By Pickett, Gallego                                   H.B. No. 1620

         Substitute the following for H.B. No. 1620:

         By Nixon                                          C.S.H.B. No. 1620

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to a deposition taken in a criminal case.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Article 39.02, Code of Criminal Procedure, is

 1-5     amended to read as follows:

 1-6           Art. 39.02.  DEPOSITIONS [FOR DEFENDANT].  (a)  A court may

 1-7     allow the state to take the deposition of a witness if it

 1-8     reasonably appears that the witness will be unavailable to testify

 1-9     at trial under a circumstance described by Article 39.12.

1-10           (b)  A court may allow the defendant to take the deposition

1-11     of a witness if it reasonably appears that the witness will be

1-12     unavailable to testify at trial under a circumstance described by

1-13     Article 39.12 or if the defendant is unable to obtain the desired

1-14     information by other means.

1-15           (c)  A witness may be represented by an attorney at the

1-16     taking of a deposition.  A witness may assert a privilege before

1-17     the taking of the deposition by filing a motion with the court in

1-18     which the case is pending or may assert a privilege at any time

1-19     during the taking of the deposition.  The court in which the case

1-20     is pending shall determine the validity of any asserted privilege.

1-21     A witness who fails to assert a relevant privilege during the

1-22     deposition waives the right to assert that privilege.  If a witness

1-23     refuses without legal justification to answer questions on

1-24     cross-examination during the deposition, the party taking the

 2-1     deposition may not use the deposition for any purpose.

 2-2           (d)  A defendant in custody at the time the state takes a

 2-3     deposition may appear at the deposition.  The state shall provide

 2-4     reasonable notice of the time and place of that deposition to the

 2-5     officer having custody of the defendant.  Unless the defendant

 2-6     waives in writing or in open court the defendant's right to appear

 2-7     at the deposition, the officer having custody of the defendant

 2-8     shall produce the defendant at the deposition.  The officer shall

 2-9     keep the defendant in the presence of the witness during the

2-10     deposition unless the defendant engages in disruptive behavior

2-11     during the deposition.  An officer having custody of a disruptive

2-12     defendant described by this subsection shall remove the defendant

2-13     for the duration of the deposition.

2-14           (e)  A defendant not in custody at the time the state takes a

2-15     deposition may appear at the deposition.  The state shall provide

2-16     reasonable notice of the time and place of that deposition to the

2-17     defendant.  The defendant's failure to appear at the deposition

2-18     after notice, absent good cause shown, waives the defendant's right

2-19     to appear at the deposition.

2-20           (f)  A waiver by a defendant of the defendant's right to

2-21     appear at a deposition is a waiver of any objection based on that

2-22     right to the taking and use of the deposition at trial.

2-23           (g)  A defendant is entitled to representation by an attorney

2-24     at the taking of a deposition.  The court shall advise a defendant

2-25     without counsel of the defendant's right to counsel.  If the

2-26     defendant is indigent and desires counsel, the court shall appoint

2-27     counsel to represent the defendant.

 3-1           (h)  If the court grants an application to take a deposition

 3-2     under Subsection (i), the party taking the deposition shall provide

 3-3     reasonable notice of the time and place of the deposition to the

 3-4     attorney representing the state, the attorney for the defendant, or

 3-5     the defendant if the defendant is not represented by an attorney,

 3-6     as appropriate, and, except in the case of a disruptive defendant

 3-7     described by Subsection (d) who has exercised the right of

 3-8     self-representation, shall allow that party the opportunity to

 3-9     cross-examine the witness during the deposition.  A party receiving

3-10     notice under this subsection shall appear at the deposition, except

3-11     in the case of a defendant who waives the defendant's right to

3-12     appear at the deposition or in the case of a disruptive defendant

3-13     described by Subsection (d).

3-14           (i)  [Depositions of witnesses may be taken by the

3-15     defendant.]  When the defendant or the state desires to take the

3-16     deposition of a  witness, the party desiring the deposition [he]

3-17     shall[, by himself or counsel,] file with the clerk of the court in

3-18     which the case is pending an application to take the deposition and

3-19     an affidavit stating the facts necessary to support the granting of

3-20     [constitute a good reason for taking] the application and shall

3-21     include in the application the full and correct name, date of

3-22     birth, and any existing social security number of the witness whose

3-23     testimony is sought [same, and an application to take the same].

3-24     On [Provided that upon] the filing of that [such] application, and

3-25     after notice to the other party [attorney for the state], the court

3-26     [courts] shall hear and determine whether to grant the application

3-27     [and determine if good reason exists for taking the deposition].

 4-1     The [Such] determination shall be based on the facts made known at

 4-2     the hearing and the court, in its judgment, shall grant or deny the

 4-3     application on those [such] facts.  If the court grants the

 4-4     application, the court shall state the findings supporting its

 4-5     determination.

 4-6           (j)  In addition to the persons who may take a deposition

 4-7     under Article 39.03, a court reporter certified by this state or

 4-8     the state in which the deposition is taken may take a deposition in

 4-9     a criminal case.

4-10           SECTION 2.  This Act takes effect September 1, 1997.  The

4-11     change in law made by this Act applies only to a deposition in a

4-12     criminal case in which an information is filed or an indictment is

4-13     returned on or after the effective date of this Act.  A deposition

4-14     taken in a criminal case in which an information is filed or an

4-15     indictment is returned before the effective date of this Act is

4-16     covered by the law in effect when the information is filed or the

4-17     indictment is returned, and the former law is continued in effect

4-18     for that purpose.

4-19           SECTION 3.  The importance of this legislation and the

4-20     crowded condition of the calendars in both houses create an

4-21     emergency and an imperative public necessity that the

4-22     constitutional rule requiring bills to be read on three several

4-23     days in each house be suspended, and this rule is hereby suspended.