By: Creighton S.B. No. 2797
(In the Senate - Filed March 14, 2025; April 3, 2025, read
first time and referred to Committee on Criminal Justice;
April 16, 2025, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 2; April 16, 2025,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 2797 By: Flores
A BILL TO BE ENTITLED
AN ACT
relating to discovery requirements in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Article 39.14, Code of Criminal
Procedure, is amended to read as follows:
Art. 39.14. DISCOVERY: DISCLOSURE BY STATE.
SECTION 2. Article 39.14, Code of Criminal Procedure, is
amended by adding Subsection (h-2) to read as follows:
(h-2) 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), the attorney representing the state
shall 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. Chapter 39, Code of Criminal Procedure, is
amended by adding Article 39.142 to read as follows:
Art. 39.142. DISCOVERY: DISCLOSURE BY DEFENDANT. (a)
Subject to Subsection (b), on the defendant's request for discovery
under Article 39.14(a) or after receiving the initial disclosures
under that subsection from the attorney representing the state, the
defendant shall 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) The defendant shall make the disclosures required under
Subsection (a) not later than the later of:
(1) 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
(2) as soon as practicable after the date the
defendant receives a disclosure from the state under Article
39.14(a).
(c) Following the disclosure of a witness's name under
Subsection (a)(1), the attorney representing the state may request
the court to order, on a showing of good cause, the disclosure of
the last known address for the witness.
(d) If requested in writing by the attorney representing the
state, a defendant who may assert one or more defenses or
affirmative defenses listed in Chapter 8 or 9, Penal Code, shall
provide the attorney representing the state with written notice
that the defendant may assert the statutory defense or affirmative
defense. Except as provided by Subsection (e), the defendant shall
provide the notice required by this subsection not later than the
later of:
(1) 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
(2) 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) 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, the court shall 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) Any notice provided by the defendant under Subsection
(d) or (e) is for purposes of discovery only and is not admissible
at trial.
(g) 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, a defendant who will assert an alibi shall
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 includes:
(1) the location at which the defendant claims to have
been at the time of the alleged offense; and
(2) the names of the witnesses the defendant intends
to use to establish the alibi.
(h) 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) 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), the defendant
shall promptly disclose the existence of the document, item, or
information to the attorney representing the state.
(j) After a hearing and on a showing of good cause, a court
may order the state to pay reasonable costs related to discovery
under this article.
(k) If the court finds that a defendant has failed to comply
with any of the provisions of Subsection (a), the court may:
(1) order and compel the defendant to provide the
required discovery or disclosure;
(2) grant a continuance;
(3) issue a protective order; or
(4) take other appropriate action as necessary under
the circumstances to accomplish the purposes of the required
discovery or disclosure.
SECTION 4. Articles 39.14(b), (g), and (n), Code of
Criminal Procedure, are redesignated as Article 39.145, Code of
Criminal Procedure, and amended to read as follows:
Art. 39.145. DISCOVERY: ADDITIONAL PROVISIONS APPLICABLE
TO DISCLOSURES BY STATE OR DEFENDANT. (a) [(b)] On a party's
request made not later than the 30th day before the date that jury
selection in the trial is scheduled to begin or, in a trial without
a jury, the presentation of evidence is scheduled to begin, the
party receiving the request shall disclose to the requesting party
the name and address of each person the disclosing party may use at
trial to present evidence under Rules 702, 703, and 705, Texas Rules
of Evidence. Except as otherwise provided by this subsection, the
disclosure must be made in writing in hard copy form or by
electronic means not later than the 20th day before the date that
jury selection in the trial is scheduled to begin or, in a trial
without a jury, the presentation of evidence is scheduled to begin.
On motion of a party and on notice to the other parties, the court
may order an earlier time at which one or more of the other parties
must make the disclosure to the requesting party.
(b) [(g)] Nothing in Articles 39.14 and 39.142 [this
article] 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 Articles 39.14(e) [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.
(c) Articles 39.14 and 39.142 do [(n) This article does]
not prohibit the parties from agreeing to discovery and
documentation requirements equal to or greater than those required
under those articles [this article].
SECTION 5. The changes in law made by this Act apply only to
the prosecution of an offense committed on or after September 1,
2025. The prosecution of an offense committed before September 1,
2025, is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense is committed
before September 1, 2025, if any element of the offense occurs
before that date.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2025.
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