HB 459 — The admissibility of a defendant's work of creative expr

90R2593 AJZ-D By: Bucy H.B. No. 459 relating to the admissibility of a defendant's work of creative expression in a criminal trial.

SECTION 1. Chapter 38, Code of Criminal Procedure, is amended by adding Article 38.52 to read as follows: Art. 38.52. ADMISSIBILITY OF DEFENDANT'S WORK OF CREATIVE EXPRESSION. (a) In this article, "work of creative expression" means an expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols that is eligible for federal copyright protection under 17 U.S.C. Section 102. The term includes music, dance, performance art, visual art, poetry, literature, and film. (b) A defendant's work of creative expression is not admissible against the defendant in a criminal trial, whether offered in the guilt or innocence phase or the punishment phase of the trial, unless: (1) the attorney representing the state notifies the defendant of the state's intention to offer the work of creative expression as evidence in the trial; and (2) in a hearing conducted outside the presence of the jury, the judge finds by a preponderance of the evidence that: (A) the substance of the defendant's work of creative expression: (i) was intended literally rather than figuratively or fictionally or, if the work is derivative, was intended as the defendant's own creative expression based on the literal part of the work; (ii) was created near in time to or closely matches the facts of the alleged offense; and (iii) relates to a disputed factual issue about the alleged offense or includes factual detail not otherwise publicly available; and (B) the probative value of the defendant's work of creative expression substantially outweighs the danger of unfair prejudice.

SECTION 2. The change in law made by this Act applies to the admissibility of a work of creative expression in a criminal proceeding that commences on or after the effective date of this Act. The admissibility of a work of creative expression in a criminal proceeding that commences before the effective date of this Act is governed by the law in effect on the date the proceeding commenced, and the former law is continued in effect for that purpose.

SECTION 3. This Act takes effect September 1, 2027.