survivor is confidential [and may not be disclosed except as
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provided by this subchapter]. |
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(b) Any [A] record created by, provided to, or maintained by |
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an employee or volunteer of a sexual assault program is |
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confidential if the record relates to the services provided to a |
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survivor or contains [of] the identity, personal history, or |
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background information of the [a] survivor or information |
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concerning the victimization of the [a] survivor [that is created
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by or provided to an advocate or maintained by a sexual assault
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program is confidential and may not be disclosed except as provided
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by this subchapter]. |
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(c) In any civil, criminal, administrative, or legislative |
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proceeding, subject to Section 420.072, a survivor has a privilege |
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to refuse to disclose and to prevent another from disclosing, for |
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any purpose, a communication or record that is confidential under |
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this section. [A person who receives information from a
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confidential communication or record as described by this
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subchapter may not disclose the information except to the extent
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that disclosure is consistent with the authorized purposes for
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which the information was obtained.] |
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(d) This subchapter governs a confidential communication or |
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record concerning a survivor regardless of when the survivor |
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received the services of a [an advocate or] sexual assault program. |
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SECTION 3. Section 420.072, Government Code, is amended to |
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read as follows: |
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Sec. 420.072. DISCLOSURE OF CONFIDENTIAL COMMUNICATION OR |
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RECORD [EXCEPTIONS]. (a) A communication or [, a] record [, or
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evidence] that is confidential under Section 420.071 [this
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subchapter] may only be disclosed [in court or in an administrative
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proceeding] if: |
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(1) the communication or record [proceeding is brought
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by the survivor against an advocate or a sexual assault program or
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is a criminal proceeding or a certification revocation proceeding
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in which disclosure] is relevant to the claims or defense of a [the
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advocate or] sexual assault program in a proceeding brought by the |
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survivor against the program; [or] |
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(2) the privilege is waived with respect to the |
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communication or record [survivor or other appropriate person
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consents in writing to the disclosure] as provided by Section |
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420.073; |
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(3) a court orders the disclosure under Section |
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420.074; |
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(4) an employee or volunteer of a sexual assault |
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program [or 420.0735, as applicable.
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[(b)
A communication, a record, or evidence that is
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confidential under this subchapter may be disclosed only to:
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[(1)
medical or law enforcement personnel if the
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advocate] determines that there is a probability of: |
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(A) imminent physical danger to any person to |
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[for] whom the communication or [,] record relates; or |
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(B) [, or evidence is relevant or if there is a
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probability of] immediate mental or emotional injury to the |
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survivor; |
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(5) [(2) a governmental agency if the] disclosure is |
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necessary: |
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(A) to comply with: |
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(i) Chapter 261, Family Code; or |
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(ii) Chapter 48, Human Resources Code; or |
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(B) [required or authorized by law;
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[(3) a qualified person to the extent necessary] for a |
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management audit, a financial audit, a program evaluation, or |
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research, except that a report of the [research,] audit, [or] |
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evaluation, or research may not directly or indirectly identify a |
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survivor; or |
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(6) an employee or volunteer of a sexual assault |
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program, [(4)
a person authorized to receive the disclosure as a
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result of written consent obtained under Section 420.073 or
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420.0735; or
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[(5) an advocate] or a person under the supervision of |
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a counseling supervisor who is participating in the evaluation or |
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counseling of or the provision of services to the survivor, |
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determines that the disclosure is necessary to facilitate the |
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provision of services to the survivor, if the disclosure was made |
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only to an employee or volunteer of the sexual assault program [the
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evaluation or counseling of or advocacy for the survivor]. |
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(b) Notwithstanding a waiver by a parent or legal guardian |
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under Section 420.073(a), an employee or volunteer of a sexual |
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assault program may not disclose a [(c) A] communication or [, a] |
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record [, or evidence] that is confidential under Section 420.071 |
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[this subchapter may not be disclosed] to a parent or legal guardian |
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of a survivor who is a minor if the employee or volunteer [an
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advocate or a sexual assault program] knows or has reason to believe |
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that the parent or legal guardian of the survivor is a suspect in |
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the sexual assault of the survivor. |
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SECTION 4. The heading to Section 420.073, Government Code, |
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is amended to read as follows: |
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Sec. 420.073. WAIVER OF PRIVILEGE [CONSENT FOR RELEASE OF
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CERTAIN CONFIDENTIAL INFORMATION]. |
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SECTION 5. Section 420.073, Government Code, is amended by |
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amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) The privilege provided by Section 420.071(c) may be |
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waived only [Consent for the release of confidential information
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other than evidence contained in an evidence collection kit must be
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in writing and signed] by the survivor, a parent or legal guardian |
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if the survivor is a minor, a legal guardian if the survivor has |
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been adjudicated incompetent to manage the survivor's personal |
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affairs, an attorney ad litem appointed for the survivor, or a |
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personal representative if the survivor is deceased. The waiver |
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[written consent] must: |
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(1) be in writing and signed; and |
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(2) specify [:
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[(1)] the communication [information] or record for |
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which privilege is waived [records covered by the release;
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[(2) the reason or purpose for the release; and
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[(3)
the person to whom the information is to be
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released]. |
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(a-1) Except as provided by this subsection, the |
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unauthorized disclosure of a portion of a confidential |
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communication or record does not constitute a waiver of the |
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privilege provided by Section 420.071(c). If a portion of a |
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confidential communication or record is disclosed, a party to the |
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relevant court or administrative proceeding may make a motion |
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requesting that the privilege be waived with respect to the |
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disclosed portion. The court or administrative hearing officer, as |
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applicable, may determine that the privilege has been waived only |
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if: |
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(1) the disclosed portion is relevant to a disputed |
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matter at the proceeding; and |
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(2) waiver is necessary for a witness to be able to |
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respond to questioning concerning the disclosed portion. |
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SECTION 6. Section 420.074, Government Code, is amended to |
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read as follows: |
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Sec. 420.074. DISCLOSURE IN CRIMINAL PROCEEDING |
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[SUBPOENA]. (a) Notwithstanding any other provision of this |
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chapter, a defendant [person shall disclose a communication, a
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record, or evidence that is confidential under this chapter for
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use] in a criminal [investigation or] proceeding may make a motion |
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requesting that the court in which the proceeding is pending order |
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the disclosure of a communication or record that is confidential |
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under Section 420.071. The motion must be supported by an affidavit |
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stating reasonable grounds to believe the communication or record |
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contains exculpatory evidence. The defendant must serve a copy of |
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the motion on the attorney representing the state and the survivor |
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who is the subject of the communication or record [in response to a
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subpoena issued in accordance with law]. |
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(b) The court shall order the communication or record |
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produced for an in camera review by the court if, based on the |
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defendant's affidavit, the court finds by a preponderance of the |
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evidence that: |
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(1) the defendant has a good faith, specific, and |
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reasonable belief that the communication or record is relevant, |
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material, and exculpatory; and |
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(2) the communication or record is not cumulative of |
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other evidence or information available to the defendant. |
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(c) The court shall order the communication or record |
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disclosed to the defendant and the attorney representing the state |
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if the court determines that, after a review under Subsection (b), |
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the communication or record is exculpatory. |
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SECTION 7. Sections 420.073(b) and (c), Government Code, |
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are repealed. |
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SECTION 8. (a) Except as provided by Subsection (b) of this |
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section, the change in law made by this Act applies to any |
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communication or record described by Section 420.071, Government |
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Code, as amended by this Act, regardless of the date the |
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communication is made or the record is created. |
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(b) Section 420.074, Government Code, as amended by this |
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Act, applies only to a criminal proceeding that commences on or |
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after the effective date of this Act. A criminal proceeding that |
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commenced before the effective date of this Act is governed by the |
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law in effect on the date the proceeding commenced, and the former |
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law is continued in effect for that purpose. |
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SECTION 9. This Act takes effect September 1, 2017. |