Texas 2021 - 87th Regular

Texas House Bill HB1717 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	By: Thompson of Harris, White, Collier, H.B. No. 1717
2		-	Patterson, J. Johnson of Harris, et al.
	1	+	87R9948 TSS-F
	2	+	By: Thompson of Harris, White, Collier H.B. No. 1717
	3	+	Substitute the following for H.B. No. 1717:
	4	+	By: Vasut C.S.H.B. No. 1717
3	5
4	6
5	7		A BILL TO BE ENTITLED
6	8		AN ACT
7	9		relating to the state's continuing duty to disclose exculpatory,
8	10		impeachment, or mitigating evidence in a criminal case and
9	11		prohibited retaliation against local assistant prosecutors for
10	12		discharging that duty.
11	13		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	14		SECTION 1. Article 39.14(k), Code of Criminal Procedure, is
13	15		transferred to Chapter 2, Code of Criminal Procedure, redesignated
14	16		as Article 2.026, Code of Criminal Procedure, and amended to read as
15	17		follows:
16	18		Art. 2.026. CONTINUING DUTY OF STATE TO DISCLOSE
17	19		EXCULPATORY, IMPEACHMENT, OR MITIGATING EVIDENCE. Regardless of
18	20		the date the applicable offense was committed, if [(k) If] at any
19		-	time before, during, or after trial ~~or plea negotiation~~ the state
20		-	~~discovers any~~ exculpatory, impeachment, or mitigating [additional]
21		-	~~document,~~ item, or information in the possession, custody, or
22		-	~~control of the~~ state that tends to negate the guilt of the defendant
23		-	~~or would tend~~ to reduce the punishment for the offense charged
24		-	~~[required to be~~ disclosed under Subsection (h)], the state shall
25		-	~~promptly disclose~~ the existence of the document, item, or
26		-	~~information to the~~ defendant or the court.
	21	+	time before, during, or after trial the state discovers any
	22	+	exculpatory, impeachment, or mitigating [additional] document,
	23	+	item, or information in the possession, custody, or control of the
	24	+	state that tends to negate the guilt of the defendant or would tend
	25	+	to reduce the punishment for the offense charged [required to be
	26	+	disclosed under Subsection (h)], the state shall promptly disclose
	27	+	the existence of the document, item, or information to the
	28	+	defendant or the court.
27	29		SECTION 2. Chapter 41, Government Code, is amended by
28	30		adding Subchapter B-1 to read as follows:
29	31		SUBCHAPTER B-1. PROTECTION OF ASSISTANT PROSECUTORS FOR DISCLOSING
30	32		EVIDENCE FAVORABLE TO DEFENDANT
31	33		Sec. 41.151. DEFINITIONS. In this subchapter:
32	34		(1) "Assistant prosecutor" means an assistant
33	35		prosecuting attorney employed by a prosecuting attorney.
34	36		(2) "Personnel action" means an action taken by an
35	37		employer that affects an employee's compensation, promotion,
36	38		demotion, transfer, work assignment, or performance evaluation.
37	39		(3) "Prosecuting attorney" means a county attorney,
38	40		district attorney, or criminal district attorney.
39	41		Sec. 41.152. PROHIBITED RETALIATION AGAINST ASSISTANT
40	42		PROSECUTOR FOR CERTAIN ACTS. A prosecuting attorney may not
41	43		suspend or terminate the employment of, or take other adverse
42	44		personnel action against, an assistant prosecutor based on the
43	45		assistant prosecutor:
44	46		(1) disclosing to the defendant evidence the state is
45	47		required to disclose under Article 39.14(h), Code of Criminal
46	48		Procedure, or under another law requiring disclosure of evidence
47	49		favorable to the defendant; or
48	50		(2) after the prosecuting attorney or another
49	51		supervising assistant prosecutor directs the assistant prosecutor
50	52		to withhold evidence from the defendant in violation of Article
51	53		39.14(h), Code of Criminal Procedure, or another law requiring
52	54		disclosure of evidence favorable to the defendant:
53	55		(A) refusing to withhold the evidence; or
54	56		(B) presenting the evidence to the trial court
55	57		for the underlying criminal case in accordance with Section 41.158.
56	58		Sec. 41.153. RELIEF AVAILABLE TO ASSISTANT PROSECUTOR. (a)
57	59		An assistant prosecutor whose employment is suspended or terminated
58	60		or who is subjected to an adverse personnel action in violation of
59	61		Section 41.152 may bring an action against the prosecuting attorney
60	62		for:
61	63		(1) injunctive relief, including:
62	64		(A) reinstatement to the assistant prosecutor's
63	65		former position or an equivalent position; and
64	66		(B) reinstatement of fringe benefits and
65	67		seniority rights lost because of the suspension or termination;
66	68		(2) compensatory damages, including compensation for
67	69		wages lost during the period of suspension or termination;
68	70		(3) court costs; and
69	71		(4) reasonable attorney fees.
70	72		(b) In an action brought under Subsection (a), an assistant
71	73		prosecutor may not recover compensatory damages for future
72	74		pecuniary losses, emotional pain, suffering, inconvenience, mental
73	75		anguish, loss of enjoyment of life, and other nonpecuniary losses
74	76		in an amount that exceeds:
75	77		(1) $50,000, if the county or counties where the
76	78		prosecuting attorney has jurisdiction have combined fewer than 101
77	79		employees for at least 20 calendar weeks in the calendar year in
78	80		which the action is brought or in the preceding calendar year;
79	81		(2) $100,000, if the county or counties where the
80	82		prosecuting attorney has jurisdiction have combined more than 100
81	83		and fewer than 201 employees for at least 20 calendar weeks in the
82	84		calendar year in which the action is brought or in the preceding
83	85		calendar year;
84	86		(3) $200,000, if the county or counties where the
85	87		prosecuting attorney has jurisdiction have combined more than 200
86	88		and fewer than 501 employees for at least 20 calendar weeks in the
87	89		calendar year in which the action is brought or in the preceding
88	90		calendar year; and
89	91		(4) $250,000, if the county or counties where the
90	92		prosecuting attorney has jurisdiction have combined more than 500
91	93		employees for at least 20 calendar weeks in the calendar year in
92	94		which the action is brought or in the preceding calendar year.
93	95		(c) If more than one subdivision of Subsection (b) applies
94	96		to the county or counties where the prosecuting attorney has
95	97		jurisdiction, the amount of monetary damages that may be recovered
96	98		from the prosecuting attorney in an action brought under this
97	99		subchapter is governed by the provision that provides the greatest
98	100		damage award.
99	101		Sec. 41.154. WAIVER OF IMMUNITY. Sovereign and
100	102		governmental immunity to suit and liability is waived and abolished
101	103		to the extent of liability created by this subchapter.
102	104		Sec. 41.155. BURDEN OF PROOF; AFFIRMATIVE DEFENSE. (a) An
103	105		assistant prosecutor has the burden of proof for an action brought
104	106		under this subchapter.
105	107		(b) It is an affirmative defense to an action brought under
106	108		this subchapter that the prosecuting attorney would have taken
107	109		against the assistant prosecutor the adverse personnel action that
108	110		is the basis of the action based solely on information,
109	111		observation, or evidence unrelated to the fact that the assistant
110	112		prosecutor engaged in an act described by Section 41.152.
111	113		Sec. 41.156. LIMITATION PERIOD. An assistant prosecutor
112	114		who seeks relief under this subchapter must bring the action not
113	115		later than the 90th day after the date the adverse personnel action
114	116		that allegedly violates Section 41.152 is taken.
115	117		Sec. 41.157. VENUE. An action brought under this
116	118		subchapter must be brought in a district court:
117	119		(1) of the county in which the cause of action arises;
118	120		or
119	121		(2) of any county in the same administrative judicial
120	122		region as the county described by Subdivision (1).
121	123		Sec. 41.158. ASSISTANT PROSECUTOR MAY SEEK COURT DECISION
122	124		ON REQUIRED DISCLOSURE; COURT'S DUTY TO ISSUE DECISION. (a) An
123	125		assistant prosecutor who is directed by the prosecuting attorney or
124	126		another supervising assistant prosecutor to withhold evidence from
125	127		the defendant in violation of Article 39.14(h), Code of Criminal
126	128		Procedure, or in violation of another law requiring the disclosure
127	129		of evidence favorable to the defendant, may present the evidence to
128	130		the trial court for the underlying criminal case, without notice to
129	131		the defendant or, if applicable, defendant's counsel, to obtain a
130	132		decision on whether disclosure is required under Article 39.14(h)
131	133		or similar law.
132	134		(b) The trial court shall promptly issue a written decision
133	135		to the presenting assistant prosecutor on whether the evidence
134	136		presented must be disclosed under a law described by Subsection
135	137		(a).
136	138		Sec. 41.159. PREREQUISITES TO BRINGING ACTION. (a) Except
137	139		as provided by Subsection (b), an assistant prosecutor may not
138	140		bring an action under this subchapter unless the assistant
139	141		prosecutor:
140	142		(1) presents the evidence to the trial court in
141	143		accordance with Section 41.158; and
142	144		(2) provides to the prosecuting attorney the court's
143	145		decision issued under that section.
144	146		(b) Subsection (a) does not apply if an assistant prosecutor
145	147		who engaged in an act described by Section 41.152 establishes in an
146	148		action brought under this subchapter:
147	149		(1) the assistant prosecutor did not have a reasonable
148	150		opportunity to present the evidence to the trial court in
149	151		accordance with Section 41.158 or provide the decision as required
150	152		by Subsection (a)(2) before the adverse personnel action was taken;
151	153		or
152	154		(2) good cause for failure to present the evidence to
153	155		the trial court or provide the decision.
154	156		Sec. 41.160. NONAPPLICABILITY OF OTHER LAW. Chapter 102,
155	157		Civil Practice and Remedies Code, does not apply to an action
156	158		brought under this subchapter.
157	159		SECTION 3. (a) Subject to Subsection (b) of this section,
158	160		Subchapter B-1, Chapter 41, Government Code, as added by this Act,
159	161		applies only to an act described by Section 41.152, Government
160	162		Code, as added by this Act, that occurs on or after the effective
161	163		date of this Act. An act that occurs before that date is governed by
162	164		the law in effect on the date the act occurred, and that law is
163	165		continued in effect for that purpose.
164	166		(b) Notwithstanding Section 41.156, Government Code, as
165	167		added by this Act, an assistant prosecuting attorney employed by a
166	168		county attorney, district attorney, or criminal district attorney
167	169		may bring an action under Subchapter B-1, Chapter 41, Government
168	170		Code, as added by this Act, for an act described by Section 41.152,
169	171		Government Code, as added by this Act, that occurred before the
170	172		effective date of this Act, if the attorney brings the action not
171	173		later than the 90th day after the effective date of this Act,
172	174		regardless of whether the attorney:
173	175		(1) has met the prerequisites to bringing an action
174	176		under Section 41.159, Government Code, as added by this Act; or
175	177		(2) has brought an action claiming that an act
176	178		described by Section 41.152, Government Code, as added by this Act,
177	179		led to the attorney's suspension or termination, or otherwise
178	180		affected the compensation, promotion, demotion, transfer, work
179	181		assignment, or performance evaluation of the attorney before the
180	182		effective date of this Act that has been dismissed.
181	183		SECTION 4. This Act takes effect September 1, 2021.