bill creating reciprocal discovery in Texas criminal cases

The text as introduced · 1,484 words

89R8651 JRR-D

By: Creighton
S.B. No. 2797

A BILL TO BE ENTITLED

AN ACT

relating to discovery requirements in a criminal case.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Article 39.14, Code of Criminal

Procedure, is amended to read as follows:

Art. 39.14. DISCOVERY : DISCLOSURE BY STATE .

SECTION 2. Chapter 39, Code of Criminal Procedure, is

amended by adding Article 39.142 to read as follows:

Art. 39.142. DISCOVERY: DISCLOSURE BY DEFENDANT. (a)

Subject to Subsection (b), on the defendant's request for discovery

under Article 39.14(a) or after receiving the initial disclosures

under that subsection 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) a written list of all witnesses the defendant

reasonably expects to call during trial;

(2) 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;

(3) any physical or documentary evidence that the

defendant intends to use in the defendant's case in chief and, on a

showing of relevance by the attorney representing the state, the

opportunity to test that evidence;

(4) the locations of buildings and places concerning

which the defendant intends to offer evidence and permission by the

defendant for photographing; and

(5) any report produced by or for an expert witness

disclosed by the defendant under Article 39.145(a) and the

underlying data or facts supporting the opinion of the expert in

that particular case.

(b) The defendant shall make the disclosures required under

Subsection (a) not later than the later of:

(1) the 30th day before the date that jury selection is

scheduled to begin, or in a trial without a jury, the presentation

of evidence is scheduled to begin; or

(2) as soon as practicable after the date the

defendant receives a disclosure from the state under Article

39.14(a).

(c) Following the disclosure of a witness's name under

Subsection (a)(1), the attorney representing the state may request

the court to order, on a showing of good cause, the disclosure of

the last known address for the witness.

(d) 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 attorney representing the state with written notice

that the defendant may assert the statutory defense or affirmative

defense. Except as provided by Subsection (e), the defendant shall

provide the notice required by this subsection not later than the

later of:

(1) the 30th day before the date that jury selection is

scheduled to begin, or in a trial without a jury, the presentation

of evidence is scheduled to begin; or

(2) as soon as practicable after the date the

defendant receives a disclosure from the state under Article

39.14(a) to which the statutory defense or affirmative defense is

responsive.

(e) If the state amends the information or indictment or

files a new information or obtains a new indictment after the 30th

day before the date that jury selection is scheduled to begin, or in

a trial without a jury, the presentation of evidence is scheduled to

begin, the court shall allow the defendant not less than 10 days

after being served with an amended or new information or

indictment, or after having received actual notice of the amendment

in open court, to amend or supplement an existing notice provided

under Subsection (d) or to provide an initial notice under

Subsection (d).

(f) Any notice provided by the defendant under Subsection

(d) or (e) is for purposes of discovery only and is not admissible

at trial.

(g) If requested by the attorney representing the state in a

written request in which the attorney representing the state

provides the defendant with the specific date, time, and place of

the alleged offense, a defendant who will assert an alibi shall

provide the attorney representing the state, not later than the

30th day before the date that jury selection is scheduled to begin,

or in a trial without a jury, the presentation of evidence is

scheduled to begin, a written response that includes:

(1) the location at which the defendant claims to have

been at the time of the alleged offense; and

(2) the names of the witnesses the defendant intends

to use to establish the alibi.

(h) Notwithstanding any other provision of this article,

the defendant is not required to disclose under this article 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 or

defense of the case or privileged under the Texas Rules of Evidence,

an express statutory provision, the Texas Constitution, or the

United States Constitution, unless the document or information in

the document is intended to be offered at trial.

(i) If at any time before or during the trial, the defendant

discovers any additional document, item, or information required to

be disclosed under Subsection (a), (d), (e), or (g), the defendant

shall promptly disclose the existence of the document, item, or

information to the attorney representing the state.

(j) After a hearing and on a showing of good cause, a court

may order the state to pay reasonable costs related to discovery

under this article.

(k) If the court finds that a defendant has failed to comply

with any of the provisions of Subsection (a), the court may:

(1) order and compel the defendant to provide the

required discovery or disclosure;

(2) grant a continuance;

(3) issue a protective order; or

(4) take other appropriate action as necessary under

the circumstances to accomplish the purposes of the required

discovery or disclosure.

SECTION 3. Articles 39.14(b), (g), and (n), Code of

Criminal Procedure, are redesignated as Article 39.145, Code of

Criminal Procedure, and amended to read as follows:

Art. 39.145. DISCOVERY: ADDITIONAL PROVISIONS APPLICABLE

TO DISCLOSURES BY STATE OR DEFENDANT. (a) [ (b) ] On a party's

request made not later than the 30th day before the date that jury

selection in the trial is scheduled to begin or, in a trial without

a jury, the presentation of evidence is scheduled to begin, the

party receiving the request shall disclose to the requesting party

the name and address of each person the disclosing party may use at

trial to present evidence under Rules 702, 703, and 705, Texas Rules

of Evidence. Except as otherwise provided by this subsection, the

disclosure must be made in writing in hard copy form or by

electronic means not later than the 20th day before the date that

jury selection in the trial is scheduled to begin or, in a trial

without a jury, the presentation of evidence is scheduled to begin.

On motion of a party and on notice to the other parties, the court

may order an earlier time at which one or more of the other parties

must make the disclosure to the requesting party.

(b) [ (g) ] Nothing in Articles 39.14 and 39.142 [ this

article ] shall be interpreted to limit an attorney's ability to

communicate regarding his or her case within the Texas Disciplinary

Rules of Professional Conduct, except for the communication of

information identifying any victim or witness, including name,

except as provided in Articles 39.14(e) [ Subsections (e) ] and (f),

address, telephone number, driver's license number, social

security number, date of birth, and bank account information or any

information that by reference would make it possible to identify a

victim or a witness. Nothing in this subsection shall prohibit the

disclosure of identifying information to an administrative, law

enforcement, regulatory, or licensing agency for the purposes of

making a good faith complaint.

(c) Articles 39.14 and 39.142 do [ (n) This article does ]

not prohibit the parties from agreeing to discovery and

documentation requirements equal to or greater than those required

under those articles [ this article ].

SECTION 4. The changes in law made by this Act apply only to

the prosecution of an offense committed on or after September 1,

2025. The prosecution of an offense committed before September 1,

2025, is governed by the law in effect on the date the offense was

committed, and the former law is continued in effect for that

purpose. For purposes of this section, an offense is committed

before September 1, 2025, if any element of the offense occurs

before that date.

SECTION 5. This Act takes effect immediately if it receives

a vote of two-thirds of all the members elected to each house, as

provided by Section 39, Article III, Texas Constitution. If this

Act does not receive the vote necessary for immediate effect, this

Act takes effect September 1, 2025.