BILL ANALYSIS

C.S.H.B. 4622

By: Leach

Criminal Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

During the COVID-19 pandemic, remote proceedings in criminal cases were allowed by emergency order and became common practice. However, current law only permits remote proceedings in criminal cases under very limited circumstances. C.S.H.B. 4622 seeks to allow courts to hold criminal or juvenile proceedings via remote video conference but requires consent of both parties in certain circumstances.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 4622 sets out provisions relating to the conduct of criminal proceedings and juvenile proceedings by videoconference that apply to a proceeding that commences on or after the bill's effective date.

Criminal Proceedings

C.S.H.B. 4622 amends the Code of Criminal Procedure to authorize a court to conduct all or part of a criminal proceeding under the code by videoconference and allow or require any party, attorney, witness, court reporter, juror, or other participant in the proceeding to participate by videoconference under the following conditions:

·         the videoconference provides for a simultaneous, compressed full motion video, and interactive communication of image and sound between the judge, the state's attorney, the defendant, and the defendant's attorney; and

·         on request of the defendant, the defendant and the defendant's attorney are able to communicate privately without being recorded or heard by the judge or the state's attorney.

The bill requires the defendant and the state's attorney to file with the court written consent to the use of videoconference if the applicable proceeding is a contested matter involving witness testimony or if the U.S. Constitution or the Texas Constitution otherwise requires that consent.

C.S.H.B. 4622 removes provisions that do the following:

·         require a waiver of the right to trial by jury by certain defendants to be made in person;

·         require a plea of "guilty" or a plea of "nolo contendere" in a felony case to be made by the defendant in person;

·         condition a court's acceptance of a written plea of guilty or nolo contendere from a defendant confined in a penal institution on the defendant waiving the right to be present at the taking of the plea or to have counsel present, if applicable; and

·         condition use of videoconference to accept a plea or waiver of a defendant's right on consent by the defendant and the state's attorney.

Juvenile Proceedings

C.S.H.B. 4622 amends the Family Code to authorize a juvenile court to conduct all or part of a hearing or other proceeding under the juvenile justice code by videoconference and allow or require any party, attorney, witness, court reporter, juror, or other participant in the proceeding to participate by videoconference under the following conditions:

·         the videoconference provides for a simultaneous, compressed full motion video and for interactive communication of image and sound between the judge, the state's attorney, the child, and the child's attorney; and

·         on request of the child, the child and the child's attorney are able to communicate privately without being recorded or heard by the judge or the state's attorney.

The bill requires the child and the state's attorney to file with the court written consent to the use of videoconference if the applicable proceeding is a contested matter involving witness testimony or if the U.S. Constitution or the Texas Constitution otherwise requires that consent. The bill establishes that such circumstances are the only circumstances in which consent of the parties is required for holding a detention hearing for a child using interactive video equipment and removes a provision that requires consent of the child and the child's attorney for all detention hearings held using such equipment.

C.S.H.B. 4622 requires the Office of Court Administration of the Texas Judicial System (OCA) to provide guidance and assistance to the extent possible to a juvenile court conducting by videoconference a proceeding involving a jury and requires the judge of a juvenile court to submit to OCA a plan for conducting applicable proceedings by videoconference. The plan must include protocols for handling physical evidence and require an unobstructed view of any party or witness who provides testimony from a location that is different from the location for the proceeding. 

C.S.H.B. 4622 repeals Section 54.012(b), Family Code.

EFFECTIVE DATE

September 1, 2023.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 4622 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.

Both the introduced and the substitute authorize a court to conduct a criminal proceeding by videoconference under certain conditions. However, the substitute specifies that this authorization applies to all or part of the proceeding. The substitute also includes an authorization that was not in the introduced for the court to allow or require any party, attorney, witness, court reporter, juror, or other participant in the proceeding to participate by videoconference.

Both the introduced and the substitute require the defendant and the state's attorney to file with the court written consent to the use of video conference if the applicable proceeding is a contested matter involving witness testimony. However, the substitute additionally requires this consent if required by the U.S. Constitution or the Texas Constitution.

The substitute includes provisions that were not in the introduced that do the following:

·         authorize a juvenile court to conduct all or part of a hearing or other proceeding by videoconference, subject to the same conditions and consent requirements provided by the bill for courts holding criminal proceedings;

·         require OCA to provide guidance and assistance to a juvenile court conducting by videoconference a proceeding involving a jury; and

·         require a juvenile court judge to submit to OCA a plan for conducting proceedings by videoconference. 

The substitute updates the provision providing for the bill's prospective applicability to account for the addition of the provisions applicable to juvenile proceedings. The substitute also revises the consent requirements for detention hearings held using interactive video equipment and repeals a provision relating to such hearings that is covered by the new provisions applicable to juvenile proceedings generally, which the introduced did not do.