By: Thompson of Harris, White, Collier, H.B. No. 1717
      Patterson, J. Johnson of Harris, et al.
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the state's continuing duty to disclose exculpatory,
  impeachment, or mitigating evidence in a criminal case and
  prohibited retaliation against local assistant prosecutors for
  discharging that duty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 39.14(k), Code of Criminal Procedure, is
  transferred to Chapter 2, Code of Criminal Procedure, redesignated
  as Article 2.026, Code of Criminal Procedure, and amended to read as
  follows:
         Art. 2.026.  CONTINUING DUTY OF STATE TO DISCLOSE
  EXCULPATORY, IMPEACHMENT, OR MITIGATING EVIDENCE. Regardless of
  the date the applicable offense was committed, if [(k)  If] at any
  time before, during, or after trial or plea negotiation the  state
  discovers any exculpatory, impeachment, or mitigating [additional]
  document, item, or information in the possession, custody, or
  control of the state that tends to negate the guilt of the defendant
  or would tend to reduce the punishment for the offense charged
  [required to be disclosed under Subsection (h)], the state shall
  promptly disclose the existence of the document, item, or
  information to the defendant or the court.
         SECTION 2.  Chapter 41, Government Code, is amended by
  adding Subchapter B-1 to read as follows:
  SUBCHAPTER B-1. PROTECTION OF ASSISTANT PROSECUTORS FOR DISCLOSING
  EVIDENCE FAVORABLE TO DEFENDANT
         Sec. 41.151.  DEFINITIONS. In this subchapter:
               (1)  "Assistant prosecutor" means an assistant
  prosecuting attorney employed by a prosecuting attorney.
               (2)  "Personnel action" means an action taken by an
  employer that affects an employee's compensation, promotion,
  demotion, transfer, work assignment, or performance evaluation.
               (3)  "Prosecuting attorney" means a county attorney,
  district attorney, or criminal district attorney.
         Sec. 41.152.  PROHIBITED RETALIATION AGAINST ASSISTANT
  PROSECUTOR FOR CERTAIN ACTS. A prosecuting attorney may not
  suspend or terminate the employment of, or take other adverse
  personnel action against, an assistant prosecutor based on the
  assistant prosecutor:
               (1)  disclosing to the defendant evidence the state is
  required to disclose under Article 39.14(h), Code of Criminal
  Procedure, or under another law requiring disclosure of evidence
  favorable to the defendant; or
               (2)  after the prosecuting attorney or another
  supervising assistant prosecutor directs the assistant prosecutor
  to withhold evidence from the defendant in violation of Article
  39.14(h), Code of Criminal Procedure, or another law requiring
  disclosure of evidence favorable to the defendant:
                     (A)  refusing to withhold the evidence; or
                     (B)  presenting the evidence to the trial court
  for the underlying criminal case in accordance with Section 41.158.
         Sec. 41.153.  RELIEF AVAILABLE TO ASSISTANT PROSECUTOR. (a)
  An assistant prosecutor whose employment is suspended or terminated
  or who is subjected to an adverse personnel action in violation of
  Section 41.152 may bring an action against the prosecuting attorney
  for:
               (1)  injunctive relief, including:
                     (A)  reinstatement to the assistant prosecutor's
  former position or an equivalent position; and
                     (B)  reinstatement of fringe benefits and
  seniority rights lost because of the suspension or termination;
               (2)  compensatory damages, including compensation for
  wages lost during the period of suspension or termination;
               (3)  court costs; and
               (4)  reasonable attorney fees.
         (b)  In an action brought under Subsection (a), an assistant
  prosecutor may not recover compensatory damages for future
  pecuniary losses, emotional pain, suffering, inconvenience, mental
  anguish, loss of enjoyment of life, and other nonpecuniary losses
  in an amount that exceeds:
               (1)  $50,000, if the county or counties where the
  prosecuting attorney has jurisdiction have combined fewer than 101
  employees for at least 20 calendar weeks in the calendar year in
  which the action is brought or in the preceding calendar year;
               (2)  $100,000, if the county or counties where the
  prosecuting attorney has jurisdiction have combined more than 100
  and fewer than 201 employees for at least 20 calendar weeks in the
  calendar year in which the action is brought or in the preceding
  calendar year;
               (3)  $200,000, if the county or counties where the
  prosecuting attorney has jurisdiction have combined more than 200
  and fewer than 501 employees for at least 20 calendar weeks in the
  calendar year in which the action is brought or in the preceding
  calendar year; and
               (4)  $250,000, if the county or counties where the
  prosecuting attorney has jurisdiction have combined more than 500
  employees for at least 20 calendar weeks in the calendar year in
  which the action is brought or in the preceding calendar year.
         (c)  If more than one subdivision of Subsection (b) applies
  to the county or counties where the prosecuting attorney has
  jurisdiction, the amount of monetary damages that may be recovered
  from the prosecuting attorney in an action brought under this
  subchapter is governed by the provision that provides the greatest
  damage award.
         Sec. 41.154.  WAIVER OF IMMUNITY. Sovereign and
  governmental immunity to suit and liability is waived and abolished
  to the extent of liability created by this subchapter.
         Sec. 41.155.  BURDEN OF PROOF; AFFIRMATIVE DEFENSE. (a) An
  assistant prosecutor has the burden of proof for an action brought
  under this subchapter.
         (b)  It is an affirmative defense to an action brought under
  this subchapter that the prosecuting attorney would have taken
  against the assistant prosecutor the adverse personnel action that
  is the basis of the action based solely on information,
  observation, or evidence unrelated to the fact that the assistant
  prosecutor engaged in an act described by Section 41.152.
         Sec. 41.156.  LIMITATION PERIOD. An assistant prosecutor
  who seeks relief under this subchapter must bring the action not
  later than the 90th day after the date the adverse personnel action
  that allegedly violates Section 41.152 is taken.
         Sec. 41.157.  VENUE. An action brought under this
  subchapter must be brought in a district court:
               (1)  of the county in which the cause of action arises;
  or
               (2)  of any county in the same administrative judicial
  region as the county described by Subdivision (1).
         Sec. 41.158.  ASSISTANT PROSECUTOR MAY SEEK COURT DECISION
  ON REQUIRED DISCLOSURE; COURT'S DUTY TO ISSUE DECISION.  (a)  An
  assistant prosecutor who is directed by the prosecuting attorney or
  another supervising assistant prosecutor to withhold evidence from
  the defendant in violation of Article 39.14(h), Code of Criminal
  Procedure, or in violation of another law requiring the disclosure
  of evidence favorable to the defendant, may present the evidence to
  the trial court for the underlying criminal case, without notice to
  the defendant or, if applicable, defendant's counsel, to obtain a
  decision on whether disclosure is required under Article 39.14(h)
  or similar law.
         (b)  The trial court shall promptly issue a written decision
  to the presenting assistant prosecutor on whether the evidence
  presented must be disclosed under a law described by Subsection
  (a).
         Sec. 41.159.  PREREQUISITES TO BRINGING ACTION. (a)  Except
  as provided by Subsection (b), an assistant prosecutor may not
  bring an action under this subchapter unless the assistant
  prosecutor:
               (1)  presents the evidence to the trial court in
  accordance with Section 41.158; and
               (2)  provides to the prosecuting attorney the court's
  decision issued under that section.
         (b)  Subsection (a) does not apply if an assistant prosecutor
  who engaged in an act described by Section 41.152 establishes in an
  action brought under this subchapter:
               (1)  the assistant prosecutor did not have a reasonable
  opportunity to present the evidence to the trial court in
  accordance with Section 41.158 or provide the decision as required
  by Subsection (a)(2) before the adverse personnel action was taken;
  or
               (2)  good cause for failure to present the evidence to
  the trial court or provide the decision.
         Sec. 41.160.  NONAPPLICABILITY OF OTHER LAW. Chapter 102,
  Civil Practice and Remedies Code, does not apply to an action
  brought under this subchapter.
         SECTION 3.  (a)  Subject to Subsection (b) of this section,
  Subchapter B-1, Chapter 41, Government Code, as added by this Act,
  applies only to an act described by Section 41.152, Government
  Code, as added by this Act, that occurs on or after the effective
  date of this Act. An act that occurs before that date is governed by
  the law in effect on the date the act occurred, and that law is
  continued in effect for that purpose.
         (b)  Notwithstanding Section 41.156, Government Code, as
  added by this Act, an assistant prosecuting attorney employed by a
  county attorney, district attorney, or criminal district attorney
  may bring an action under Subchapter B-1, Chapter 41, Government
  Code, as added by this Act, for an act described by Section 41.152,
  Government Code, as added by this Act, that occurred before the
  effective date of this Act, if the attorney brings the action not
  later than the 90th day after the effective date of this Act,
  regardless of whether the attorney:
               (1)  has met the prerequisites to bringing an action
  under Section 41.159, Government Code, as added by this Act; or
               (2)  has brought an action claiming that an act
  described by Section 41.152, Government Code, as added by this Act,
  led to the attorney's suspension or termination, or otherwise
  affected the compensation, promotion, demotion, transfer, work
  assignment, or performance evaluation of the attorney before the
  effective date of this Act that has been dismissed.
         SECTION 4.  This Act takes effect September 1, 2021.