By Wilson H.B. No. 59
75R254 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the privilege of an individual not to be called as a
1-3 witness for the state in certain cases in which the individual's
1-4 spouse is the defendant.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 38.10, Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 Art. 38.10. EXCEPTIONS TO THE SPOUSAL ADVERSE TESTIMONY
1-9 PRIVILEGE. The privilege of a person's spouse not to be called as
1-10 a witness for the state does not apply in any proceeding in which
1-11 the person is charged with a crime committed against the person's
1-12 spouse, a minor child, or a member of the household of either
1-13 spouse, except that the privilege does apply if the court, at a
1-14 pre-trial hearing under Section 4, Article 28.01, determines that
1-15 it is neither necessary nor in the interest of justice for the
1-16 person's spouse to be called as a witness for the state.
1-17 SECTION 2. Article 28.01, Code of Criminal Procedure, is
1-18 amended by amending Section 1 and adding Section 4 to read as
1-19 follows:
1-20 Sec. 1. The court may set any criminal case for a pre-trial
1-21 hearing before it is set for trial upon its merits, and direct the
1-22 defendant and his attorney, if any of record, and the State's
1-23 attorney, to appear before the court at the time and place stated
1-24 in the court's order for a conference and hearing. The defendant
2-1 must be present at the arraignment, and his presence is required
2-2 during any pre-trial proceeding. The pre-trial hearing shall be to
2-3 determine any of the following matters:
2-4 (1) Arraignment of the defendant, if such be
2-5 necessary; and appointment of counsel to represent the defendant,
2-6 if such be necessary;
2-7 (2) Pleadings of the defendant;
2-8 (3) Special pleas, if any;
2-9 (4) Exceptions to the form or substance of the
2-10 indictment or information;
2-11 (5) Motions for continuance either by the State or
2-12 defendant; provided that grounds for continuance not existing or
2-13 not known at the time may be presented and considered at any time
2-14 before the defendant announces ready for trial;
2-15 (6) Motions to suppress evidence--When a hearing on
2-16 the motion to suppress evidence is granted, the court may determine
2-17 the merits of said motion on the motions themselves, or upon
2-18 opposing affidavits, or upon oral testimony, subject to the
2-19 discretion of the court;
2-20 (7) Motions for change of venue by the State or the
2-21 defendant; provided, however, that such motions for change of
2-22 venue, if overruled at the pre-trial hearing, may be renewed by the
2-23 State or the defendant during the voir dire examination of the
2-24 jury;
2-25 (8) Discovery;
2-26 (9) Entrapment; [and]
2-27 (10) Motion for appointment of interpreter; and
3-1 (11) Motion to negate the general exception to the
3-2 spousal adverse testimony privilege in a case involving an offense
3-3 against the defendant's spouse, a minor child, or a member of the
3-4 household of either spouse.
3-5 Sec. 4. The court shall set a case for a pre-trial hearing
3-6 under Section 1 of this article if a motion is made to negate the
3-7 general exception to the spousal adverse testimony privilege
3-8 provided by Article 38.10. At the hearing on the motion, the court
3-9 shall determine whether it is necessary or in the interest of
3-10 justice to require the defendant's spouse to be called as a witness
3-11 for the state. The defendant's spouse may not be compelled to
3-12 testify as a witness for the state if the court determines it is
3-13 neither necessary nor in the interest of justice to take that
3-14 action.
3-15 SECTION 3. The change in law made by this Act applies to any
3-16 case in which a pre-trial hearing commences on or after the
3-17 effective date of this Act, regardless of whether the offense for
3-18 which the defendant is being tried was committed before, on, or
3-19 after the effective date of this Act.
3-20 SECTION 4. The importance of this legislation and the
3-21 crowded condition of the calendars in both houses create an
3-22 emergency and an imperative public necessity that the
3-23 constitutional rule requiring bills to be read on three several
3-24 days in each house be suspended, and this rule is hereby suspended,
3-25 and that this Act take effect and be in force from and after its
3-26 passage, and it is so enacted.