By Dutton H.B. No. 973
74R3070 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the right of a defendant in a criminal case to a speedy
1-3 trial.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Articles 32A.02 and 28.061, Code of Criminal
1-6 Procedure, are reenacted to read as follows:
1-7 Art. 32A.02. Time limitations
1-8 Sec. 1. A court shall grant a motion to set aside an
1-9 indictment, information, or complaint if the state is not ready for
1-10 trial within:
1-11 (1) 180 days of the commencement of a criminal action
1-12 if the defendant is accused of a felony;
1-13 (2) 90 days of the commencement of a criminal action
1-14 if the defendant is accused of a misdemeanor punishable by a
1-15 sentence of imprisonment for more than 180 days; or
1-16 (3) 60 days of the commencement of a criminal action
1-17 if the defendant is accused of a misdemeanor punishable by a
1-18 sentence of imprisonment for 180 days or less or punishable by a
1-19 fine only.
1-20 Sec. 2. (a) Except as provided in Subsections (b) and (c)
1-21 of this section, a criminal action commences for purposes of this
1-22 article when an indictment, information, or complaint against the
1-23 defendant is filed in court, unless prior to the filing the
1-24 defendant is either detained in custody or released on bail or
2-1 personal bond to answer for the same offense or any other offense
2-2 arising out of the same transaction, in which event the criminal
2-3 action commences when he is arrested.
2-4 (b) If a defendant is to be retried following a mistrial, an
2-5 order granting a new trial, or an appeal or collateral attack, a
2-6 criminal action commences for purposes of this article on the date
2-7 of the mistrial, the order granting a new trial, or the remand.
2-8 (c) If an indictment, information, or complaint is dismissed
2-9 on motion of the defendant, a criminal action commences for the
2-10 purposes of the article when a new indictment, information, or
2-11 complaint against the defendant is filed in court, unless the
2-12 defendant is either detained in custody or released on bail or
2-13 personal bond to answer for the same offense or any other offense
2-14 arising out of the same transaction, in which event the criminal
2-15 action commences when he is detained or released.
2-16 Sec. 3. The failure of a defendant to move for discharge
2-17 under the provisions of this article prior to trial or the entry of
2-18 a plea of guilty constitutes a waiver of the rights accorded by
2-19 this article.
2-20 Sec. 4. In computing the time by which the state must be
2-21 ready for trial, the following periods shall be excluded:
2-22 (1) a reasonable period of delay resulting from other
2-23 proceedings involving the defendant, including but not limited to
2-24 proceedings for the determination of competence to stand trial,
2-25 hearing on pretrial motions, appeals, and trials of other charges;
2-26 (2) any period during which the defendant is
2-27 incompetent to stand trial;
3-1 (3) a period of delay resulting from a continuance
3-2 granted at the request or with the consent of the defendant or his
3-3 counsel, except that a defendant without counsel is deemed not to
3-4 have consented to a continuance unless the court advised him of his
3-5 right to a speedy trial and of the effect of his consent;
3-6 (4) a period of delay resulting from the absence of
3-7 the defendant because his location is unknown and:
3-8 (A) he is attempting to avoid apprehension or
3-9 prosecution; or
3-10 (B) the state has been unable to determine his
3-11 location by due diligence;
3-12 (5) any period of delay during which the defendant is
3-13 absent because he is a fugitive or his bail is forfeited or because
3-14 he resists being returned to the state for trial;
3-15 (6) a reasonable period of delay resulting from a
3-16 continuance granted at the request of the state if the continuance
3-17 is granted:
3-18 (A) because of the unavailability of evidence
3-19 that is material to the state's case, if the state has exercised
3-20 due diligence to obtain the evidence and there are reasonable
3-21 grounds to believe the evidence will be available within a
3-22 reasonable time; or
3-23 (B) to allow the state additional time to
3-24 prepare its case and the additional time is justified because of
3-25 the exceptional circumstances of the case;
3-26 (7) if the charge is dismissed upon motion of the
3-27 state or the charge is disposed of by a final judgment and the
4-1 defendant is later charged with the same offense or another offense
4-2 arising out of the same transaction, the period of delay from the
4-3 date of dismissal or the date of the final judgment to the date the
4-4 time limitation would commence running on the subsequent charge had
4-5 there been no previous charge;
4-6 (8) a reasonable period of delay when the defendant is
4-7 joined for trial with a codefendant as to whom the time for trial
4-8 has not run, if there is good cause for not granting a severance;
4-9 (9) a period of delay resulting from detention of the
4-10 defendant in another jurisdiction, if the state is aware of the
4-11 detention and exercises due diligence to obtain his presence for
4-12 trial;
4-13 (10) any period the defendant is released from custody
4-14 without bail;
4-15 (11) any reasonable period of delay caused by
4-16 exceptional circumstances not under the direct control of the
4-17 state's attorney, including the completion, by another agency, of
4-18 scientific analysis necessary to determine the offense to be
4-19 charged; and
4-20 (12) any other reasonable period of delay that is
4-21 justified by exceptional circumstances.
4-22 Art. 28.061. Discharge for delay. If a motion to set aside
4-23 an indictment, information, or complaint for failure to provide a
4-24 speedy trial is sustained, the court shall discharge the defendant.
4-25 A discharge under this article or Article 32.01 of this code is a
4-26 bar to any further prosecution for the offense discharged and for
4-27 any other offense arising out of the same transaction, other than
5-1 an offense of a higher grade that the attorney representing the
5-2 state and prosecuting the offense that was discharged does not have
5-3 the primary duty to prosecute.
5-4 SECTION 2. This Act takes effect on the date on which the
5-5 constitutional amendment proposed by the 74th Legislature, Regular
5-6 Session, 1995, permitting the legislature to regulate a
5-7 prosecutor's preparation for trial, takes effect. If that
5-8 amendment is not approved by the voters, this Act has no effect.
5-9 SECTION 3. The importance of this legislation and the
5-10 crowded condition of the calendars in both houses create an
5-11 emergency and an imperative public necessity that the
5-12 constitutional rule requiring bills to be read on three several
5-13 days in each house be suspended, and this rule is hereby suspended.