Texas 2023 - 88th Regular

Texas House Bill HB311 Compare Versions

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Version 2 (New)

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1	1	88R116 TSS-F
2	2	By: Thompson of Harris H.B. No. 311
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the state's continuing duty to disclose exculpatory,
8	8	impeachment, or mitigating evidence in a criminal case and
9	9	prohibited retaliation against local assistant prosecutors for
10	10	discharging that duty.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Article 39.14(k), Code of Criminal Procedure, is
13	13	transferred to Chapter 2, Code of Criminal Procedure, redesignated
14	14	as Article 2.026, Code of Criminal Procedure, and amended to read as
15	15	follows:
16	16	Art. 2.026. CONTINUING DUTY OF STATE TO DISCLOSE
17	17	EXCULPATORY, IMPEACHMENT, OR MITIGATING EVIDENCE. Regardless of
18	18	the date the applicable offense was committed, if [(k) If] at any
19	19	time before, during, or after trial or plea negotiation the state
20	20	discovers any exculpatory, impeachment, or mitigating [additional]
21	21	document, item, or information in the possession, custody, or
22	22	control of the state that tends to negate the guilt of the defendant
23	23	or would tend to reduce the punishment for the offense charged
24	24	[required to be disclosed under Subsection (h)], the state shall
25	25	promptly disclose the existence of the document, item, or
26	26	information to the defendant or the court.
27	27	SECTION 2. Chapter 41, Government Code, is amended by
28	28	adding Subchapter B-1 to read as follows:
29	29	SUBCHAPTER B-1. PROTECTION OF ASSISTANT PROSECUTORS FOR DISCLOSING
30	30	EVIDENCE FAVORABLE TO DEFENDANT
31	31	Sec. 41.151. DEFINITIONS. In this subchapter:
32	32	(1) "Assistant prosecutor" means an assistant
33	33	prosecuting attorney employed by a prosecuting attorney.
34	34	(2) "Personnel action" means an action taken by an
35	35	employer that affects an employee's compensation, promotion,
36	36	demotion, transfer, work assignment, or performance evaluation.
37	37	(3) "Prosecuting attorney" means a county attorney,
38	38	district attorney, or criminal district attorney.
39	39	Sec. 41.152. PROHIBITED RETALIATION AGAINST ASSISTANT
40	40	PROSECUTOR FOR CERTAIN ACTS. A prosecuting attorney may not
41	41	suspend or terminate the employment of, or take other adverse
42	42	personnel action against, an assistant prosecutor based on the
43	43	assistant prosecutor:
44	44	(1) disclosing to the defendant evidence the state is
45	45	required to disclose under Article 2.026 or 39.14(h), Code of
46	46	Criminal Procedure, or under another law requiring disclosure of
47	47	evidence favorable to the defendant; or
48	48	(2) after the prosecuting attorney or another
49	49	supervising assistant prosecutor directs the assistant prosecutor
50	50	to withhold evidence from the defendant in violation of Article
51	51	2.026 or 39.14(h), Code of Criminal Procedure, or another law
52	52	requiring disclosure of evidence favorable to the defendant:
53	53	(A) refusing to withhold the evidence; or
54	54	(B) presenting the evidence to the trial court
55	55	for the underlying criminal case in accordance with Section 41.158.
56	56	Sec. 41.153. RELIEF AVAILABLE TO ASSISTANT PROSECUTOR. (a)
57	57	An assistant prosecutor whose employment is suspended or terminated
58	58	or who is subjected to an adverse personnel action in violation of
59	59	Section 41.152 may bring an action against the prosecuting attorney
60	60	for:
61	61	(1) injunctive relief, including:
62	62	(A) reinstatement to the assistant prosecutor's
63	63	former position or an equivalent position; and
64	64	(B) reinstatement of fringe benefits and
65	65	seniority rights lost because of the suspension or termination;
66	66	(2) compensatory damages, including compensation for
67	67	wages lost during the period of suspension or termination;
68	68	(3) court costs; and
69	69	(4) reasonable attorney's fees.
70	70	(b) In an action brought under Subsection (a), an assistant
71	71	prosecutor may not recover compensatory damages for future
72	72	pecuniary losses, emotional pain, suffering, inconvenience, mental
73	73	anguish, loss of enjoyment of life, and other nonpecuniary losses
74	74	in an amount that exceeds:
75	75	(1) $50,000, if the county or counties where the
76	76	prosecuting attorney has jurisdiction have combined fewer than 101
77	77	employees for at least 20 calendar weeks in the calendar year in
78	78	which the action is brought or in the preceding calendar year;
79	79	(2) $100,000, if the county or counties where the
80	80	prosecuting attorney has jurisdiction have combined more than 100
81	81	and fewer than 201 employees for at least 20 calendar weeks in the
82	82	calendar year in which the action is brought or in the preceding
83	83	calendar year;
84	84	(3) $200,000, if the county or counties where the
85	85	prosecuting attorney has jurisdiction have combined more than 200
86	86	and fewer than 501 employees for at least 20 calendar weeks in the
87	87	calendar year in which the action is brought or in the preceding
88	88	calendar year; and
89	89	(4) $250,000, if the county or counties where the
90	90	prosecuting attorney has jurisdiction have combined more than 500
91	91	employees for at least 20 calendar weeks in the calendar year in
92	92	which the action is brought or in the preceding calendar year.
93	93	(c) If more than one subdivision of Subsection (b) applies
94	94	to the county or counties where the prosecuting attorney has
95	95	jurisdiction, the amount of monetary damages that may be recovered
96	96	from the prosecuting attorney in an action brought under this
97	97	subchapter is governed by the provision that provides the greatest
98	98	damage award.
99	99	Sec. 41.154. WAIVER OF IMMUNITY. Sovereign and
100	100	governmental immunity to suit and liability is waived and abolished
101	101	to the extent of liability created by this subchapter.
102	102	Sec. 41.155. BURDEN OF PROOF; AFFIRMATIVE DEFENSE. (a) An
103	103	assistant prosecutor has the burden of proof for an action brought
104	104	under this subchapter.
105	105	(b) It is an affirmative defense to an action brought under
106	106	this subchapter that the prosecuting attorney would have taken
107	107	against the assistant prosecutor the adverse personnel action that
108	108	is the basis of the action based solely on information,
109	109	observation, or evidence unrelated to the fact that the assistant
110	110	prosecutor engaged in an act described by Section 41.152.
111	111	Sec. 41.156. LIMITATION PERIOD. An assistant prosecutor
112	112	who seeks relief under this subchapter must bring the action not
113	113	later than the 90th day after the date the adverse personnel action
114	114	that allegedly violates Section 41.152 is taken.
115	115	Sec. 41.157. VENUE. An action brought under this
116	116	subchapter must be brought in a district court:
117	117	(1) of the county in which the cause of action arises;
118	118	or
119	119	(2) of any county in the same administrative judicial
120	120	region as the county described by Subdivision (1).
121	121	Sec. 41.158. ASSISTANT PROSECUTOR MAY SEEK COURT DECISION
122	122	ON REQUIRED DISCLOSURE; COURT'S DUTY TO ISSUE DECISION. (a) An
123	123	assistant prosecutor who is directed by the prosecuting attorney or
124	124	another supervising assistant prosecutor to withhold evidence from
125	125	the defendant in violation of Article 2.026 or 39.14(h), Code of
126	126	Criminal Procedure, or in violation of another law requiring the
127	127	disclosure of evidence favorable to the defendant, may present the
128	128	evidence to the trial court for the underlying criminal case,
129	129	without notice to the defendant or, if applicable, defendant's
130	130	counsel, to obtain a decision on whether disclosure is required
131	131	under Article 2.026 or 39.14(h) or similar law.
132	132	(b) The trial court shall promptly issue a written decision
133	133	to the presenting assistant prosecutor on whether the evidence
134	134	presented must be disclosed under a law described by Subsection
135	135	(a).
136	136	Sec. 41.159. PREREQUISITES TO BRINGING ACTION. (a) Except
137	137	as provided by Subsection (b), an assistant prosecutor may not
138	138	bring an action under this subchapter unless the assistant
139	139	prosecutor:
140	140	(1) presents the evidence to the trial court in
141	141	accordance with Section 41.158; and
142	142	(2) provides to the prosecuting attorney the court's
143	143	decision issued under that section.
144	144	(b) Subsection (a) does not apply if an assistant prosecutor
145	145	who engaged in an act described by Section 41.152 establishes in an
146	146	action brought under this subchapter:
147	147	(1) the assistant prosecutor did not have a reasonable
148	148	opportunity to present the evidence to the trial court in
149	149	accordance with Section 41.158 or provide the decision as required
150	150	by Subsection (a)(2) before the adverse personnel action was taken;
151	151	or
152	152	(2) good cause for failure to present the evidence to
153	153	the trial court or provide the decision.
154	154	Sec. 41.160. NONAPPLICABILITY OF OTHER LAW. Chapter 102,
155	155	Civil Practice and Remedies Code, does not apply to an action
156	156	brought under this subchapter.
157	157	SECTION 3. (a) Subject to Subsection (b) of this section,
158	158	Subchapter B-1, Chapter 41, Government Code, as added by this Act,
159	159	applies only to an act described by Section 41.152, Government
160	160	Code, as added by this Act, that occurs on or after the effective
161	161	date of this Act. An act that occurs before that date is governed by
162	162	the law in effect on the date the act occurred, and that law is
163	163	continued in effect for that purpose.
164	164	(b) Notwithstanding Section 41.156, Government Code, as
165	165	added by this Act, an assistant prosecuting attorney employed by a
166	166	county attorney, district attorney, or criminal district attorney
167	167	may bring an action under Subchapter B-1, Chapter 41, Government
168	168	Code, as added by this Act, for an act described by Section 41.152,
169	169	Government Code, as added by this Act, that occurred before the
170	170	effective date of this Act, if the attorney brings the action not
171	171	later than the 90th day after the effective date of this Act,
172	172	regardless of whether the attorney:
173	173	(1) has met the prerequisites to bringing an action
174	174	under Section 41.159, Government Code, as added by this Act; or
175	175	(2) has brought an action claiming that an act
176	176	described by Section 41.152, Government Code, as added by this Act,
177	177	led to the attorney's suspension or termination, or otherwise
178	178	affected the compensation, promotion, demotion, transfer, work
179	179	assignment, or performance evaluation of the attorney before the
180	180	effective date of this Act that has been dismissed.
181	181	SECTION 4. This Act takes effect September 1, 2023.