83R9665 MEW-F
By: Canales H.B. No. 2988
A BILL TO BE ENTITLED
AN ACT
relating to the disclosure of exculpatory evidence by a prosecutor
in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 2.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. (a) Each district
attorney shall represent the State in all criminal cases in the
district courts of the [his] district and in appeals from those
cases [therefrom], except in cases where the district attorney [he]
has been, before [his] election, employed adversely. When any
criminal proceeding is had before an examining court in the [his]
district or before a judge upon habeas corpus, and the district
attorney [he] is notified of the proceeding [same], and is at the
time within the [his] district, the district attorney [he] shall
represent the State in the proceeding [therein], unless prevented
by other official duties.
(b) It is [shall be] the primary duty of all prosecuting
attorneys, including any special prosecutors, not to convict, but
to see that justice is done. A district attorney may [They shall]
not suppress evidence that would deprive a defendant of a fair
trial. A district attorney has a duty to identify any exculpatory or
impeachment evidence that is material to the defendant's guilt or
punishment and in the possession of or otherwise known to any peace
officer, investigator, or other individual involved in the
investigation or prosecution of a case [facts or secrete witnesses
capable of establishing the innocence of the accused].
SECTION 2. Article 2.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.02. DUTIES OF COUNTY ATTORNEYS. (a) The county
attorney shall attend the terms of court in the [his] county below
the grade of district court, and shall represent the State in all
criminal cases under examination or prosecution in the [said]
county; and in the absence of the district attorney, the county
attorney [he] shall represent the State alone and, when requested,
shall aid the district attorney in the prosecution of any case in
behalf of the State in the district court. The county attorney [He]
shall represent the State in cases the county attorney [he] has
prosecuted that [which] are appealed.
(b) A county attorney may not suppress evidence that would
deprive a defendant of a fair trial. A county attorney has a duty to
identify any exculpatory or impeachment evidence that is material
to the defendant's guilt or punishment and in the possession of or
otherwise known to any peace officer, investigator, or other
individual involved in the investigation or prosecution of a case.
SECTION 3. Article 2.021, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.021. DUTIES OF ATTORNEY GENERAL. (a) The attorney
general may offer to a county or district attorney the assistance of
the attorney general's office in the prosecution of an offense
described by Article 60.051(g) the victim of which is younger than
17 years of age at the time the offense is committed. On request of
a county or district attorney, the attorney general shall assist in
the prosecution of an offense described by Article 60.051(g) the
victim of which is younger than 17 years of age at the time the
offense is committed. For purposes of this article, assistance
includes investigative, technical, and litigation assistance of
the attorney general's office.
(b) The attorney general may not suppress evidence that
would deprive a defendant of a fair trial. The attorney general has
a duty to identify any exculpatory or impeachment evidence that is
material to the defendant's guilt or punishment and in the
possession of or otherwise known to any peace officer,
investigator, or other individual involved in the investigation or
prosecution of a case.
SECTION 4. Article 26.13, Code of Criminal Procedure, is
amended by adding Subsection (e-1) and amending Subsection (f) to
read as follows:
(e-1) Before accepting a plea of guilty or a plea of nolo
contendere for an offense other than a misdemeanor punishable by
fine only, the court shall require the attorney representing the
state to affirm in open court that the attorney has:
(1) been diligent in identifying any exculpatory or
impeachment evidence that is material to the defendant's guilt or
punishment and in the possession of or otherwise known to any peace
officer, investigator, or other individual involved in the
investigation or prosecution of the case; and
(2) provided all evidence described by Subdivision (1)
to the defendant and the defendant's attorney.
(f) The court must substantially comply with Subsections
[Subsection] (e) and (e-1) [of this article]. The failure of the
court to comply with either subsection [Subsection (e) of this
article] is not grounds for the defendant to set aside the
conviction, sentence, or plea.
SECTION 5. Chapter 28, Code of Criminal Procedure, is
amended by adding Article 28.15 to read as follows:
Art. 28.15. STATEMENT REGARDING EXCULPATORY EVIDENCE
REQUIRED. Notwithstanding any other law, not later than 30 days
before a trial is scheduled to commence for an offense other than a
misdemeanor punishable by fine only, the court shall require the
attorney representing the state to affirm in open court that the
attorney has:
(1) been diligent in identifying any exculpatory or
impeachment evidence that is material to the defendant's guilt or
punishment and in the possession of or otherwise known to any peace
officer, investigator, or other individual involved in the
investigation or prosecution of the case; and
(2) provided all evidence described by Subdivision (1)
to the defendant and the defendant's attorney, regardless of
whether the defendant has made a motion under Article 39.14.
SECTION 6. The changes in law made by this Act apply only to
a criminal proceeding that commences on or after the effective date
of this Act. A criminal proceeding that commences before the
effective date of this Act is governed by the law in effect on the
date the proceeding commences, and the former law is continued in
effect for that purpose.
SECTION 7. This Act takes effect September 1, 2013.