81R730 SJM-D
By: Dutton H.B. No. 1168
A BILL TO BE ENTITLED
AN ACT
relating to discovery in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 39.14, Code of Criminal Procedure, is
amended to read as follows:
Art. 39.14. DISCOVERY[.]
Sec. 1. DISCLOSURE BY STATE. (a) As soon as practicable
after receiving a timely request from the defendant, the attorney
representing the state shall disclose to the defendant's counsel
and permit inspection, photocopying, and photographing of the
following materials and information in the possession, custody, or
control of the state or any of its agencies:
(1) any exculpatory or impeachment evidence material
to the defendant's guilt or punishment;
(2) any written or recorded statements that are made
by the defendant or by any witness the attorney representing the
state intends to call at the trial and that are related to the case
charged, including offense reports by law enforcement personnel and
grand jury testimony, if any;
(3) any written record containing the substance of any
oral statement that is made by the defendant and that is related to
the case charged, whether made before or after the defendant's
arrest, in response to interrogation by any person whom the
defendant believed to be a peace officer;
(4) the defendant's prior criminal record;
(5) any record of a criminal conviction admissible for
impeachment under Rule 609, Texas Rules of Evidence, of a witness
the attorney representing the state intends to call at the trial;
(6) any affidavit, warrant, or return pertaining to a
search or seizure in connection with the case;
(7) any physical or documentary evidence that was
obtained from or that belongs to the defendant or that the attorney
representing the state intends to use at the trial and, on a showing
of materiality by the defendant, the opportunity to test that
evidence;
(8) the names and addresses of the witnesses called to
present evidence under Rules 702, 703, and 705, Texas Rules of
Evidence, and the names of all other witnesses the attorney
representing the state intends to call at the trial;
(9) any report produced by or for an expert witness the
attorney representing the state intends to call at the trial; and
(10) any plea agreement, grant of immunity, or other
agreement for testimony issued by the attorney representing the
state in connection with the case. [Upon motion of the defendant
showing good cause therefor and upon notice to the other parties,
the court in which an action is pending shall order the State before
or during trial of a criminal action therein pending or on trial to
produce and permit the inspection and copying or photographing by
or on behalf of the defendant of any designated documents, papers,
written statement of the defendant, (except written statements of
witnesses and except the work product of counsel in the case and
their investigators and their notes or report), books, accounts,
letters, photographs, objects or tangible things not privileged,
which constitute or contain evidence material to any matter
involved in the action and which are in the possession, custody or
control of the State or any of its agencies. The order shall
specify the time, place and manner of making the inspection and
taking the copies and photographs of any of the aforementioned
documents or tangible evidence; provided, however, that the rights
herein granted shall not extend to written communications between
the State or any of its agents or representatives or employees.
Nothing in this Act shall authorize the removal of such evidence
from the possession of the State, and any inspection shall be in the
presence of a representative of the State.]
(b) If the defendant gives notice of a defense under Section
2(b), the attorney representing the state shall disclose to the
defendant's counsel as soon as practicable the names of the
witnesses of whom the state has knowledge and whom the state intends
to use to rebut the defense or the testimony of any of the
defendant's witnesses called to establish that defense [On motion
of a party and on notice to the other parties, the court in which an
action is pending may order one or more of the other parties to
disclose to the party making the motion the name and address of each
person the other party may use at trial to present evidence under
Rules 702, 703, and 705, Texas Rules of Evidence. The court shall
specify in the order the time and manner in which the other party
must make the disclosure to the moving party, but in specifying the
time in which the other party shall make disclosure the court shall
require the other party to make the disclosure not later than the
20th day before the date the trial begins].
(c) This article does not authorize the removal of physical
evidence from the possession of the state, and any inspection of
physical evidence shall be conducted in the presence of a
representative of the state.
Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as
practicable after receiving the initial disclosure under Section 1
from the attorney representing the state, the defendant shall
disclose to the attorney representing the state and permit
inspection, photocopying, and photographing of the following
materials and information:
(1) any written or recorded statement by a witness,
other than the defendant, that is related to the offense charged, if
the defendant intends to call the witness at the trial;
(2) any record of a criminal conviction admissible for
impeachment under Rule 609, Texas Rules of Evidence, of a witness,
other than the defendant, the defendant intends to call at the
trial, if that information is known to the defendant;
(3) any physical or documentary evidence that the
defendant intends to use at the trial and, on a showing of
materiality by the attorney representing the state, the opportunity
to test that evidence;
(4) the names and addresses of the witnesses called to
present evidence under Rules 702, 703, and 705, Texas Rules of
Evidence, and the names of all other witnesses, other than the
defendant, the defendant intends to call at the trial; and
(5) any report produced by or for an expert witness the
defendant intends to call at the trial.
(b) On a request by the state, a defendant planning to offer
evidence of one or more defenses listed in Chapter 8 or 9, Penal
Code, or evidence of an alibi defense, shall file a good faith
notice of intent to raise the defense with the court and the
attorney representing the state not later than the 30th day before
the date the trial begins or as soon as practicable after the date
the defendant receives a disclosure under Section 1 to which the
defense is responsive, whichever is later. If the defendant
intends to raise an alibi defense, the notice must include the place
at which the defendant claims to have been at the time of the
alleged offense and the names of the witnesses the defendant
intends to use to establish the alibi. Any notice provided under
this subsection is for purposes of discovery only and is not
admissible at trial unless the court finds that the contents of the
notice were not made in good faith.
(c) After the filing of the indictment or information, the
court may require the defendant to submit nontestimonial evidence
to the state. This subsection does not limit any law enforcement
agency or prosecutor's office from seeking or obtaining
nontestimonial evidence to the extent permitted by law.
Sec. 3. EXCEPTIONS TO DISCLOSURE. (a) Neither the
attorney representing the state nor the defendant is required to
disclose materials or information that is:
(1) recorded proceedings of a grand jury, except as
provided in Section 1(a)(2) and Rule 615, Texas Rules of Evidence;
(2) a work product other than an offense report by law
enforcement personnel, including a report, memorandum, or other
internal document of the attorney representing the state, the
attorney representing the defendant, or an investigator or other
agent of the attorney representing the state or the attorney
representing the defendant that is made in connection with the
investigation, prosecution, or defense of the case; or
(3) privileged under a rule of evidence, an express
statutory provision, the Texas Constitution, or the United States
Constitution.
(b) This article does not authorize disclosure of the name,
address, or telephone number of a victim in violation of Chapter 57.
(c) A victim impact statement is subject to disclosure
before the testimony of the victim is taken only if the court
determines that the statement contains exculpatory material.
Sec. 4. CONTINUING DUTY TO DISCLOSE. If, before a trial
begins, but subsequent to compliance with this article or a
relevant court order, a party discovers additional material or
information subject to disclosure, the party shall immediately
notify the other party's counsel of the existence of the additional
material or information.
Sec. 5. EXCISION. (a) Except as provided by Subsection
(b), if a portion of material or information is subject to discovery
under this article and a portion is not subject to discovery, only
the portion that is subject to discovery must be disclosed. The
disclosing party shall inform the other party's counsel that the
portion of material or information that is not subject to discovery
has been excised and withheld. On request, the court shall conduct
a hearing to determine whether the reasons for excision are
justifiable. Material or information excised pursuant to judicial
order shall be sealed and preserved in the records of the court and
shall be made available to an appellate court in the event of an
appeal.
(b) Excision of a witness statement produced in accordance
with Rule 615, Texas Rules of Evidence, is governed by that rule.
(c) Notwithstanding any other provision of this article,
the attorney representing the state, without a protective court
order or a hearing before the court, may excise from an offense
report or other report any information related to the victim of an
offense that is listed under:
(1) Section 3g, Article 42.12; or
(2) Article 62.001(5).
Sec. 6. PROTECTIVE ORDERS. On a showing of good cause, the
court may at any time enter an appropriate protective order that a
specified disclosure be denied, restricted, or deferred. "Good
cause," for purposes of this section, includes threats, harm,
intimidation, or possible danger to the safety of a victim or
witness, possible loss, destruction, or fabrication of evidence, or
possible compromise of other investigations by law enforcement or a
defense offered by a defendant.
Sec. 7. IN CAMERA PROCEEDINGS. On request, the court may
permit to be made in camera an excision hearing under Section 5(a),
a showing of good cause for denial or regulation of a disclosure
under Section 6, or any portion of a proceeding. A verbatim record
shall be made of a proceeding in camera. If the court excises a
portion of the material or information or enters an order granting
relief following a showing of good cause, the entire record shall be
sealed and preserved in the records of the court and shall be made
available to an appellate court in the event of an appeal.
Sec. 8. CONFERENCE. On request of the attorney
representing the state or the defendant, the court shall hold a
discovery hearing under Section 1(8), Article 28.01, not later than
the 10th day before the date the trial begins, to verify compliance
by each party with this article.
Sec. 9. COMPLIANCE; SANCTIONS. (a) The disclosures
required under this article may be performed in any manner that is
mutually agreeable to the attorney representing the state and the
attorney representing the defendant or that is ordered by the court
in accordance with this article. The order issued by the court may
specify the time, place, and manner of making the required
disclosures.
(b) On a showing that a party has not complied with this
article or a relevant court order, the court may make any order the
court finds necessary under the circumstances, including an order
related to immediate disclosure, contempt proceedings, delay or
prohibition of the use of a defense or the introduction of evidence,
or continuance of the matter. The court may also inform the jury of
any failure or refusal to disclose or any untimely disclosure under
this article.
(c) The court may prohibit the use of a defense or the
introduction of evidence under Subsection (b) only if all other
sanctions have been exhausted or the discovery violation amounts to
wilful misconduct designed to obtain a tactical advantage that
would minimize the effectiveness of cross-examination or the
ability to adduce rebuttal evidence. The court may not dismiss a
charge under Subsection (b) unless authorized or required to do so
by other law.
(d) The failure of the attorney representing the state or
the defendant to comply with this article is not a ground for a
court to set aside the conviction or sentence of the defendant,
unless the court's action is authorized or required by other law.
Sec. 10. COSTS. (a) All reasonable and necessary costs
related to a disclosure required under this article, including the
photocopying of materials, shall be paid by the requesting party.
(b) The commissioners court of the county in which the
indictment, information, or complaint is pending may not, as a
result of any payment by the defendant of the costs required by this
article, reduce the amount of money provided by the county to the
office of the attorney representing the state.
Sec. 11. DISCLOSURE TO THIRD PARTIES. Neither the attorney
representing the state nor the attorney representing the defendant
may disclose without obtaining approval of the trial court
information or witness statements received from the opposing party
to any third party, including the defendant, other than to an
investigator, expert, or other agent for the attorney representing
the state or the attorney representing the defendant, as
applicable. Information or witness statements received under this
article may not be made available to the public.
Sec. 12. PRO SE DEFENDANTS. This article, including the
provisions regarding the nondisclosure of a witness statement or an
offense report by law enforcement personnel, applies to a defendant
who has elected to proceed pro se only to the extent approved by the
court.
Sec. 13. CONFLICT OF LAW. To the extent of any conflict,
this article prevails over Chapter 552, Government Code.
SECTION 2. The change in law made by this Act applies to the
prosecution of an offense committed on or after the effective date
of this Act. The prosecution of an offense committed before the
effective date of this Act is covered by the law in effect when the
offense was committed, and the former law is continued in effect for
this purpose. For purposes of this section, an offense is committed
before the effective date of this Act if any element of the offense
occurs before the effective date.
SECTION 3. This Act takes effect September 1, 2009.