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.