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.