BILL ANALYSIS Senate Research Center C.S.S.B. 2797 89R24124 JRR-D By: Creighton Criminal Justice 4/15/2025 Committee Report (Substituted) AUTHOR'S / SPONSOR'S STATEMENT OF INTENT Under current Texas law, discovery in criminal cases has been largely one-sided, requiring the prosecution to disclose evidence to the defense while placing minimal reciprocal obligations on the defendant. This imbalance can hinder the efficiency of trials and limit the prosecution's ability to ensure that justice is done. The practice of reciprocal discovery in some form or fashion is current law in 48 other states, all federal courts, and the military justice system. C.S.S.B. 2797 introduces a more balanced approach by requiring the defense to disclose certain categories of evidence and witness information if they intend to present them at trial. This change aims to reduce trial by ambush, promote fairness, and streamline judicial proceedings while preserving the defendant's constitutional rights. Additionally, this change will assist with appropriate evaluation of viable defensive issues to prevent wrongful prosecutions. C.S.S.B. 2797 would require the defendant to disclose to the state: A list of witnesses who will be called to testify. Statements from those witnesses. Physical or documentary evidence to be provided to jurors. Notice of statutory defenses. An alibi the defendant intends to assert at trial and any witnesses establishing that alibi. Identification of the relevant locations for trial. Reports by experts and underlying facts for expert opinions. This legislation seeks to establish reciprocal discovery obligations in Texas criminal cases, ensuring that both parties engage in transparent pretrial evidence-sharing while maintaining fairness. The bill does not alter the prosecution's obligation to disclose exculpatory or mitigating evidence, nor does it interfere with attorney-client privilege or work product protections. Instead, it creates a system where both the defense and prosecution are required to exchange relevant materials before trial, allowing for a more orderly and just litigation process. C.S.S.B. 2797 adds a provision that requires the state to disclose to the defendant any rebuttal witness to the alibi the defendant intends to assert at trial not later than 10 days before jury selection is scheduled to start or not later than 10 days before presentation of evidence is scheduled to begin in trials without a jury. C.S.S.B. 2797 amends current law relating to discovery requirements in a criminal case. RULEMAKING AUTHORITY This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends the heading to Article 39.14, Code of Criminal Procedure, to read as follows: Art. 39.14. DISCOVERY: DISCLOSURE BY STATE. SECTION 2. Amends Article 39.14, Code of Criminal Procedure, by adding Subsection (h-2), as follows: (h-2) Requires the attorney representing the state, if a defendant who will assert an alibi provides the attorney representing the state a written response regarding the alibi under Article 39.142(g), to provide the defendant with a written notice stating the name of each witness the state intends to use to rebut the alibi not later than the 10th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin. SECTION 3. Amends Chapter 39, Code of Criminal Procedure, by adding Article 39.142, as follows: Art. 39.142. DISCOVERY: DISCLOSURE BY DEFENDANT. (a) Requires the defendant, subject to Subsection (b), on the defendant's request for discovery under Article 39.14(a) (relating to requiring the state to produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of certain tangible items) or after receiving the initial disclosures under that subsection from the attorney representing the state, to disclose to the attorney representing the state and permit inspection, photocopying, and photographing of the following materials and information: (1) a written list of all witnesses the defendant reasonably expects to call during trial; (2) 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; (3) any physical or documentary evidence that the defendant intends to use in the defendant's case in chief and, on a showing of relevance by the attorney representing the state, the opportunity to test that evidence; (4) the locations of buildings and places concerning which the defendant intends to offer evidence and permission by the defendant for photographing; and (5) any report produced by or for an expert witness disclosed by the defendant under Article 39.145(a) and the underlying data or facts supporting the opinion of the expert in that particular case. (b) Requires the defendant to make the disclosures required under Subsection (a) not later than the later of the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin or as soon as practicable after the date the defendant receives a disclosure from the state under Article 39.14(a). (c) Authorizes the attorney representing the state, following the disclosure of a witness's name under Subsection (a)(1), to request the court to order, on a showing of good cause, the disclosure of the last known address for the witness. (d) Provides that, if requested in writing by the attorney representing the state, a defendant who is authorized to assert one or more defenses or affirmative defenses listed in Chapter 8 (General Defenses to Criminal Responsibility) or 9 (Justification Excluding Criminal Responsibility), Penal Code, is required to provide the attorney representing the state with written notice that the defendant may assert the statutory defense or affirmative defense. Requires the defendant, except as provided by Subsection (e), to provide the notice required by this subsection not later than the later of the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin or as soon as practicable after the date the defendant receives a disclosure from the state under Article 39.14(a) to which the statutory defense or affirmative defense is responsive. (e) Requires the court, if the state amends the information or indictment or files a new information or obtains a new indictment after the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin, to allow the defendant not less than 10 days after being served with an amended or new information or indictment, or after having received actual notice of the amendment in open court, to amend or supplement an existing notice provided under Subsection (d) or to provide an initial notice under Subsection (d). (f) Provides that any notice provided by the defendant under Subsection (d) or (e) is for purposes of discovery only and is not admissible at trial. (g) Requires a defendant who will assert an alibi, if requested by the attorney representing the state in a written request in which the attorney representing the state provides the defendant with the specific date, time, and place of the alleged offense, to provide the attorney representing the state, not later than the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin, a written response that include certain information regarding the defendant's claimed whereabouts at the time of the alleged offense and the witnesses intended to support that claim. (h) Provides that, notwithstanding any other provision of this article, the defendant is not required to disclose under this article 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 or defense of the case or privileged under the Texas Rules of Evidence, an express statutory provision, the Texas Constitution, or the United States Constitution, unless the document or information in the document is intended to be offered at trial. (i) Requires the defendant, if at any time before or during the trial, the defendant discovers any additional document, item, or information required to be disclosed under Subsection (a), (d), (e), or (g), to promptly disclose the existence of the document, item, or information to the attorney representing the state. (j) Authorizes a court, after a hearing and on a showing of good cause, to order the state to pay reasonable costs related to discovery under this article. (k) Authorizes the court, if the court finds that a defendant has failed to comply with any of the provisions of Subsection (a), to order and compel the defendant to provide the required discovery or disclosure, grant a continuance, issue a protective order, or take other appropriate action as necessary under the circumstances to accomplish the purposes of the required discovery or disclosure. SECTION 4. Redesignates Articles 39.14(b), (g), and (n), Code of Criminal Procedures, as Article 39.145, Code of Criminal Procedures, and amends them, as follows: Art. 39.145. DISCOVERY: ADDITIONAL PROVISIONS APPLICABLE TO DISCLOSURES BY STATE OR DEFENDANT. (a) Redesignates Subsection (b) as Subsection (a) and makes no further changes. (b) Redesignates Subsection (g) as Subsection (b). Requires that nothing in Articles 39.14 and 39.142, rather than this article, 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 Articles 39.14(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. Makes a nonsubstantive change. (c) Redesignates Subsection (n) as Subsection (c). Provides that Articles 39.14 and 39.142 do not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under those articles. Makes conforming and nonsubstantive changes. SECTION 5. Makes application of this Act prospective to September 1, 2025. SECTION 6. Effective date: upon passage or September 1, 2025.
BILL ANALYSIS
Senate Research Center C.S.S.B. 2797
89R24124 JRR-D By: Creighton
Criminal Justice
4/15/2025
Committee Report (Substituted)
Senate Research Center
C.S.S.B. 2797
89R24124 JRR-D
By: Creighton
Criminal Justice
4/15/2025
Committee Report (Substituted)
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
Under current Texas law, discovery in criminal cases has been largely one-sided, requiring the prosecution to disclose evidence to the defense while placing minimal reciprocal obligations on the defendant. This imbalance can hinder the efficiency of trials and limit the prosecution's ability to ensure that justice is done. The practice of reciprocal discovery in some form or fashion is current law in 48 other states, all federal courts, and the military justice system.
C.S.S.B. 2797 introduces a more balanced approach by requiring the defense to disclose certain categories of evidence and witness information if they intend to present them at trial. This change aims to reduce trial by ambush, promote fairness, and streamline judicial proceedings while preserving the defendant's constitutional rights. Additionally, this change will assist with appropriate evaluation of viable defensive issues to prevent wrongful prosecutions.
C.S.S.B. 2797 would require the defendant to disclose to the state:
A list of witnesses who will be called to testify.
Statements from those witnesses.
Physical or documentary evidence to be provided to jurors.
Notice of statutory defenses.
An alibi the defendant intends to assert at trial and any witnesses establishing that alibi.
Identification of the relevant locations for trial.
Reports by experts and underlying facts for expert opinions.
This legislation seeks to establish reciprocal discovery obligations in Texas criminal cases, ensuring that both parties engage in transparent pretrial evidence-sharing while maintaining fairness. The bill does not alter the prosecution's obligation to disclose exculpatory or mitigating evidence, nor does it interfere with attorney-client privilege or work product protections. Instead, it creates a system where both the defense and prosecution are required to exchange relevant materials before trial, allowing for a more orderly and just litigation process.
C.S.S.B. 2797 adds a provision that requires the state to disclose to the defendant any rebuttal witness to the alibi the defendant intends to assert at trial not later than 10 days before jury selection is scheduled to start or not later than 10 days before presentation of evidence is scheduled to begin in trials without a jury.
C.S.S.B. 2797 amends current law relating to discovery requirements in a criminal case.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the heading to Article 39.14, Code of Criminal Procedure, to read as follows:
Art. 39.14. DISCOVERY: DISCLOSURE BY STATE.
SECTION 2. Amends Article 39.14, Code of Criminal Procedure, by adding Subsection (h-2), as follows:
(h-2) Requires the attorney representing the state, if a defendant who will assert an alibi provides the attorney representing the state a written response regarding the alibi under Article 39.142(g), to provide the defendant with a written notice stating the name of each witness the state intends to use to rebut the alibi not later than the 10th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin.
SECTION 3. Amends Chapter 39, Code of Criminal Procedure, by adding Article 39.142, as follows:
Art. 39.142. DISCOVERY: DISCLOSURE BY DEFENDANT. (a) Requires the defendant, subject to Subsection (b), on the defendant's request for discovery under Article 39.14(a) (relating to requiring the state to produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of certain tangible items) or after receiving the initial disclosures under that subsection from the attorney representing the state, to disclose to the attorney representing the state and permit inspection, photocopying, and photographing of the following materials and information:
(1) a written list of all witnesses the defendant reasonably expects to call during trial;
(2) 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;
(3) any physical or documentary evidence that the defendant intends to use in the defendant's case in chief and, on a showing of relevance by the attorney representing the state, the opportunity to test that evidence;
(4) the locations of buildings and places concerning which the defendant intends to offer evidence and permission by the defendant for photographing; and
(5) any report produced by or for an expert witness disclosed by the defendant under Article 39.145(a) and the underlying data or facts supporting the opinion of the expert in that particular case.
(b) Requires the defendant to make the disclosures required under Subsection (a) not later than the later of the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin or as soon as practicable after the date the defendant receives a disclosure from the state under Article 39.14(a).
(c) Authorizes the attorney representing the state, following the disclosure of a witness's name under Subsection (a)(1), to request the court to order, on a showing of good cause, the disclosure of the last known address for the witness.
(d) Provides that, if requested in writing by the attorney representing the state, a defendant who is authorized to assert one or more defenses or affirmative defenses listed in Chapter 8 (General Defenses to Criminal Responsibility) or 9 (Justification Excluding Criminal Responsibility), Penal Code, is required to provide the attorney representing the state with written notice that the defendant may assert the statutory defense or affirmative defense. Requires the defendant, except as provided by Subsection (e), to provide the notice required by this subsection not later than the later of the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin or as soon as practicable after the date the defendant receives a disclosure from the state under Article 39.14(a) to which the statutory defense or affirmative defense is responsive.
(e) Requires the court, if the state amends the information or indictment or files a new information or obtains a new indictment after the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin, to allow the defendant not less than 10 days after being served with an amended or new information or indictment, or after having received actual notice of the amendment in open court, to amend or supplement an existing notice provided under Subsection (d) or to provide an initial notice under Subsection (d).
(f) Provides that any notice provided by the defendant under Subsection (d) or (e) is for purposes of discovery only and is not admissible at trial.
(g) Requires a defendant who will assert an alibi, if requested by the attorney representing the state in a written request in which the attorney representing the state provides the defendant with the specific date, time, and place of the alleged offense, to provide the attorney representing the state, not later than the 30th day before the date that jury selection is scheduled to begin, or in a trial without a jury, the presentation of evidence is scheduled to begin, a written response that include certain information regarding the defendant's claimed whereabouts at the time of the alleged offense and the witnesses intended to support that claim.
(h) Provides that, notwithstanding any other provision of this article, the defendant is not required to disclose under this article 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 or defense of the case or privileged under the Texas Rules of Evidence, an express statutory provision, the Texas Constitution, or the United States Constitution, unless the document or information in the document is intended to be offered at trial.
(i) Requires the defendant, if at any time before or during the trial, the defendant discovers any additional document, item, or information required to be disclosed under Subsection (a), (d), (e), or (g), to promptly disclose the existence of the document, item, or information to the attorney representing the state.
(j) Authorizes a court, after a hearing and on a showing of good cause, to order the state to pay reasonable costs related to discovery under this article.
(k) Authorizes the court, if the court finds that a defendant has failed to comply with any of the provisions of Subsection (a), to order and compel the defendant to provide the required discovery or disclosure, grant a continuance, issue a protective order, or take other appropriate action as necessary under the circumstances to accomplish the purposes of the required discovery or disclosure.
SECTION 4. Redesignates Articles 39.14(b), (g), and (n), Code of Criminal Procedures, as Article 39.145, Code of Criminal Procedures, and amends them, as follows:
Art. 39.145. DISCOVERY: ADDITIONAL PROVISIONS APPLICABLE TO DISCLOSURES BY STATE OR DEFENDANT. (a) Redesignates Subsection (b) as Subsection (a) and makes no further changes.
(b) Redesignates Subsection (g) as Subsection (b). Requires that nothing in Articles 39.14 and 39.142, rather than this article, 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 Articles 39.14(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. Makes a nonsubstantive change.
(c) Redesignates Subsection (n) as Subsection (c). Provides that Articles 39.14 and 39.142 do not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under those articles. Makes conforming and nonsubstantive changes.
SECTION 5. Makes application of this Act prospective to September 1, 2025.
SECTION 6. Effective date: upon passage or September 1, 2025.