By Hirschi H.B. No. 2723
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to reciprocal discovery by the prosecution and defense in
1-3 the trial of a criminal case.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 39.14, Code of Criminal Procedure, is
1-6 amended to read as follows:
1-7 Art. 39.14. Discovery
1-8 Sec. 1. Purpose. This article shall be interpreted to give
1-9 effect to all of the following purposes:
1-10 (1) to promote the fair and efficient administration
1-11 of justice and the ascertainment of truth in trials;
1-12 (2) to reduce the possibility of surprise at trial and
1-13 minimize the risk that incomplete, misleading, or fabricated
1-14 testimony will be believed;
1-15 (3) to insure timely pretrial discovery and allow the
1-16 parties ample opportunity to investigate certain facts crucial to
1-17 the determination of guilt or innocence;
1-18 (4) to protect victims and witnesses from danger,
1-19 harassment, and undue delay of the proceedings; and
1-20 (5) to provide that no discovery shall occur in
1-21 criminal cases except as provided by this article, other express
1-22 statutory provisions, or as mandated by the Constitution of the
1-23 State of Texas or the Constitution of the United States of America.
2-1 Sec. 2. Disclosure by the State. (a) On timely request of
2-2 the defendant, the attorney representing the state shall disclose
2-3 to the defendant and permit inspection, copying or photographing of
2-4 the following material and information within the possession,
2-5 custody or control of the state or any of its agencies:
2-6 (1) any exculpatory or impeachment evidence material
2-7 to the defendant's guilt or punishment;
2-8 (2)(A) any relevant written or recorded statements by
2-9 the defendant;
2-10 (B) any written record containing the substance
2-11 of any relevant oral statement made by the defendant whether before
2-12 or after arrest in response to interrogation by any person then
2-13 known to the defendant to be a law enforcement agent;
2-14 (C) recorded testimony of the defendant before a
2-15 grand jury which relates to the offense charged; and
2-16 (D) the substance of any other relevant oral
2-17 statement made by the defendant whether before or after arrest in
2-18 response to interrogation by any person then known by the defendant
2-19 to be a law enforcement agent if the attorney representing the
2-20 state intends to use that statement at the trial;
2-21 (3) if the defendant is a corporation, association or
2-22 labor union, relevant recorded testimony of any witness before a
2-23 grand jury who:
2-24 (A) was, at the time of that testimony, so
2-25 situated as an officer or employee as to have been able legally to
3-1 bind the defendant in respect to conduct constituting the offense;
3-2 or
3-3 (B) was, at the time of the offense, personally
3-4 involved in the alleged conduct constituting the offense and so
3-5 situated as an officer or employee as to have been able legally to
3-6 bind the defendant in respect to that alleged conduct in which the
3-7 witness was involved;
3-8 (4) the defendant's prior criminal record;
3-9 (5) any affidavit, warrant, and return pertaining to a
3-10 search or seizure in connection with the case;
3-11 (6) any real evidence that was obtained from or
3-12 belongs to the defendant or that the attorney representing the
3-13 state intends to use at the trial, and on a showing of materiality
3-14 by the defendant, the opportunity to test such evidence;
3-15 (7) the names and addresses of all lay and expert
3-16 witnesses the attorney representing the state intends to call at
3-17 the trial;
3-18 (8) any record of a criminal conviction, which may be
3-19 used for impeachment as governed by Rule 609 of the Texas Rules of
3-20 Criminal Evidence, of witnesses the attorney representing the state
3-21 intends to call at the trial;
3-22 (9) any report of any kind produced by or for an
3-23 expert witness the attorney representing the state intends to call
3-24 at the trial, including the results of physical or mental
3-25 examinations, scientific tests, experiments, or comparisons the
4-1 attorney representing the state intends to offer in evidence at the
4-2 trial; and
4-3 (10) any plea agreement, grant of immunity, or other
4-4 agreement for testimony in connection with the case.
4-5 (b) If the defendant gives notice of alibi pursuant to
4-6 Section 3(c) of this article, the attorney representing the state
4-7 shall disclose to the defendant the names and addresses of the
4-8 witnesses the state intends to rely on to establish the defendant's
4-9 presence at the scene of the alleged offense and any other
4-10 witnesses to rebut testimony of any of the defendant's alibi
4-11 witnesses.
4-12 (c) On timely request and a showing of materiality by the
4-13 defendant, the court may require the attorney representing the
4-14 state to disclose to the defendant and permit inspection, copying,
4-15 photographing or testing of relevant material and information not
4-16 covered by this section.
4-17 (d) Nothing in this section shall authorize the removal of
4-18 evidence from the possession of the state, and any inspection shall
4-19 be in the presence of a representative of the state.
4-20 Sec. 3. Disclosure by the Defendant. (a) After the filing
4-21 of the indictment or information and subject to constitutional and
4-22 statutory limitations, the court may require the defendant, among
4-23 other things, to:
4-24 (1) appear in a line-up;
4-25 (2) speak or move for identification by witnesses to
5-1 an offense;
5-2 (3) be fingerprinted;
5-3 (4) pose for photographs not involving reenactment of
5-4 a scene or event;
5-5 (5) try on clothing or other articles;
5-6 (6) permit the taking of specimens of material under
5-7 the defendant's fingernails;
5-8 (7) permit the taking of samples of blood, hair or
5-9 other materials from the defendant's body that involves no
5-10 unreasonable intrusion thereof or a risk of serious physical injury
5-11 thereto;
5-12 (8) provide a sample of the defendant's handwriting;
5-13 and
5-14 (9) submit to a reasonable physical or medical
5-15 inspection of the defendant's body, including x-rays.
5-16 Nothing in this article shall be construed as limiting any
5-17 law enforcement or prosecuting agency from obtaining
5-18 non-testimonial evidence to the extent permitted by law on the
5-19 effective date of this article.
5-20 (b) On timely request of the attorney representing the
5-21 state, the defendant shall disclose to the attorney representing
5-22 the state and permit inspection, copying or photographing of the
5-23 following material and information:
5-24 (1) the names and addresses of all lay and expert
5-25 witnesses, other than the defendant, the defendant intends to call
6-1 at the trial;
6-2 (2) any report of any kind produced by or for an
6-3 expert witness the defendant intends to call at the trial,
6-4 including the results of physical or mental examinations,
6-5 scientific tests, experiments, or comparisons the defendant intends
6-6 to offer in evidence at the trial;
6-7 (3) any real evidence which the defendant intends to
6-8 use at the trial, and on a showing of materiality by the attorney
6-9 representing the state, the opportunity to test such evidence; and
6-10 (4) any record of a criminal conviction, which may be
6-11 used for impeachment as governed by Rule 609 of the Texas Rules of
6-12 Criminal Evidence, of witnesses, other than the defendant, the
6-13 defendant intends to call at the trial.
6-14 (c) A defendant planning to offer evidence of an alibi
6-15 defense shall file a notice of his intention to offer such evidence
6-16 with the court and the attorney representing the state at least 10
6-17 days prior to the date the case is set for trial or, if the court
6-18 sets a pretrial hearing before the 10-day period, the defendant
6-19 shall give notice at the hearing. Such notice shall include the
6-20 specific place or places at which the defendant claims to have been
6-21 at the time of the alleged offense and the names and addresses of
6-22 the witnesses the defendant intends to rely on to establish such
6-23 alibi.
6-24 Unless notice is timely filed pursuant to this subsection,
6-25 evidence on the alibi defense is not admissible unless the court
7-1 finds that good cause exists for failure to give notice. This
7-2 subsection shall not limit the right of the defendant to testify.
7-3 If the defendant withdraws the notice of intention to offer
7-4 an alibi defense, the notice and intention to rely on an alibi
7-5 defense are not admissible. However, the attorney representing the
7-6 state may offer any other evidence regarding alibi.
7-7 (d) On timely request and a showing of materiality by the
7-8 attorney representing the state, the court may require the
7-9 defendant to disclose to the attorney representing the state and
7-10 permit inspection, copying, photographing or testing of relevant
7-11 material and information not covered by this section.
7-12 Sec. 4. Exceptions to Disclosure. (a) Neither the attorney
7-13 representing the state nor the defendant is required to disclose
7-14 material or information which are:
7-15 (1) statements made by witnesses, except as provided
7-16 in Section 2 and Section 3 of this article and Rule 614 of the
7-17 Texas Rules of Criminal Evidence;
7-18 (2) recorded proceedings of the grand jury, except as
7-19 provided in Subsections (a)(2)(C) and (a)(3) of Section 2 of this
7-20 article and Rule 614 of the Texas Rules of Criminal Evidence;
7-21 (3) work product, including reports, memoranda or
7-22 other internal documents made by the state or the defendant, or
7-23 their attorneys or agents in connection with the investigation,
7-24 prosecution, or defense of the case, except as provided in Section
7-25 2 and Section 3 of this article;
8-1 (4) privileged pursuant to an express statutory
8-2 provision; or
8-3 (5) privileged as provided by the Constitution of the
8-4 State of Texas or the Constitution of the United States of America.
8-5 (b) Nothing in this article requires a victim or witness to
8-6 submit to a psychological examination.
8-7 (c) Nothing in this article authorizes disclosure of the
8-8 name, address or telephone number of a victim in violation of the
8-9 provisions of Chapter 57 (Confidentiality of Identifying
8-10 Information of Sex Offense Victims), Code of Criminal Procedure.
8-11 (d) A victim impact statement is subject to disclosure
8-12 before the testimony of the victim is taken only if the court
8-13 determines that the statement contains exculpatory material.
8-14 (e) Crime stoppers information pertaining to the offense
8-15 charged is not subject to disclosure unless released by the trial
8-16 court after an in camera inspection. Neither the attorneys
8-17 representing the state or defendant shall be present. The court
8-18 shall, in its sound discretion, take steps to insure that, to the
8-19 extent possible, the information remains confidential. If
8-20 information is deemed material at the time it is inspected or in
8-21 any future stage of the trial, it must be released to the
8-22 defendant. At the conclusion of the trial, the information shall
8-23 be sealed and made part of the record.
8-24 Sec. 5. Continuing Duty to Disclose. If, subsequent to
8-25 compliance with this article or orders pursuant to it, a party
9-1 discovers additional material or information subject to disclosure
9-2 under this article or an order issued pursuant to it, such party
9-3 shall immediately notify the other party or that other party's
9-4 attorney of the existence of the additional material or
9-5 information.
9-6 Sec. 6. Excision. (a) Except as provided in Subsection (b)
9-7 of this section, when some parts of material or information are
9-8 discoverable under this article and other parts are not
9-9 discoverable, the discoverable parts shall be disclosed. The
9-10 disclosing party shall inform the other party that nondiscoverable
9-11 information has been excised and withheld. On request, the court
9-12 shall conduct a hearing to determine whether the reasons for
9-13 excision are justifiable. Material or information excised pursuant
9-14 to judicial order shall be sealed and preserved in the records of
9-15 the court, and shall be made available to an appellate court in the
9-16 event of an appeal.
9-17 (b) Excision of a witness statement produced in accordance
9-18 with Rule 614, Texas Rules of Criminal Evidence, is governed by
9-19 that rule.
9-20 Sec. 7. Protective Orders. On a showing of good cause, the
9-21 court may at any time enter an appropriate protective order that
9-22 specified disclosures be denied, restricted or deferred. "Good
9-23 cause" for purposes of this section is limited to unnecessary
9-24 annoyance, threats, harm or possible danger to the safety of a
9-25 victim, or witness, possible loss, destruction or fabrication of
10-1 evidence, or possible compromise of other investigations by law
10-2 enforcement.
10-3 Sec. 8. In Camera Proceedings. On request, the court may
10-4 permit an excision hearing under Section 6(a) of this article, or a
10-5 showing of good cause for denial or regulation of disclosures under
10-6 Section 7 of this article, or any portion of such proceeding, to be
10-7 made in camera. A verbatim record shall be made of any such
10-8 proceeding. If the court excises material or information, or
10-9 enters an order granting relief following a showing, the entire
10-10 record shall be sealed and preserved in the records of the court,
10-11 and shall be made available to an appellate court in the event of
10-12 an appeal.
10-13 Sec. 9. Time for Discovery Request; Compliance; Sanctions.
10-14 (a) When the court sets the case for a pretrial hearing before it
10-15 is set for trial upon its merits, the time for raising or filing a
10-16 request for discovery under this article shall be governed by
10-17 Article 28.01, Code of Criminal Procedure.
10-18 (b) The disclosures required under this article may be
10-19 performed in any manner mutually agreeable to the attorney
10-20 representing the state and the defendant, or as ordered by the
10-21 court in accordance with the provisions of this article. The order
10-22 issued by the court shall specify the time, place and manner of
10-23 making the required disclosures.
10-24 (c) On a showing that a party has not complied with this
10-25 article or an order issued pursuant to it, the court may make any
11-1 order, including, but not limited to, immediate disclosure,
11-2 contempt proceedings, delaying or prohibiting the testimony of a
11-3 witness or the presentation of real evidence, continuance of the
11-4 matter, or any other order as it deems just under the
11-5 circumstances. Further, the court may advise the jury of any
11-6 failure or refusal to disclose and of any untimely disclosure.
11-7 (d) The court may prohibit the testimony of a witness
11-8 pursuant to Subsection (c) of this section only if all other
11-9 sanctions have been exhausted and/or the discovery violation
11-10 amounts to willful misconduct designed to obtain a tactical
11-11 advantage that would minimize the effectiveness of
11-12 cross-examination and the ability to adduce rebuttal evidence. The
11-13 court shall not dismiss a charge pursuant to Subsection (c) of this
11-14 section unless required to do so by the Constitution of the State
11-15 of Texas or the Constitution of the United States of America.
11-16 <Upon motion of the defendant showing good cause therefor and
11-17 upon notice to the other parties, the court in which an action is
11-18 pending may order the State before or during trial of a criminal
11-19 action therein pending or on trial to produce and permit the
11-20 inspection and copying or photographing by or on behalf of the
11-21 defendant of any designated documents, papers, written statement of
11-22 the defendant, (except written statements of witnesses and except
11-23 the work product of counsel in the case and their investigators and
11-24 their notes or report), books, accounts, letters, photographs,
11-25 objects or tangible things not privileged, which constitute or
12-1 contain evidence material to any matter involved in the action and
12-2 which are in the possession, custody or control of the State or any
12-3 of its agencies. The order shall specify the time, place and
12-4 manner of making the inspection and taking the copies and
12-5 photographs of any of the aforementioned documents or tangible
12-6 evidence; provided, however, that the rights herein granted shall
12-7 not extend to written communications between the State or any of
12-8 its agents or representatives or employees. Nothing in this Act
12-9 shall authorize the removal of such evidence from the possession of
12-10 the State, and any inspection shall be in the presence of a
12-11 representative of the State.>
12-12 SECTION 2. (a) The change in law made by this Act applies
12-13 to an offense committed on or after the effective date of this Act.
12-14 For purposes of this section, an offense is committed before the
12-15 effective date of this Act if any element of the offense occurs
12-16 before the effective date.
12-17 (b) An offense committed before the effective date of this
12-18 Act is covered by the law in effect when the offense was committed,
12-19 and the former law is continued in effect for this purpose.
12-20 SECTION 3. This Act takes effect September 1, 1995.
12-21 SECTION 4. The importance of this legislation and the
12-22 crowded condition of the calendars in both houses create an
12-23 emergency and an imperative public necessity that the
12-24 constitutional rule requiring bills to be read on three several
12-25 days in each house be suspended, and this rule is hereby suspended.