By Pickett                                      H.B. No. 1620

      75R4962 KEL-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to depositions taken in a criminal action.

 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].  The defendant or

 1-7     the state may take a deposition of a witness if it reasonably

 1-8     appears that the witness will be  unavailable for trial

 1-9     [Depositions of witnesses may be taken by the defendant].  When the

1-10     defendant or the state  desires to take the deposition of a

1-11     witness, the party desiring the deposition [he] shall [, by himself

1-12     or counsel,] file with the clerk of the court in which the case is

1-13     pending an affidavit stating the facts necessary to constitute a

1-14     good reason for taking the deposition [same], including facts

1-15     supporting the unavailability of the witness, and an application to

1-16     take the deposition [same].  On [Provided that upon] the filing of

1-17     that [such] application, and after notice to the other party [the

1-18     attorney for the state], the court [courts] shall hear the

1-19     application, [and] determine if good reason exists for taking the

1-20     deposition, and include in that determination a finding on the

1-21     record of whether it reasonably appears that the witness will be

1-22     unavailable for trial.  The [Such] determination shall be based on

1-23     the facts made known at the hearing and the court, in its judgment,

1-24     shall grant or deny the application on those [such] facts.

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

 2-2     change in law made by this Act applies only to an application for a

 2-3     deposition and proceedings related to a deposition in a criminal

 2-4     case in which the information is filed or the indictment is

 2-5     returned on or after September 1, 1997.  An application for a

 2-6     deposition and proceedings related to a deposition in a criminal

 2-7     case in which the information is filed or the indictment is

 2-8     returned before September 1, 1997, is covered by the law in effect

 2-9     when the application was made, and the former law is continued in

2-10     effect for that purpose.

2-11           SECTION 3.  The importance of this legislation and the

2-12     crowded condition of the calendars in both houses create an

2-13     emergency and an imperative public necessity that the

2-14     constitutional rule requiring bills to be read on three several

2-15     days in each house be suspended, and this rule is hereby suspended.