By: Carona, West S.B. No. 560
A BILL TO BE ENTITLED
AN ACT
relating to discovery in a criminal case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 39.14, Code of Criminal Procedure, is
amended to read as follows:
Art. 39.14. DISCOVERY
Sec. 1. DISCLOSURE BY STATE. (a) As soon as practicable
after receiving a timely request from the defendant, the attorney
representing the state shall disclose to the defendant or the
defendant's counsel and permit inspection, photocopying, or
photographing of the following materials and information in the
possession, custody, or control of the state or any of its agencies:
(1) any exculpatory or impeachment evidence material
to the defendant's guilt or punishment;
(2) any written or recorded statements that are made
by the defendant or by any witness the attorney representing the
state intends to call at the trial and that are related to the case
charged, including offense reports by law enforcement personnel and
grand jury testimony, if any;
(3) any written record containing the substance of any
oral statement that is made by the defendant and that is related to
the case charged, whether made before or after the defendant's
arrest, in response to interrogation by any person whom the
defendant believed to be a peace officer;
(4) the defendant's prior criminal record;
(5) any record of a criminal conviction admissible for
impeachment under Rule 609, Texas Rules of Evidence, of a witness
the attorney representing the state intends to call at the trial;
(6) any affidavit, warrant, or return pertaining to a
search or seizure in connection with the case;
(7) any real evidence that was obtained from or that
belongs to the defendant or that the attorney representing the
state intends to use at the trial and, on a showing of materiality
by the defendant, the opportunity to test that evidence;
(8) the names and addresses of all witnesses the
attorney representing the state intends to call at the trial,
including those called to present evidence under Rules 702, 703,
and 705, Texas Rules of Evidence;
(9) any report produced by or for an expert witness the
attorney representing the state intends to call at the trial; and
(10) any plea agreement, grant of immunity, or other
agreement for testimony issued by the attorney representing the
state in connection with the case [Upon motion of the defendant
showing good cause therefor and upon notice to the other parties,
the court in which an action is pending may order the State before
or during trial of a criminal action therein pending or on trial to
produce and permit the inspection and copying or photographing by
or on behalf of the defendant of any designated documents, papers,
written statement of the defendant, (except written statements of
witnesses and except the work product of counsel in the case and
their investigators and their notes or report), books, accounts,
letters, photographs, objects or tangible things not privileged,
which constitute or contain evidence material to any matter
involved in the action and which are in the possession, custody or
control of the State or any of its agencies. The order shall
specify the time, place and manner of making the inspection and
taking the copies and photographs of any of the aforementioned
documents or tangible evidence; provided, however, that the rights
herein granted shall not extend to written communications between
the State or any of its agents or representatives or employees.
Nothing in this Act shall authorize the removal of such evidence
from the possession of the State, and any inspection shall be in the
presence of a representative of the State].
(b) If the defendant gives notice of a defense under Section
2(b), the attorney representing the state shall, not later than 10
days before the date the trial begins, disclose to the defendant or
the defendant's counsel the names and addresses of the witnesses
the state intends to use to rebut the defense or the testimony of
any of the defendant's witnesses called to establish that defense
[On motion of a party and on notice to the other parties, the court
in which an action is pending may order one or more of the other
parties to disclose to the party making the motion the name and
address of each person the other party may use at trial to present
evidence under Rules 702, 703, and 705, Texas Rules of Evidence.
The court shall specify in the order the time and manner in which
the other party must make the disclosure to the moving party, but in
specifying the time in which the other party shall make disclosure
the court shall require the other party to make the disclosure not
later than the 20th day before the date the trial begins].
(c) This article does not authorize the removal of physical
evidence from the possession of the state, and any inspection of
physical evidence shall be conducted in the presence of a
representative of the state.
Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as
practicable after receiving the initial disclosure under Section 1
from the attorney representing the state, the defendant shall
disclose to the attorney representing the state and permit
inspection, photocopying, or photographing of the following
materials and information:
(1) any relevant written or recorded statements by any
witnesses, other than the defendant, the defendant intends to call
at the trial;
(2) any record of a criminal conviction admissible for
impeachment under Rule 609, Texas Rules of Evidence, of a witness,
other than the defendant, the defendant intends to call at the trial
if that information is known to the defendant;
(3) any real evidence that the defendant intends to
use at the trial, and on a showing of materiality by the attorney
representing the state, the opportunity to test that evidence;
(4) the names and addresses of all witnesses, other
than the defendant, the defendant intends to call at the trial,
including those called to present evidence under Rules 702, 703,
and 705, Texas Rules of Evidence; and
(5) any report produced by or for an expert witness the
defendant intends to call at the trial.
(b) On a request by the state, a defendant planning to offer
evidence of one or more defenses listed in Chapter 8 or 9, Penal
Code, or evidence of an alibi defense, shall file a good faith
notice of intent to raise the defense with the court and the
attorney representing the state not later than the 30th day before
the date the trial begins. If the defendant intends to raise an
alibi defense, the notice must include the place at which the
defendant claims to have been at the time of the alleged offense and
the names and addresses of the witnesses the defendant intends to
use to establish the alibi. Any notice provided under this
subsection is for purposes of discovery only and is not admissible
at trial unless the court finds that the contents of the notice were
not made in good faith.
(c) After the filing of the indictment or information, the
court may require the defendant to submit nontestimonial evidence
to the state. This article does not limit any law enforcement or
prosecuting agency from seeking or obtaining nontestimonial
evidence to the extent permitted by law.
Sec. 3. EXCEPTIONS TO DISCLOSURE. (a) Neither the
attorney representing the state nor the defendant is required to
disclose materials or information that are:
(1) recorded proceedings of a grand jury, except as
provided in Section 1(a)(2) of this article and Rule 615, Texas
Rules of Evidence;
(2) a work product, including a report, memorandum, or
other internal document, of the attorney representing the state,
the defendant, or their investigators or other agents that is made
in connection with the investigation, prosecution, or defense of
the case; or
(3) privileged under an express statutory provision,
the Texas Constitution, or the United States Constitution.
(b) This article does not authorize disclosure of the name,
address, or telephone number of a victim in violation of the
provisions of Chapter 57.
(c) A victim impact statement is subject to disclosure
before the testimony of the victim is taken only if the court
determines that the statement contains exculpatory material.
Sec. 4. CONTINUING DUTY TO DISCLOSE. If, before a trial
begins, but subsequent to compliance with this article or a
relevant court order, a party discovers additional material or
information subject to disclosure, the party shall immediately
notify the other party or the other party's counsel of the existence
of the additional material or information.
Sec. 5. EXCISION. (a) Except as provided by Subsection
(b), if a portion of material or information is subject to discovery
under this article and a portion is not subject to discovery, only
the portion that is subject to discovery must be disclosed. The
disclosing party shall inform the other party that the portion of
material or information that is not subject to discovery has been
excised and withheld. On request, the court shall conduct a hearing
to determine whether the reasons for excision are justifiable.
Material or information excised pursuant to judicial order shall be
sealed and preserved in the records of the court and shall be made
available to an appellate court in the event of an appeal.
(b) Excision of a witness statement produced in accordance
with Rule 615, Texas Rules of Evidence, is governed by that rule.
Sec. 6. PROTECTIVE ORDERS. (a) On a showing of good cause,
the court may at any time enter an appropriate protective order that
a specified disclosure be denied, restricted, or deferred. "Good
cause," for purposes of this section, includes threats, harm,
intimidation, or possible danger to the safety of a victim or
witness, possible loss, destruction, or fabrication of evidence, or
possible compromise of other investigations by law enforcement or a
defense offered by a defendant.
(b) If a protective order is granted concerning the personal
information for a victim or witness, the party in possession of that
information shall make the victim or witness available for an
interview by the opposing party or their representative at a time,
date, place, and manner specified by the court.
Sec. 7. IN CAMERA PROCEEDINGS. On request, the court may
permit to be made in camera an excision hearing under Section 5(a),
a showing of good cause for denial or regulation of a disclosure
under Section 6, or any portion of a proceeding. A verbatim record
shall be made of a proceeding in camera. If the court excises a
portion of the material or information or enters an order granting
relief following a showing of good cause, the entire record shall be
sealed and preserved in the records of the court and shall be made
available to an appellate court in the event of an appeal.
Sec. 8. CONFERENCE. On request of the attorney
representing the state or the defendant, the court shall hold a
discovery hearing under Section 1(8), Article 28.01, not later than
the 10th day before the date the trial begins, to verify compliance
by each party with this article.
Sec. 9. COMPLIANCE; SANCTIONS. (a) The disclosures
required under this article may be performed in any manner that is
mutually agreeable to the attorney representing the state and the
defendant or that is ordered by the court in accordance with this
article. The order issued by the court must specify the time,
place, and manner of making the required disclosures.
(b) On a showing that a party has not complied with this
article or a relevant court order, the court may make any order the
court finds necessary under the circumstances, including an order
related to immediate disclosure, contempt proceedings, delay or
prohibition of the testimony of a witness or the presentation of
real evidence, or continuance of the matter. The court may also
inform the jury of any failure or refusal to disclose or any
untimely disclosure under this article.
(c) The court may prohibit the use of a defense or the
presentation of a witness under Subsection (b) only if all other
sanctions have been exhausted or the discovery violation amounts to
wilful misconduct designed to obtain a tactical advantage that
would minimize the effectiveness of cross-examination and the
ability to adduce rebuttal evidence. The court may not dismiss a
charge under Subsection (b) unless required to do so by the Texas
Constitution or the United States Constitution.
SECTION 2. Section 2, Article 46.03, Code of Criminal
Procedure, is repealed.
SECTION 3. The change in law made by this Act applies to the
prosecution of an offense committed on or after the effective date
of this Act. The prosecution of an offense committed before the
effective date of this Act is covered by the law in effect when the
offense was committed, and the former law is continued in effect for
this purpose. For purposes of this section, an offense is committed
before the effective date of this Act if any element of the offense
occurs before the effective date.
SECTION 4. This Act takes effect September 1, 2005.