Law:Title 1. Code Of Criminal Procedure from Chapter 39. Depositions And Discovery (Texas)

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Chapter 39. Depositions And Discovery

Art. 39.01.  IN EXAMINING TRIAL. When an examination takes place in a criminal action before a magistrate, the State or the defendant may have the deposition of any witness taken by any officer authorized by this chapter.  The State or the defendant may not use the deposition for any purpose unless that party first acknowledges that the entire evidence or statement of the witness may be used for or against the defendant on the trial of the case, subject to all legal objections.  The deposition of a witness duly taken before an examining trial or a jury of inquest and reduced to writing and certified according to law where the defendant was present when that testimony was taken, and had the privilege afforded of cross-examining the witness, or taken at any prior trial of the defendant for the same offense, may be used by either the State or the defendant in the trial of the defendant's criminal case under the following circumstances:

When oath is made by the party using the deposition that the witness resides outside the State; or that since the witness's testimony was taken, the witness has died, or has removed beyond the limits of the State, or has been prevented from attending the court through the act or agency of the other party, or by the act or agency of any person whose object was to deprive the State or the defendant of the benefit of the testimony; or that by reason of age or bodily infirmity, that witness cannot attend.  When the testimony is sought to be used by the State, the oath may be made by any credible person.  When sought to be used by the defendant, the oath must be made by the defendant in person.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Amended by:

Acts 2005, 79th Leg., Ch. 1021, Sec. 1, eff. September 1, 2005.



Art. 39.02.  WITNESS DEPOSITIONS. Depositions of witnesses may be taken by either the state or the defendant.  When a party desires to take the deposition of a witness, the party shall file with the clerk of the court in which the case is pending an affidavit stating the facts necessary to constitute a good reason for taking the witness's deposition and an application to take the deposition.  On the filing of the affidavit and application, and after notice to the opposing party, the court shall hear the application and determine if good reason exists for taking the deposition.  The court shall base its determination and shall grant or deny the application on the facts made known at the hearing.  This provision is limited to the purposes stated in Article 39.01.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1741, ch. 659, Sec. 24, eff. Aug. 28, 1967.

Amended by:

Acts 2005, 79th Leg., Ch. 1021, Sec. 1, eff. September 1, 2005.



Art. 39.025.  DEPOSITIONS OF ELDERLY OR DISABLED PERSONS. (a) In this article:

(1)  "Disabled person" means a person with a disability as defined by Section 3, Americans with Disabilities Act (42 U.S.C. 12102).

(2)  "Elderly person" means a person 65 years of age or older.

(b)  The court shall order the attorney representing the state to take the deposition of an elderly or disabled person who is the alleged victim of or witness to an offense not later than the 60th day after the date on which the state files an application to take the deposition under Article 39.02.

(c)  The attorney representing the state and the defendant or the defendant's attorney may, by written agreement filed with the court, extend the deadline for the taking of the deposition.

(d)  The court shall grant any request by the attorney representing the state to extend the deadline for the taking of the deposition if a reason for the request is the unavailability, health, or well-being of the victim or witness.

(e)  The Texas Rules of Civil Procedure govern the taking of the deposition, except to the extent of any conflict with this code or applicable court rules adopted for criminal proceedings, in which event this code and the rules for criminal proceedings govern.  The attorney representing the state and the defendant or defendant's attorney may agree to modify the rules applicable to the deposition by written agreement filed with the court before the taking of the deposition.

(f)  If a defendant is unavailable to attend a deposition because the defendant is confined in a correctional facility, the court shall issue any orders or warrants necessary to secure the defendant's presence at the deposition.  The sheriff of the county in which a deposition under this subsection is to be taken shall provide a secure location for the taking of the deposition and sufficient law enforcement personnel to ensure the deposition is taken safely.  The state's application to take a deposition or notice of deposition is not required to include the identity of any law enforcement agents the sheriff assigns to the deposition and may not serve as a basis for the defendant to object to the taking of the deposition.

(g)  If a defendant is unavailable to attend a deposition for any reason other than confinement in a correctional facility, the defendant or defendant's attorney shall request a continuance from the court.  The court may grant the continuance if the defendant or defendant's attorney demonstrates good cause for the continuance and that the request is not brought for the purpose of delay or avoidance.  A defendant's failure to attend a deposition or request a continuance in accordance with this subsection constitutes a waiver of the defendant's right to be present at the deposition.

Added by Acts 2009, 81st Leg., R.S., Ch. 678, Sec. 1, eff. September 1, 2009.



Art. 39.03. OFFICERS WHO MAY TAKE THE DEPOSITION. Upon the filing of such an affidavit and application, the court shall appoint, order or designate one of the following persons before whom such deposition shall be taken:

1. A district judge.

2. A county judge.

3. A notary public.

4. A district clerk.

5. A county clerk.

Such order shall specifically name such person and the time when and place where such deposition shall be taken. Failure of a witness to respond thereto, shall be punishable by contempt by the court. Such deposition shall be oral or written, as the court shall direct.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1741, ch. 659, Sec. 25, eff. Aug. 28, 1967.



Art. 39.04. APPLICABILITY OF CIVIL RULES. The rules prescribed in civil cases for issuance of commissions, subpoenaing witnesses, taking the depositions of witnesses and all other formalities governing depositions shall, as to the manner and form of taking and returning the same and other formalities to the taking of the same, govern in criminal actions, when not in conflict with this Code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.05. OBJECTIONS. The rules of procedure as to objections in depositions in civil actions shall govern in criminal actions when not in conflict with this Code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.06. WRITTEN INTERROGATORIES. When any such deposition is to be taken by written interrogatories, such written interrogatories shall be filed with the clerk of the court, and a copy of the same served on all other parties or their counsel for the length of time and in the manner required for service of interrogatories in civil action, and the same procedure shall also be followed with reference to cross-interrogatories as that prescribed in civil actions.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.07. CERTIFICATE. Where depositions are taken under commission in criminal actions, the officer or officers taking the same shall certify that the person deposing is the identical person named in the commission; or, if they cannot certify to the identity of the witness, there shall be an affidavit of some person attached to the deposition proving the identity of such witness, and the officer or officers shall certify that the person making the affidavit is known to them.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1742, ch. 659, Sec. 26, eff. Aug. 28, 1967.



Art. 39.08. AUTHENTICATING THE DEPOSITION. The official seal and signature of the officer taking the deposition shall be attached to the certificate authenticating the deposition.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.09. NON-RESIDENT WITNESSES. Depositions of a witness residing out of the State may be taken before a judge or before a commissioner of deeds and depositions for this State, who resides within the State where the deposition is to be taken, or before a notary public of the place where such deposition is to be taken, or before any commissioned officer of the armed services or before any diplomatic or consular officer. The deposition of a non-resident witness who may be temporarily within the State, may be taken under the same rules which apply to the taking of depositions of other witnesses in the State.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.10. RETURN. In all cases the return of depositions may be made as provided in civil actions.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.11. WAIVER. The State and defense may agree upon a waiver of any formalities in the taking of a deposition other than that the taking of such deposition must be under oath.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.12. PREDICATE TO READ. Depositions taken in criminal actions shall not be read unless oath be made that the witness resides out of the State; or that since his deposition was taken, the witness has died; or that he has removed beyond the limits of the State; or that he has been prevented from attending the court through the act or agency of the defendant; or by the act or agency of any person whose object was to deprive the defendant of the benefit of the testimony; or that by reason of age or bodily infirmity, such witness cannot attend. When the deposition is sought to be used by the State, the oath may be made by any credible person. When sought to be used by the defendant, the oath shall be made by him in person.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.13. IMPEACHMENT. Nothing contained in the preceding Articles shall be construed as prohibiting the use of any such evidence for impeachment purposes under the rules of evidence heretofore existing at common law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.



Art. 39.14. DISCOVERY. (a) 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) 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.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


Amended by Acts 1999, 76th Leg., ch. 578, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 1019, Sec. 1, eff. June 18, 2005.

Acts 2009, 81st Leg., R.S., Ch. 276, Sec. 2, eff. September 1, 2009.



Art. 39.15.  DISCOVERY OF EVIDENCE THAT CONSTITUTES CHILD PORNOGRAPHY. (a) In the manner provided by this article, a court shall allow discovery under Article 39.14 of property or material that constitutes child pornography, as described by Section 43.26(a)(1), Penal Code.

(b)  Property or material described by Subsection (a) must remain in the care, custody, or control of the court or the state as provided by Article 38.45.

(c)  A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material described by Subsection (a), provided that the state makes the property or material reasonably available to the defendant.

(d)  For purposes of Subsection (c), property or material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial.

Added by Acts 2009, 81st Leg., R.S., Ch. 276, Sec. 3, eff. September 1, 2009.


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