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  • Obligations Imposed by New Texas Criminal Discovery a Fair Trade
Obligations Imposed by New Texas Criminal Discovery a Fair Trade January 2, 2014

To date, the rules governing a criminal defendant’s right to discovery in Texas were draconian. Unless evidence was plainly “exculpatory or mitigating,” the first time a criminal defendant saw a police report was after the officer finished testifying during trial. Even in jurisdictions with an “open file” criminal discovery policy, prosecutors were reluctant to provide the defendant with copies of discovery documents containing sensitive and private information about alleged complainants and witnesses. Most times, if the disclosure occurred at all, it was accompanied with an agreement that sensitive information would not be revealed to the defendant or released to others outside the defense team. These agreements were a fair trade for the defendant, helped defense counsel provide zealous representation,  and fostered trusting relationships between worthy criminal justice adversaries.


In contrast to prior law and practice, the “Michael Morton Act” became effective in Texas on January 1, 2014. The new Texas criminal discovery statute now commands prosecutors to “open their file” to the defense and keep records of the evidence theyObligations Imposed by New Texas Criminal Discovery a Fair Trade disclose in attempts to reduce wrongful convictions. The new law requires disclosure of all police reports, witness statements, and any other evidence material to the prosecution. Significantly, the Act imposes an obligation on defense counsel to protect sensitive information contained therein.


Criminal defense lawyers are now obligated to redact certain information provided by prosecutors through discovery. Texas Code of Criminal Procedure, Article 39.14(e) states: “Except as provided by subsection (f), the defendant . . . may not disclose to a third party any documents, evidence, materials, or witness statements received from the State under this article [ . . .  ].” Subsection (f) states: “The attorney representing the defendant [. . .] may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow the person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth , and any bank account or other identifying numbers contained in the document or witness statement.”


These new Texas rules make criminal discovery for Bryan-College Station defense lawyers a fair trade for the defendant. The rules make information gathering transparent and thorough, even though dissemination of information is limited to only those who need to know. Importantly, our clients may not “need to know.” We criminal defense lawyers should be careful to act responsibly and abide by the new rules. This law has been a long-time coming. There was strong prosecution opposition to the law because sensitive information was placed at risk. We should also call to mind what the legislature gives, it can also take away. Let’s embrace the new system as a tool to settle cases and provide effective assistance of counsel. We have an important obligation to the new system and to its integrity.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


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New Law Permits Sealing of DWI Convictions

How to Defend Accusations of Sexual Abuse

The Importance of Open Discovery




4 thoughts on “Obligations Imposed by New Texas Criminal Discovery a Fair Trade

  1. This is a great improvement to the law. Now, if only the federal courts would do something similar.

    However, I don’t appreciate the part of the law that prohibits giving the defendant certain information, even though defendant’s attorney can be given the information. It’s the defendant who goes to jail or prison, not the defense attorney.

    I wonder if the defendant who acts pro se will be allowed to have the information that the attorney can’t disclose to the defendant. A pro se is (or should be) just as entitled to use this prohibited information to investigate his defense as does a represented defendant.’s attorney.

  2. Daniel:
    It appears the provisions requiring withholding information from the defendant were a necessary compromise with the prosecution forces in the legislature. Like I mentioned in the post, this was a small price to pay. In any case, I don’t see why a client needs to know the birth date or DL number of a witness, anyway. It’s also important to note, except for the sensitive personal information of a witness, the defendant is permitted to view the material, they just can’t have copies of the material. In the case of the pro se defendant, the discovery rules require the state to allow inspection of the documents, but not the “duplication” of the documents. The rules prohibiting disclosure to third parties applies equally to the defendant, as they do to defense counsel.

  3. Yikes, can’t believe reports were not tendered until after a witness had testified. This discovery “reform” seems to just be getting in line with the rest of the country. At least here in Illinois, discovery proceeds much how your new Texas law outlines. Defendants’ and their family will always want to take custody of the reports, but we are also expressly prohibited from giving them copies in Illinois. Everyone once in a while a judge can give us an order overriding the rules. If there are no civilian witnesses the chances go up that a judge will allow a Defendant to have copies. Really, don’t understand how things were working in Texas before this.

    • Sameul: yes, in Texas it was trial by fire prior to these changes. I believe Prosecutor’s were weary of all the bad press regarding wrongful convictions and exonerations. With the current discovery rules, it’s now the defense lawyer’s fault when their client is convicted. Anyway, thanks for your insight.

Stephen Gustitis