Being able to speak — and be heard — safely
Let Families Confer With the Prosecutor — Privately
Creating a privilege for what a victim — or, where the victim has died, a close relative — says when conferring with the prosecutor, so the constitutional right to confer can be exercised candidly.
DRAFT — not filed Proposed bill for the 90th Texas Legislature · Adds Article 56A.056, Code of Criminal Procedure · Last updated November 5, 2026
The problem
Article I, Section 30 of the Texas Constitution gives every crime victim, on request, "the right to confer with a representative of the prosecutor's office" — to share views on charging, pleas, dismissal, and sentence, and to offer questions and analysis. Chapter 56A of the Code of Criminal Procedure repeats the right. But nothing in Texas law protects what is said in conferring. A victim who will testify is a "witness," her written statements are producible under Article 39.14, and a family member who emails the prosecutor sits in a grey zone with no protection at all. The right to confer is therefore exercised under the other side's surveillance: anything candid can be ordered handed to the defence.
In the case behind this bill, a father who had spent a year building an evidence binder for the retrial of his daughter's killer faced a defence motion, on the eve of that retrial, claiming he had run a "private investigation outside the protection of Brady" — and his correspondence with the prosecutor was ordered disclosed. The lesson every future family will draw is to say less.
What the bill does
It codifies Section 30's conferring right by creating a privilege for conferring communications — a victim's (or, where the victim has died, a close relative's) views on charging, plea, dismissal, and sentence; their questions; and analysis or strategy they offer the prosecutor. The privilege belongs to the victim or family member, never to the prosecutor. Only the holder can waive it, in writing — and for a joint communication, only its author or authors can waive it; being copied on an email gives nobody a veto. Before any court-ordered disclosure, the holder must receive notice and has standing to ask a court to stay it. At the start of the relationship, the prosecutor gives the family a one-time, plain-language explanation of what the privilege covers and what it does not. The bill applies to proceedings beginning on or after its effective date.
Why it works
Texas has already built exactly this machine, twice — for what victims tell sexual-assault advocates (Government Code §§420.071–.074) and family-violence advocates (Family Code Chapter 93): a victim-held privilege, with exculpatory material reaching the defence only through sealed in camera judicial review, limited to the exculpatory portion. The United States Supreme Court approved that same model in Pennsylvania v. Ritchie (1987). This bill extends a proven Texas pattern to the one conferring partner the Constitution itself names: the prosecutor.
Rights and safeguards — Brady is untouched
- Facts are never privileged. Anything a person knows, and anything about what they will testify to, stays exactly as reachable as it is today.
- Classification turns on content, not on who is speaking. A victim who testifies keeps the privilege only over genuine conferring, never over factual statements.
- Exculpatory material has a dedicated judicial channel. Anything exculpatory, impeaching, or mitigating loses protection through sealed in camera judicial review, limited to the portion that must be disclosed.
- The prosecutor's disclosure duty is expressly preserved and unconditioned. The duty to disclose under Article 39.14(h) and Rule 3.09(d) is stated in the bill itself; performing it cannot be delegated to, or defeated by, a privilege claim.
- The privilege belongs to the holder alone — the victim or family member, never the prosecutor — and only the holder can waive it, in writing.
How hard will this be to pass?
This is the most legally ambitious bill in the package: it creates a new privilege inside a discovery system Texas rebuilt after the Michael Morton wrongful conviction, and the defence bar and innocence advocates will scrutinise anything that looks like a new category of State-side non-disclosure. The bill's answer is structural — fact-witness material is excluded entirely, and exculpatory content has the same sealed judicial channel Texas already trusts with advocate files — but expect that argument to be had in full, in committee and in print, before it is won.
Cost
No significant fiscal note is expected. The bill is procedural; it creates no agency, programme, or entitlement.
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
During his daughter Cayley's first trial, Lawrence Baitland sat in the gallery while a defence medical expert testified. With a background in biomedical work, he could see where the testimony departed from the records — so he texted rebuttal questions to the prosecutor in real time, and the prosecutor put them to the witness. That is conferring as the Texas Constitution seems to intend it: not a courtesy update, but the family closest to the facts helping the State's lawyer do the State's work. The jury hung.
In the year that followed, he bought the trial transcript and built an evidence binder for the retrial: timelines, graphs, and one-page summaries matching the defence expert's claims against the evidence that bore on them. He gave that analysis to the prosecutor as conferring — a citizen's input into decisions the prosecutor alone would make.
On the eve of the retrial, the defence moved to obtain all of his correspondence with the prosecutor. The theory of the motion is the point: because his conferring took the form of analysis, the defence argued he had conducted a "private investigation outside the protection of Brady" — reclassifying a father exercising a constitutional right as an investigator of the State, whose correspondence had to be produced. The court ordered the correspondence disclosed. (In the event, the disclosure backfired: the defence, seeing its expert dismantled, did not call its star witness. Lawrence's point is structural, not personal.) Every victim's advocate in Texas must now give the next family the warning his case created: be careful what you tell the prosecutor; the defence may read it. Families will confer less, or not at all — and prosecutors will lose the local knowledge and records mastery that a family carries and no case file contains.
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 the criminal-defence bar (the Texas Criminal Defense Lawyers Association has taken documented positions against discovery and privilege changes in this area, though it has taken no position on this bill), innocence and civil-liberties organisations (the coalition that built open-file discovery in 2013), and some prosecutors — named here as likely critics, which is a different thing from naming an ally: no critic is misrepresented by being expected to argue its own stated mission.
"Texas rebuilt discovery after Michael Morton spent 25 years in prison while exculpatory material sat in a prosecutor's file. Any new State-side non-disclosure category risks the next wrongful conviction."
The argument deserves respect — and the bill's answer is structural, not rhetorical. Brady is a federal constitutional floor that no Texas statute can lower, and this bill does not try: the prosecutor's duty to disclose exculpatory, impeaching, or mitigating material (Article 39.14(h); Rule 3.09(d)) is preserved in the bill's own text, expressly and without condition, and the prosecutor must perform it on receipt of a conferring communication and throughout the proceeding — no defence motion required. Fact-witness material is excluded from the privilege definition entirely. What the bill protects is not a place to put evidence; it is a citizen's input into prosecutorial decisions — the same category of material the law already shields when it is the prosecutor's own work product under Article 39.14(a).
"The victim is often the State's central witness. Her prior statements are the classic impeachment corpus — a privilege over them collides with confrontation."
Correct as to fact statements — which is why they are never privileged under this bill. Classification turns on content, not on who is speaking or whether she testifies: a statement of fact about the offence, or about the subject matter of her testimony, remains producible under Article 39.14(a) and Rule 615 exactly as today. The bill also states expressly that nothing in it limits a defendant's constitutional rights as applied by the court. What stays protected is genuine conferring — views, questions, and analysis — which is not testimony and is not impeachment material.
"This creates a secret second prosecution file. The defence has no equivalent channel — it is asymmetry dressed as a victims' right."
The asymmetry already exists, and the defence benefits from its mirror image: the prosecutor's own work product and internal communications are expressly non-discoverable under Article 39.14(a), and defence counsel's client communications are privileged absolutely. This bill extends the existing, accepted protection to the one participant the Constitution itself directs into the room — the victim, exercising the right to confer. It creates no secrecy for evidence: everything evidentiary moves through the same lanes as today, and the bill requires conferring communications to be kept in a separate file with a sealed log (date, participants, classification claimed) available to the court, so the privilege's footprint is auditable without exposing its content.
"People don't speak in labelled categories. One email mixes fact, view, and strategy — line-drawing will consume prosecutors and courts and generate appeals."
Texas courts already run exactly this machinery. The advocate privileges (Government Code §§420.071–.074; Family Code Chapter 93) have operated for years with the same content-classification problem, and Rule 615(c) redaction practice segregates producible from non-producible portions of the same document as a matter of routine. This bill copies §420.074's tested thresholds — a motion deadline, an affidavit showing a good-faith, specific, reasonable basis, a preponderance finding, non-duplication, sealed review — so existing practice transfers rather than being invented. Classification errors are a real cost; the alternative being defended is that no family's analysis is ever protected at all.
"Families — or prosecutors — will launder exculpatory facts through the 'privileged' channel to keep them from the defence."
Content controls, not labels or stated purpose: the bill classifies a communication by what it says, "regardless of the form, label, or stated purpose of the communication." A factual or exculpatory communication is outside the privilege wherever it sits. And a prosecutor who routed around Brady through this channel would commit the same violation as one who hides a police report — under Kyles v. Whitley, the duty belongs to the prosecution team and cannot be evaded by choosing where information is parked. The bill's anti-laundering design is the reason its preservation of the disclosure duty is written as unconditioned.
"Prosecutors themselves won't thank you. Receiving privileged communications creates review obligations, log work, and personal exposure if a court later finds protected material should have been disclosed."
A fair warning, and the honest answer is that the profession is split — its institutional record is strongly pro-disclosure (the prosecutors' association supported and helped build the Morton Act's open-file regime and teaches that ethical disclosure duties exceed Brady), while individual prosecutors receive victim conferring daily and have felt disclosure orders like the one behind this bill. The bill answers the workload concern with a filing rule rather than a merits burden: a designated conferring file, a log produced only on request and under seal, and the §420.074 procedure prosecutors' offices already know from advocate-privilege cases. Prosecutor organisations should be consulted on the drafting before filing, not first met in committee — and they are treated on this page as a consultee, not a counted ally.
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 — organisations led by victims and surviving family members; natural allies on victims'-rights legislation generally.
- Sexual-assault victims' advocacy organisations — the community whose advocate–victim privilege (Government Code §§420.071–.074) is this bill's drafting template; the bill extends their own proven model to the prosecutor's office.
- Family-violence advocacy organisations — the parallel Texas privilege template (Family Code Chapter 93), and the constituency whose statutory conferring right was most recently extended, in 2025.
- National crime-victim legal institutes — bodies that publish Texas privacy-and-privilege guidance for victim services and litigate victims' conferral rights; testimony-grade legal support rather than grassroots weight.
Prosecutors are a consultee, not a counted ally. The profession's institutional record is pro-disclosure, individual prosecutors are divided, and no prosecutor body has taken a position on this bill. Early consultation on the disclosure channel, the log, and the classification burden is part of the filing plan.
Prospective authors
To be published after re-verification. Candidates to approach — several members, identified from their records on this exact policy in the 88th and 89th Legislatures — have been researched and are held in the project's working papers. Because the 2026 election changed the House, the governorship, and the Lieutenant Governorship, no names are published here until rosters and committee assignments for the 90th Legislature are verified in January. What can be said now: the strongest approach follows the team that carried this policy unanimously in 2023, with a bipartisan coauthor pairing.
Fiscal and implementation notes
- Cost: no significant fiscal note is expected. The bill is procedural; it creates no agency, programme, or entitlement, and works through existing prosecutor offices.
- What offices actually have to do: give the one-time, plain-language advisement at the start of the conferring relationship; keep conferring communications in a file separate from the discovery file; and produce a sealed log (date, participants, classification claimed) if a party asks the court for one. That is the whole administrative footprint.
- Procedure copied, not invented: the disclosure procedure for an allegedly exculpatory portion — motion deadline, affidavit, service on the State and the holder, sealed production, in camera review, portion-only disclosure under protective order — is modelled on Government Code §420.074, which prosecutor offices and courts already operate in advocate-privilege cases.
- Prospective only: the draft applies to criminal proceedings commencing on or after its effective date (September 1, 2027), and to conferring communications made in those proceedings.
- Conforming work remains: the draft's conforming amendments (to Article 39.14(a), to the rights-explanation provision in Chapter 56A, and a Public Information Act cross-reference so the privilege cannot be undone by a records request to a prosecutor's office) are described in the draft and are to be completed as statutory text in Legislative Council drafting.
Talking points
- "The Constitution gives victims the right to confer. This bill makes it possible to use that right without the other side reading over your shoulder."
- "Facts stay discoverable. Brady stays absolute. Only conferring is protected."
- "Texas already trusts this design with advocate files — sealed judicial review, and only the exculpatory portion is ever disclosed."
- "The privilege belongs to the victim, not the prosecutor. The prosecutor cannot waive it — and cannot hide behind it."
- "Exercising a constitutional right does not make a father an investigator of the State."
Questions advocates ask
Does this bill hide evidence from the defence?
No. Facts are never privileged: anything a person knows, and anything about what they will testify to, stays exactly as reachable as today. Anything exculpatory, impeaching, or mitigating must be disclosed — the prosecutor's duty is stated in the bill itself, is unconditioned, and is backed by a sealed in camera procedure if a court order is needed. What is protected is views, questions, and analysis offered in conferring.
What happens if the victim herself testifies?
She keeps the privilege over genuine conferring, and loses it over nothing else: the line is content, not witness status. Her factual statements — including statements about the subject matter of her testimony — remain producible under Article 39.14(a) and Rule 615 exactly as they are today.
Who owns the privilege — and can the prosecutor waive it or use it as a shield?
The victim or family member owns it; the prosecutor cannot waive it, and claiming it is no defence to a disclosure duty. Only the holder can waive it, in a signed writing, and only as to communications that holder authored — for a jointly authored communication, every author must sign. Being copied on someone else's email gives nobody a veto.
What if a family member emails the prosecutor something that turns out to be exculpatory?
Then it is disclosed. The prosecutor's duty under Article 39.14(h) and Rule 3.09(d) operates on receipt and throughout the proceeding, including during trial, without any defence motion. Where a court order governs, the judge reviews the communication under seal and orders disclosure of only the specific exculpatory portion, under a protective order; the holder gets notice first and may ask the court to stay the disclosure.
Does conferring make a family member an agent or investigator of the State?
No — the bill says so expressly. Classification is by content, and a holder does not become an agent, representative, employee, or investigator of the State by making a conferring communication. The "notwithstanding" provision is written to cover disclosure motions premised on exactly that reclassification theory — the theory used against the family behind this bill.
Has any other state done this?
Research to date has found no privilege for victim–prosecutor communications in any other state's law, and none in the federal Crime Victims' Rights Act — every comparator found protects communications with counsellors or advocates, not with prosecutors. That is stated as a research finding, not a boast: a full audit is to confirm the negative before the point is made publicly.
Download the draft bill in Texas House format (PDF) — DRAFT, not filed
Current law
| Provision | What it does now |
|---|---|
| Tex. Const. art. I, §30(b)(3) | The constitutional conferring right: "On the request of a crime victim, the crime victim has … the right to confer with a representative of the prosecutor's office." Section 30(a) adds treatment with fairness, dignity, and privacy, and reasonable protection; §30(c) expressly empowers the Legislature "to enact laws to define the term 'victim' and to enforce these and other rights of crime victims"; §30(e) gives the victim standing to enforce §30 rights while denying party status. The draft codifies the conferring right in §30's own terms. |
| Code Crim. Proc. ch. 56A | The statutory conferring rights: art. 56A.051 (general rights of a victim, guardian, or close relative of a deceased victim — principally notice, presence, and information), art. 56A.052 (offence-specific rights, including disposition-conferring on request: views on not filing, dismissal, pretrial intervention, and plea), and art. 56A.0521 (added by SB 1120, 89th Leg., 2025, extending disposition-conferring to family-violence victims). Chapter 56A grants the right to confer and says nothing about the confidentiality, privilege, or discoverability of what is said in conferring — the gap this bill fills. |
| No victim–prosecutor privilege exists | Tex. R. Evid. art. V recognises only the privileges provided by constitution, statute, or rule (Rule 501: lawyer–client, spousal, clergy, informer's identity, and the rest). No Texas statute located in this research protects victim–prosecutor communications as such. A privilege of this kind must therefore be created by statute — the route the Legislature has already taken twice for victim-advocate communications (next row). |
| Gov't Code §§420.071–.074; Fam. Code ch. 93 | The Texas drafting templates. Section 420.071 makes sexual-assault advocate–survivor communications confidential and gives the survivor a privilege; §420.072(a)(7) permits disclosure where a court, after in camera review, determines a communication is exculpatory, "limited to the specific portion" determined exculpatory; §420.074 supplies the procedure (defence motion not later than the 30th day before trial, affidavit showing reasonable grounds, service on the State and the holder, production under seal, preponderance finding of a good-faith, specific, reasonable basis, disclosure of only the exculpatory evidence). Family Code ch. 93 (§§93.001–.004, 2017) is the parallel family-violence advocate privilege. The settled Texas pattern: privilege + in camera exculpatory exception + holder-notice procedure. |
| Code Crim. Proc. art. 39.14(a) and (h) | Article 39.14(a) (the Michael Morton Act) requires the State, on timely defence request, to produce written or recorded statements of a witness and other material evidence "not otherwise privileged," excluding the work product of counsel for the State; its rights expressly "do not extend to written communications between the state and an agent, representative, or employee of the state" — a sentence that does not protect a family member, who is none of those things. A victim who will testify is a "witness," and her written statements are squarely producible unless privileged. Article 39.14(h) codifies Brady: the State "shall disclose" any exculpatory, impeachment, or mitigating information in its possession, custody, or control. Texas courts read these duties expansively (Watkins; Heath — "the State" includes law enforcement). |
| Tex. R. Evid. 615 | After a non-defendant witness testifies on direct, the court must order production of any statement of the witness in the calling party's possession relating to the subject matter of the testimony; unrelated portions are excised after in camera inspection and preserved under seal. Rule 615 is the trial-stage exposure: a testifying victim's or family member's prior written statements about the subject matter of their testimony are producible whatever a communications privilege says — the draft expressly yields here (see the section-by-section account). |
| Tex. Disciplinary R. Prof'l Conduct 3.09(d); Brady line | A prosecutor's ethical duty to disclose evidence tending to negate guilt or mitigate is broader than Brady itself (no materiality filter); a statute cannot license a prosecutor to breach it. Brady v. Maryland, 373 U.S. 83 (1963); Giglio (impeachment included); Bagley (materiality); Kyles v. Whitley (the duty is the prosecution team's); Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (due process satisfied by in camera review with disclosure of material portions only — the constitutional authority for this bill's disclosure channel). |
| 18 U.S.C. §3771(a)(5) (federal comparator) | The federal Crime Victims' Rights Act grants "the reasonable right to confer with the attorney for the Government" — and no privilege. In In re Dean, 527 F.3d 391 (5th Cir. 2008), the Fifth Circuit read conferring as substantive input into prosecutorial decision-making (a plea concluded without conferring violated the Act) — direct support for the two-way reading of "confer" — while saying nothing about discoverability. No federal privilege for victim–prosecutor communications was found. |
What the draft changes, section by section
The draft adds a single new article — Article 56A.056, Code of Criminal Procedure — drafted in §30's own terms, followed by conforming provisions. Its structure is three lanes: conferring is privileged; fact-witness material is never privileged; exculpatory portions move through a sealed judicial channel.
- Art. 56A.056(a) — Definitions. "Victim" tracks §30 (including a guardian, and, if the victim is deceased, a close relative of the deceased victim as defined by art. 56A.001, expressly including a stepparent who married the victim's parent while the victim was a minor). "Holder" is the victim who makes a conferring communication; each holder holds the privilege only as to communications the holder authored. "Conferring communication" is content-defined: views on charging, dismissal, pretrial intervention, plea, or sentence; questions to the attorney representing the state; analysis, research, chronologies, criticism of anticipated evidence or expert testimony, or strategy suggestions offered for the prosecutor's consideration; and personal-impact, privacy, safety, or restitution input connected to those decisions. "Fact-witness communication" and "exculpatory portion" are defined separately — the two categories the privilege never reaches and always yields to.
- (b) — The privilege. A holder may refuse to disclose, and prevent the prosecutor or any other person from disclosing, a conferring communication in any criminal, civil, administrative, or legislative proceeding, including in discovery under art. 39.14 and in Rule 615 production. It may be claimed by the holder, the holder's attorney, or the attorney representing the state on the holder's behalf.
- (c) — Classification by content. Whether a communication is conferring or fact-witness material is determined by its content, regardless of form, label, or stated purpose, and regardless of whether the holder also gives fact-witness material or analyses evidence. A holder does not, by conferring, become an agent, representative, employee, or investigator of the state.
- (d) — Notwithstanding clause. Except for the exculpatory-portion procedure, the article applies notwithstanding art. 39.14(a) or any other law authorising or requiring disclosure — expressly including a motion or order premised on the claim that the holder acted as an investigator, agent, or representative of the state, or that a conferring communication is investigatory material outside the protection of Brady. This sentence answers, in terms, the theory of the retrial-eve motion in the case behind the bill.
- (e) — Duties expressly preserved. Nothing in the article limits or conditions: the State's art. 39.14(h) disclosure duty; a prosecutor's Rule 3.09(d) duty; the treatment of fact-witness communications; Rule 615 production of a witness's statement; or a defendant's rights under the United States or Texas Constitutions, as applied by the court.
- (f) — Testifying holders. A holder who testifies retains the privilege for conferring communications; it is lost only as to a communication that is fact-witness material, or that contains an exculpatory portion disclosed under (g).
- (g) — Disclosure of an exculpatory portion (the sealed channel). A defendant who believes a conferring communication contains an exculpatory portion may move not later than the 30th day before trial — or promptly, for material first arising later — with an affidavit showing a good-faith, specific, and reasonable basis, serving the State and the holder. On a preponderance finding, the court orders production under seal, reviews in camera, and orders disclosure only of the specific exculpatory portion, under a protective order limiting its use to the proceeding; the remainder stays privileged. The procedure is exclusive for that ground — and (g)(4) states that it does not condition the State's independent, continuing duties under (e), which the prosecutor performs on receipt of a communication and throughout the proceeding, including during trial, without any defence motion.
- (h) — Waiver follows authorship. The privilege belongs to the holder and may be waived only by the holder, in a signed writing, as to communications specified in the writing. Waiver of a communication requires the signed written waiver of each holder who authored it; a person merely present, copied on, or a recipient of another holder's communication holds no privilege in it and can neither waive nor veto. A statement a holder makes within a joint exchange is that holder's own communication. The prosecutor may not waive on a holder's behalf. Disclosure to the prosecutor, to the holder's own attorney, or within the conferring process — and compelled or inadvertent disclosure — is not a waiver.
- (i) — Notice and stay. No court-ordered disclosure of a communication claimed privileged may be carried out until the holder has written notice of the motion or order and of these rights; a disclosure ordered under (g) or otherwise under the article may not be carried out before the 10th day after the holder receives notice. The holder has standing to move for a stay and to seek review, including by mandamus — and asserting these rights does not make the holder a party to the criminal proceeding.
- (j) — One-time advisement. Before or at the first conferring, the prosecutor gives the holder a single written plain-language explanation: conferring communications are privileged; statements of fact and statements about testimony are not; an exculpatory, impeaching, or mitigating portion may be disclosed through the sealed in camera procedure; and communications sent to persons other than a representative of the prosecutor's office may not be protected. Given once; failure to give it does not waive the privilege and is not a ground for relief for any party.
- (k) — Segregation and log. The prosecutor keeps conferring communications separate from the discovery file. On a party's request, the prosecutor provides the court, under seal, a log stating the date, the participants, and the classification claimed for each communication, sufficient to permit in camera adjudication.
- (l)–(m) — Remaining exceptions; no party status. No privilege for a communication in furtherance of a crime or fraud, or against a mandatory-reporting law (including Family Code ch. 261); if a State expert relies on a conferring communication, the facts or data relied on are governed by the Rules of Evidence; no comment on, or inference from, a claim of privilege is permitted in any proceeding. Nothing in the article makes a victim or holder a party to the criminal proceeding, or amends art. I, §30(e).
- Conforming provisions and construction. The Act amends art. 39.14(a) to exclude a conferring communication privileged under art. 56A.056 from the rights it grants a defendant (except as that article provides); amends art. 56A.051(c) to include the privilege among the rights explained to a victim on request; and contemplates a Chapter 552, Government Code cross-reference so a privileged communication in a prosecutor's file is also excepted from required public disclosure. Severability is express. Application is prospective: proceedings commencing on or after the effective date, September 1, 2027.
Legal analysis
- Brady supremacy is absolute, and the draft is built on that admission. A state statute cannot create a privilege that suppresses material exculpatory or impeachment evidence (Brady; Giglio; Bagley; Kyles; Strickler). A version of this bill without the sealed channel would be unconstitutional in application and would generate reversals — the worst possible outcome for a victims' bill. The channel is not a concession; it is the bill's survival mechanism, and the preservation of art. 39.14(h) and Rule 3.09(d) is written as unconditioned precisely so that no prosecutor can ever cite the privilege to withhold.
- Confrontation is the second ceiling, and it operates as applied. Where the victim testifies, Davis v. Alaska, 415 U.S. 308 (1974), shows a state confidentiality interest yielding to cross-examination on bias; Delaware v. Van Arsdall frames the test. The draft survives facially because it regulates discovery of non-testimonial conferring, and subsection (e)(5) expressly preserves a defendant's constitutional rights as applied by the court — paradoxically, that savings clause protects convictions obtained in cases where the privilege was claimed.
- Ritchie is the shield. The Supreme Court has already approved the exact compromise adopted here — a confidential file, in camera judicial review, disclosure of material portions only — for a state-created confidentiality interest, and Texas has already enacted that structure for advocate files in §420.072(a)(7) and §420.074. The testimony and the defence of this bill should run on Ritchie's structure and the Texas template, not on any claim of unqualified privilege.
- Compulsory-process and symmetry attacks stay on the wrong side of the line the draft draws. Expect Washington v. Texas and Chambers v. Mississippi rhetoric ("the State may not arbitrarily deny the defence evidence"). Neither case creates a general discovery right, and neither reaches non-evidentiary, work-product-type material. The draft's content definition is effects-based — input to prosecutorial decision-making — which is also where art. 39.14(a)'s existing work-product exemption lives; the informer's-identity privilege (Rule 508; Roviaro) is the further criminal-procedure analogue of a State-side confidentiality interest that yields when disclosure is essential to a fair determination.
- Art. I, §30(e) cannot be borrowed to save a Brady violation — and the draft does not try. Section 30(e)'s bar on defendants using a failure to provide victims' rights as an appellate ground concerns victims' rights enforcement. Stretching it to bar a defendant's federal claim arising from suppression would hand opponents a facial-invalidity argument and taint the valid remainder; the draft expressly leaves §30(e) unamended and relies on severability instead.
- The timing problem is designed for, not discovered later. The §420.074 template's 30-days-before-trial deadline works for advocate records that exist early; conferring is continuous — in the case behind this bill, the protected communications included texts sent during trial. The draft therefore pairs the deadline with a promptly-after-arising exception for later material and, more importantly, with the prosecutor's continuing duty under (g)(4) to review conferring material on receipt, including mid-trial — so the privilege does not recreate the late-disclosure problem inside itself.
- Who counts as "the State" runs in both directions. Kyles and Heath read the prosecution team broadly for disclosure purposes. The draft defines the protected recipient functionally — a representative of the prosecutor's office, in the conferring function — and the (j) advisement warns holders that communications sent to others (police, a coordinator employed elsewhere, a task-force member) may not be protected. Transmission through the holder's own attorney does not waive and is within the process ((h)(4)); in a joint exchange, each participant's own statements are that participant's own communication, so one family member cannot waive another's.
- The privilege is holder-side machinery, not party status. The holder's rights under the article are notice, standing to seek a stay, and review of a disclosure order concerning their own communications — a property-like interest in the communication, mirroring §420.074's service on the holder. Subsection (m) states that nothing makes the holder a party to the prosecution.
- Novelty, stated as a research finding. Research to date has found no privilege for victim–prosecutor communications in any other state's law and none in the federal CVRA; every comparator located protects communications with counsellors or advocates (e.g., Pennsylvania's and Florida's counsellor–victim privileges; Minnesota's qualified, balancing-test version). The draft's answer to novelty is to present itself as the third member of Texas's own legislative family — advocate privilege machinery, extended to the conferring partner the Constitution itself names — rather than as an invention.
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 notice-and-stay provision should expressly carve out the prosecutor's own Brady disclosures. Subsection (i)(2) bars carrying out "a disclosure ordered under Subsection (g) or otherwise under this article" before the 10th day after holder notice. A holder could argue that this delays a disclosure the State makes voluntarily under (e)(1)–(2) — disclosures the bill elsewhere correctly makes immediate and unconditioned. The word "ordered" probably confines (i) to court-ordered disclosures, but the subsection should say expressly that it does not apply to disclosures the State makes under (e)(1)–(2). Without the carve-out, the notice provision creates exactly the Brady-delay argument the bill's design exists to defeat.
- The fact-witness definition's Rule 615 prong is broader than the design and should be narrowed. Subsection (a)(5) defines "fact-witness communication" to include any "statement relating to the subject matter of the testimony of a witness for purposes of Rule 615." Rule 615 production is itself triggered only after a witness testifies on direct; importing its subject-matter test into the definition means a testifying holder's conferring could be reclassified as fact-witness material before trial, on any topic she might testify about — in tension with the design's rule that the line is content (fact vs. strategy), not witness status, and with subsection (f), which preserves the privilege for testifying holders. The definition's first two prongs (statements of perceived fact; witness statements under art. 39.14(a)) carry the design on their own; the Rule 615 prong should be narrowed or expressly tied to the post-testimony production moment.
- The stay is not self-executing. Under (i), filing a stay motion does not itself toll the 10-day clock: a holder who files on day 9 could see the disclosure lawfully carried out on day 10 while the motion pends. The draft should provide that a timely stay motion bars disclosure until the court rules. Two mechanics in the same subsection also need attention: the notice duty is allocated diffusely ("the court and any person who would make the disclosure, as the court directs"), and the clock runs from when the holder "receives" notice, with no service or receipt rule specified.
- The sealed channel's trigger is less specified for impeachment and mitigation than the template's. The §420.074 template requires a finding that material is "relevant, material, and exculpatory upon the issue of guilt." The draft's (g)(2) requires only a basis to believe a communication "contains an exculpatory portion," while (a)(6) defines that portion to include impeaching and mitigating material — broader than the template. Expect litigation over what showing suffices for an impeachment (Giglio) portion; Council may wish to specify the standard for each category.
- Authorship-waiver workability gaps. The authorship rule is deliberate and is implemented exactly as designed (every author must sign; presence, copying, or receipt confers no veto). Two gaps remain for Council to pressure-test: there is no provision for a deceased, incapacitated, or unreachable co-author, which would make waiver of a co-authored communication impossible and the privilege absolute for that item short of the sealed channel; and "authorship" of oral conferring and group exchanges will be litigated (partly answered by the own-statements sentence in (h)(2)).
- The conforming sections are placeholders, not amendatory text. The art. 39.14(a) conforming amendment is described rather than drafted, and the Chapter 552 cross-reference contains no statutory text at all, only an instruction. The bill is not fileable until Legislative Council supplies both — the draft flags this itself — and the placeholder article number (56A.056) and the conforming placements should be confirmed against the current official code text at the same pass.
- Verification items. The statement that no victim–prosecutor privilege exists rests on research searches performed to date; a full audit should confirm the negative before it is asserted publicly. The art. 39.14 quotation and the Rule 501 paraphrase in the research should likewise be re-verified against the official code and rules pamphlet before filing.
Sources
- Tex. Const. art. I, §30: statutes.capitol.texas.gov
- Code Crim. Proc. ch. 56A (text as published for victim-services use): tdcaa.com
- SB 1120 (89th Leg., 2025) enrolled bill analysis — art. 56A.0521 conferring rights: capitol.texas.gov
- Gov't Code §420.072 (in camera exculpatory exception): texas.public.law; §420.074 procedure (SB 295, 87th Leg., House floor amendment text): capitol.texas.gov
- HB 3649 (85th Leg., 2017), enrolled text — Family Code ch. 93 advocate privilege: capitol.texas.gov
- Tex. R. Evid. 615 (production of witness statements): texasevidence.com
- 18 U.S.C. §3771 (federal conferring right): govinfo.gov