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                                                                  H.B. No. 975

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