By: Ellis, Duncan, Hinojosa S.B. No. 1611
(In the Senate - Filed March 8, 2013; March 20, 2013, read
first time and referred to Committee on Criminal Justice;
March 28, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 1; March 28, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1611 By: Hinojosa
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. This Act shall be known as the Michael Morton
Act.
SECTION 2. Article 39.14, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsections (c)
through (j) to read as follows:
(a) Subject to the restrictions provided by Article 39.15,
as soon as practicable after receiving a timely request from the
defendant the state shall [Upon motion of the defendant showing
good cause therefor and upon notice to the other parties, except as
provided by Article 39.15, 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 the electronic duplication [copying] or photographing, by or on
behalf of the defendant, of any offense reports or of any designated
documents, papers, written or recorded statements [statement] of
the defendant or a witness, including witness statements of law
enforcement officers but not including[, (except written
statements of witnesses and except] the work product of counsel for
the state in the case and their investigators and their notes or
report[)], books, accounts, letters, photographs, or objects or
tangible things not otherwise 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
person under contract with the state [State or any of its agencies].
The state may provide electronically to or duplicate electronically
for the defendant any documents, items, and information described
by this article. 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 granted to the
defendant under this article do [herein granted shall] not extend
to written communications between the state and an agent,
representative, or employee of the state. This article does not
authorize [State or any of its agents or representatives or
employees. Nothing in this Act shall authorize] the removal of the
documents, items, or information [such evidence] from the
possession of the state [State], and any inspection shall be in the
presence of a representative of the state [State].
(c) If only a portion of the applicable document, item, or
information is subject to discovery under this article, the state
is not required to produce or permit the inspection of the remaining
portion and may withhold or redact that portion. The state shall
inform the defendant that a portion of the document, item, or
information has been withheld or redacted. On request of the
defendant, the court shall conduct a hearing to determine whether
withholding or redaction is justified under this article or other
law.
(d) On a showing of good cause specific to the case, the
court may enter an appropriate protective order that a specified
disclosure be denied, restricted, or deferred or that the attorney
representing the defendant is prohibited from distributing to a
third party offense reports or witness statements received from the
state. For purposes of this subsection, "good cause" includes the
probable loss, destruction, or fabrication of evidence, the
probable compromise of an investigation by law enforcement, or
evidence of intimidation, a threat of harm, or danger to the safety
of the victim or witness. In the case of a pro se defendant, if the
court orders the state to produce and permit the inspection of the
document, item, or information under this subsection, the state
shall permit the pro se defendant to inspect and review the
document, item, or information but, notwithstanding Subsection
(a), is not required to allow electronic duplication of the
document, item, or information.
(e) Notwithstanding any other provision of this article,
the state shall disclose to the defendant any exculpatory,
impeachment, or mitigating document, item, or information in the
possession, custody, or control of the state that tends to negate
the guilt of the defendant or would tend to reduce the punishment
for the offense charged.
(f) The state shall document or otherwise electronically
record the documents, items, and information provided to the
defendant under this article.
(g) Before accepting a plea of guilty or nolo contendere, or
before trial, each party shall acknowledge in writing or on the
record in open court the disclosure, receipt, and list of the
documents, items, and information provided to the defendant under
this article.
(h) If at any time before, during, or after trial the state
discovers any additional documents, items, or information required
to be disclosed under Subsection (e), the state shall promptly
disclose the existence of the documents, items, or information to
the defendant or the court.
(i) A court may order the defendant to pay costs related to
discovery under this article, provided that costs may not exceed
those provided for by Chapter 552, Government Code.
(j) To the extent of any conflict, this article prevails
over Chapter 552, Government Code.
SECTION 3. 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 4. This Act takes effect January 1, 2014.
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