H.B. 1000 78(R)    BILL ANALYSIS


H.B. 1000
By: Madden
Criminal Jurisprudence
Committee Report (Unamended)



BACKGROUND AND PURPOSE 

Under current law, prosecutors may have difficulty effectively prosecuting
those who prey upon the elderly or infirm because they may not be
physically able to testify in court or they may not live long enough for
the case to go to trial. Although seldom used, depositions have been
available to defendants for many years.  This change would make
depositions available to prosecutors as well.  

The principal objective of House Bill 1000 is preservation of evidence for
use at trial, not to provide a method of pretrial discovery. 

The kinds of cases that this change in the law would help are financial
fraud against the elderly, election fraud cases involving elderly voters
receiving mail ballots, and victims of violent crime whose condition
deteriorates before the case can come to trial. H.B. 1000 should also help
preserve the testimony of soldiers who may be assigned to overseas duty
and who are not available for trial because of their service to their
country. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

House Bill 1000 amends a provision in the Code of Criminal Procedure
relating to depositions. As it is currently written, Code of Criminal
Procedure Section 39.02 is explicitly limited for use only by defendants.
H.B. 1000 would make Section 39.02 available to the state, as well.  The
published appellate opinions interpreting Section 39.02 make it very clear
that applications for depositions have been denied far more than they have
been granted and that the trial courts have broad discretion in ruling on
applications for depositions.  

It is not anticipated that depositions would be utilized frequently by
prosecutors because they will be required to meet the same burdens imposed
on defendants by Section 39.02.  Like defendants, prosecutors will have to
state in an affidavit filed with the court facts necessary to constitute a
good reason for taking the deposition and then argue for the deposition in
a hearing where the defendant may state his or her objections.  

This change in the law would only affect cases where the indictment or
information was presented to the court on or after the effective date of
this bill. 

EFFECTIVE DATE

September 1, 2003.