Texas 2009 - 81st Regular

Texas House Bill HB1168 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R730 SJM-D
2	2	By: Dutton H.B. No. 1168
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to discovery in a criminal case.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Article 39.14, Code of Criminal Procedure, is
10	10	amended to read as follows:
11	11	Art. 39.14. DISCOVERY[.]
12	12	Sec. 1. DISCLOSURE BY STATE. (a) As soon as practicable
13	13	after receiving a timely request from the defendant, the attorney
14	14	representing the state shall disclose to the defendant's counsel
15	15	and permit inspection, photocopying, and photographing of the
16	16	following materials and information in the possession, custody, or
17	17	control of the state or any of its agencies:
18	18	(1) any exculpatory or impeachment evidence material
19	19	to the defendant's guilt or punishment;
20	20	(2) any written or recorded statements that are made
21	21	by the defendant or by any witness the attorney representing the
22	22	state intends to call at the trial and that are related to the case
23	23	charged, including offense reports by law enforcement personnel and
24	24	grand jury testimony, if any;
25	25	(3) any written record containing the substance of any
26	26	oral statement that is made by the defendant and that is related to
27	27	the case charged, whether made before or after the defendant's
28	28	arrest, in response to interrogation by any person whom the
29	29	defendant believed to be a peace officer;
30	30	(4) the defendant's prior criminal record;
31	31	(5) any record of a criminal conviction admissible for
32	32	impeachment under Rule 609, Texas Rules of Evidence, of a witness
33	33	the attorney representing the state intends to call at the trial;
34	34	(6) any affidavit, warrant, or return pertaining to a
35	35	search or seizure in connection with the case;
36	36	(7) any physical or documentary evidence that was
37	37	obtained from or that belongs to the defendant or that the attorney
38	38	representing the state intends to use at the trial and, on a showing
39	39	of materiality by the defendant, the opportunity to test that
40	40	evidence;
41	41	(8) the names and addresses of the witnesses called to
42	42	present evidence under Rules 702, 703, and 705, Texas Rules of
43	43	Evidence, and the names of all other witnesses the attorney
44	44	representing the state intends to call at the trial;
45	45	(9) any report produced by or for an expert witness the
46	46	attorney representing the state intends to call at the trial; and
47	47	(10) any plea agreement, grant of immunity, or other
48	48	agreement for testimony issued by the attorney representing the
49	49	state in connection with the case. [Upon motion of the defendant
50	50	showing good cause therefor and upon notice to the other parties,
51	51	the court in which an action is pending shall order the State before
52	52	or during trial of a criminal action therein pending or on trial to
53	53	produce and permit the inspection and copying or photographing by
54	54	or on behalf of the defendant of any designated documents, papers,
55	55	written statement of the defendant, (except written statements of
56	56	witnesses and except the work product of counsel in the case and
57	57	their investigators and their notes or report), books, accounts,
58	58	letters, photographs, objects or tangible things not privileged,
59	59	which constitute or contain evidence material to any matter
60	60	involved in the action and which are in the possession, custody or
61	61	control of the State or any of its agencies. The order shall
62	62	specify the time, place and manner of making the inspection and
63	63	taking the copies and photographs of any of the aforementioned
64	64	documents or tangible evidence; provided, however, that the rights
65	65	herein granted shall not extend to written communications between
66	66	the State or any of its agents or representatives or employees.
67	67	Nothing in this Act shall authorize the removal of such evidence
68	68	from the possession of the State, and any inspection shall be in the
69	69	presence of a representative of the State.]
70	70	(b) If the defendant gives notice of a defense under Section
71	71	2(b), the attorney representing the state shall disclose to the
72	72	defendant's counsel as soon as practicable the names of the
73	73	witnesses of whom the state has knowledge and whom the state intends
74	74	to use to rebut the defense or the testimony of any of the
75	75	defendant's witnesses called to establish that defense [On motion
76	76	of a party and on notice to the other parties, the court in which an
77	77	action is pending may order one or more of the other parties to
78	78	disclose to the party making the motion the name and address of each
79	79	person the other party may use at trial to present evidence under
80	80	Rules 702, 703, and 705, Texas Rules of Evidence. The court shall
81	81	specify in the order the time and manner in which the other party
82	82	must make the disclosure to the moving party, but in specifying the
83	83	time in which the other party shall make disclosure the court shall
84	84	require the other party to make the disclosure not later than the
85	85	20th day before the date the trial begins].
86	86	(c) This article does not authorize the removal of physical
87	87	evidence from the possession of the state, and any inspection of
88	88	physical evidence shall be conducted in the presence of a
89	89	representative of the state.
90	90	Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as
91	91	practicable after receiving the initial disclosure under Section 1
92	92	from the attorney representing the state, the defendant shall
93	93	disclose to the attorney representing the state and permit
94	94	inspection, photocopying, and photographing of the following
95	95	materials and information:
96	96	(1) any written or recorded statement by a witness,
97	97	other than the defendant, that is related to the offense charged, if
98	98	the defendant intends to call the witness at the trial;
99	99	(2) any record of a criminal conviction admissible for
100	100	impeachment under Rule 609, Texas Rules of Evidence, of a witness,
101	101	other than the defendant, the defendant intends to call at the
102	102	trial, if that information is known to the defendant;
103	103	(3) any physical or documentary evidence that the
104	104	defendant intends to use at the trial and, on a showing of
105	105	materiality by the attorney representing the state, the opportunity
106	106	to test that evidence;
107	107	(4) the names and addresses of the witnesses called to
108	108	present evidence under Rules 702, 703, and 705, Texas Rules of
109	109	Evidence, and the names of all other witnesses, other than the
110	110	defendant, the defendant intends to call at the trial; and
111	111	(5) any report produced by or for an expert witness the
112	112	defendant intends to call at the trial.
113	113	(b) On a request by the state, a defendant planning to offer
114	114	evidence of one or more defenses listed in Chapter 8 or 9, Penal
115	115	Code, or evidence of an alibi defense, shall file a good faith
116	116	notice of intent to raise the defense with the court and the
117	117	attorney representing the state not later than the 30th day before
118	118	the date the trial begins or as soon as practicable after the date
119	119	the defendant receives a disclosure under Section 1 to which the
120	120	defense is responsive, whichever is later. If the defendant
121	121	intends to raise an alibi defense, the notice must include the place
122	122	at which the defendant claims to have been at the time of the
123	123	alleged offense and the names of the witnesses the defendant
124	124	intends to use to establish the alibi. Any notice provided under
125	125	this subsection is for purposes of discovery only and is not
126	126	admissible at trial unless the court finds that the contents of the
127	127	notice were not made in good faith.
128	128	(c) After the filing of the indictment or information, the
129	129	court may require the defendant to submit nontestimonial evidence
130	130	to the state. This subsection does not limit any law enforcement
131	131	agency or prosecutor's office from seeking or obtaining
132	132	nontestimonial evidence to the extent permitted by law.
133	133	Sec. 3. EXCEPTIONS TO DISCLOSURE. (a) Neither the
134	134	attorney representing the state nor the defendant is required to
135	135	disclose materials or information that is:
136	136	(1) recorded proceedings of a grand jury, except as
137	137	provided in Section 1(a)(2) and Rule 615, Texas Rules of Evidence;
138	138	(2) a work product other than an offense report by law
139	139	enforcement personnel, including a report, memorandum, or other
140	140	internal document of the attorney representing the state, the
141	141	attorney representing the defendant, or an investigator or other
142	142	agent of the attorney representing the state or the attorney
143	143	representing the defendant that is made in connection with the
144	144	investigation, prosecution, or defense of the case; or
145	145	(3) privileged under a rule of evidence, an express
146	146	statutory provision, the Texas Constitution, or the United States
147	147	Constitution.
148	148	(b) This article does not authorize disclosure of the name,
149	149	address, or telephone number of a victim in violation of Chapter 57.
150	150	(c) A victim impact statement is subject to disclosure
151	151	before the testimony of the victim is taken only if the court
152	152	determines that the statement contains exculpatory material.
153	153	Sec. 4. CONTINUING DUTY TO DISCLOSE. If, before a trial
154	154	begins, but subsequent to compliance with this article or a
155	155	relevant court order, a party discovers additional material or
156	156	information subject to disclosure, the party shall immediately
157	157	notify the other party's counsel of the existence of the additional
158	158	material or information.
159	159	Sec. 5. EXCISION. (a) Except as provided by Subsection
160	160	(b), if a portion of material or information is subject to discovery
161	161	under this article and a portion is not subject to discovery, only
162	162	the portion that is subject to discovery must be disclosed. The
163	163	disclosing party shall inform the other party's counsel that the
164	164	portion of material or information that is not subject to discovery
165	165	has been excised and withheld. On request, the court shall conduct
166	166	a hearing to determine whether the reasons for excision are
167	167	justifiable. Material or information excised pursuant to judicial
168	168	order shall be sealed and preserved in the records of the court and
169	169	shall be made available to an appellate court in the event of an
170	170	appeal.
171	171	(b) Excision of a witness statement produced in accordance
172	172	with Rule 615, Texas Rules of Evidence, is governed by that rule.
173	173	(c) Notwithstanding any other provision of this article,
174	174	the attorney representing the state, without a protective court
175	175	order or a hearing before the court, may excise from an offense
176	176	report or other report any information related to the victim of an
177	177	offense that is listed under:
178	178	(1) Section 3g, Article 42.12; or
179	179	(2) Article 62.001(5).
180	180	Sec. 6. PROTECTIVE ORDERS. On a showing of good cause, the
181	181	court may at any time enter an appropriate protective order that a
182	182	specified disclosure be denied, restricted, or deferred. "Good
183	183	cause," for purposes of this section, includes threats, harm,
184	184	intimidation, or possible danger to the safety of a victim or
185	185	witness, possible loss, destruction, or fabrication of evidence, or
186	186	possible compromise of other investigations by law enforcement or a
187	187	defense offered by a defendant.
188	188	Sec. 7. IN CAMERA PROCEEDINGS. On request, the court may
189	189	permit to be made in camera an excision hearing under Section 5(a),
190	190	a showing of good cause for denial or regulation of a disclosure
191	191	under Section 6, or any portion of a proceeding. A verbatim record
192	192	shall be made of a proceeding in camera. If the court excises a
193	193	portion of the material or information or enters an order granting
194	194	relief following a showing of good cause, the entire record shall be
195	195	sealed and preserved in the records of the court and shall be made
196	196	available to an appellate court in the event of an appeal.
197	197	Sec. 8. CONFERENCE. On request of the attorney
198	198	representing the state or the defendant, the court shall hold a
199	199	discovery hearing under Section 1(8), Article 28.01, not later than
200	200	the 10th day before the date the trial begins, to verify compliance
201	201	by each party with this article.
202	202	Sec. 9. COMPLIANCE; SANCTIONS. (a) The disclosures
203	203	required under this article may be performed in any manner that is
204	204	mutually agreeable to the attorney representing the state and the
205	205	attorney representing the defendant or that is ordered by the court
206	206	in accordance with this article. The order issued by the court may
207	207	specify the time, place, and manner of making the required
208	208	disclosures.
209	209	(b) On a showing that a party has not complied with this
210	210	article or a relevant court order, the court may make any order the
211	211	court finds necessary under the circumstances, including an order
212	212	related to immediate disclosure, contempt proceedings, delay or
213	213	prohibition of the use of a defense or the introduction of evidence,
214	214	or continuance of the matter. The court may also inform the jury of
215	215	any failure or refusal to disclose or any untimely disclosure under
216	216	this article.
217	217	(c) The court may prohibit the use of a defense or the
218	218	introduction of evidence under Subsection (b) only if all other
219	219	sanctions have been exhausted or the discovery violation amounts to
220	220	wilful misconduct designed to obtain a tactical advantage that
221	221	would minimize the effectiveness of cross-examination or the
222	222	ability to adduce rebuttal evidence. The court may not dismiss a
223	223	charge under Subsection (b) unless authorized or required to do so
224	224	by other law.
225	225	(d) The failure of the attorney representing the state or
226	226	the defendant to comply with this article is not a ground for a
227	227	court to set aside the conviction or sentence of the defendant,
228	228	unless the court's action is authorized or required by other law.
229	229	Sec. 10. COSTS. (a) All reasonable and necessary costs
230	230	related to a disclosure required under this article, including the
231	231	photocopying of materials, shall be paid by the requesting party.
232	232	(b) The commissioners court of the county in which the
233	233	indictment, information, or complaint is pending may not, as a
234	234	result of any payment by the defendant of the costs required by this
235	235	article, reduce the amount of money provided by the county to the
236	236	office of the attorney representing the state.
237	237	Sec. 11. DISCLOSURE TO THIRD PARTIES. Neither the attorney
238	238	representing the state nor the attorney representing the defendant
239	239	may disclose without obtaining approval of the trial court
240	240	information or witness statements received from the opposing party
241	241	to any third party, including the defendant, other than to an
242	242	investigator, expert, or other agent for the attorney representing
243	243	the state or the attorney representing the defendant, as
244	244	applicable. Information or witness statements received under this
245	245	article may not be made available to the public.
246	246	Sec. 12. PRO SE DEFENDANTS. This article, including the
247	247	provisions regarding the nondisclosure of a witness statement or an
248	248	offense report by law enforcement personnel, applies to a defendant
249	249	who has elected to proceed pro se only to the extent approved by the
250	250	court.
251	251	Sec. 13. CONFLICT OF LAW. To the extent of any conflict,
252	252	this article prevails over Chapter 552, Government Code.
253	253	SECTION 2. The change in law made by this Act applies to the
254	254	prosecution of an offense committed on or after the effective date
255	255	of this Act. The prosecution of an offense committed before the
256	256	effective date of this Act is covered by the law in effect when the
257	257	offense was committed, and the former law is continued in effect for
258	258	this purpose. For purposes of this section, an offense is committed
259	259	before the effective date of this Act if any element of the offense
260	260	occurs before the effective date.
261	261	SECTION 3. This Act takes effect September 1, 2009.