AEZ C.S.H.B. 1620 75(R)BILL ANALYSIS


CRIMINAL JURISPRUDENCE
C.S.H.B. 1620
By: Pickett
4-17-97
Committee Report (Substituted)



BACKGROUND 

Currently, the Code of Criminal procedure provides that only the defendant
in a criminal case may take depositions of witnesses. 

PURPOSE

C.S.H.B. 1620 will allow, in the discretion of the court, both the State
and the defendant in a criminal case to take the deposition of a witness
if the witness will be unavailable for trial under circumstances described
in Article 39.12, Code of Criminal Procedure, Predicate to Read.
Additionally, the defendant will be able, in the discretion of the court,
to take the deposition of a witness if the defendant is unable to obtain
the desired information by other means. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.Amends Article 39.02 of the Texas Code of Criminal Procedure as
follows: 

(a) Allows a court discretion to grant the State's application to take a
deposition of a witness who will be unavailable to testify at trial under
circumstances described in Article 39.12.  

(b) Allows a court discretion to grant the defendant's application to take
a deposition of a witness who will be unavailable to testify at trial
under circumstances described in Article 39.12. Additionally, a court is
allowed discretion to grant to the defendant authority to take a
deposition of a witness if the defendant cannot obtain the desired
information by other means. 

(c) Allows a witness to be represented at a deposition and to assert any
privilege the witness may have to not answer questions.  The court in
which the case is pending will determine the validity of the privilege.
Provides that if the witness fails to assert a privilege, the privilege is
waived.  Provides that if the witness refuses, without legal
justification, to answer questions posed during cross-examination, the
party taking the deposition cannot use the deposition for any purpose. 

(d) Provides that unless the defendant waives the right to be present, a
defendant in custody will be produced at a deposition taken by the State
by the officer having custody of the defendant, with reasonable notice to
that officer. Provides that the officer having custody of the defendant
will keep the defendant in the presence of the witness during the
deposition unless the defendant engages in disruptive behavior in which
case the defendant will be removed from the deposition.  

(e) Provides that a defendant not in custody at the time that the State
takes a deposition may appear at the deposition with reasonable notice to
be given to the defendant of the deposition. The defendant's failure to
appear at the deposition, after having had notice, and absent good  cause
shown, waives the right to appear at the deposition. 

(g) Provides that a defendant is entitled to be represented at any
deposition by an attorney. Provides that the court shall advise the
defendant of his right to counsel at a deposition, and, if indigent, shall
appoint counsel to represent the defendant. 

(h) Provides that if a court grants a deposition application, the party
taking the deposition shall provide reasonable notice to the other party
of the time and place of the deposition. Provides that, except in the case
of a disruptive defendant who has exercised the right of
selfrepresentation, the notified party shall have the opportunity to
cross-examine the witness. Provides that a notified party shall appear at
the deposition except in the case of a disruptive defendant or a defendant
who waives the right to be present. 

(i) Provides that whenever the defendant or the State desires to take the
deposition of a witness, the party seeking the deposition shall file with
the clerk of the court in which the case is pending an application to take
the deposition supported by affidavit stating the facts necessary to
support the granting of the application, including in the application the
full and correct name, date of birth, and any existing social security
number of the witness.  Provides that the court in which the case is
pending shall determine whether to grant the application, and, if the
court grants the application, the court shall state the findings
supporting that determination. 

(j) Provides that in addition to the persons who may take a deposition
under Article 39.03, a certified court reporter from this state or the
state in which the deposition is taken may take a deposition in a criminal
case. 

SECTION 2.Effective date:  September 1, 1997.  Carries forward prior law
for cases in which the charging instrument was filed or returned before
the effective date of the Act. 

SECTION 3.Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute retains the procedural portions of the original bill
providing for application and supporting affidavit of the party desiring
to take the deposition to be filed with the clerk of the court in which
the case is pending.  The substitute further expands Article 39.02 of the
Code of Criminal Procedure relating to depositions.