Texas SB 91—The Discovery Bill

Texas Senate Bill 91 would provide for formal discovery in criminal cases, both from the State to the defense and from the defense to the State.

Texas Defender Service, which litigates capital cases, has come out in favor of this excrescence. Their reasoning is that, since there are District Attorneys who require waivers of Brady and other rights before they show their cards to counsel for defendants whom they have accused, or who don’t show their cards at all, a statutory duty to provide discovery is required. In order to bring light to those benighted Bradleyian backwaters of due process, TDS is willing to compromise. The notion is appealing—had Michael Morton’s lawyers been provided with discovery, he might not have spent a quarter-century in prison—but the compromise goes much, much too far.

The six most populous counties in Texas—Harris, Dallas, Tarrant, Bexar, Travis, and El Paso—account for a little over half the felony charges filed in the state. All of these counties—and many others—have open-file policies. Defendants in all of those counties will lose a great deal with “reciprocal” discovery.

What will they—as well as defendants in the backwaters—lose? Here’s my lawyer, Troy McKinney’s take on it:

This proposed legislation would be a HUGE change in the way criminal cases are litigated in Texas. It is full of all kinds of traps, including contempt for a lawyer who does not comply. Who do we think is most often going to get held in contempt? Hint: it ain’t going to be prosecutors.

This legislation will also prevent defense lawyers from sharing discovery (“information and witness statements”) with each other in cases involving similar issues or witnesses, but will likely not so prevent prosecutors from doing so since they are all in the same office.

This legislation would not require the state to turn over anything obtained or discovered by a DA investigator.

This legislation requires notice by the defense of any statutory defense not later than 30 days before trial.

This legislation allows the state to obtain, post indictment, “non testimonial” evidence from a defendant with only a court order (and without stating any standard for that order). So much for the constitutional requirement for probable cause and a search warrant.

This legislation allows a court to disallow a defense, but has no sanction limiting the state’s ability to assert a claim and expressly prohibits dismissal for discovery violations.

This legislation does not expressly require the state to disclose evidence that may mitigate punishment.

This legislation limits exculpatory and impeachment evidence to that which is “material” to the defendant’s guilt or punishment. Thus, exculpatory and impeachment evidence that only relates to an extraneous offense or a witnesses credibility may not be covered.

This legislation requires names and addresses of experts, but only names of witnesses. It lets the state hide witnesses it wants to hide.

This legislation requires disclosure of information related to an “alibi” defense, even though there is no such defense under Texas law.

This legislation requires disclosure of the place where the D alleges to have been at the time of the alleged offense, even though there is no requirement under Texas law for the state to specify the date, time, or location of the alleged offense. In some cases, there will not be any question about the date and place of the offense. But, anyone who has handled child sexual assault cases knows that the true date, place and time not only need not be pled, but are often uncertain, and there is certainly no requirement for the state to disclose the actual date, place, and time they intend to rely on at trial. Guess those defendants now get deprived of an alibi “defense.”

If the offense is a 3g offense, the state gets to excise “any information related to the victim” of the alleged offense. I’d bet that a creative prosecutor would interpret this to include the version of the alleged victim as well as any other information “related” to the victim.

Only get two to three weeks between the last setting and a trial setting? Too bad since you have already missed some of the 30 days deadlines. The legislation only requires a court to hold a discovery conference not later than 10 days before trial.

If your disclosure is “untimely” the judge gets to tell the jury that your disclosure was untimely.

This legislation only requires the state to disclose “any plea agreement, grant of immunity, or other agreement for testimony issued by the attorney representing the state in connection with the case.” It does not require disclosure of any other benefit promised to or conferred upon any witness for the state. Since it only requires disclosure of an “agreement for testimony,” promised benefits that do not amount to a plea agreement or immunity are not covered. Finally, it is limited only to promises made by the prosecutor, not by anyone else.

This legislation is a mess. It will materially change and adversely affect the way we are required to defend our clients. We should all oppose it. It should not even be a hard call.

Bottom line: those who think that this will in some way, much less significantly, help us and our clients are, in my opinion, and being as nice as I can about it, seriously mistaken. This would be the most detrimental legislative action, as it relates to our defense of our clients, in the last 30+ years, if not the last century. It will give the state even more advantages than they already have and will result in the conviction of many more of our clients — innocent and guilty alike.

In my time practicing law, I’ve gone from being allowed to handwrite OR notes…to being allowed to type them (with a prosecutor clucking at me not to type them verbatim)…to receiving copies. 

Even Williamson and Collin Counties have shooed away the Roaches (and the Bradleys) and, I think, adopted open-file policies.


Why did Johnny Holmes and Chuck Rosenthal have an open-file policy? Why did Pat Lykos provide the defense with copies of offense reports? Why is Mike Anderson working to make discovery available to defense lawyers online? Do they do it out of the kindness of their hearts? Of course not. They do it because they know that it’s fair—part of their prosecutorial duty, to try to ensure that justice is done—and because they know that if they play hide-the-ball with their evidence the accused is less likely to plead guilty.

Even in offices with open-file policies there are outliers—prosecutors who conceal information, even exculpatory information, from the accused. SB91 would provide no more of a solution to this problem than Brady and its progeny have: a prosecutor who would violate Brady would also violate SB91.

There are still elected DAs whose feelings of inadequacy in the rest of their lives lead them to win at all costs in the courtroom. They still play hide-the-ball with people’s lives. The legislature can’t make them go to therapy; it can rewrite the rules to force them to play fair. It doesn’t have to gut the defense function to do so.

12 responses to “Texas SB 91—The Discovery Bill”

  1. It’s fine to critique the bill, but foolhardy simply to refuse to negotiate, which seems to be TCDLA’s stance. The truth is there are still plenty of places without open files (e.g., Smith, McLennan) and those that do have informal policies suffer no consequences if they fail to abide by them. Right now, thanks to what’s happened in Williamson County, etc., the defense bar for once has leverage to change the bill if it doesn’t fritter it away with self-congratulatory navel gazing. We’re just at the beginning of the process. Trying to get the bill amended to address the listed concerns would still give you the opportunity to oppose it later if the other side wouldn’t budge. But pretending as some have that the end of the world is nigh if reciprocal discovery passes is hard to swallow given that nearly every other state and the feds all have some version of it.

    Do you find reciprocal discovery a hindrance in your federal cases? If not, what’s the difference?

    • Smith County HAS an open file policy and has had for years. The open file policy was adopted under DA Jack Skeen who was considered one of the toughest prosecutors in the state. However, he also realized the benefit of disclosing the state’s evidence results in early pleas and fairer settlements.

      the ills of 1986 are not the ills of 2013 and enlightened prosecutors have realized that it is in their interests to have open file policies.

      This legislation is not needed to force something that is developing so that open file is not the rule and not the exception.

      Bobby Mims
      Criminal Defense Lawyer Tyler, Smith County, Texas

  2. As I said before, I think you’re relying too much on the good will of elected prosecutors in your support of “open file” policies. We have them too, here. They mean different things to different prosecutors. None of these “reciprocal discovery” “traps” have hampered my representation of my clients in the slightest.

    You may be right that it may be limiting in some aspects, but it certainly provides for far more than you were mandated to have so far and there’s no restriction in filing motions for the rest.

    I dunno, just seems a bit dramatic to me.

  3. Grits, we actually have open file discovery in McLennan. And in fact, it just got open-er!!! Last week, Abel Reyna decided to start giving us photo copies of everything, including pre-indictment cases. I’m not saying that I agree or disagree with your post on this thread…I only seek to give you a little updated news. I love reading your blog!

    • You are also incorrect about Smith County. Per Bobby Mims, Smith County has an open-file policy [edit: and has for several years]. The trend is toward prosecutors voluntarily opening their files, and for good reason.

      This makes me wonder whether those who support SB 91 are also misinformed about what is happening on the ground.

      • The supporters of this bill are a few capital defenders, some academics and prosecutors. This is a bad bill and does nothing for the criminal defendant. These reciprocal discovery bills mandating discovery of defense witnesses and their statements will result in more wrongful convictions rather than fewer.

        When the DA’s investigator reads the defendant’s witness statement then the next call will be to the defense lawyer that his witness is gone!

        The open file policy is now the rule and not the exception in Texas.

        This will be a bad law and its supporters are very uninformed on its affect on the citizen accused.

        Bobby Mims

  4. So, I may be unclear, but this looks like an unqualified victory for defendants.

    The “discovery” from the prosecutor’s side seems to be contrary to the 5th ammendment and the 6th ammendment right to counsel (which IIRC includes confidentiality?), and so will collapse. That leaves only a statutory requirement for prosecutors to disclose. That’s good, right?

    • You may try to assert the 5th Amendment but there is no privilege in defense witness statements. You might assert work product but the witness belongs to no one so that won’t work. If any reciprocal discovery bill passes it will be a boon to prosecutors.

      So far as Federal reciprocal discovery is concerned it does not compare. The Federal system is a plea mill but the mill is screened by very strict DOJ guidelines. AUSA guidelines require a much higher standard of proof before bringing an indictment. Such results in fewer trials but also fewer indictment. The DOJ guidelines for Federal prosecutors are much higher than those of 254 Texas county prosecutors. There is not a legitimate comparison.

      Bobby Mims

  5. This bill grew out of concern over what happened to Michael Morton. In case anyone just came out of a coma: Mr Morton WAS ROBBED OF 25 YEARS OF HIS LIFE BY STATE PROSECUTORS!



    Why in God’s name should the above FACTS ever lead to any legislation requiring the Defense to do anything???? ????!?? ( that could only happen in a state where the legislators thought it ok for innocent good citizens to be robbed of their liberty)


    If the EVIL THAT BEFELL MR MORTON is to give rise to any legislation, that LEGISLATION SHOULD BE DIRECTED SQUARELY AT PROSECUTORS who would engage in the evil
    Conduct Seen Here.

    Senator Whitmire is on the right track creating laws that allow for the grieving of these kinds of prosecutors. Let’s hope the law is never needed. But as Woodrow F. Call said, ” Better to have it and not need it, then to need it and not have it”

    We must not trivialize this Horror if we truly intend to try to stop it. The only way to try to stop it from recurring is to pass two laws and kill this Reciprical discovery bill.

    Unless we want another innocent man to be robbed of his life by unscrupulous prosecutors we need to pass
    1. A law that requires Prosecutors to furnish the Defense with police reports & witness statements In every county in this State. This matter is TOO IMPORTANT TO LEAVE TO THE DISCRETION OF ANY SINGLE DA. If The Morton Case taught us nothing else, it better have taught us that.

    2. We need a law that protects all of us from Criminals who have the authority of a prosecutor.
    It hopefully will never be needed, but it will serve as a powerful deterrent to any shady prosecutor whose considering violating the law to obtain the conviction of an innocent man.

    We need a law that says that it is illegal for any prosecutor to hid or manufacture evidence that leads to the conviction of an innocent man.
    I ask you in the name of all who laid down their lives so that we might be free, how We Can Demand Anything Less.

    I am a Texan. I Demand the State Legislature protect us from “Criminal prosecutors”. Pass these three laws and protect us. Good, law-abiding prosecutors should continue doing there jobs. We need them. But Morton has taught us that we must have these protections from ” criminal prosecutors”. Mr Morton paid too steep a price for the Legislature not to act. The actions must be to protect us from the evil that befell Mr Morton. Anything less is a betrayal of Mr Morton & his family.

    Robert Fickman

  6. Mr. B., out of all of those above Mr. Fickman’s awesome comment & plausible solution deserves immediate considerations for not only a further detailed discussion, it begs for a DP Posting of its very own. Grits, got one and he only asked a comparison question & I’m still confused as to if he supported the bill or not. Thanks.

    Note: Senator Ellis & Company has sold out the Innocence Project and probably needs to start wearing cargo pants with all of those folks in his pockets.

    *If this bullshit passes, I’m calling on Texas Hold ’em rules to be changed to – Players must show their cards to the Player on their right and Dealers have to wink when they have 17. Lawn Darts Rules are next. I’m also from the great state of confusion and not very proud of it due to crapola like this being created much less condoned.

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