Bill Text: TX HB311 | 2023-2024 | 88th Legislature | Introduced
Bill Title: Relating to the state's continuing duty to disclose exculpatory, impeachment, or mitigating evidence in a criminal case and prohibited retaliation against local assistant prosecutors for discharging that duty.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2023-03-21 - Left pending in subcommittee [HB311 Detail]
Download: Texas-2023-HB311-Introduced.html
88R116 TSS-F | ||
By: Thompson of Harris | H.B. No. 311 |
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relating to the state's continuing duty to disclose exculpatory, | ||
impeachment, or mitigating evidence in a criminal case and | ||
prohibited retaliation against local assistant prosecutors for | ||
discharging that duty. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Article 39.14(k), Code of Criminal Procedure, is | ||
transferred to Chapter 2, Code of Criminal Procedure, redesignated | ||
as Article 2.026, Code of Criminal Procedure, and amended to read as | ||
follows: | ||
Art. 2.026. CONTINUING DUTY OF STATE TO DISCLOSE | ||
EXCULPATORY, IMPEACHMENT, OR MITIGATING EVIDENCE. Regardless of | ||
the date the applicable offense was committed, if [ |
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time before, during, or after trial or plea negotiation the state | ||
discovers any exculpatory, impeachment, or mitigating [ |
||
document, item, or information in the possession, custody, or | ||
control of the state that tends to negate the guilt of the defendant | ||
or would tend to reduce the punishment for the offense charged | ||
[ |
||
promptly disclose the existence of the document, item, or | ||
information to the defendant or the court. | ||
SECTION 2. Chapter 41, Government Code, is amended by | ||
adding Subchapter B-1 to read as follows: | ||
SUBCHAPTER B-1. PROTECTION OF ASSISTANT PROSECUTORS FOR DISCLOSING | ||
EVIDENCE FAVORABLE TO DEFENDANT | ||
Sec. 41.151. DEFINITIONS. In this subchapter: | ||
(1) "Assistant prosecutor" means an assistant | ||
prosecuting attorney employed by a prosecuting attorney. | ||
(2) "Personnel action" means an action taken by an | ||
employer that affects an employee's compensation, promotion, | ||
demotion, transfer, work assignment, or performance evaluation. | ||
(3) "Prosecuting attorney" means a county attorney, | ||
district attorney, or criminal district attorney. | ||
Sec. 41.152. PROHIBITED RETALIATION AGAINST ASSISTANT | ||
PROSECUTOR FOR CERTAIN ACTS. A prosecuting attorney may not | ||
suspend or terminate the employment of, or take other adverse | ||
personnel action against, an assistant prosecutor based on the | ||
assistant prosecutor: | ||
(1) disclosing to the defendant evidence the state is | ||
required to disclose under Article 2.026 or 39.14(h), Code of | ||
Criminal Procedure, or under another law requiring disclosure of | ||
evidence favorable to the defendant; or | ||
(2) after the prosecuting attorney or another | ||
supervising assistant prosecutor directs the assistant prosecutor | ||
to withhold evidence from the defendant in violation of Article | ||
2.026 or 39.14(h), Code of Criminal Procedure, or another law | ||
requiring disclosure of evidence favorable to the defendant: | ||
(A) refusing to withhold the evidence; or | ||
(B) presenting the evidence to the trial court | ||
for the underlying criminal case in accordance with Section 41.158. | ||
Sec. 41.153. RELIEF AVAILABLE TO ASSISTANT PROSECUTOR. (a) | ||
An assistant prosecutor whose employment is suspended or terminated | ||
or who is subjected to an adverse personnel action in violation of | ||
Section 41.152 may bring an action against the prosecuting attorney | ||
for: | ||
(1) injunctive relief, including: | ||
(A) reinstatement to the assistant prosecutor's | ||
former position or an equivalent position; and | ||
(B) reinstatement of fringe benefits and | ||
seniority rights lost because of the suspension or termination; | ||
(2) compensatory damages, including compensation for | ||
wages lost during the period of suspension or termination; | ||
(3) court costs; and | ||
(4) reasonable attorney's fees. | ||
(b) In an action brought under Subsection (a), an assistant | ||
prosecutor may not recover compensatory damages for future | ||
pecuniary losses, emotional pain, suffering, inconvenience, mental | ||
anguish, loss of enjoyment of life, and other nonpecuniary losses | ||
in an amount that exceeds: | ||
(1) $50,000, if the county or counties where the | ||
prosecuting attorney has jurisdiction have combined fewer than 101 | ||
employees for at least 20 calendar weeks in the calendar year in | ||
which the action is brought or in the preceding calendar year; | ||
(2) $100,000, if the county or counties where the | ||
prosecuting attorney has jurisdiction have combined more than 100 | ||
and fewer than 201 employees for at least 20 calendar weeks in the | ||
calendar year in which the action is brought or in the preceding | ||
calendar year; | ||
(3) $200,000, if the county or counties where the | ||
prosecuting attorney has jurisdiction have combined more than 200 | ||
and fewer than 501 employees for at least 20 calendar weeks in the | ||
calendar year in which the action is brought or in the preceding | ||
calendar year; and | ||
(4) $250,000, if the county or counties where the | ||
prosecuting attorney has jurisdiction have combined more than 500 | ||
employees for at least 20 calendar weeks in the calendar year in | ||
which the action is brought or in the preceding calendar year. | ||
(c) If more than one subdivision of Subsection (b) applies | ||
to the county or counties where the prosecuting attorney has | ||
jurisdiction, the amount of monetary damages that may be recovered | ||
from the prosecuting attorney in an action brought under this | ||
subchapter is governed by the provision that provides the greatest | ||
damage award. | ||
Sec. 41.154. WAIVER OF IMMUNITY. Sovereign and | ||
governmental immunity to suit and liability is waived and abolished | ||
to the extent of liability created by this subchapter. | ||
Sec. 41.155. BURDEN OF PROOF; AFFIRMATIVE DEFENSE. (a) An | ||
assistant prosecutor has the burden of proof for an action brought | ||
under this subchapter. | ||
(b) It is an affirmative defense to an action brought under | ||
this subchapter that the prosecuting attorney would have taken | ||
against the assistant prosecutor the adverse personnel action that | ||
is the basis of the action based solely on information, | ||
observation, or evidence unrelated to the fact that the assistant | ||
prosecutor engaged in an act described by Section 41.152. | ||
Sec. 41.156. LIMITATION PERIOD. An assistant prosecutor | ||
who seeks relief under this subchapter must bring the action not | ||
later than the 90th day after the date the adverse personnel action | ||
that allegedly violates Section 41.152 is taken. | ||
Sec. 41.157. VENUE. An action brought under this | ||
subchapter must be brought in a district court: | ||
(1) of the county in which the cause of action arises; | ||
or | ||
(2) of any county in the same administrative judicial | ||
region as the county described by Subdivision (1). | ||
Sec. 41.158. ASSISTANT PROSECUTOR MAY SEEK COURT DECISION | ||
ON REQUIRED DISCLOSURE; COURT'S DUTY TO ISSUE DECISION. (a) An | ||
assistant prosecutor who is directed by the prosecuting attorney or | ||
another supervising assistant prosecutor to withhold evidence from | ||
the defendant in violation of Article 2.026 or 39.14(h), Code of | ||
Criminal Procedure, or in violation of another law requiring the | ||
disclosure of evidence favorable to the defendant, may present the | ||
evidence to the trial court for the underlying criminal case, | ||
without notice to the defendant or, if applicable, defendant's | ||
counsel, to obtain a decision on whether disclosure is required | ||
under Article 2.026 or 39.14(h) or similar law. | ||
(b) The trial court shall promptly issue a written decision | ||
to the presenting assistant prosecutor on whether the evidence | ||
presented must be disclosed under a law described by Subsection | ||
(a). | ||
Sec. 41.159. PREREQUISITES TO BRINGING ACTION. (a) Except | ||
as provided by Subsection (b), an assistant prosecutor may not | ||
bring an action under this subchapter unless the assistant | ||
prosecutor: | ||
(1) presents the evidence to the trial court in | ||
accordance with Section 41.158; and | ||
(2) provides to the prosecuting attorney the court's | ||
decision issued under that section. | ||
(b) Subsection (a) does not apply if an assistant prosecutor | ||
who engaged in an act described by Section 41.152 establishes in an | ||
action brought under this subchapter: | ||
(1) the assistant prosecutor did not have a reasonable | ||
opportunity to present the evidence to the trial court in | ||
accordance with Section 41.158 or provide the decision as required | ||
by Subsection (a)(2) before the adverse personnel action was taken; | ||
or | ||
(2) good cause for failure to present the evidence to | ||
the trial court or provide the decision. | ||
Sec. 41.160. NONAPPLICABILITY OF OTHER LAW. Chapter 102, | ||
Civil Practice and Remedies Code, does not apply to an action | ||
brought under this subchapter. | ||
SECTION 3. (a) Subject to Subsection (b) of this section, | ||
Subchapter B-1, Chapter 41, Government Code, as added by this Act, | ||
applies only to an act described by Section 41.152, Government | ||
Code, as added by this Act, that occurs on or after the effective | ||
date of this Act. An act that occurs before that date is governed by | ||
the law in effect on the date the act occurred, and that law is | ||
continued in effect for that purpose. | ||
(b) Notwithstanding Section 41.156, Government Code, as | ||
added by this Act, an assistant prosecuting attorney employed by a | ||
county attorney, district attorney, or criminal district attorney | ||
may bring an action under Subchapter B-1, Chapter 41, Government | ||
Code, as added by this Act, for an act described by Section 41.152, | ||
Government Code, as added by this Act, that occurred before the | ||
effective date of this Act, if the attorney brings the action not | ||
later than the 90th day after the effective date of this Act, | ||
regardless of whether the attorney: | ||
(1) has met the prerequisites to bringing an action | ||
under Section 41.159, Government Code, as added by this Act; or | ||
(2) has brought an action claiming that an act | ||
described by Section 41.152, Government Code, as added by this Act, | ||
led to the attorney's suspension or termination, or otherwise | ||
affected the compensation, promotion, demotion, transfer, work | ||
assignment, or performance evaluation of the attorney before the | ||
effective date of this Act that has been dismissed. | ||
SECTION 4. This Act takes effect September 1, 2023. |