2005 Texas Code of Criminal Procedure CHAPTER 39. DEPOSITIONS AND DISCOVERY

CODE OF CRIMINAL PROCEDURE

CHAPTER 39. DEPOSITIONS AND DISCOVERY


	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.  The State or the defendant may 
not use the deposition for any purpose unless that party first 
acknowledges that the entire evidence or statement of the witness 
may be used for or against the defendant 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 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 defendant's criminal 
case under the following circumstances:
	When oath is made by the party using the deposition that the 
witness resides outside the State;  or that since the witness's 
testimony was taken, the witness has died, or has removed beyond the 
limits of the State, or 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 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 be 
made by the defendant in person.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.             

Amended by Acts 2005, 79th Leg., ch. 1021, Sec. 1, eff. Sept. 1, 
2005.      


	Art. 39.02. WITNESS DEPOSITIONS.  Depositions of witnesses 
may be taken by either the state or the defendant.  When a party 
desires to take the deposition of a witness, the party shall 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 and an application to take the 
deposition. On the filing of the affidavit and application, and 
after notice to the opposing party, the court shall hear the 
application and determine if good reason exists for taking the 
deposition.  The court shall base its determination and shall grant 
or deny the application on the facts made known at the hearing. This 
provision is limited to the purposes stated in Article 39.01.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.  
Amended by Acts 1967, 60th Leg., p. 1741, ch. 659, Sec. 24, eff. 
Aug. 28, 1967.

Amended by Acts 2005, 79th Leg., ch. 1021, Sec. 1, eff. Sept. 1, 
2005.      


	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, eff. Jan. 1, 1966.  
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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.  
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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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, eff. Jan. 1, 1966.             


	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 shall 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, eff. Jan. 1, 1966.  
Amended by Acts 1999, 76th Leg., ch. 578, Sec. 1, eff. Sept. 1, 
1999.

Subsec. (a) amended by Acts 2005, 79th Leg., ch. 1019, Sec. 1, eff. 
June 18, 2005.