By Gallego H.B. No. 77
77R1831 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to discovery in a criminal case.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Article 39.14, Code of Criminal Procedure, is
1-5 amended to read as follows:
1-6 Art. 39.14. DISCOVERY BY DEFENDANT. (a) The state's duty
1-7 to provide for discovery to the defendant under this article
1-8 applies to applicable information that is known or by the exercise
1-9 of due diligence would become known to the attorney representing
1-10 the state, and to an applicable item whose existence is known or by
1-11 the exercise of due diligence would become known to the attorney
1-12 representing the state.
1-13 (b) Not later than the 10th business day after the date on
1-14 which the timely written request of the defendant is served on the
1-15 attorney representing the state, the state shall allow the
1-16 defendant to have access to, inspect, copy, or photograph, as
1-17 applicable, any of the following items or information within its
1-18 possession, custody, or control:
1-19 (1) any written statement made or adopted by the
1-20 defendant relating to the offense charged or any extraneous
1-21 offenses;
1-22 (2) any tapes, films, or videotapes of an
1-23 electronically recorded statement made by the defendant, a
1-24 transcript of any recorded statement made by the defendant, and the
2-1 device used to record a statement made by the defendant relating to
2-2 the offense charged or any extraneous offense;
2-3 (3) the substance of any oral statement relating to
2-4 the offense charged or any extraneous offense made by the defendant
2-5 in response to interrogation by a law enforcement officer;
2-6 (4) any recorded testimony of the defendant before a
2-7 grand jury;
2-8 (5) the prior criminal record of the defendant;
2-9 (6) the result or report of a physical or mental
2-10 examination of the defendant or of a scientific test or experiment
2-11 that:
2-12 (A) may be material to the defendant's
2-13 preparation of his defense; or
2-14 (B) the state expects to offer in evidence at
2-15 trial; or
2-16 (7) any book, document, photograph, tangible object,
2-17 building, or place that:
2-18 (A) may be material to the defendant's
2-19 preparation of his defense;
2-20 (B) the state expects to offer in evidence at
2-21 trial; or
2-22 (C) was obtained from or belongs to the
2-23 defendant.
2-24 (c) If a defendant is a corporation, partnership, or
2-25 association, the court may grant a motion by the defendant for
2-26 discovery of recorded testimony that relates to the offense charged
2-27 and that was made before a grand jury by a witness capable of
3-1 legally binding the defendant at the time of the:
3-2 (1) testimony; or
3-3 (2) occurrence of the alleged conduct constituting the
3-4 offense, if the witness was personally involved in the conduct.
3-5 (d) Not later than the 10th business day after the date on
3-6 which the timely written request of the defendant is served on the
3-7 attorney representing the state, the state shall furnish to the
3-8 defendant a list of the names and addresses of all witnesses the
3-9 state expects to call in order to directly establish the guilt of
3-10 the defendant for the offense or offenses charged. This subsection
3-11 does not require the state to disclose the name or address of any
3-12 witness it expects to call only to rebut evidence offered by the
3-13 defendant, although the testimony of the witness may indirectly
3-14 establish the guilt of the defendant. If the state is required to
3-15 disclose the names and addresses of its witnesses under this
3-16 section, the state shall also disclose, at the written request of
3-17 the defendant:
3-18 (1) the prior criminal record of each witness if the
3-19 prior criminal record would be admissible to impeach the testimony
3-20 of the witness at trial; and
3-21 (2) the existence of any juvenile adjudication or
3-22 pending plea bargaining agreements between the state and the
3-23 witness if the existence of the juvenile record or plea bargain
3-24 would be admissible under the Constitution of the United States at
3-25 the trial to show the witness's bias, prejudice, or motive in
3-26 testifying for the state.
3-27 (e) Except as provided by Subsections (b)(1) through (b)(6)
4-1 and by Subsection (d), this article does not authorize the
4-2 discovery or inspection of an item or information if the item or
4-3 information is a report, memorandum, or other internal document
4-4 made by a peace officer or the officer's agent or by an attorney
4-5 representing the state or the attorney's agent in the investigation
4-6 or prosecution of the case. Except as to scientific or medical
4-7 reports, this article does not permit discovery of a:
4-8 (1) report, memorandum, or other internal prosecution
4-9 document made by the attorney representing the state or the
4-10 attorney's agent in connection with the case; or
4-11 (2) statement made to the attorney representing the
4-12 state or the attorney's agent in connection with the case by an
4-13 actual or prospective witness for the state or the defense.
4-14 (f) Except as specifically provided by Subsection (b)(4) or
4-15 Subsection (c), this article does not authorize the discovery or
4-16 inspection of recorded proceedings held before a grand jury.
4-17 (g) To be timely under this article, the written request of
4-18 the defendant for discovery must be made on the attorney
4-19 representing the state not later than the 30th day before the date
4-20 on which the trial on the merits commences.
4-21 (h) The requirement of Subsection (b)(2) that the state
4-22 allow the defendant access to a transcript of a recorded statement
4-23 does not impose a duty on the state to prepare a transcript, but
4-24 only requires the state to allow access to a transcript previously
4-25 prepared. [(a) Upon motion of the defendant showing good cause
4-26 therefor and upon notice to the other parties, the court in which
4-27 an action is pending may order the State before or during trial of
5-1 a criminal action therein pending or on trial to produce and permit
5-2 the inspection and copying or photographing by or on behalf of the
5-3 defendant of any designated documents, papers, written statement of
5-4 the defendant, (except written statements of witnesses and except
5-5 the work product of counsel in the case and their investigators and
5-6 their notes or report), books, accounts, letters, photographs,
5-7 objects or tangible things not privileged, which constitute or
5-8 contain evidence material to any matter involved in the action and
5-9 which are in the possession, custody or control of the State or any
5-10 of its agencies. The order shall specify the time, place and
5-11 manner of making the inspection and taking the copies and
5-12 photographs of any of the aforementioned documents or tangible
5-13 evidence; provided, however, that the rights herein granted shall
5-14 not extend to written communications between the State or any of
5-15 its agents or representatives or employees. Nothing in this Act
5-16 shall authorize the removal of such evidence from the possession of
5-17 the State, and any inspection shall be in the presence of a
5-18 representative of the State.]
5-19 [(b) On motion of a party and on notice to the other
5-20 parties, the court in which an action is pending may order one or
5-21 more of the other parties to disclose to the party making the
5-22 motion the name and address of each person the other party may use
5-23 at trial to present evidence under Rules 702, 703, and 705, Texas
5-24 Rules of Evidence. The court shall specify in the order the time
5-25 and manner in which the other party must make the disclosure to the
5-26 moving party, but in specifying the time in which the other party
5-27 shall make disclosure the court shall require the other party to
6-1 make the disclosure not later than the 20th day before the date the
6-2 trial begins.]
6-3 SECTION 2. Chapter 39, Code of Criminal Procedure, is
6-4 amended by adding Articles 39.15, 39.16, and 39.17 to read as
6-5 follows:
6-6 Art. 39.15. DISCOVERY BY STATE. (a) If the defendant
6-7 requests discovery under Article 39.14(b)(7), on the state's
6-8 compliance with the request, the defendant, at the written request
6-9 of the state, shall permit the state not later than the seventh day
6-10 after the date on which the defendant receives the request to
6-11 inspect, copy, or photograph books, documents, photographs,
6-12 tangible objects, or copies or portions of any of these items that:
6-13 (1) are within the possession, custody, or control of
6-14 the defendant; and
6-15 (2) the defendant expects to offer in evidence at
6-16 trial.
6-17 (b) If the defendant requests discovery under Article
6-18 39.14(b)(6), on the state's compliance with the request, the
6-19 defendant, at the written request of the state, shall permit the
6-20 state not later than the seventh day after the date on which the
6-21 defendant receives the request to inspect, copy, or photograph the
6-22 result or report of a physical or mental examination of the
6-23 defendant or of a scientific test or experiment made in connection
6-24 with the particular case that is in the possession or control of
6-25 the defendant and that:
6-26 (1) the defendant expects to offer in evidence at
6-27 trial; or
7-1 (2) was prepared by a witness whom the defendant
7-2 expects to call at the trial if the result or report relates to the
7-3 defendant's testimony.
7-4 (c) If a defendant has received information from the state
7-5 under Article 39.14(d), at the written request of the state the
7-6 defendant shall furnish to the state not later than the seventh day
7-7 after the date on which the defendant receives the request the name
7-8 and address of each witness the defendant expects to call to
7-9 testify during the trial.
7-10 (d) Except as to scientific or medical reports, this article
7-11 does not authorize the discovery or inspection of a:
7-12 (1) report, memorandum, or other internal defense
7-13 document made by a defendant or the defendant's attorney or agent
7-14 of the attorney in connection with the case; or
7-15 (2) statement made to the defendant's attorney or
7-16 agent of the attorney by an actual or prospective witness for the
7-17 state or the defense.
7-18 Art. 39.16. NOTICE OF ALIBI. (a) If the attorney
7-19 representing the state timely requests in writing notice of the
7-20 defendant's intention to offer a defense of alibi at trial and the
7-21 request includes the time, date, and place at which the state
7-22 alleges that the offense was committed, the defendant shall, not
7-23 later than the seventh day after the date on which the request was
7-24 received, or at any time the court directs, serve the attorney
7-25 representing the state with a written notice of the defendant's
7-26 intention to offer a defense of alibi. The notice shall state the
7-27 specific place or places where the defendant claims to have been at
8-1 the time of the alleged offense and the names and addresses of the
8-2 witnesses on whom the defendant intends to rely to establish the
8-3 alibi.
8-4 (b) After receiving the defendant's notice of alibi, the
8-5 attorney representing the state shall serve the defendant or the
8-6 defendant's attorney with a written notice stating the names and
8-7 addresses of the witnesses on whom the state intends to rely to
8-8 establish the defendant's presence at the scene of the alleged
8-9 offense and any other witnesses to be relied on to rebut the
8-10 testimony of any of the defendant's alibi witnesses. The notice
8-11 must be served not later than the seventh day after the date on
8-12 which the attorney representing the state receives the defendant's
8-13 notice or the seventh day before the date on which the trial on the
8-14 merits commences, whichever date occurs first. The court, however,
8-15 may permit service of the notice at any other time as it considers
8-16 just under the circumstances.
8-17 (c) Evidence of an intention to rely on an alibi defense,
8-18 later withdrawn, or of statements made in connection with that
8-19 intention, is not admissible in any civil or criminal proceeding
8-20 against the defendant who gave notice of the intention.
8-21 (d) To be timely under this article, a request under
8-22 Subsection (a) must be made on the attorney representing the
8-23 defendant not later than the 30th day before the date on which the
8-24 trial on the merits commences.
8-25 Art. 39.17. REGULATION OF DISCOVERY. (a) If before or
8-26 during trial a party learns of an additional witness whose
8-27 identity, if known, should have been furnished to the opposing
9-1 party or discovers evidence or material previously requested or
9-2 ordered to be disclosed under Article 39.14, 39.15, or 39.16, the
9-3 party shall promptly notify the other party or the other party's
9-4 attorney of the existence and identity of the additional witness,
9-5 evidence, or material.
9-6 (b) On a sufficient showing the court may at any time order
9-7 that discovery or inspection under Article 39.14, 39.15, or 39.16
9-8 be denied, restricted, or deferred or the time limits be shortened,
9-9 or make any other order it considers appropriate. On the motion of
9-10 a party, the court may permit the party to make the showing in
9-11 whole or in part in the form of a written statement to be inspected
9-12 by the judge alone. If the court enters an order granting relief
9-13 following an ex parte showing, the entire text of the party's
9-14 statement shall be sealed and preserved in the records of the court
9-15 to be made available to the appellate court in the event of appeal.
9-16 (c) If at any time during the course of the proceedings it
9-17 is brought to the attention of the court that a party has failed to
9-18 comply with the requirements of this article, the court may order
9-19 the party to permit the discovery or inspection, grant a
9-20 continuance, prohibit the party from introducing evidence not
9-21 disclosed, or enter any other order it considers just under the
9-22 circumstances. The court may specify the time, place, and manner
9-23 of the discovery or inspection and may prescribe terms and
9-24 conditions it considers appropriate.
9-25 SECTION 3. (a) The change in law made by this Act applies
9-26 to a criminal case in which the indictment or information is
9-27 presented to the court on or after the effective date of this Act.
10-1 (b) This Act does not apply to a criminal case in which the
10-2 indictment or information has been presented to the court before
10-3 the effective date of this Act, and the law as it existed when the
10-4 indictment or information was presented is continued in effect for
10-5 this purpose.
10-6 SECTION 4. This Act takes effect September 1, 2001.