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  83R904 GCB-D
 
  By: Ellis S.B. No. 91
 
 
 
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, as soon as practicable
  after receiving a timely request from 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 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
  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, 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 physical or documentary 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 the witnesses called to
  present evidence under Rules 702, 703, and 705, Texas Rules of
  Evidence, and the names of all other witnesses the attorney
  representing the state intends to call at the trial;
               (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,
  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)  If the defendant gives notice of a defense under Section
  2(b), 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 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, 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 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 physical or documentary 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 the witnesses called to
  present evidence under Rules 702, 703, and 705, Texas Rules of
  Evidence, and the names of all other witnesses, other than the
  defendant, the defendant intends to call at the trial; 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 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 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 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 subsection does not limit any law enforcement
  agency or prosecutor's office 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 is:
               (1)  recorded proceedings of a grand jury, except as
  provided by Rule 615, Texas Rules of Evidence;
               (2)  a work product other than an offense report by law
  enforcement personnel, including a report, memorandum, or other
  internal document of the attorney representing the state, the
  attorney representing the defendant, or an investigator or other
  agent of the attorney representing the state or 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 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'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'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 Rule 615, Texas Rules of Evidence, is governed by that rule.
         (c)  Notwithstanding any other provision of this article,
  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 information related to the victim of an
  offense that is listed under:
               (1)  Section 3g, Article 42.12; or
               (2)  Article 62.001(5).
         Sec. 6.  PROTECTIVE ORDERS.  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.
         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:
               (1)  ensure that the parties are fully aware of their
  respective disclosure obligations under this article; and
               (2)  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
  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)  On a showing that a party has not made a good faith
  effort to comply 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 use of a defense
  or the introduction of 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
  introduction of evidence 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 or the
  ability to adduce rebuttal evidence.  The court may not dismiss a
  charge under Subsection (b) unless authorized or required to do so
  by other law.
         (d)  The failure of the attorney representing the state or
  the defendant to comply with this article is not a ground for a
  court to set aside the conviction or sentence of the defendant,
  unless the court's action is authorized or required by other law.
         Sec. 10.  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.
         (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.
         Sec. 11.  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, 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 may not be made available to the public.
         Sec. 12.  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. 13.  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.  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 3.  This Act takes effect September 1, 2013.