Being able to speak — and be heard — safely

No Surprise Expert Witnesses

Requiring each side in a Texas criminal case to disclose its expert witnesses' actual opinions — in a signed statement, before trial — with real consequences for springing them from the witness stand.

DRAFT — not filed  Proposed bill for the 90th Texas Legislature · Amends Texas Code of Criminal Procedure Article 39.14(b) · Last updated November 5, 2026

The problem

Texas law already requires each side in a criminal case to identify its expert witnesses before trial — but Article 39.14(b) of the Code of Criminal Procedure requires only the expert's name and address. Not the expert's opinions. Not the bases for them. Not the expert's qualifications, publications, or prior testimony. A prosecutor or defence lawyer can do everything the statute asks and still hear what the other side's expert actually thinks for the first time from the witness stand — when a serious challenge is nearly impossible to mount, because testing expert testimony takes literature, data, and often a rebuttal expert. Article 39.14 also contains no sanctions subsection at all: there is no codified consequence for late or empty expert disclosure by either side.

In Cayley Mandadi's first trial, the defence presented expert theories the prosecution could not test in real time, and her father — Lawrence Baitland, a man with a biomedical background — texted rebuttal questions to the prosecutor from the gallery, mid-trial. That is what the current statute permits to happen.

What the bill does

The bill amends Article 39.14(b) — expert witnesses only — and:

• requires a signed statement for each testifying expert: a complete statement of all opinions the party will elicit, the bases and reasons for them, and the expert's qualifications, including publications from the previous 10 years and cases in which the expert testified in the previous four years;
• adds a duty to supplement the disclosure promptly if it proves incomplete or incorrect in a material respect;
• applies the identical standard to the State's experts;
• covers both the guilt and punishment phases, with phase-appropriate timing;
• creates a graduated sanctions ladder: an order to comply, then a continuance, then — as a middle sanction — the court's option of a neutral jury instruction permitting the jury to weigh a material failure to provide required discovery, with exclusion of the expert only as the last resort.

The bill works through the trigger Texas law already has. Article 39.14(b)'s disclosure duty attaches to experts a party may use at trial — the bill keeps that same trigger and deepens what must be disclosed for that same set of experts. It does not widen the set: no expert is swept in who is not already covered by the existing duty today.

Why it works

The content standard is modelled on the federal rule — Federal Rule of Criminal Procedure 16, as strengthened in 2022 — adapted as a Texas-native amendment to Article 39.14, where federal law is genuinely stronger than Texas's name-and-address rule.

We considered simply copying federal law, and rejected it, and advocates should say so plainly: a verbatim Rule 16 transplant would weaken Texas law. The federal rule is conditional, limited to the case-in-chief, and its government side contains no codified Brady duty and withholds witness statements until after testimony under the Jencks Act. Texas's Michael Morton Act duties under Article 39.14(a) and (h) are broader than federal law. Copying the federal text wholesale would have traded away protections Texas defendants have today. So the bill takes the federal content standard and leaves the Morton Act untouched, with an express non-dilution clause saying so.

How hard will this be to pass?

This bill changes how criminal cases are litigated, and it will draw organised opposition: the Texas Criminal Defense Lawyers Association opposed reciprocal discovery by board resolution in 2013 and will likely lead opposition again, arguing that compelled disclosure chills defence investigation and risks punishing clients for their lawyers' mistakes — the bill's answers are built into the text, but expect a genuine committee fight. The honest burden is also real: prosecutor offices must produce signed disclosures for their own experts, as the price of the symmetry the Constitution requires.

Cost

No significant fiscal note is expected. The bill changes duties within existing proceedings, creates no agency or programme, and requests no appropriation. The honest cost is workload: prosecutor offices must produce signed disclosures for their own experts, as the price of symmetry.

Reading on? Below this line the page goes deeper: first a fuller brief for advocates preparing to pitch this bill inside their own organisation, then a technical appendix for attorneys and legislative staff.

How this gap in the law actually plays out

Cayley Mandadi was killed in 2017. At the first trial of the man who killed her, the defence presented an expert witness whose theories, in her father's judgement, had no grounding in the evidence of the case. Her father is careful about the claim: he is not a lawyer, and he does not ask anyone to take his word about any particular expert. What he can describe is the process from the gallery. The prosecutors could not effectively challenge that testimony live, as it was being given — and that is not a criticism of them. Expert testimony is hard to challenge in real time. Testing it properly means going back to the underlying data, the literature, and the internal consistency of the opinions: work that takes days or weeks, not the length of a cross-examination improvised at counsel table.

Lawrence Baitland has a background in biomedical work. So during that trial he did something that should never have been necessary: he texted rebuttal questions to the prosecutor from the gallery, mid-trial. Under current Texas law, the State had been entitled to know the expert's name and address, and nothing more. Not his opinions. Not the bases for them. Not his qualifications. A name on a list is not something you can prepare a challenge against.

After the trial, he spent a year doing the work systematically — matching each statement the defence expert had made against the evidence that contradicted it, and putting one-page summaries into a binder for the prosecutor. At the retrial, the defence did not call that expert. The sequence teaches something about disclosure itself, not about any one witness: when an expert's opinions have to be written down, signed, and exposed to the record in advance, weak testimony quietly disappears. Strong testimony survives — as it should. Disclosure does not suppress expertise; it prices it, in advance, at its evidentiary value.

That experience generalises. Surprise by a lay witness can usually be handled by cross-examination; surprise by an expert usually cannot, because an effective challenge needs literature, data, and frequently a rebuttal expert of your own — none of which can be produced overnight. Texas already has reliability gatekeeping for expert testimony (the Kelly standard); what it lacks is a disclosure rule that lets the gatekeeping fight happen before trial, while both sides have the material and the time. This bill supplies that.

Likely criticism — and our answers

You will meet these arguments in committee, in the press, and possibly inside your own organisation. Each is stated in its strongest fair form. The expected sources are named where naming them is fair: the Texas Criminal Defense Lawyers Association, which took a documented position against reciprocal discovery by board resolution in 2013, is expected to lead the opposition; prosecutors will raise workload concerns about their own side of the symmetry; innocence-protection and defence-reform organisations — which built the coalition that passed the Michael Morton Act — will audit any bill that touches Article 39.14 for dilution (an inference from their record; none has taken a position on this bill); and some judges will raise docket concerns (also an inference). No critic is misrepresented by being expected to argue its own stated mission.

Potential allies

These are the kinds of organisation whose missions and records align with this bill. Organisations are deliberately not named here. A group that found its own name on a bill page could reasonably read it as being cited as a supporter, and no organisation has committed to this bill. Named research is kept in the project's working papers; a category below means a natural conversation to have, not a position taken.

• Survivor-run victims' rights organisations in Texas — the victims'-experience core of this bill: no family should have to rebut surprise science by text message from a gallery.
• Prosecutors' professional associations — the profession that litigates surprise experts and was a central stakeholder in implementing the Morton Act; the natural professional constituency for the expert-content standard, with its own legitimate conditions about sanctions and State-side workload.
• Victim assistance programmes and family support networks — the people inside prosecutors' offices and advocacy groups who sit with families through trials and watch this failure happen.
• Individual trial prosecutors in expert-heavy violent-crime counties — the natural supporting witnesses. No individual is named: none has made a public statement about this proposal.

The innocence-protection and defence-reform community is a consultee, not a counted ally. Its organisations built the Morton Act coalition and will scrutinise any amendment to Article 39.14. Their neutrality on this narrowed, expert-only bill is worth seeking — through a genuine pre-filing read — precisely because the non-dilution clause was written for their audit.

Prospective authors

Fiscal and implementation notes

No significant fiscal note is expected — that is the advocate's assessment; the Legislative Budget Board makes the determination. The bill changes duties within existing proceedings, creates no agency or programme, and requests no appropriation. The honest cost is workload, and it falls on both sides: prosecutor offices must produce signed disclosures for their own experts (the price of the symmetry the Constitution requires), and defence teams must prepare signed statements for theirs.

Implementation is procedural. Requests are due by the 60th day before jury selection and disclosures by the 30th day, with a prompt duty to supplement or correct; punishment-phase-only experts have phase-appropriate timing under court supervision; protective orders handle sensitive material. The Act applies only to trials in which jury selection — or, in a bench trial, the presentation of evidence — begins on or after its effective date, September 1, 2027.

Talking points

• "A name on a list is not something you can prepare a challenge against."
• "Nobody should learn what the other side's expert thinks from the witness stand."
• "The same signed statement from the State's experts as from the defence's. That symmetry is the Constitution's requirement, not a favour to anyone."
• "We were offered the federal rule wholesale and turned it down: copying it would have weakened the Michael Morton Act. This bill takes only the part where federal law is stronger."
• "Exclusion is the last resort, and a judge has to justify it on the record. A continuance cures an honest mistake."
• "A father spent a year building a binder to produce the document this statute would have required before the first trial. The statute can require it. It should."

Questions advocates ask

Download the draft bill in Texas House format (PDF) — DRAFT, not filed

Current law

What the draft changes, section by section

• SECTION 1 — amended art. 39.14(b) (trigger and timing). On a party's request made not later than the 60th day before jury selection (or, in a bench trial, the presentation of evidence), the receiving party must disclose in writing, for each person it may use at trial under Rules 702, 703, and 705: (1) the name and address, and (2) the Subsection (b-1) disclosure for that person. Disclosure is due by the 30th day before jury selection. That deadline governs guilt-phase experts; for an expert whose testimony will be offered only at punishment, the same deadline applies unless the court for good cause orders a later date that still gives the requesting party a fair opportunity to meet the evidence and is not later than the start of the punishment phase. The court may order earlier disclosure on motion and notice. A party must promptly supplement or correct a disclosure it learns is incomplete or incorrect in any material respect.
• SECTION 1 — new art. 39.14(b-1) (contents). For each expert: a complete statement of all opinions the party will elicit; the bases and reasons for them; the expert's qualifications, including all publications authored in the previous 10 years; and a list of all other cases in which, during the previous four years, the expert testified at trial or by deposition. The disclosure must be approved and signed by the expert, unless the party states why the signature could not be obtained through reasonable efforts, or has previously provided a report signed by the expert containing the required information. The contents track the current federal standard, Rule 16(b)(1)(C)(iii) and (a)(1)(G)(iii) as amended in 2022.
• SECTION 1 — new art. 39.14(b-2) (limits and the reciprocity condition). Subsections (b) and (b-1) do not require disclosure of: an expert who will not testify, including a consulting expert; reports, memoranda, or other documents made by a party or its attorney or agent during the investigation or defence or prosecution of the case, other than the disclosure itself and a scientific or medical report of a testifying expert; or any statement of the defendant. A defendant's duty arises only if the State has complied with its duties under Subsections (a) and (h) and, on request, with (b) and (b-1) as to the State's experts. On motion and for good cause, the court may deny, restrict, or defer a disclosure, or order in camera inspection, to protect witness safety, an ongoing investigation, or a recognised privilege.
• SECTION 1 — new art. 39.14(o) (sanctions). If a party fails to comply with (b) or (b-1), the court may: (1) order compliance, specifying time, place, and manner and prescribing other just terms; (2) grant a continuance; (3) on an on-the-record finding that the failure was material to the requesting party's ability to prepare to meet the expert evidence, instruct the jury in substantially the statutory form — the jury may consider the failure in evaluating the weight and credibility of that party's expert testimony, is not required to draw any particular conclusion, and the failure is not by itself evidence that any element of the offence has or has not been proved; (4) prohibit the party from introducing the undisclosed expert evidence, subject to the limitation below; or (5) enter any other just order. The court may not exclude a defendant's expert unless it finds on the record that the failure was willful or in bad faith, that the undisclosed evidence is material, that the failure prejudiced the State's ability to prepare, and that a continuance, the instruction, or another lesser sanction would not cure the prejudice.
• SECTION 2 — non-dilution. The changes made by the Act do not diminish, and may not be construed to diminish, any duty of the State under Article 39.14(a), (h), or (k), or any right of a defendant under Article 39.14 or other law.
• SECTION 3 — applicability. The Act applies only to a trial in which jury selection, or the presentation of evidence in a bench trial, begins on or after the effective date — no new defence duties are applied to pending cases.
• SECTION 4 — severability. Standard severability of the Act's provisions and applications.
• SECTION 5 — effective date. September 1, 2027.

Legal analysis

• The Fifth Amendment ceiling is Williams, and the draft stays under it. Williams v. Florida, 399 U.S. 78 (1970), upholds disclosure rules that merely accelerate what the defendant intends to reveal at trial. Every duty in the draft is keyed to a person the party "may use at trial" under Rules 702, 703, and 705; any duty reaching material the defence may never use would sit outside Williams and invite invalidation. This is also the honest limit of the bill: it cannot reach, and does not try to reach, an expert the defence consults and decides not to call.
• Wardius reciprocity is written into the trigger, not the preamble. Wardius v. Oregon, 412 U.S. 470 (1973), holds that due process speaks to the balance of forces between accused and accuser: a State may not compel defence disclosure while denying reciprocal discovery. Subsection (b-2)(b) therefore conditions the defendant's duty on the State's actual compliance with (a), (h), and its own expert disclosures — the same structural bargain Rule 16(b)(1)(C)(i) strikes, stated as a statutory condition rather than as intent language.
• Work product and consulting experts follow Nobles. United States v. Nobles, 422 U.S. 225 (1975), recognises work-product protection in criminal cases, waived only as to material a testifying witness actually uses. Subsection (b-2)(a) carries Rule 16(b)(2)'s carve-out in substance and protects consulting experts expressly; the only investigative material the bill ever requires is the testifying expert's own opinions and bases, in the signed disclosure itself.
• The exclusion gate codifies Taylor — and is deliberately asymmetric. Taylor v. Illinois, 484 U.S. 400 (1988), permits exclusion of a defence witness as a sanction but treats it as constitutionally sensitive, most defensible for willful, tactically motivated violations after weighing prejudice and the adequacy of lesser sanctions. Subsection (o)(b) writes those findings into the statute before a defendant's expert may be excluded — functionally a Texas version of the inquiry Florida requires before exclusion. Exclusion of a State expert under (o)(a)(4) is not gated by those findings, deliberately: compulsory-process protection runs to defendants, not to the prosecution. The rest of the ladder, including the jury instruction, is drafted symmetrically.
• Borrowed language borrows a body of construction — persuasive, not binding. Texas cannot adopt a federal rule by reference and expect federal interpretations to bind Texas courts. The technique used here is the honest one: the operative words of the current federal expert standard are copied into Article 39.14. On ordinary borrowed-statute principles, federal constructions of that language are presumptively persuasive guidance for Texas courts construing the same words. The practical consequence, stated as analysis: litigation over the new content standard should be bounded and familiar — courts and counsel have a litigated vocabulary for "complete statement of all opinions," the supplementation duty, and the sanction ladder — rather than blank-slate. Appeals exposure is not zero: when the duty attaches to reserve or substitute experts, and exclusion applications (which are fact-bound Taylor appeals by nature), will generate case law. The goal the drafting can honestly claim is familiar questions, not no questions.
• The Brady floor is never a bargaining chip. Nothing in the bill conditions, delays, or offsets the State's constitutional disclosure duty or its broader statutory duties under Subsections (h) and (k). "Reciprocity" in this bill is never drafted as a quid pro quo for exculpatory disclosure — one more reason the wholesale federal transplant, which codifies no Brady duty at all, was the wrong vehicle.
• What the bill does not do. It does not exclude unreliable science by itself, and advocates should not claim otherwise: admissibility gatekeeping under Rule 702 and Kelly, and voir dire of the underlying facts and data under Rule 705(b), already exist. What advance signed disclosure changes is the posture of that fight — pretrial, with the opinions in hand and time to retain a rebuttal expert and brief the hearing.

Known seams — flagged for the author and Legislative Council

Published here deliberately: a bill page that hides its drafting issues will not survive staff review, and these are mechanical rather than substantive.

• The ladder is a menu, not a mandatory sequence. New Subsection (o)(a) lists the remedies disjunctively — "the court may: (1)… (2)… (3)… (4)… (5)" — following Rule 16(d)(2)'s form. Gradation is enforced at the exclusion rung, through (o)(b)(4)'s requirement that lesser sanctions be inadequate, rather than by requiring the court to exhaust each rung in order. Summaries that narrate a strict sequence overstate the text; whether express sequencing language is wanted is a Legislative Council question.
• The timing figures depart from current law. Current Subsection (b) runs on a request by the 30th day and disclosure by the 20th day before jury selection; the draft uses the 60th and 30th days. The figures are deliberate — the federal standard contemplates disclosure sufficiently before trial for the other side to meet the evidence — but Council should confirm them against the official consolidated text of Article 39.14 before filing.
• Punishment-phase timing is a gap-fill pending verification. The draft applies the duty in both phases, with the good-cause extension for punishment-phase-only experts running to the start of the punishment phase. Whether the current Texas framework itself distinguishes the guilt and punishment phases for expert disclosure must be confirmed before filing; if it does, the conforming change lands in that sentence of amended Subsection (b).
• The jury-instruction rung needs its Article 36.14 check closed. Article 36.14 bars a court from commenting on the weight of the evidence in the charge. The (o)(a)(3) instruction is drafted in the safest available form — party-neutral, permissive ("you may consider… you are not required to draw any particular conclusion"), expressly non-probative as to the elements, and gated by an on-the-record finding of material non-compliance — but no Texas statute currently authorises a discovery-failure instruction in a criminal charge, and the soundness check (including whether the instruction should be available only on the aggrieved party's request, rather than on the court's own motion as drafted) must close before filing.
• Mental-condition experts. Subsections (b) and (b-1) as drafted would capture defence mental-condition experts without reference to Texas's insanity-notice procedure; the federal rule ties mental-condition expert disclosure to a separate notice regime. Specialist review is needed so the bill does not silently rewrite insanity-defence procedure.
• Verification items. The current consolidated text of Article 39.14 should be read on the official statutes website before filing (the research relied on a statutory mirror cross-checked against the enacted text of the Morton Act). Heath v. State and Watkins v. State should be read in full before either is cited — the account of Heath's exclusion remedy currently rests on a secondary report. The sanction texts of Arizona Rule 15.7 and Colorado Rule 16 should likewise be verified before the state comparisons are used in a committee packet.

Sources

• Tex. Code Crim. Proc. art. 39.14, consolidated text (statutory mirror): law.justia.com
• Michael Morton Act, SB 1611 (83rd Leg., 2013), official enacted text: capitol.texas.gov
• Art. 39.14(b) as quoted in Villazana v. State, No. 06-24-00212-CR (Tex. App.—Texarkana 2025): law.justia.com
• Fed. R. Crim. P. 16, current text: law.cornell.edu; the 2022 expert-disclosure amendments explained: ks.fd.org
• Wardius v. Oregon, 412 U.S. 470 (1973): caselaw.findlaw.com
• United States v. Nobles, 422 U.S. 225 (1975): supreme.justia.com
• Texas Criminal Defense Lawyers Association's March 9, 2013 board resolution opposing reciprocal discovery (contemporaneous account): nacdl.org