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H.B. No. 975
AN ACT
relating to a deposition taken of a witness in a criminal action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 39.01 and 39.02, Code of Criminal
Procedure, are amended to read as follows:
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 [or officers named in this
Chapter]. The State or the defendant may [shall] not use the
deposition for any purpose unless that party [he] first
acknowledges [consent] that the entire evidence or statement of the
witness may be used for or against the defendant [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 that [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 the [such] defendant's criminal case under the following
circumstances:
When oath is made by the party using the deposition [same]
that the witness resides outside the State; or that since the
witness's [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 State or the defendant of the benefit of the
testimony; or that by reason of age or bodily infirmity, that [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 must [shall] be made by the
defendant [him] in person.
Art. 39.02. WITNESS DEPOSITIONS [FOR DEFENDANT].
Depositions of witnesses may be taken by either the state or the
defendant. When a party [the defendant] desires to take the
deposition of a witness, the party [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 witness's deposition [same,] and an
application to take the deposition [same]. On [Provided that upon]
the filing of the affidavit and [such] application, and after
notice to the opposing party [attorney for the state], the court
[courts] shall hear the application and determine if good reason
exists for taking the deposition. The court shall base its [Such]
determination and shall grant or deny the application [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]. This provision
is limited to the purposes stated in Article 39.01.
SECTION 2. This Act applies only to a criminal case in which
the indictment or information is presented to the court on or after
September 1, 2005. A criminal case in which the indictment or
information is presented to the court before September 1, 2005, is
governed by the law in effect when the indictment or information is
presented, and the former law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 975 was passed by the House on April
12, 2005, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 975 on May 27, 2005, by a non-record
vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 975 was passed by the Senate, with
amendments, on May 25, 2005, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor