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.