BILL ANALYSIS

C.S.H.B. 1422

By: Hull

Criminal Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

The bill author has informed the committee that, currently, survivors of sexual assault must first file a report with law enforcement before the evidence collection kit is tested for foreign DNA material. The bill author has further informed the committee that the punishment and offenses for certain sexual offenses are not in line with similar offenses; for example, the offense of voyeurism is a Class C misdemeanor but the offense of invasive visual recording is a state jail felony despite the conduct for the offenses being similar. In addition, while a court may order sentences to run consecutively for offenders convicted of multiple charges of sexual assault or aggravated sexual assault of a victim under 17 years of age, courts do not have this discretion with respect to an offender convicted of multiple charges of sexual assault or aggravated sexual assault of an adult. Similarly, while there is an offense for continuous sexual abuse of a young child or disabled individual, there is no offense for continuous sexual abuse of an adult. C.S.H.B. 1422 seeks to address these issues by authorizing survivors of sexual assault to provide limited consent for the Department of Public Safety to test evidence in an evidence collection kit without having to report the offense to law enforcement, by increasing and enhancing penalties for other sex offenses, by providing for consecutive sentences for a person convicted of multiple charges of sexual assault regardless of the age of the survivor, and by creating the offense of continuous sexual abuse applicable to a survivor who is an adult. 

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill expressly does one or more of the following: creates a criminal offense, increases the punishment for an existing criminal offense or category of offenses, or changes the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the Department of Public Safety in SECTION 6 of this bill.

ANALYSIS

Rights of Survivors of Sexual Assault and Other Sex Offenses; Forensic DNA Testing of Certain Evidence

C.S.H.B. 1422 amends the Government Code to authorize a survivor or other person authorized to consent to the release of evidence contained in an evidence collection kit, for purposes of encouraging the reporting of sexual assaults or other sex offenses that would otherwise remain unreported, to choose to limit the scope of their consent to only permit, without regard to whether a report of the offense is made to a law enforcement agency, the performance of forensic DNA testing by the Department of Public Safety (DPS) on biological evidence contained in the evidence collection kit. Accordingly, the bill specifies that the reason or purpose required for the release of evidence by the survivor or other person under state law may be limited to permit only such acts by DPS, regardless of whether a report of the applicable offense is made to a law enforcement agency.

C.S.H.B. 1422 requires DPS by rule to adopt a form, not later than December 1, 2025, to enable a survivor or other authorized person to provide the limited consent. The bill prescribes the statement, including language specifying that any results of the forensic DNA testing will not be compared to DNA profiles maintained in DNA databases and will not be subject to use in a criminal investigation or trial, that must be included on the form and, in addition, requires DPS to do the following:

·provide to the survivor or other authorized person who provides limited consent to forensic DNA testing, the results of the forensic DNA testing through the statewide electronic tracking system established under the Sexual Assault Prevention and Crisis Services Act;

·obtain additional written consent from the person under that act before notifying any other entity of the results of the forensic DNA testing or before using those results for any other reason or purpose; and

·provide to the survivor or other authorized person who provides limited consent to forensic DNA testing, information regarding how to report an offense to a law enforcement agency in order to have the results of the forensic DNA testing compared to DNA profiles maintained in DNA databases and used in a criminal investigation or trial.

C.S.H.B. 1422 amends the Code of Criminal Procedure to revise the requirement for DPS to develop procedures for the transfer and preservation of evidence collected during a forensic medical examination for a sexual assault that was not reported to a law enforcement agency as follows:

·includes a requirement for DPS to develop procedures for the testing of such evidence; and

·includes among the procedures that DPS must develop procedures for forensic DNA testing performed in accordance with the limited consent of a survivor or other authorized person under the bill's provisions.

Continuous Sexual Abuse

Offense; Penalties

C.S.H.B. 1422 amends the Penal Code to create the first degree felony offense of continuous sexual abuse for a person who does the following:

·during a period that is 30 or more days in duration, commits two or more acts of sexual abuse against two or more victims; and

·at the time of the commission of each of the acts of sexual abuse, is 17 years of age or older.

The term "act of sexual abuse" used for the offense of continuous sexual abuse created by the bill has the same definition used under current law for purposes of the offense of continuous sexual abuse of a young child or disabled individual.

Prosecution; Defenses

C.S.H.B. 1422, for purposes of a trial for an offense of continuous sexual abuse in which the jury is the trier of fact, provides the following:

·the jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse against two or more victims; but

·members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.

C.S.H.B. 1422 prohibits a defendant from being charged with more than one count under such an offense if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against only two victims. For purposes of the conviction of a defendant in the same criminal action for an act of sexual abuse that constitutes a separate offense and also continuous sexual abuse in which the victim is the same, the separate offense must meet one of the following conditions:

·the offense is charged in the alternative;

·the offense occurred outside the period in which the continuous sexual abuse offense was committed; or

·the offense is considered by the trier of fact to be a lesser offense than continuous sexual abuse.

C.S.H.B. 1422 establishes as an affirmative defense to prosecution for continuous sexual abuse involving only two or more victims younger than 17 years of age that the actor met the following conditions:

·was not more than five years older than the youngest victim of the offense;

·did not use duress, force, or a threat against a victim at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense; and

·at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense, was not required to register for life as a sex offender or was not otherwise required to register as a sex offender.

Ineligibility for Certain Community Supervision, Release on Parole, or Mandatory Supervision

C.S.H.B. 1422 amends the Code of Criminal Procedure and Government Code to include the offense of continuous sexual abuse among the offenses ineligible for the following:

·deferred adjudication community supervision;

·release on parole or intensive supervision parole; or

·release to mandatory supervision.

Accordingly, the bill conditions the authority for a parole panel, for the purpose of diverting inmates to halfway houses, to designate a presumptive parole date for an inmate after reviewing all available pertinent information on the inmate having never been convicted of the offense of continuous sexual abuse. The bill requires a parole panel, as a condition of parole or mandatory supervision, to require that a releasee convicted of such an offense pay a parole supervision fee of $5 each month during the period of parole supervision to the pardons and paroles division.

C.S.H.B. 1422 includes a first degree burglary offense committed with the intent to commit continuous sexual abuse among the offenses ineligible for judge-ordered community supervision.

Sex Offender Registration

C.S.H.B. 1422 includes the offense of continuous sexual abuse among the offenses for which a reportable conviction or adjudication subjects an offender to registration under the sex offender registration program and the commission of which requires an offender 17 years of age or older to register for life under the program.

Enhanced Penalties for Previous Conviction

C.S.H.B. 1422 amends the Penal Code to include a previous conviction for the offense of continuous sexual abuse among the previous convictions for which the following penalty enhancements apply to an individual or defendant:

·the penalty enhancement to a third degree felony for an individual adjudged guilty of a state jail felony;

·the penalty enhancement to imprisonment in the Texas Department of Criminal Justice (TDCJ) for life for a defendant who is convicted of certain sexual offenses or offenses committed with sexual intent punishable as a second degree or first degree felony; and

·the penalty enhancement to a second degree felony for an individual who is convicted of child grooming.

Penalties and Punishments for Sexual Assault and Other Sex Offenses

Sexual Assault and Aggravated Sexual Assault

Under current law, a person who is found guilty of more than one violation of the following offenses arising out of the same criminal episode or an offense for which a plea agreement was reached in a case in which the person was charged with more than one such violation may be sentenced to serve consecutively if the violations are against a victim who was younger than 17 years of age at the time of the commission of the offense, regardless of whether the violations are for the same offense:

·sexual assault;

·aggravated sexual assault;

·online solicitation of a minor;

·continuous sexual abuse of a young child or disabled individual;

·indecency with a child;

·prohibited sexual conduct; or

·sexual performance by a child.

The bill removes sexual assault and aggravated sexual assault from the list of offenses in that provision and creates a new provision under which a person may be sentenced to serve consecutively under the same circumstances except the new provision applies to violations of sexual assault or aggravated sexual assault against any victim rather than only victims younger than 17 years of age as under current law.

C.S.H.B. 1422 extends the applicability of the 25-year mandatory minimum term of imprisonment in TDCJ for aggravated sexual assault from an actor who commits the offense against a victim younger than six years of age to an actor who commits the offense against a victim younger than 11 years of age.

Criminal Solicitation of a Minor

C.S.H.B. 1422 expands the conditions under which the offense of criminal solicitation of a minor applies to include an actor's commission of the requisite conduct with the intent to commit continuous sexual abuse.

Voyeurism

C.S.H.B. 1422 increases the penalty for voyeurism from a Class C misdemeanor to a Class A misdemeanor. For purposes of the existing Class B misdemeanor penalty enhancement for voyeurism, the bill does the following:

·replaces the condition that the actor has been previously convicted at least twice with the condition that the actor has been previously convicted at least once or that the victim was a child younger than 18 years of age at the time of the offense; and

·increases the penalty from a Class B misdemeanor to a state jail felony.

The bill removes the penalty enhancements to the next higher category for voyeurism on the premises of a postsecondary educational institution but makes voyeurism on such premises punishable as a state jail felony. Moreover, for purposes of the existing state jail felony enhancement for voyeurism, the bill does the following:

·replaces the condition that the victim was younger than 14 years old at the time of the offense with the condition that the victim was younger than 18 years old at the time of that offense and that the actor has previously been convicted of voyeurism involving a victim who was a child younger than 18 years of age at the time of the offense; and

·increases the penalty from a state jail felony to a third degree felony.

Sexual Coercion

C.S.H.B. 1422 expands the conduct constituting the offense of sexual coercion to include intentionally threatening, including by coercion or extortion, to commit continuous sexual abuse to obtain, in return for not committing that conduct, or in connection with the conduct, certain benefits.

Applicability

The provisions of C.S.H.B. 1422 relating to limited consent for forensic DNA testing of certain evidence and DPS procedures for testing evidence apply only to biological evidence collected on or after December 1, 2025. Biological evidence collected before that date is governed by the law in effect on the date the evidence was collected, and the former law is continued in effect for that purpose.

C.S.H.B. 1422 applies only to an offense committed on or after the bill's effective date. An offense committed before the bill's effective date is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For these purposes, an offense was committed before the bill's effective date if any element of the offense occurred before that date.

EFFECTIVE DATE

September 1, 2025.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 1422 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.

While the introduced and substitute both authorize a survivor or other person to choose to limit the scope of consent to the release of evidence contained in an evidence collection kit for certain purposes, the versions differ as follows: the introduced included among those purposes the comparison of a DNA profile obtained from the biological evidence with DNA profiles maintained in state databases and the CODIS DNA database established by the FBI, if the amount and quality of the analyzed sample meet the requirements of the state database or FBI's CODIS comparison policies, whereas the substitute does not.

Accordingly, the substitute does not include the introduced version's requirement for DPS to provide notice to the survivor or other person regarding whether any matches are identified between the DNA profile submitted to DPS and DNA profiles contained in applicable DNA databases or the prohibition against notifying any other entity of the results of the comparison of DNA profiles. The substitute includes requirements absent from the introduced for DPS instead to do the following:

·provide to the survivor or other person the results of the forensic DNA testing through the statewide electronic tracking system established under the Sexual Prevention and Crisis Services Act; and

·provide to the survivor or other person information regarding how to report an offense to a law enforcement agency in order to have the results of the forensic DNA testing compared to DNA profiles maintained in DNA databases and used in a criminal investigation or trial.

With respect to the prescribed statement contained in the form that DPS must adopt, the substitute replaces language specifying that any results of the DNA testing and comparison may be subject to use in a criminal investigation or trial, regardless of whether the person chooses to file a report in their case, as in the introduced, with language specifying that any results of the forensic DNA testing will not be compared to DNA profiles maintained in DNA databases and will not be subject to use in a criminal investigation or trial.

The substitute revises the requirement for DPS to develop procedures for the transfer and preservation of evidence collected during a forensic medical examination for a sexual assault that was not reported to a law enforcement agency, whereas the introduced did not.

With respect to the offense of continuous sexual abuse created by the bill, the substitute makes the following revisions to the conduct constituting the offense:

·lowers the minimum number of acts of sexual abuse from three or more, as in the introduced, to two or more;

·raises the minimum number of victims from one or more, as in the introduced, to two or more; and

·does not include the condition that the victim is either:

oa child younger than 14 years of age, regardless of whether the person knows the age of the victim at the time of the offense, or a disabled individual; or

oany other person regardless of age or disability, other than a victim who is 14 years of age or older, younger than 17 years of age, and not more than three years younger than the actor.

Accordingly, the substitute changes the minimum number of acts of sexual abuse and victims that a jury, if it is the trier of fact in the trial of such an offense, must agree unanimously that the defendant committed from three or more acts of sexual abuse, as in the introduced, to two or more acts of sexual abuse against two or more victims. The substitute also makes the following changes with respect to the offense of continuous sexual abuse:

·for purposes of the application of the prohibition against a defendant being charged with more than one count of the offense for all acts of sexual abuse that are alleged to have been committed against a victim, changes the number of victims from a single victim, as in the introduced, to only two victims; and

·for purposes of the application of the affirmative defense to prosecution for the offense of continuous sexual abuse involving a victim younger than 17 years of age, raises the minimum number of victims from one or more, as in the introduced, to two or more.

Whereas the introduced made the offense of continuous sexual abuse a first degree felony punishable by imprisonment in TDCJ for life or for any term of not more than 99 years or less than 25 years, the substitute makes the offense a first degree felony.

The substitute does not include the provision of the introduced establishing that if conduct constituting the offense of continuous sexual abuse also constitutes continuous sexual abuse of a young child or disabled individual, the actor may be prosecuted under either offense, but not both.

The substitute does the following, none of which the introduced did:

·includes the offense of continuous sexual abuse among the offenses ineligible for:

odeferred adjudication community supervision;

orelease on parole or intensive supervision parole; and

orelease to mandatory supervision;

·conditions the authority for a parole panel to designate a presumptive parole date for an inmate after reviewing all available pertinent information on the inmate having never been convicted of the offense of continuous sexual abuse;

·requires a parole panel, as a condition of parole or mandatory supervision, to require that a releasee convicted of continuous sexual abuse pay a parole supervision fee of $5 each month during the period of parole supervision to the pardons and paroles division;

·includes a first degree burglary offense committed with the intent to commit continuous sexual abuse among the offenses ineligible for judge-ordered community supervision;

·includes the offense of continuous sexual abuse among the offenses for which a reportable conviction or adjudication subjects an offender to required sex offender registration and the commission of which by a person 17 years of age or older subjects that person to register for life as a sex offender; and

·includes a previous conviction for the offense of continuous sexual abuse among the previous convictions for which certain penalty enhancements apply to the following:

oan individual adjudged guilty of a state jail felony;

oa defendant convicted of certain sexual offenses or offenses committed with sexual intent punishable as a second degree or first degree felony; and

oan individual convicted of child grooming.

Whereas the introduced made the 25-year mandatory minimum term of imprisonment applicable to an actor who commits aggravated sexual assault against any victim younger than 14 years of age at the time of the offense, regardless of the manner in which the offense is committed, the substitute extends applicability of the mandatory minimum from an actor who commits the offense against a victim younger than six years of age to an actor who commits the offense against a victim younger than 11 years of age.

The substitute does the following, whereas the introduced did not:

·expands the conditions under which the offense of criminal solicitation of a minor applies to include an actor's commission of the requisite conduct with the intent to commit continuous sexual abuse; and

·expands the conduct constituting the offense of sexual coercion to include intentionally threatening, including by coercion or extortion, to commit continuous sexual abuse to obtain, in return for not committing that conduct, or in connection with the conduct, certain benefits.

The substitute includes a procedural provision absent from the introduced relating to the application of the bill's provisions relating to limited consent for forensic DNA testing of certain evidence and DPS procedures for testing evidence to biological evidence collected on or after December 1, 2025.