CHAPTER 39. DEPOSITIONS AND DISCOVERY - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

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.