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.