Texas 2009 - 81st Regular

Texas House Bill HB301 Compare Versions

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1	1	By: Dutton H.B. No. 301
2	2	Substitute the following for H.B. No. 301:
3	3	By: Miklos C.S.H.B. No. 301
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to discovery in a criminal case.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 39.14, Code of Criminal Procedure, is
11	11	amended to read as follows:
12	12	Art. 39.14. DISCOVERY
13	13	Sec. 1. DISCLOSURE BY STATE. (a) As soon as practicable
14	14	after receiving a timely request from the defendant, the attorney
15	15	representing the state shall disclose to the defendant's counsel
16	16	and permit inspection, photocopying, and photographing of the
17	17	following materials and information in the possession, custody, or
18	18	control of the state or any of its agencies:
19	19	(1) any exculpatory or impeachment evidence material
20	20	to the defendant's guilt or punishment;
21	21	(2) any written or recorded statements that are made
22	22	by the defendant or by any witness the attorney representing the
23	23	state intends to call at the trial and that are related to the case
24	24	charged, including offense reports by law enforcement personnel, if
25	25	any;
26	26	(3) any written record containing the substance of any
27	27	oral statement that is made by the defendant and that is related to
28	28	the case charged, whether made before or after the defendant's
29	29	arrest, in response to interrogation by any person whom the
30	30	defendant believed to be a peace officer;
31	31	(4) the defendant's prior criminal record;
32	32	(5) any record of a criminal conviction admissible for
33	33	impeachment under Rule 609, Texas Rules of Evidence, of a witness
34	34	the attorney representing the state intends to call at the trial;
35	35	(6) any affidavit, warrant, or return pertaining to a
36	36	search or seizure in connection with the case;
37	37	(7) any physical or documentary evidence that was
38	38	obtained from or that belongs to the defendant or that the attorney
39	39	representing the state intends to use at the trial and, on a showing
40	40	of materiality by the defendant, the opportunity to test that
41	41	evidence;
42	42	(8) the names and addresses of the witnesses called to
43	43	present evidence under Rules 702, 703, and 705, Texas Rules of
44	44	Evidence, and the names of all other witnesses the attorney
45	45	representing the state intends to call at the trial;
46	46	(9) any report produced by or for an expert witness the
47	47	attorney representing the state intends to call at the trial; and
48	48	(10) any plea agreement, grant of immunity, or other
49	49	agreement for testimony issued by the attorney representing the
50	50	state in connection with the case. [Upon motion of the defendant
51	51	showing good cause therefor and upon notice to the other parties,
52	52	the court in which an action is pending shall order the State before
53	53	or during trial of a criminal action therein pending or on trial to
54	54	produce and permit the inspection and copying or photographing by
55	55	or on behalf of the defendant of any designated documents, papers,
56	56	written statement of the defendant, (except written statements of
57	57	witnesses and except the work product of counsel in the case and
58	58	their investigators and their notes or report), books, accounts,
59	59	letters, photographs, objects or tangible things not privileged,
60	60	which constitute or contain evidence material to any matter
61	61	involved in the action and which are in the possession, custody or
62	62	control of the State or any of its agencies. The order shall
63	63	specify the time, place and manner of making the inspection and
64	64	taking the copies and photographs of any of the aforementioned
65	65	documents or tangible evidence; provided, however, that the rights
66	66	herein granted shall not extend to written communications between
67	67	the State or any of its agents or representatives or employees.
68	68	Nothing in this Act shall authorize the removal of such evidence
69	69	from the possession of the State, and any inspection shall be in the
70	70	presence of a representative of the State.]
71	71	(b) If the defendant gives notice of a defense under Section
72	72	2(b), the attorney representing the state shall disclose to the
73	73	defendant's counsel as soon as practicable the names of the
74	74	witnesses of whom the state has knowledge and whom the state intends
75	75	to use to rebut the defense or the testimony of any of the
76	76	defendant's witnesses called to establish that defense [On motion
77	77	of a party and on notice to the other parties, the court in which an
78	78	action is pending may order one or more of the other parties to
79	79	disclose to the party making the motion the name and address of each
80	80	person the other party may use at trial to present evidence under
81	81	Rules 702, 703, and 705, Texas Rules of Evidence. The court shall
82	82	specify in the order the time and manner in which the other party
83	83	must make the disclosure to the moving party, but in specifying the
84	84	time in which the other party shall make disclosure the court shall
85	85	require the other party to make the disclosure not later than the
86	86	20th day before the date the trial begins].
87	87	(c) This article does not authorize the removal of physical
88	88	evidence from the possession of the state, and any inspection of
89	89	physical evidence shall be conducted in the presence of a
90	90	representative of the state.
91	91	Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as
92	92	practicable after receiving the initial disclosure under Section 1
93	93	from the attorney representing the state, the defendant shall
94	94	disclose to the attorney representing the state and permit
95	95	inspection, photocopying, and photographing of the following
96	96	materials and information:
97	97	(1) any written or recorded statement by a witness,
98	98	other than the defendant, that is related to the offense charged, if
99	99	the defendant intends to call the witness at the trial;
100	100	(2) any record of a criminal conviction admissible for
101	101	impeachment under Rule 609, Texas Rules of Evidence, of a witness,
102	102	other than the defendant, the defendant intends to call at the
103	103	trial, if that information is known to the defendant;
104	104	(3) any physical or documentary evidence that the
105	105	defendant intends to use at the trial and, on a showing of
106	106	materiality by the attorney representing the state, the opportunity
107	107	to test that evidence;
108	108	(4) the names and addresses of the witnesses called to
109	109	present evidence under Rules 702, 703, and 705, Texas Rules of
110	110	Evidence, and the names of all other witnesses, other than the
111	111	defendant, the defendant intends to call at the trial; and
112	112	(5) any report produced by or for an expert witness the
113	113	defendant intends to call at the trial.
114	114	(b) On a request by the state, a defendant planning to offer
115	115	evidence of one or more defenses listed in Chapter 8 or 9, Penal
116	116	Code, or evidence of an alibi defense, shall file a good faith
117	117	notice of intent to raise the defense with the court and the
118	118	attorney representing the state not later than the 30th day before
119	119	the date the trial begins or as soon as practicable after the date
120	120	the defendant receives a disclosure under Section 1 to which the
121	121	defense is responsive, whichever is later. If the defendant
122	122	intends to raise an alibi defense, the notice must include the place
123	123	at which the defendant claims to have been at the time of the
124	124	alleged offense and the names of the witnesses the defendant
125	125	intends to use to establish the alibi. Any notice provided under
126	126	this subsection is for purposes of discovery only and is not
127	127	admissible at trial unless the court finds that the contents of the
128	128	notice were not made in good faith.
129	129	(c) After the filing of the indictment or information, the
130	130	court may require the defendant to submit nontestimonial evidence
131	131	to the state. This subsection does not limit any law enforcement
132	132	agency or prosecutor's office from seeking or obtaining
133	133	nontestimonial evidence to the extent permitted by law.
134	134	Sec. 3. EXCEPTIONS TO DISCLOSURE. (a) Neither the
135	135	attorney representing the state nor the defendant is required to
136	136	disclose materials or information that is:
137	137	(1) recorded proceedings of a grand jury, except as
138	138	provided by Rule 615, Texas Rules of Evidence;
139	139	(2) a work product other than an offense report by law
140	140	enforcement personnel, including a report, memorandum, or other
141	141	internal document of the attorney representing the state, the
142	142	attorney representing the defendant, or an investigator or other
143	143	agent of the attorney representing the state or the attorney
144	144	representing the defendant that is made in connection with the
145	145	investigation, prosecution, or defense of the case; or
146	146	(3) privileged under a rule of evidence, an express
147	147	statutory provision, the Texas Constitution, or the United States
148	148	Constitution.
149	149	(b) This article does not authorize disclosure of the name,
150	150	address, or telephone number of a victim in violation of Chapter 57.
151	151	(c) A victim impact statement is subject to disclosure
152	152	before the testimony of the victim is taken only if the court
153	153	determines that the statement contains exculpatory material.
154	154	Sec. 4. CONTINUING DUTY TO DISCLOSE. If, before a trial
155	155	begins, but subsequent to compliance with this article or a
156	156	relevant court order, a party discovers additional material or
157	157	information subject to disclosure, the party shall immediately
158	158	notify the other party's counsel of the existence of the additional
159	159	material or information.
160	160	Sec. 5. EXCISION. (a) Except as provided by Subsection
161	161	(b), if a portion of material or information is subject to discovery
162	162	under this article and a portion is not subject to discovery, only
163	163	the portion that is subject to discovery must be disclosed. The
164	164	disclosing party shall inform the other party's counsel that the
165	165	portion of material or information that is not subject to discovery
166	166	has been excised and withheld. On request, the court shall conduct
167	167	a hearing to determine whether the reasons for excision are
168	168	justifiable. Material or information excised pursuant to judicial
169	169	order shall be sealed and preserved in the records of the court and
170	170	shall be made available to an appellate court in the event of an
171	171	appeal.
172	172	(b) Excision of a witness statement produced in accordance
173	173	with Rule 615, Texas Rules of Evidence, is governed by that rule.
174	174	(c) Notwithstanding any other provision of this article,
175	175	the attorney representing the state, without a protective court
176	176	order or a hearing before the court, may excise from an offense
177	177	report or other report any information related to the victim of an
178	178	offense that is listed under:
179	179	(1) Section 3g, Article 42.12; or
180	180	(2) Article 62.001(5).
181	181	Sec. 6. PROTECTIVE ORDERS. On a showing of good cause, the
182	182	court may at any time enter an appropriate protective order that a
183	183	specified disclosure be denied, restricted, or deferred. "Good
184	184	cause," for purposes of this section, includes threats, harm,
185	185	intimidation, or possible danger to the safety of a victim or
186	186	witness, possible loss, destruction, or fabrication of evidence, or
187	187	possible compromise of other investigations by law enforcement or a
188	188	defense offered by a defendant.
189	189	Sec. 7. IN CAMERA PROCEEDINGS. On request, the court may
190	190	permit to be made in camera an excision hearing under Section 5(a),
191	191	a showing of good cause for denial or regulation of a disclosure
192	192	under Section 6, or any portion of a proceeding. A verbatim record
193	193	shall be made of a proceeding in camera. If the court excises a
194	194	portion of the material or information or enters an order granting
195	195	relief following a showing of good cause, the entire record shall be
196	196	sealed and preserved in the records of the court and shall be made
197	197	available to an appellate court in the event of an appeal.
198	198	Sec. 8. CONFERENCE. On request of the attorney
199	199	representing the state or the defendant, the court shall hold a
200	200	discovery hearing under Section 1(8), Article 28.01, not later than
201	201	the 10th day before the date the trial begins, to verify compliance
202	202	by each party with this article.
203	203	Sec. 9. COMPLIANCE; SANCTIONS. (a) The disclosures
204	204	required under this article may be performed in any manner that is
205	205	mutually agreeable to the attorney representing the state and the
206	206	attorney representing the defendant or that is ordered by the court
207	207	in accordance with this article. The order issued by the court may
208	208	specify the time, place, and manner of making the required
209	209	disclosures.
210	210	(b) On a showing that a party has not complied with this
211	211	article or a relevant court order, the court may make any order the
212	212	court finds necessary under the circumstances, including an order
213	213	related to immediate disclosure, contempt proceedings, delay or
214	214	prohibition of the use of a defense or the introduction of evidence,
215	215	or continuance of the matter. The court may also inform the jury of
216	216	any failure or refusal to disclose or any untimely disclosure under
217	217	this article.
218	218	(c) The court may prohibit the use of a defense or the
219	219	introduction of evidence under Subsection (b) only if all other
220	220	sanctions have been exhausted or the discovery violation amounts to
221	221	wilful misconduct designed to obtain a tactical advantage that
222	222	would minimize the effectiveness of cross-examination or the
223	223	ability to adduce rebuttal evidence. The court may not dismiss a
224	224	charge under Subsection (b) unless authorized or required to do so
225	225	by other law.
226	226	(d) The failure of the attorney representing the state or
227	227	the defendant to comply with this article is not a ground for a
228	228	court to set aside the conviction or sentence of the defendant,
229	229	unless the court's action is authorized or required by other law.
230	230	Sec. 10. COSTS. (a) All reasonable and necessary costs
231	231	related to a disclosure required under this article, including the
232	232	photocopying of materials, shall be paid by the requesting party.
233	233	(b) The commissioners court of the county in which the
234	234	indictment, information, or complaint is pending may not, as a
235	235	result of any payment by the defendant of the costs required by this
236	236	article, reduce the amount of money provided by the county to the
237	237	office of the attorney representing the state.
238	238	Sec. 11. DISCLOSURE TO THIRD PARTIES. Before the date on
239	239	which the trial begins, the attorney representing the state, the
240	240	attorney representing the defendant, or an investigator, expert, or
241	241	other agent for the attorney representing the state or the attorney
242	242	representing the defendant may not disclose, without obtaining
243	243	approval of the trial court, information or witness statements
244	244	received from the opposing party to any third party, other than to
245	245	an investigator, expert, or other agent for the attorney
246	246	representing the state or the attorney representing the defendant,
247	247	as applicable. Information or witness statements received under
248	248	this article may not be made available to the public.
249	249	Sec. 12. PRO SE DEFENDANTS. This article, including the
250	250	provisions regarding the nondisclosure of a witness statement or an
251	251	offense report by law enforcement personnel, applies to a defendant
252	252	who has elected to proceed pro se only to the extent approved by the
253	253	court.
254	254	Sec. 13. CONFLICT OF LAW. To the extent of any conflict,
255	255	this article prevails over Chapter 552, Government Code.
256	256	SECTION 2. The change in law made by this Act applies to the
257	257	prosecution of an offense committed on or after the effective date
258	258	of this Act. The prosecution of an offense committed before the
259	259	effective date of this Act is covered by the law in effect when the
260	260	offense was committed, and the former law is continued in effect for
261	261	this purpose. For purposes of this section, an offense is committed
262	262	before the effective date of this Act if any element of the offense
263	263	occurs before the effective date.
264	264	SECTION 3. This Act takes effect September 1, 2009.