By: Combs H.B. No. 2232
73R6330 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to discovery in proceedings under Title 3 of the Family
1-3 Code.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 51, Family Code, is amended by adding
1-6 Section 51.141 to read as follows:
1-7 Sec. 51.141. DISCOVERY. (a) Discovery in cases under this
1-8 title are governed by the rules established by this section.
1-9 (b) A child alleged to have engaged in delinquent conduct or
1-10 conduct indicating need for supervision may take depositions of
1-11 witnesses. The child must by counsel file with the clerk of the
1-12 court in which the case is pending an affidavit stating a good
1-13 reason for taking the deposition and an application to take the
1-14 deposition. On the filing of the application and after notice to
1-15 the prosecuting attorney, the court shall hear the application and
1-16 determine if good reason exists for taking the deposition. The
1-17 court shall make its determination on the facts presented at the
1-18 hearing and shall grant or deny the application on the facts in the
1-19 same manner as in a criminal case.
1-20 (c) On the filing of an affidavit and application, the court
1-21 shall order the deposition to be taken before a district judge,
1-22 county judge, notary public, district clerk, or county clerk. The
1-23 order must specifically name the person before whom the deposition
1-24 is to be taken and the time and place the deposition is to be
2-1 taken. Failure of a witness to respond as required by a deposition
2-2 order is punishable as contempt of court. The court shall direct
2-3 that the deposition be oral or written.
2-4 (d) The rules applicable in civil cases for issuing
2-5 commissions, subpoenaing witnesses, taking depositions, and
2-6 returning depositions govern proceedings under this title, except
2-7 as otherwise provided by this section.
2-8 (e) The rules applicable in civil cases for making
2-9 objections concerning depositions govern proceedings under this
2-10 title except as otherwise provided by this section.
2-11 (f) If a deposition is taken by written interrogatory, the
2-12 party taking the deposition shall file the interrogatory with the
2-13 clerk of the court and serve a copy of the interrogatory on all
2-14 other parties or their counsel. The rules applicable in civil
2-15 cases relating to time requirements and the manner of service of
2-16 interrogatories and relating to cross-interrogatories govern
2-17 proceedings under this title.
2-18 (g) If a deposition is taken under commission in a
2-19 proceeding under this title, the officer taking the deposition
2-20 shall certify that the person deposing is the person named in the
2-21 commission. If the officer cannot certify to the identity of the
2-22 witness, the officer shall attach to the deposition an affidavit of
2-23 a person certified by the officer to be known to the officer
2-24 proving the identity of the witness.
2-25 (h) The officer taking the deposition shall attach the
2-26 officer's official seal and signature to the certificate
2-27 authenticating the deposition.
3-1 (i) The rules in civil cases for the return of depositions
3-2 govern proceedings under this title.
3-3 (j) The state and the child may agree on a waiver of any
3-4 formality in the taking of a deposition other than the requirement
3-5 that the deposition be taken under oath.
3-6 (k)(1) A deposition in a proceeding under this title may not
3-7 be read at trial unless the witness:
3-8 (A) resides out of the state, and that fact is
3-9 sworn to;
3-10 (B) died after the deposition was taken;
3-11 (C) has left the state;
3-12 (D) has been prevented from attending the court
3-13 by an act of the child or an agent of the child or by an act of any
3-14 person whose object was to deprive the child of the benefit of the
3-15 testimony; or
3-16 (E) cannot attend by reason of age or bodily
3-17 infirmity.
3-18 (2) If an oath is required under Subdivision (1) of
3-19 this subsection, the oath must be made by:
3-20 (A) any credible person, if the state intends to
3-21 offer the deposition; or
3-22 (B) the child or the child's counsel, if the
3-23 child intends to offer the deposition.
3-24 (l) This section does not prohibit the use of any evidence
3-25 for impeachment purposes under common law rules of evidence.
3-26 (m)(1) On motion of the child showing good cause and notice
3-27 to the other parties, the court in which an action is pending may
4-1 order the state before or during a proceeding under this title to
4-2 produce and permit the child to inspect and copy any designated
4-3 documents, papers, written statement of the child, books, accounts,
4-4 letters, photographs, objects, or other tangible things that are
4-5 not privileged, and that constitute or contain evidence material to
4-6 any matter involved in the proceeding, and are in the possession,
4-7 custody, or control of the state. The order must specify the time,
4-8 place, and manner of making the inspection and copies of any of the
4-9 documents or evidence.
4-10 (2) This subsection does not apply to:
4-11 (A) written statements of witnesses;
4-12 (B) the work product of counsel and
4-13 investigators in the case and their notes or reports; and
4-14 (C) written communications between the state and
4-15 its agents.
4-16 (3) This subsection does not authorize the removal of
4-17 evidence from the possession of the state or an inspection of
4-18 evidence outside the presence of a representative of the state.
4-19 SECTION 2. This Act takes effect September 1, 1993.
4-20 SECTION 3. The importance of this legislation and the
4-21 crowded condition of the calendars in both houses create an
4-22 emergency and an imperative public necessity that the
4-23 constitutional rule requiring bills to be read on three several
4-24 days in each house be suspended, and this rule is hereby suspended.