By: Thompson of Harris, White, Collier, H.B. No. 1717
Patterson, J. Johnson of Harris, et al.
A BILL TO BE ENTITLED
AN ACT
relating to the state's continuing duty to disclose exculpatory,
impeachment, or mitigating evidence in a criminal case and
prohibited retaliation against local assistant prosecutors for
discharging that duty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 39.14(k), Code of Criminal Procedure, is
transferred to Chapter 2, Code of Criminal Procedure, redesignated
as Article 2.026, Code of Criminal Procedure, and amended to read as
follows:
Art. 2.026. CONTINUING DUTY OF STATE TO DISCLOSE
EXCULPATORY, IMPEACHMENT, OR MITIGATING EVIDENCE. Regardless of
the date the applicable offense was committed, if [(k) If] at any
time before, during, or after trial or plea negotiation the state
discovers any exculpatory, impeachment, or mitigating [additional]
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
[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.
SECTION 2. Chapter 41, Government Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. PROTECTION OF ASSISTANT PROSECUTORS FOR DISCLOSING
EVIDENCE FAVORABLE TO DEFENDANT
Sec. 41.151. DEFINITIONS. In this subchapter:
(1) "Assistant prosecutor" means an assistant
prosecuting attorney employed by a prosecuting attorney.
(2) "Personnel action" means an action taken by an
employer that affects an employee's compensation, promotion,
demotion, transfer, work assignment, or performance evaluation.
(3) "Prosecuting attorney" means a county attorney,
district attorney, or criminal district attorney.
Sec. 41.152. PROHIBITED RETALIATION AGAINST ASSISTANT
PROSECUTOR FOR CERTAIN ACTS. A prosecuting attorney may not
suspend or terminate the employment of, or take other adverse
personnel action against, an assistant prosecutor based on the
assistant prosecutor:
(1) disclosing to the defendant evidence the state is
required to disclose under Article 39.14(h), Code of Criminal
Procedure, or under another law requiring disclosure of evidence
favorable to the defendant; or
(2) after the prosecuting attorney or another
supervising assistant prosecutor directs the assistant prosecutor
to withhold evidence from the defendant in violation of Article
39.14(h), Code of Criminal Procedure, or another law requiring
disclosure of evidence favorable to the defendant:
(A) refusing to withhold the evidence; or
(B) presenting the evidence to the trial court
for the underlying criminal case in accordance with Section 41.158.
Sec. 41.153. RELIEF AVAILABLE TO ASSISTANT PROSECUTOR. (a)
An assistant prosecutor whose employment is suspended or terminated
or who is subjected to an adverse personnel action in violation of
Section 41.152 may bring an action against the prosecuting attorney
for:
(1) injunctive relief, including:
(A) reinstatement to the assistant prosecutor's
former position or an equivalent position; and
(B) reinstatement of fringe benefits and
seniority rights lost because of the suspension or termination;
(2) compensatory damages, including compensation for
wages lost during the period of suspension or termination;
(3) court costs; and
(4) reasonable attorney fees.
(b) In an action brought under Subsection (a), an assistant
prosecutor may not recover compensatory damages for future
pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary losses
in an amount that exceeds:
(1) $50,000, if the county or counties where the
prosecuting attorney has jurisdiction have combined fewer than 101
employees for at least 20 calendar weeks in the calendar year in
which the action is brought or in the preceding calendar year;
(2) $100,000, if the county or counties where the
prosecuting attorney has jurisdiction have combined more than 100
and fewer than 201 employees for at least 20 calendar weeks in the
calendar year in which the action is brought or in the preceding
calendar year;
(3) $200,000, if the county or counties where the
prosecuting attorney has jurisdiction have combined more than 200
and fewer than 501 employees for at least 20 calendar weeks in the
calendar year in which the action is brought or in the preceding
calendar year; and
(4) $250,000, if the county or counties where the
prosecuting attorney has jurisdiction have combined more than 500
employees for at least 20 calendar weeks in the calendar year in
which the action is brought or in the preceding calendar year.
(c) If more than one subdivision of Subsection (b) applies
to the county or counties where the prosecuting attorney has
jurisdiction, the amount of monetary damages that may be recovered
from the prosecuting attorney in an action brought under this
subchapter is governed by the provision that provides the greatest
damage award.
Sec. 41.154. WAIVER OF IMMUNITY. Sovereign and
governmental immunity to suit and liability is waived and abolished
to the extent of liability created by this subchapter.
Sec. 41.155. BURDEN OF PROOF; AFFIRMATIVE DEFENSE. (a) An
assistant prosecutor has the burden of proof for an action brought
under this subchapter.
(b) It is an affirmative defense to an action brought under
this subchapter that the prosecuting attorney would have taken
against the assistant prosecutor the adverse personnel action that
is the basis of the action based solely on information,
observation, or evidence unrelated to the fact that the assistant
prosecutor engaged in an act described by Section 41.152.
Sec. 41.156. LIMITATION PERIOD. An assistant prosecutor
who seeks relief under this subchapter must bring the action not
later than the 90th day after the date the adverse personnel action
that allegedly violates Section 41.152 is taken.
Sec. 41.157. VENUE. An action brought under this
subchapter must be brought in a district court:
(1) of the county in which the cause of action arises;
or
(2) of any county in the same administrative judicial
region as the county described by Subdivision (1).
Sec. 41.158. ASSISTANT PROSECUTOR MAY SEEK COURT DECISION
ON REQUIRED DISCLOSURE; COURT'S DUTY TO ISSUE DECISION. (a) An
assistant prosecutor who is directed by the prosecuting attorney or
another supervising assistant prosecutor to withhold evidence from
the defendant in violation of Article 39.14(h), Code of Criminal
Procedure, or in violation of another law requiring the disclosure
of evidence favorable to the defendant, may present the evidence to
the trial court for the underlying criminal case, without notice to
the defendant or, if applicable, defendant's counsel, to obtain a
decision on whether disclosure is required under Article 39.14(h)
or similar law.
(b) The trial court shall promptly issue a written decision
to the presenting assistant prosecutor on whether the evidence
presented must be disclosed under a law described by Subsection
(a).
Sec. 41.159. PREREQUISITES TO BRINGING ACTION. (a) Except
as provided by Subsection (b), an assistant prosecutor may not
bring an action under this subchapter unless the assistant
prosecutor:
(1) presents the evidence to the trial court in
accordance with Section 41.158; and
(2) provides to the prosecuting attorney the court's
decision issued under that section.
(b) Subsection (a) does not apply if an assistant prosecutor
who engaged in an act described by Section 41.152 establishes in an
action brought under this subchapter:
(1) the assistant prosecutor did not have a reasonable
opportunity to present the evidence to the trial court in
accordance with Section 41.158 or provide the decision as required
by Subsection (a)(2) before the adverse personnel action was taken;
or
(2) good cause for failure to present the evidence to
the trial court or provide the decision.
Sec. 41.160. NONAPPLICABILITY OF OTHER LAW. Chapter 102,
Civil Practice and Remedies Code, does not apply to an action
brought under this subchapter.
SECTION 3. (a) Subject to Subsection (b) of this section,
Subchapter B-1, Chapter 41, Government Code, as added by this Act,
applies only to an act described by Section 41.152, Government
Code, as added by this Act, that occurs on or after the effective
date of this Act. An act that occurs before that date is governed by
the law in effect on the date the act occurred, and that law is
continued in effect for that purpose.
(b) Notwithstanding Section 41.156, Government Code, as
added by this Act, an assistant prosecuting attorney employed by a
county attorney, district attorney, or criminal district attorney
may bring an action under Subchapter B-1, Chapter 41, Government
Code, as added by this Act, for an act described by Section 41.152,
Government Code, as added by this Act, that occurred before the
effective date of this Act, if the attorney brings the action not
later than the 90th day after the effective date of this Act,
regardless of whether the attorney:
(1) has met the prerequisites to bringing an action
under Section 41.159, Government Code, as added by this Act; or
(2) has brought an action claiming that an act
described by Section 41.152, Government Code, as added by this Act,
led to the attorney's suspension or termination, or otherwise
affected the compensation, promotion, demotion, transfer, work
assignment, or performance evaluation of the attorney before the
effective date of this Act that has been dismissed.
SECTION 4. This Act takes effect September 1, 2021.