By: Ellis, et al. S.B. No. 1611
(Thompson of Harris, Lewis, Moody, Farney,
Davis of Dallas)
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 Section
264.408, Family Code, and Article 39.15 of this code, 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, and [or] photographing, by or on
behalf of the defendant, of any offense reports, 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[)], or any designated books, accounts, letters,
photographs, or objects or other tangible things not otherwise
privileged that[, which] constitute or contain evidence material to
any matter involved in the action and that [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 to the defendant electronic duplicates of any documents
or other 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 that is not subject to discovery 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) In the case of a pro se defendant, if the court orders
the state to produce and permit the inspection of a 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 is not required to allow electronic duplication as
described by Subsection (a).
(e) Except as provided by Subsection (f), the defendant, the
attorney representing the defendant, or an investigator, expert,
consulting legal counsel, or other agent of the attorney
representing the defendant may not disclose to a third party any
documents, evidence, materials, or witness statements received
from the state under this article unless:
(1) a court orders the disclosure upon a showing of
good cause after notice and hearing after considering the security
and privacy interests of any victim or witness; or
(2) the documents, evidence, materials, or witness
statements have already been publicly disclosed.
(f) The attorney representing the defendant, or an
investigator, expert, consulting legal counsel, or agent for the
attorney representing the defendant, may allow a defendant,
witness, or prospective witness to view the information provided
under this article, but may not allow that person to have copies of
the information provided, other than a copy of the witness's own
statement. Before allowing that person to view a document or the
witness statement of another under this subsection, the person
possessing the information shall redact the address, telephone
number, driver's license number, social security number, date of
birth, and any bank account or other identifying numbers contained
in the document or witness statement. For purposes of this section,
the defendant may not be the agent for the attorney representing the
defendant.
(g) Nothing in this section shall be interpreted to limit an
attorney's ability to communicate regarding his or her case within
the Texas Disciplinary Rules of Professional Conduct, except for
the communication of information identifying any victim or witness,
including name, except as provided in Subsections (e) and (f),
address, telephone number, driver's license number, social
security number, date of birth, and bank account information or any
information that by reference would make it possible to identify a
victim or a witness. Nothing in this subsection shall prohibit the
disclosure of identifying information to an administrative, law
enforcement, regulatory, or licensing agency for the purposes of
making a good faith complaint.
(h) 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.
(i) The state shall electronically record or otherwise
document any document, item, or other information provided to the
defendant under this article.
(j) 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 all
documents, items, and information provided to the defendant under
this article.
(k) If at any time before, during, or after trial the state
discovers any additional document, item, or information required to
be disclosed under Subsection (h), the state shall promptly
disclose the existence of the document, item, or information to the
defendant or the court.
(l) A court may order the defendant to pay costs related to
discovery under this article, provided that costs may not exceed
the charges prescribed by Subchapter F, Chapter 552, Government
Code.
(m) To the extent of any conflict, this article prevails
over Chapter 552, Government Code.
(n) This article does not prohibit the parties from agreeing
to discovery and documentation requirements equal to or greater
than those required under this article.
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.