SB2797 - Relating to discovery requirements in a criminal case.

      By: Creighton  S.B. No. 2797          (In the Senate - Filed March 14, 2025; April 3, 2025, read   first time and referred to Committee on Criminal Justice;   April 16, 2025, reported adversely, with favorable Committee   Substitute by the following vote:  Yeas 5, Nays 2; April 16, 2025,   sent to printer.) Click here to see the committee vote     COMMITTEE SUBSTITUTE FOR S.B. No. 2797 By:  Flores     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.  Article 39.14, Code of Criminal Procedure, is   amended by adding Subsection (h-2) to read as follows:           (h-2)     If a defendant who will assert an alibi provides the   attorney representing the state a written response regarding the   alibi under Article 39.142(g), the attorney representing the state   shall provide the defendant with a written notice stating the name   of each witness the state intends to use to rebut the alibi not   later than the 10th 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.          SECTION 3.  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 4.  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 5.  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 6.  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.     * * * * *