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.