By: Gallego H.B. No. 378
73R651 DRH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to discovery in a criminal case.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Article 39.14, Code of Criminal Procedure, is
1-5 amended to read as follows:
1-6 Art. 39.14. Discovery By Defendant. (a) The state's duty
1-7 to provide for discovery to the defendant under this article
1-8 applies to applicable information that is known or by the exercise
1-9 of due diligence would become known to the attorney for the state,
1-10 and to an applicable item whose existence is known or by the
1-11 exercise of due diligence would become known to the attorney for
1-12 the state.
1-13 (b) Not later than the seventh day after the date on which
1-14 the timely written request of the defendant is served on the
1-15 attorney for the state, the state shall allow the defendant to have
1-16 access to, inspect, copy, or photograph, as applicable, any of the
1-17 following items or information within its possession, custody, or
1-18 control:
1-19 (1) any written statement made or adopted by the
1-20 defendant relating to the offense charged or any extraneous
1-21 offenses;
1-22 (2) any tapes, films, or videotapes of an
1-23 electronically recorded statement made by the defendant, a
1-24 transcript of any recorded statement made by the defendant, and the
2-1 device used to record a statement made by the defendant relating to
2-2 the offense charged or any extraneous offense;
2-3 (3) the substance of any oral statement relating to
2-4 the offense charged or any extraneous offense made by the defendant
2-5 in response to interrogation by a law enforcement officer;
2-6 (4) any recorded testimony of the defendant before a
2-7 grand jury;
2-8 (5) the prior criminal record of the defendant;
2-9 (6) the result or report of a physical or mental
2-10 examination of the defendant or of a scientific test or experiment
2-11 that:
2-12 (A) is material to the defendant's preparation
2-13 of his defense; or
2-14 (B) the state expects to offer in evidence at
2-15 the guilt-innocence phase of the trial; or
2-16 (7) any book, document, photograph, tangible object,
2-17 building, or place that:
2-18 (A) is material to the defendant's preparation
2-19 of his defense;
2-20 (B) the state expects to offer in evidence at
2-21 the guilt-innocence phase of the trial; or
2-22 (C) was obtained from or belongs to the
2-23 defendant.
2-24 (c) If a defendant is a corporation, partnership, or
2-25 association, the court may grant a motion by the defendant for
2-26 discovery of recorded testimony that relates to the offense charged
2-27 and that was made before a grand jury by a witness capable of
3-1 legally binding the defendant at the time of the:
3-2 (1) testimony; or
3-3 (2) occurrence of the alleged conduct constituting the
3-4 offense, if the witness was personally involved in the conduct.
3-5 (d) Not later than the seventh day after the date on which
3-6 the timely written request of the defendant is served on the
3-7 attorney for the state, the state shall furnish to the defendant a
3-8 list of the names and addresses of all witnesses the state expects
3-9 to call in order to directly establish the guilt of the defendant
3-10 for the offense or offenses charged. This subsection does not
3-11 require the state to disclose the name or address of any witness it
3-12 expects to call only to rebut evidence offered by the defendant
3-13 although the testimony of the witness may indirectly establish the
3-14 guilt of the defendant. If the state is required to disclose the
3-15 names and addresses of its witnesses under this section, the state
3-16 shall also disclose, at the written request of the defendant:
3-17 (1) the prior criminal record of each witness if the
3-18 prior criminal record would be admissible to impeach the testimony
3-19 of the witness at trial; and
3-20 (2) the existence of any juvenile adjudication or
3-21 pending plea bargaining agreements between the state and the
3-22 witness if the existence of the juvenile record or plea bargain
3-23 would be admissible under the Constitution of the United States at
3-24 the trial to show the witness's bias, prejudice, or motive in
3-25 testifying for the state.
3-26 (e) Except as provided by Subsections (b)(1) through (b)(6)
3-27 and by Subsection (d) of this article, this article does not
4-1 authorize the discovery or inspection of an item or information if
4-2 the item or information is a report, memorandum, or other internal
4-3 document made by a peace officer or his agent or by an attorney for
4-4 the state or his agent in the investigation or prosecution of the
4-5 case.
4-6 (f) Except as specifically provided by Subsection (b)(4) or
4-7 Subsection (c) of this article, this article does not authorize the
4-8 discovery or inspection of recorded proceedings held before a grand
4-9 jury.
4-10 (g) To be timely under this article, the written request of
4-11 the defendant for discovery must be made on the attorney for the
4-12 state not later than the 20th day before the date on which the
4-13 trial on the merits commences. <Upon motion of the defendant
4-14 showing good cause therefor and upon notice to the other parties,
4-15 the court in which an action is pending may order the State before
4-16 or during trial of a criminal action therein pending or on trial to
4-17 produce and permit the inspection and copying or photographing by
4-18 or on behalf of the defendant of any designated documents, papers,
4-19 written statement of the defendant, (except written statements of
4-20 witnesses and except the work product of counsel in the case and
4-21 their investigators and their notes or report), books, accounts,
4-22 letters, photographs, objects or tangible things not privileged,
4-23 which constitute or contain evidence material to any matter
4-24 involved in the action and which are in the possession, custody or
4-25 control of the State or any of its agencies. The order shall
4-26 specify the time, place and manner of making the inspection and
4-27 taking the copies and photographs of any of the aforementioned
5-1 documents or tangible evidence; provided, however, that the rights
5-2 herein granted shall not extend to written communications between
5-3 the State or any of its agents or representatives or employees.
5-4 Nothing in this Act shall authorize the removal of such evidence
5-5 from the possession of the State, and any inspection shall be in
5-6 the presence of a representative of the State.>
5-7 SECTION 2. Chapter 39, Code of Criminal Procedure, is
5-8 amended by adding Articles 39.15, 39.16, 39.17, and 39.18 to read
5-9 as follows:
5-10 Art. 39.15. Discovery By State. (a) If the defendant
5-11 requests discovery under Article 39.14(b)(7) of this code, on the
5-12 state's compliance with the request, the defendant, at the written
5-13 request of the state, shall permit the state not later than the
5-14 seventh day after the date on which the defendant receives the
5-15 request to inspect, copy, or photograph books, documents,
5-16 photographs, tangible objects, or copies or portions of any of
5-17 these items that:
5-18 (1) are within the possession, custody, or control of
5-19 the defendant; and
5-20 (2) the defendant expects to offer in evidence at the
5-21 guilt-innocence phase of the trial.
5-22 (b) If the defendant requests discovery under Article
5-23 39.14(b)(6) of this code, on the state's compliance with the
5-24 request, the defendant, at the written request of the state, shall
5-25 permit the state not later than the seventh day after the date on
5-26 which the defendant receives the request to inspect, copy, or
5-27 photograph the result or report of a physical or mental examination
6-1 of the defendant or of a scientific test or experiment made in
6-2 connection with the particular case that is in the possession or
6-3 control of the defendant and that:
6-4 (1) the defendant expects to offer in evidence at the
6-5 guilt-innocence phase of the trial; or
6-6 (2) was prepared by a witness whom the defendant
6-7 expects to call at the trial if the result or report relates to his
6-8 testimony.
6-9 (c) If a defendant has received information from the state
6-10 under Article 39.14(d) of this code, at the written request of the
6-11 state the defendant shall furnish to the state not later than the
6-12 seventh day after the date on which the defendant receives the
6-13 request the name and address of each witness the defendant expects
6-14 to call to testify during the trial.
6-15 (d) Except as to scientific or medical reports, this article
6-16 does not authorize the discovery or inspection of a:
6-17 (1) report, memorandum, or other internal defense
6-18 document made by a defendant or his attorney or agent of the
6-19 attorney in connection with the case; or
6-20 (2) statement made to the defendant's attorney or
6-21 agent of the attorney by an actual or prospective witness for the
6-22 state or the defense.
6-23 Art. 39.16. Notice Of Alibi. (a) If the attorney for the
6-24 state timely requests in writing notice of the defendant's
6-25 intention to offer a defense of alibi at trial and the request
6-26 includes the time, date, and place at which the state alleges that
6-27 the offense was committed, the defendant shall, not later than the
7-1 seventh day after the date on which the request was received, or at
7-2 any time the court directs, serve the attorney for the state with a
7-3 written notice of his intention to offer a defense of alibi. The
7-4 notice shall state the specific place or places where the defendant
7-5 claims to have been at the time of the alleged offense and the
7-6 names and addresses of the witnesses on whom he intends to rely to
7-7 establish the alibi.
7-8 (b) After receiving the defendant's notice of alibi, the
7-9 attorney for the state shall serve the defendant or his attorney
7-10 with a written notice stating the names and addresses of the
7-11 witnesses on whom the state intends to rely to establish the
7-12 defendant's presence at the scene of the alleged offense and any
7-13 other witnesses to be relied on to rebut the testimony of any of
7-14 the defendant's alibi witnesses. This notice must be served not
7-15 later than the seventh day after the date on which the attorney for
7-16 the state receives the defendant's notice or the seventh day before
7-17 the date on which the trial on the merits commences, whichever date
7-18 occurs first. The court, however, may permit service of the notice
7-19 at any other time as it considers just under the circumstances.
7-20 (c) Evidence of an intention to rely on an alibi defense,
7-21 later withdrawn, or of statements made in connection with that
7-22 intention, is not admissible in any civil or criminal proceeding
7-23 against the defendant who gave notice of the intention.
7-24 (d) To be timely under this article, a request under
7-25 Subsection (a) of this article must be made on the attorney for the
7-26 defendant not later than the 20th day before the date on which the
7-27 trial on the merits commences.
8-1 Art. 39.17. Regulation of Discovery. (a) If prior to or
8-2 during trial a party learns of an additional witness whose
8-3 identity, if known, should have been furnished to the opposing
8-4 party or discovers evidence or material previously requested or
8-5 ordered to be disclosed under Article 39.14, 39.15, or 39.16 of
8-6 this code, the party shall promptly notify the other party or his
8-7 attorney of the existence and identity of the additional witness,
8-8 evidence, or material.
8-9 (b) On a sufficient showing the court may at any time order
8-10 that discovery or inspection under Article 39.14, 39.15, or 39.16
8-11 of this code be denied, restricted, or deferred or the time limits
8-12 be shortened, or make any other order it considers appropriate. On
8-13 the motion of a party, the court may permit the party to make the
8-14 showing in whole or in part in the form of a written statement to
8-15 be inspected by the judge alone. If the court enters an order
8-16 granting relief following an ex parte showing, the entire text of
8-17 the party's statement shall be sealed and preserved in the records
8-18 of the court to be made available to the appellate court in the
8-19 event of appeal.
8-20 (c) If at any time during the course of the proceedings it
8-21 is brought to the attention of the court that a party has failed to
8-22 comply with the requirements of this article, the court may order
8-23 the party to permit the discovery or inspection, grant a
8-24 continuance, prohibit the party from introducing evidence not
8-25 disclosed, or enter any other order it considers just under the
8-26 circumstances. The court may specify the time, place, and manner
8-27 of the discovery or inspection and may prescribe terms and
9-1 conditions it considers appropriate.
9-2 Art. 39.18. Demand for Statement of State's Witness. (a)
9-3 In a criminal prosecution, a statement in the possession of the
9-4 state that was made by a state's witness or prospective state's
9-5 witness, other than the defendant, is not subject to subpoena,
9-6 discovery, or inspection until the witness has testified on direct
9-7 examination in the trial of the case.
9-8 (b) After a witness called by the state has testified on
9-9 direct examination, the court shall, on motion of the defendant,
9-10 order the state to produce any statement of the witness in the
9-11 possession of the state that relates to the subject matter to which
9-12 the witness has testified. If the entire contents of any such
9-13 statement relate to the subject matter of the testimony of the
9-14 witness, the court shall order the statement to be delivered
9-15 directly to the defendant for his examination and use.
9-16 (c) If the state claims that a statement ordered to be
9-17 delivered to the defendant under Subsection (b) of this article
9-18 contains matter that does not relate to the subject matter of the
9-19 testimony of the witness, the court shall order the state to
9-20 deliver the statement to the court for its inspection in camera.
9-21 On delivery of the statement the court shall excise the portions of
9-22 the statement that do not relate to the subject matter of the
9-23 testimony of the witness. After excising those portions, the court
9-24 shall direct that the statement be delivered to the defendant for
9-25 his examination and use. If any portion of a statement is excised
9-26 and withheld from the defendant under this subsection and the
9-27 defendant objects to that action, and if the trial results in the
10-1 conviction of the defendant, the entire text of the statement shall
10-2 be preserved by the state and, in the event the defendant appeals,
10-3 shall be made available to the appellate court for the purpose of
10-4 determining whether the action of the trial judge was correct. If
10-5 a statement is delivered to a defendant pursuant to this article,
10-6 the court in its discretion, on application of the defendant, may
10-7 recess proceedings in the trial for such time as it determines to
10-8 be reasonably required for the defendant to examine the statement
10-9 and to prepare for its use in the trial.
10-10 (d) If the state does not comply with an order of the court
10-11 under Subsection (b) or (c) of this article requiring the state to
10-12 deliver to the defendant a statement or specified portion of a
10-13 statement, the court shall strike the testimony of the witness from
10-14 the record, and the trial shall proceed unless the court in its
10-15 discretion determines that the interests of justice require that a
10-16 mistrial be declared.
10-17 (e) In this article, "statement" in relation to a witness
10-18 called by the state means:
10-19 (1) a written statement made by the witness and signed
10-20 or otherwise adopted or approved by the witness;
10-21 (2) a stenographic, mechanical, electrical, or other
10-22 recording, or a transcription of such a recording, that is a
10-23 substantially verbatim recital of an oral statement made by the
10-24 witness and recorded at the time the oral statement was made; or
10-25 (3) a statement, however taken or recorded, or a
10-26 transcription of such a statement, made by the witness to a grand
10-27 jury.
11-1 SECTION 3. (a) The change in law made by this Act applies
11-2 to a criminal case in which the indictment or information is
11-3 presented to the court on or after the effective date of this Act.
11-4 (b) This Act does not apply to a criminal case in which the
11-5 indictment or information has been presented to the court before
11-6 the effective date of this Act, and the law as it existed when the
11-7 indictment or information was presented is continued in effect for
11-8 this purpose.
11-9 SECTION 4. This Act takes effect September 1, 1993.
11-10 SECTION 5. The importance of this legislation and the
11-11 crowded condition of the calendars in both houses create an
11-12 emergency and an imperative public necessity that the
11-13 constitutional rule requiring bills to be read on three several
11-14 days in each house be suspended, and this rule is hereby suspended.