By: Ellis, Duncan S.B. No. 1611
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) Subject to the
restrictions provided by Article 39.15, beginning no later than 30
days after the initial appearance of 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 all law enforcement agencies, investigatory agencies,
and prosecutors' offices, any other governmental entity, or any
non-governmental entity contracting for work with any government
entity involved in the investigation of the crimes alleged or in the
prosecution of the defendant,
(1) any evidence relevant to the defendant's guilt or
punishment;
(2) any written or recorded statement made by the
defendant, any witness, any law enforcement officer, or any other
person that is related to the case charged, including offense
reports by law enforcement or other government personnel and
electronically recorded statements, 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;
(4) the defendant's prior criminal record. If
disclosure of a specific document reflecting the defendant's
criminal history is not permitted by state or federal law, then the
content of the defendant's criminal history shall be disclosed in
writing. A judge shall on request issue an order requiring
disclosure of the records if a court order is required for
disclosure by state or federal law;
(5) any record of a criminal conviction or other
criminal history admissible for impeachment under the Texas Rules
of Evidence, of a witness the attorney representing the state
intends to call at the trial, or has reason to believe may be called
as a witness at trial by the State;
(6) any affidavit, warrant, or return pertaining to a
search or seizure in connection with the case;
(7) any physical or documentary evidence related to
the case charged that was obtained from or that belongs to the
defendant or that the attorney representing the state intends to
use against the defendant in the case charged 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;
(9) any document or recording produced by or for an
expert witness related to the case charged; and
(10) any plea agreement, grant of immunity, benefit
promised or conferred, or other agreement for testimony or
assistance issued by the attorney representing the state or any law
enforcement officer or agency in connection with the case. [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 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) The state shall give to the defendant, at the beginning
of jury selection, a written list of the names of all witnesses who
the State reasonably expects to call during trial, as well as the
criminal histories of those witnesses, in a manner consistent with
state and federal law. Following the disclosure of a witnesses
name, any party may request the court to order, on a showing of good
cause, the disclosure of the last known address for the witness. A
court, on request, may, and on a showing of good cause shall, order
earlier disclosure of the names and addresses of all witnesses who
the State reasonably expects to call during trial. [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) If the defendant gives notice of an alibi under Section
2(c)(2), 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 alibi or the testimony of any of the defendant's
witnesses called to establish the alibi.
(d) On a timely basis, law enforcement and investigatory
agencies shall make available to the attorney representing the
state and the attorney representing the state shall request a
complete copy of the complete files related to the investigation of
the crimes committed or the prosecution of the defendant for
compliance with this article. Investigatory agencies that obtain
information and materials listed in subsection (a) of this section
shall ensure that such information and materials are fully
disclosed to the prosecutor's office on a timely basis for
disclosure to the defendant.
(e) Except as otherwise permitted by this article, 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. A court shall, when requested and as necessary under the
circumstances, order specific inspection procedures necessary to
protect the integrity of the evidence and the ability to inspect it
in a manner that does not compromise a defendant's ability to
maintain confidentiality of work product and the attorney client
privilege.
Sec. 2. DISCLOSURE BY DEFENDANT. (a) 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 trial;
(2) any physical or documentary evidence that the
defendant intends to use in its case in chief and, on a showing of
materiality by the attorney representing the state, the opportunity
to test that evidence;
(3) the names and addresses of the witnesses called to
present evidence under Rules 702, 703, and 705, Texas Rules of
Evidence; and
(4) any report produced by or for an expert witness the
defendant intends to call at the trial.
(b) The defense shall give the state, at the beginning of
jury selection, a written list of the names of all lay witnesses who
the defense reasonably expect to call during trial. Following the
disclosure of a witnesses name, any party may request the court to
order, on a showing of good cause, the disclosure of the last known
address for the witness.
(c) (1) If requested in writing by the attorney representing
the state, a defendant who may assert one or more defenses or
affirmative defenses listed in Chapter 8 or 9, Penal Code, shall
provide the state with written notice that the defendant may assert
the statutory defense or affirmative defense. Notice shall be
provided by the defendant not later than the 30th day before the
date that jury selection 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 State amends
the information or indictment or files a new information or obtains
a new indictment within 30 days of the beginning of jury selection,
the defendant shall be allowed not less than 10 days after being
served with an amended or new information or indictment, or having
received actual notice of the amendment in open court, to amend or
supplement an existing notice or provide an initial notice. Any
notice provided under this subsection is for purposes of discovery
only and is not admissible at trial.
(2) If requested in writing by the attorney
representing the state, and if the attorney representing the state
provides the defendant in such written request with the specific
date, time, and place of the alleged offense, a defendant who will
assert an alibi shall provide the state, not later than 20 days
before the beginning of jury selection, a written response
including the location 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.
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
required by the Texas Rules of Evidence, other law, or court order;
(2) a work product, meaning written materials drafted
by an attorney or the attorney's legal staff for their own use,
including witness examinations, voir dire questions, opening
statements, closing arguments, legal research, or of records,
correspondence, reports, memoranda, or notes prepared by
the attorney or by members of the attorney's legal staff to the
extent they contain the opinions, theories, strategies, or
conclusions of the attorney or the attorney's legal staff.
Records, correspondence, reports, memoranda, or notes prepared by
the prosecuting attorney, its agents, or by members of the
prosecuting attorney's legal staff are not work product as to any
portion that contains potentially favorable or exculpatory or
impeaching information as to guilt or punishment or information
that may mitigate punishment. Disclosure is also not required of
any document of the attorney representing the defendant, or an
investigator or other agent of 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 shall be provided to the
defendant at the beginning of jury selection if the person
completing the victim impact statement is disclosed by the State as
a potential witness on its witness list or there is reason to
believe that the person may otherwise testify at the trial. A
victim impact statement is subject to disclosure as any other
evidence or information if it contains exculpatory material.
Sec. 4. CONTINUING DUTY TO DISCLOSE. If, 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 CERTIFICATE OF COMPLIANCE. Each time a party
provides discovery, disclosure, or notice required or permitted by
this article or pursuant to court order, it shall file with the
court a Certificate of Compliance listing the items provided or
disclosed or the notice given. Any party may request any other
party to acknowledge receipt of any discovery, disclosure or notice
provided for by this article or required by court order and the
party receiving such discovery, disclosure, or notice shall, when
requested, acknowledge in writing, or on the record in open court,
the receipt of any discovery, disclosure, or notice. On request of
any party, the other party shall certify either in writing or on the
record in open court that, to the best of its knowledge and after
reasonable inquiry, the party has disclosed and made available all
items subject to discovery and disclosure and has provided all
required notices, and if not previously identified in a Certificate
of Compliance shall identify each item of provided discovery,
disclosure and notice. If further discovery is provided after the
filing of a Certificate of Compliance, an additional or
supplemental Certificate of Compliance shall be filed with the
court, or announced on the record in open court, identifying the
additional items of discovery, matters or information disclosed, or
notice given.
Sec. 6. 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 the Texas Rules of Evidence is governed by that rule.
Sec. 7. PROTECTIVE ORDERS. On a showing of good cause by
either party 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. 8. 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.
A court shall permit counsel for both parties to be present
at the in-camera excision hearing, or, for portions of the
in-camera excision hearing as the circumstances require, unless
doing so would result in a violation of a privilege under the Rules
of Evidence or if the court cannot, through a protective or
confidentiality order, achieve the purposes of the in-camera
hearing. The court may issue such protective and confidentiality
orders as are necessary to prevent dissemination of proceedings
held in-camera and as to any material excised. A court order under
this section must only be as narrow as necessary to achieve the
purposes of the excision.
Sec. 9. CONFERENCE. On request or motion of any party or on
its own motion, the court shall hold a discovery conference to
resolve any discovery, disclosure, or notice issue, to ensure that
the parties are aware of their respective discovery, disclosure,
and notice obligations under this article, or to verify compliance
by each party with this article. Any party who has not received
required or requested discovery, disclosure, or notice, shall
request a discovery conference to be held not later than 20 days
before the beginning of jury selection to resolve any issue with
respect to the discovery, disclosure, or notice.
Sec. 10. 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) If the court finds that a party has failed to comply with
any of the provisions of this article, the court may order and
compel such party to provide the required discovery or disclosure,
grant a continuance, issue a protective order, take other
appropriate action as necessary under the circumstances to
accomplish the purposes of the required discovery or disclosure,
or, and only if other remedial alternatives have been exhausted,
prohibit the introduction of certain evidence, the calling of
certain witnesses, or other relief necessary to assure justice. The
court may not dismiss a charge under this subsection unless
authorized or required to do so by other law.
Sec. 11. 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,
except that an indigent defendant shall not be required to pay costs
provided for by this article. Costs under this article may not
exceed those provided for by the Texas Public Information Act.
(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, nor may it reduce the
amount of money provided to a public defender's office as a result
of costs paid to it under this article.
Sec. 12. DISCLOSURE TO THIRD PARTIES. Before the date on
which the trial begins, the attorney representing the state, the
attorney representing the defendant, or an investigator, expert, or
other agent for the attorney representing the state or the attorney
representing the defendant may not disclose, without obtaining
approval of the trial court, information or witness statements
received from the opposing party to any third party, other than to
an investigator, expert, consulting counsel, 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, and not otherwise made a part of a
public record as part of judicial proceedings, may not be made
available to the public without a court order permitting such
disclosure.
Sec. 13. DISCLOSURE OF CERTAIN CONTACT INFORMATION. (a)
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 contact information of the alleged
victim of an offense that is listed under:
(1) Section 3g, Article 42.12; or
(2) Article 62.001(5).
(b) On request of the defendant, and on a showing of good
cause, the court shall order disclosure to the defense of the
alleged victim's contact information subject to reasonable
limitations on further disclosure, which may include, as the
circumstances require, an order prohibiting the attorney
representing the defendant from disclosing the information to the
defendant or others.
Sec. 14. 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. 15. THIRD PARTY DISCOVERY. A party may obtain, other
than from the office of the attorney representing the State, and
other than documents or items provided by the attorney representing
the state, documents from other persons, entities or third parties
by serving such person or entity with a subpoena for such documents
that provides a reasonable time and place for production of the
documents. A person or entity served with such a subpoena may itself
or through its counsel, before the time for compliance, object to or
seek protection from the request. The court may enter any order
appropriate under the circumstances to assure a reasonable time,
place, manner, or scope of production. Unless the court orders
otherwise, costs for production shall be paid by the party
requesting the production, provided that such costs shall not
exceed those allowed under the Texas Public Information Act.
Sec. 16. 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 and to any prosecution initiated after the effective
date of this Act. The prosecution of an offense committed before
the effective date of this Act and the prosecution of an action
initiated before the effective date of this Act is covered by the
law in effect when the offense was committed or the prosecution
commenced, 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 and a prosecution is commenced
before the effective date of this Act if a complaint, information or
indictment has been filed or obtained by the attorney representing
the state and the defendant has been arrested for such offense
before the effective date of this Act.
SECTION 3. This Act takes effect January 1, 2014.