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  By: Ellis, Duncan S.B. No. 1611
 
 
 
   
 
 
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) Subject to the
  restrictions provided by Article 39.15, beginning no later than 30
  days after the initial appearance of the defendant the attorney
  representing the state shall disclose to the defendant's counsel
  and permit inspection, photocopying, and photographing of the
  following materials and information in the possession, custody, or
  control of all law enforcement agencies, investigatory agencies,
  and prosecutors' offices, any other governmental entity, or any
  non-governmental entity contracting for work with any government
  entity involved in the investigation of the crimes alleged or in the
  prosecution of the defendant,
               (1)  any evidence relevant to the defendant's guilt or
  punishment;
               (2)  any written or recorded statement made by the
  defendant, any witness, any law enforcement officer, or any other
  person that is related to the case charged, including offense
  reports by law enforcement or other government personnel and
  electronically recorded statements, 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;
               (4)  the defendant's prior criminal record. If
  disclosure of a specific document reflecting the defendant's
  criminal history is not permitted by state or federal law, then the
  content of the defendant's criminal history shall be disclosed in
  writing. A judge shall on request issue an order requiring
  disclosure of the records if a court order is required for
  disclosure by state or federal law;
               (5)  any record of a criminal conviction or other
  criminal history admissible for impeachment under the Texas Rules
  of Evidence, of a witness the attorney representing the state
  intends to call at the trial, or has reason to believe may be called
  as a witness at trial by the State;
               (6)  any affidavit, warrant, or return pertaining to a
  search or seizure in connection with the case;
               (7)  any physical or documentary evidence related to
  the case charged that was obtained from or that belongs to the
  defendant or that the attorney representing the state intends to
  use against the defendant in the case charged and, on a showing of
  materiality by the defendant, the opportunity to test that
  evidence;
               (8)  the names and addresses of the witnesses called to
  present evidence under Rules 702, 703, and 705, Texas Rules of
  Evidence;
               (9)  any document or recording produced by or for an
  expert witness related to the case charged; and
               (10)  any plea agreement, grant of immunity, benefit
  promised or conferred, or other agreement for testimony or
  assistance issued by the attorney representing the state or any law
  enforcement officer or agency in connection with the case. [Upon
  motion of the defendant showing good cause therefor and upon notice
  to the other parties, except as provided by Article 39.15, the court
  in which an action is pending shall 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)  The state shall give to the defendant, at the beginning
  of jury selection, a written list of the names of all witnesses who
  the State reasonably expects to call during trial, as well as the
  criminal histories of those witnesses, in a manner consistent with
  state and federal law. Following the disclosure of a witnesses
  name, any party may request the court to order, on a showing of good
  cause, the disclosure of the last known address for the witness. A
  court, on request, may, and on a showing of good cause shall, order
  earlier disclosure of the names and addresses of all witnesses who
  the State reasonably expects to call during trial. [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)  If the defendant gives notice of an alibi under Section
  2(c)(2), the attorney representing the state shall disclose to the
  defendant's counsel as soon as practicable the names of the
  witnesses of whom the state has knowledge and whom the state intends
  to use to rebut the alibi or the testimony of any of the defendant's
  witnesses called to establish the alibi.
         (d)  On a timely basis, law enforcement and investigatory
  agencies shall make available to the attorney representing the
  state and the attorney representing the state shall request a
  complete copy of the complete files related to the investigation of
  the crimes committed or the prosecution of the defendant for
  compliance with this article. Investigatory agencies that obtain
  information and materials listed in subsection (a) of this section
  shall ensure that such information and materials are fully
  disclosed to the prosecutor's office on a timely basis for
  disclosure to the defendant.
         (e)  Except as otherwise permitted by this article, 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. A court shall, when requested and as necessary under the
  circumstances, order specific inspection procedures necessary to
  protect the integrity of the evidence and the ability to inspect it
  in a manner that does not compromise a defendant's ability to
  maintain confidentiality of work product and the attorney client
  privilege.
         Sec. 2.  DISCLOSURE BY DEFENDANT. (a) 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, and
  photographing of the following materials and information:
               (1)  any written or recorded statement by a witness,
  other than the defendant, that is related to the offense charged, if
  the defendant intends to call the witness at trial;
               (2)  any physical or documentary evidence that the
  defendant intends to use in its case in chief and, on a showing of
  materiality by the attorney representing the state, the opportunity
  to test that evidence;
               (3)  the names and addresses of the witnesses called to
  present evidence under Rules 702, 703, and 705, Texas Rules of
  Evidence; and
               (4)  any report produced by or for an expert witness the
  defendant intends to call at the trial.
         (b)  The defense shall give the state, at the beginning of
  jury selection, a written list of the names of all lay witnesses who
  the defense reasonably expect to call during trial. Following the
  disclosure of a witnesses name, any party may request the court to
  order, on a showing of good cause, the disclosure of the last known
  address for the witness.
         (c)  (1) If requested in writing by the attorney representing
  the state, a defendant who may assert one or more defenses or
  affirmative defenses listed in Chapter 8 or 9, Penal Code, shall
  provide the state with written notice that the defendant may assert
  the statutory defense or affirmative defense. Notice shall be
  provided by the defendant not later than the 30th day before the
  date that jury selection begins or as soon as practicable after the
  date the defendant receives a disclosure under Section 1 to which
  the defense is responsive, whichever is later. If the State amends
  the information or indictment or files a new information or obtains
  a new indictment within 30 days of the beginning of jury selection,
  the defendant shall be allowed not less than 10 days after being
  served with an amended or new information or indictment, or having
  received actual notice of the amendment in open court, to amend or
  supplement an existing notice or provide an initial notice. Any
  notice provided under this subsection is for purposes of discovery
  only and is not admissible at trial.
               (2)  If requested in writing by the attorney
  representing the state, and if the attorney representing the state
  provides the defendant in such written request with the specific
  date, time, and place of the alleged offense, a defendant who will
  assert an alibi shall provide the state, not later than 20 days
  before the beginning of jury selection, a written response
  including the location at which the defendant claims to have been at
  the time of the alleged offense and the names of the witnesses the
  defendant intends to use to establish the alibi.
         Sec. 3.  EXCEPTIONS TO DISCLOSURE.  (a) Neither the attorney
  representing the state nor the defendant is required to disclose
  materials or information that is:
               (1)  recorded proceedings of a grand jury, except as
  required by the Texas Rules of Evidence, other law, or court order;
               (2)  a work product, meaning written materials drafted
  by an attorney or the attorney's legal staff for their own use,
  including witness examinations, voir dire questions, opening
  statements, closing arguments, legal research, or of records,
  correspondence, reports, memoranda, or notes prepared by
  the attorney or by members of the attorney's legal staff to the
  extent they contain the opinions, theories, strategies, or
  conclusions of the attorney or the attorney's legal staff.
  Records, correspondence, reports, memoranda, or notes prepared by
  the prosecuting attorney, its agents, or by members of the
  prosecuting attorney's legal staff are not work product as to any
  portion that contains potentially favorable or exculpatory or
  impeaching information as to guilt or punishment or information
  that may mitigate punishment. Disclosure is also not required of
  any document of the attorney representing the defendant, or an
  investigator or other agent of the attorney representing the
  defendant that is made in connection with the investigation,
  prosecution, or defense of the case; or
               (3)  privileged under a rule of evidence, 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 Chapter 57.
         (c)  A victim impact statement shall be provided to the
  defendant at the beginning of jury selection if the person
  completing the victim impact statement is disclosed by the State as
  a potential witness on its witness list or there is reason to
  believe that the person may otherwise testify at the trial. A
  victim impact statement is subject to disclosure as any other
  evidence or information if it contains exculpatory material.
         Sec. 4.  CONTINUING DUTY TO DISCLOSE. If, 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's
  counsel of the existence of the additional material or information.
         Sec. 5  CERTIFICATE OF COMPLIANCE. Each time a party
  provides discovery, disclosure, or notice required or permitted by
  this article or pursuant to court order, it shall file with the
  court a Certificate of Compliance listing the items provided or
  disclosed or the notice given. Any party may request any other
  party to acknowledge receipt of any discovery, disclosure or notice
  provided for by this article or required by court order and the
  party receiving such discovery, disclosure, or notice shall, when
  requested, acknowledge in writing, or on the record in open court,
  the receipt of any discovery, disclosure, or notice. On request of
  any party, the other party shall certify either in writing or on the
  record in open court that, to the best of its knowledge and after
  reasonable inquiry, the party has disclosed and made available all
  items subject to discovery and disclosure and has provided all
  required notices, and if not previously identified in a Certificate
  of Compliance shall identify each item of provided discovery,
  disclosure and notice. If further discovery is provided after the
  filing of a Certificate of Compliance, an additional or
  supplemental Certificate of Compliance shall be filed with the
  court, or announced on the record in open court, identifying the
  additional items of discovery, matters or information disclosed, or
  notice given.
         Sec. 6.  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's counsel 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 the Texas Rules of Evidence is governed by that rule.
         Sec. 7.  PROTECTIVE ORDERS. On a showing of good cause by
  either party 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.
         Sec. 8.  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.
         A court shall permit counsel for both parties to be present
  at the in-camera excision hearing, or, for portions of the
  in-camera excision hearing as the circumstances require, unless
  doing so would result in a violation of a privilege under the Rules
  of Evidence or if the court cannot, through a protective or
  confidentiality order, achieve the purposes of the in-camera
  hearing. The court may issue such protective and confidentiality
  orders as are necessary to prevent dissemination of proceedings
  held in-camera and as to any material excised. A court order under
  this section must only be as narrow as necessary to achieve the
  purposes of the excision.
         Sec. 9.  CONFERENCE. On request or motion of any party or on
  its own motion, the court shall hold a discovery conference to
  resolve any discovery, disclosure, or notice issue, to ensure that
  the parties are aware of their respective discovery, disclosure,
  and notice obligations under this article, or to verify compliance
  by each party with this article. Any party who has not received
  required or requested discovery, disclosure, or notice, shall
  request a discovery conference to be held not later than 20 days
  before the beginning of jury selection to resolve any issue with
  respect to the discovery, disclosure, or notice.
         Sec. 10.  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
  attorney representing the defendant or that is ordered by the court
  in accordance with this article. The order issued by the court may
  specify the time, place, and manner of making the required
  disclosures.
         (b)  If the court finds that a party has failed to comply with
  any of the provisions of this article, the court may order and
  compel such party to provide the required discovery or disclosure,
  grant a continuance, issue a protective order, take other
  appropriate action as necessary under the circumstances to
  accomplish the purposes of the required discovery or disclosure,
  or, and only if other remedial alternatives have been exhausted,
  prohibit the introduction of certain evidence, the calling of
  certain witnesses, or other relief necessary to assure justice. The
  court may not dismiss a charge under this subsection unless
  authorized or required to do so by other law.
         Sec. 11.  COSTS. (a) All reasonable and necessary costs
  related to a disclosure required under this article, including the
  photocopying of materials, shall be paid by the requesting party,
  except that an indigent defendant shall not be required to pay costs
  provided for by this article. Costs under this article may not
  exceed those provided for by the Texas Public Information Act.
         (b)  The commissioners court of the county in which the
  indictment, information, or complaint is pending may not, as a
  result of any payment by the defendant of the costs required by this
  article, reduce the amount of money provided by the county to the
  office of the attorney representing the state, nor may it reduce the
  amount of money provided to a public defender's office as a result
  of costs paid to it under this article.
         Sec. 12.  DISCLOSURE TO THIRD PARTIES. Before the date on
  which the trial begins, the attorney representing the state, the
  attorney representing the defendant, or an investigator, expert, or
  other agent for the attorney representing the state or the attorney
  representing the defendant may not disclose, without obtaining
  approval of the trial court, information or witness statements
  received from the opposing party to any third party, other than to
  an investigator, expert, consulting counsel, or other agent for the
  attorney representing the state or the attorney representing the
  defendant, as applicable. Information or witness statements
  received under this article, and not otherwise made a part of a
  public record as part of judicial proceedings, may not be made
  available to the public without a court order permitting such
  disclosure.
         Sec. 13.  DISCLOSURE OF CERTAIN CONTACT INFORMATION. (a)
  The attorney representing the state, without a protective court
  order or a hearing before the court, may excise from an offense
  report or other report any contact information of the alleged
  victim of an offense that is listed under:
               (1)  Section 3g, Article 42.12; or
               (2)  Article 62.001(5).
         (b)  On request of the defendant, and on a showing of good
  cause, the court shall order disclosure to the defense of the
  alleged victim's contact information subject to reasonable
  limitations on further disclosure, which may include, as the
  circumstances require, an order prohibiting the attorney
  representing the defendant from disclosing the information to the
  defendant or others.
         Sec. 14.  PRO SE DEFENDANTS. This article, including the
  provisions regarding the nondisclosure of a witness statement or an
  offense report by law enforcement personnel, applies to a defendant
  who has elected to proceed pro se only to the extent approved by the
  court.
         Sec. 15.  THIRD PARTY DISCOVERY. A party may obtain, other
  than from the office of the attorney representing the State, and
  other than documents or items provided by the attorney representing
  the state, documents from other persons, entities or third parties
  by serving such person or entity with a subpoena for such documents
  that provides a reasonable time and place for production of the
  documents. A person or entity served with such a subpoena may itself
  or through its counsel, before the time for compliance, object to or
  seek protection from the request. The court may enter any order
  appropriate under the circumstances to assure a reasonable time,
  place, manner, or scope of production. Unless the court orders
  otherwise, costs for production shall be paid by the party
  requesting the production, provided that such costs shall not
  exceed those allowed under the Texas Public Information Act.
         Sec. 16.  CONFLICT OF LAW. To the extent of any conflict,
  this article prevails over Chapter 552, Government Code.
         SECTION 2.  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 and to any prosecution initiated after the effective
  date of this Act. The prosecution of an offense committed before
  the effective date of this Act and the prosecution of an action
  initiated before the effective date of this Act is covered by the
  law in effect when the offense was committed or the prosecution
  commenced, 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 and a prosecution is commenced
  before the effective date of this Act if a complaint, information or
  indictment has been filed or obtained by the attorney representing
  the state and the defendant has been arrested for such offense
  before the effective date of this Act.
         SECTION 3.  This Act takes effect January 1, 2014.