By Berman                                              H.B. No. 382
         77R112 PEP-D                           
                                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)  Not later than the
 1-7     10th day before the date on which the trial on the merits of a
 1-8     criminal case commences,  the state shall allow the defendant to
 1-9     have access to, inspect, copy, or photograph, as applicable, any of
1-10     the following items or information within its possession, custody,
1-11     or control:
1-12                 (1)  any written statement made or adopted by the
1-13     defendant relating to the offense charged or any extraneous
1-14     offenses;
1-15                 (2)  any tapes, films, or videotapes of an
1-16     electronically recorded statement made by the defendant, a
1-17     transcript of any recorded statement made by the defendant, and the
1-18     device used to record a statement made by the defendant relating to
1-19     the offense charged or any extraneous offense;
1-20                 (3)  the substance of any oral statement relating to
1-21     the offense charged or any extraneous offense made by the defendant
1-22     in response to interrogation by a law enforcement officer;
1-23                 (4)  the prior criminal record of the defendant;
1-24                 (5)  the report of a physical or mental examination of
 2-1     the defendant or of a scientific test or experiment, including a
 2-2     summary of the basis for the expert opinion rendered in the report,
 2-3     if the state expects to offer the report in evidence at the
 2-4     guilt-innocence phase of the trial; or
 2-5                 (6)  any book, document, photograph, tangible object,
 2-6     building, or place that:
 2-7                       (A)  the state expects to offer in evidence at
 2-8     the guilt-innocence phase of the trial; or
 2-9                       (B)  was obtained from or belongs to the
2-10     defendant.
2-11           (b)  If a defendant is a corporation, partnership, or
2-12     association, the court may grant a motion by the defendant for
2-13     discovery of any statement that relates to the offense charged and
2-14     was made by a witness capable of legally binding the defendant at
2-15     the time of the:
2-16                 (1)  statement; or
2-17                 (2)  occurrence of the alleged conduct constituting the
2-18     offense, if the witness was personally involved in the conduct.
2-19           (c)  Not later than the 10th day before the date on which the
2-20     trial on the merits commences, the state shall furnish to the
2-21     defendant a list of the names and addresses of all witnesses the
2-22     state expects to call in order to directly establish the guilt of
2-23     the defendant for the offense or offenses charged.  If the state is
2-24     required to disclose the name and address of a witness under this
2-25     section, the state shall also disclose the prior criminal record of
2-26     the witness if the prior criminal record would be admissible to
2-27     impeach the testimony of the witness at trial.
 3-1           (d)  Except as provided by Subsections (a)(1) through (a)(5)
 3-2     and by Subsection (c), this article does not authorize the
 3-3     discovery or inspection of an item or information if the item or
 3-4     information is a report, memorandum, or other internal document
 3-5     made by a peace officer or the officer's agent or by an attorney
 3-6     representing the state or the attorney's agent in the investigation
 3-7     or prosecution of the case.  [(a)  Upon motion of the defendant
 3-8     showing good cause therefor and upon notice to the other parties,
 3-9     the court in which an action is pending may order the State before
3-10     or during trial of a criminal action therein pending or on trial to
3-11     produce and permit the inspection and copying or photographing by
3-12     or on behalf of the defendant of any designated documents, papers,
3-13     written statement of the defendant, (except written statements of
3-14     witnesses and except the work product of counsel in the case and
3-15     their investigators and their notes or report), books, accounts,
3-16     letters, photographs, objects or tangible things not privileged,
3-17     which constitute or contain evidence material to any matter
3-18     involved in the action and which are in the possession, custody or
3-19     control of the State or any of its agencies.  The order shall
3-20     specify the time, place and manner of making the inspection and
3-21     taking the copies and photographs of any of the aforementioned
3-22     documents or tangible evidence;  provided, however, that the rights
3-23     herein granted shall not extend to written communications between
3-24     the State or any of its agents or representatives or employees.
3-25     Nothing in this Act shall authorize the removal of such evidence
3-26     from the possession of the State, and any inspection shall be in
3-27     the presence of a representative of the State.]
 4-1           [(b)  On motion of a party and on notice to the other
 4-2     parties, the court in which an action is pending may order one or
 4-3     more of the other parties to disclose to the party making the
 4-4     motion the name and address of each person the other party may use
 4-5     at trial to present evidence under Rules 702, 703, and 705, Texas
 4-6     Rules of Evidence.  The court shall specify in the order the time
 4-7     and manner in which the other party must make the disclosure to the
 4-8     moving party, but in specifying the time in which the other party
 4-9     shall make disclosure the court shall require the other party to
4-10     make the disclosure not later than the 20th day before the date the
4-11     trial begins.]
4-12           SECTION 2.  Chapter 39, Code of Criminal Procedure, is
4-13     amended by adding Articles 39.15, 39.16, and 39.17 to read as
4-14     follows:
4-15           Art. 39.15.  DISCOVERY BY STATE. (a)  On the state's
4-16     compliance with Article 39.14(a)(6), the defendant shall permit the
4-17     state not later than the fifth day before the date on which the
4-18     trial on the merits commences to have access to, inspect, copy, or
4-19     photograph, as applicable, any book, document, photograph, or
4-20     tangible object that:
4-21                 (1)  is within the possession, custody, or control of
4-22     the defendant; and
4-23                 (2)  the defendant expects to offer in evidence at the
4-24     guilt-innocence phase of the trial.
4-25           (b)  On the state's compliance with Article 39.14 (a)(5), the
4-26     defendant shall permit the state not later than the fifth day
4-27     before the date on which the trial on the merits commences to have
 5-1     access to, inspect, copy, or photograph, as applicable, the report
 5-2     of a physical or mental examination of the defendant or of a
 5-3     scientific test or experiment, including a summary of the basis for
 5-4     an expert opinion rendered in the report, that:
 5-5                 (1)  is in the possession or control of the defendant;
 5-6     and
 5-7                 (2)  the defendant expects to offer in evidence at the
 5-8     guilt-innocence phase of the trial.
 5-9           (c)  On the state's compliance with Article 39.14(c), the
5-10     defendant shall furnish to the state not later than the fifth day
5-11     before the date on which the trial on the merits commences the name
5-12     and address of each witness the defendant expects to call to
5-13     testify during the trial.
5-14           (d)  Except as to scientific or medical reports, this article
5-15     does not authorize the discovery or inspection of a:
5-16                 (1)  report, memorandum, or other internal defense
5-17     document made by a defendant or the defendant's attorney or agent
5-18     of the attorney in connection with the case; or
5-19                 (2)  statement made to the defendant's attorney or
5-20     agent of the attorney by an actual or prospective witness for the
5-21     state or the defense.
5-22           Art. 39.16.  NOTICE OF ALIBI. (a)  If the attorney
5-23     representing the state requests in writing, not later than the 20th
5-24     day before the date trial on the merits commences, notice of the
5-25     defendant's intention to offer a defense of alibi at trial and the
5-26     request includes the time, date, and place at which the state
5-27     alleges that the offense was committed, the defendant shall serve
 6-1     the attorney representing the state with a written notice of the
 6-2     defendant's intention to offer a defense of alibi.  The defendant
 6-3     shall serve the notice not later than the 10th day after the date
 6-4     on which the request was received or the 10th day before the date
 6-5     on which the trial on the merits commences, whichever date occurs
 6-6     first, or at any time the court directs.  The notice shall state
 6-7     the specific place or places where the defendant claims to have
 6-8     been at the time of the alleged offense and the names, addresses,
 6-9     dates of birth, and telephone numbers, if known to the defendant,
6-10     of the witnesses on whom the defendant intends to rely to establish
6-11     the alibi.
6-12           (b)  After receiving the defendant's notice of alibi, the
6-13     attorney representing the state shall serve the defendant or the
6-14     defendant's attorney with a written notice stating the names,
6-15     addresses, dates of birth, and telephone numbers, if known to the
6-16     state, of the witnesses on whom the state intends to rely to
6-17     establish the defendant's presence at the scene of the alleged
6-18     offense and any other witnesses to be relied on to rebut the
6-19     testimony of any of the defendant's alibi witnesses.  The notice
6-20     must be served not later than the fifth day after the date on which
6-21     the attorney representing the state receives the defendant's notice
6-22     or the fifth day before the date on which the trial on the merits
6-23     commences, whichever date occurs first.  The court, however, may
6-24     permit service of the notice at any other time as it considers just
6-25     under the circumstances.
6-26           (c)  Evidence of an intention to rely on an alibi defense,
6-27     later withdrawn, or of statements made in connection with that
 7-1     intention, is not admissible in any civil or criminal proceeding
 7-2     against the defendant who gave notice of the intention.
 7-3           Art. 39.17.  REGULATION OF DISCOVERY. (a)  If before or
 7-4     during trial a party learns of an additional witness whose
 7-5     identity, if known, should have been furnished to the opposing
 7-6     party or discovers evidence or material previously requested or
 7-7     ordered to be disclosed under Article 39.14, 39.15, or 39.16, the
 7-8     party shall promptly notify the other party or the other party's
 7-9     attorney of the existence and identity of the additional witness,
7-10     evidence, or material.
7-11           (b)  On a sufficient showing the court may at any time order
7-12     that discovery or inspection under Article 39.14, 39.15, or 39.16
7-13     be denied, restricted, or deferred or the time limits be shortened,
7-14     or make any other order it considers appropriate.  On the motion of
7-15     a party, the court may permit the party to make the showing in
7-16     whole or in part in the form of a written statement to be inspected
7-17     by the judge alone.  If the court enters an order granting relief
7-18     following an ex parte showing, the entire text of the party's
7-19     statement shall be sealed and preserved in the records of the court
7-20     to be made available to the appellate court in the event of appeal.
7-21           (c)  If at any time during the course of the proceedings it
7-22     is brought to the attention of the court that a party has failed to
7-23     comply with the requirements of this article, the court may order
7-24     the party to permit the discovery or inspection, grant a
7-25     continuance, prohibit the party from introducing evidence not
7-26     disclosed, or enter any other order it considers just under the
7-27     circumstances.  The court may specify the time, place, and manner
 8-1     of the discovery or inspection and may prescribe terms and
 8-2     conditions it considers appropriate.
 8-3           SECTION 3.  (a)  The change in law made by this Act applies
 8-4     to a criminal case in which the indictment or information is
 8-5     presented to the court on or after the effective date of this Act. 
 8-6           (b)  This Act does not apply to a criminal case in which the
 8-7     indictment or information has been presented to the court before
 8-8     the effective date of this Act, and the law as it existed when the
 8-9     indictment or information was presented is continued in effect for
8-10     this purpose.
8-11           SECTION 4.  This Act takes effect September 1, 2001.