CODE OF CRIMINAL PROCEDURE
CHAPTER 39. DEPOSITIONS AND DISCOVERY
Art. 39.01. [734] [817] [797] In examining trial
When an examination takes place in a criminal action before a
magistrate, the defendant may have the deposition of any witness
taken by any officer or officers named in this Chapter. The
defendant shall not use the deposition for any purpose unless he
first consent that the entire evidence or statement of the witness
may be used against him by the State 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 such 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 such defendant's criminal
case under the following circumstances:
When oath is made by the party using the same that the witness
resides outside the State; or that since his testimony 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 other party, 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 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 shall be
made by him in person.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 39.02. [735] [818] [798] Depositions for defendant
Depositions of witnesses may be taken by the defendant. When the
defendant desires to take the deposition of a witness, he shall, by
himself or counsel, 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 same, and an application to
take the same. Provided that upon the filing of such application,
and after notice to the attorney for the state, the courts shall
hear the application and determine if good reason exists for taking
the deposition. Such determination shall be based on the facts made
known at the hearing and the court, in its judgment, shall grant or
deny the application on such facts.
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.
Art. 39.03. [736, 737, 738] [819, 820, 821] [799, 800, 801] 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. [739] [822] [802] 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. [740] [823] [803] 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. [742] [825] [805] 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. [743] [826] [806] 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. [744] [827] [807] 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. [737, 738] [820, 821] [800, 801] 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. [748] [831] [811] 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. [749] [832-833] 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, the court in which an action is
pending may 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.
