The Michael Morton Act Under Attack
In 2013, the Texas Legislature unanimously passed the Michael Morton Act, one of the most significant reforms to criminal procedure in state history. Signed into law by Republican Governor Rick Perry, the Act was designed to prevent wrongful convictions by requiring prosecutors to disclose all material evidence as soon as practicable after a timely request by the defense. This meant turning over all the evidence in the possession of prosecutors and law enforcement agencies, removing ambiguity about what must be turned over and when.
Its purpose was clear: to ensure that criminal trials are decided on all the facts, not just those the State chooses to disclose.
The law was passed in response to the wrongful conviction of Michael Morton, who spent nearly 25 years in prison for the murder of his wife, Christine Morton. Key evidence pointing to his innocence was withheld by the prosecution:
- A neighbor reported seeing a suspicious man with a green van near the Morton home before the murder;
- Morton’s young son told family members his father wasn’t home during the attack;
- The victim’s credit card was used in San Antonio days after her death; and
- A bloody bandana containing DNA from another man was found near the crime scene.
That other man, Mark Norwood, was later convicted not only for the murder of Christine Morton but also for a second murder — Debra Baker in 1988 — committed while he remained free due to the State’s suppression of evidence in Morton’s case.
The lead prosecutor, Ken Anderson, knowingly withheld this exculpatory evidence and falsely claimed in court that he possessed nothing favorable to the defense. A Court of Inquiry, convened by the Texas Supreme Court, found Anderson withheld exculpatory evidence from the defense. Anderson was criminally charged, pled guilty to contempt of court, surrendered his law license, resigned from the bench, and served jail time — making him the first prosecutor in Texas history to be jailed for misconduct in a wrongful conviction.
Now, House Bill 3330 and Senate Bill 1124 (identical bills) seek to undo key elements of the Michael Morton Act. They would narrow the State’s obligation to disclose evidence, allow prosecutors to unilaterally redact or withhold portions of materials, and shift the burden to defendants to justify requests for discovery. These proposals are not technical adjustments — they represent a rollback of the most important due process reform in Texas criminal law in a generation.
The Michael Morton Act: A Mandate for Transparency Born from Injustice
Prior to the Michael Morton Act, Texas law did not require prosecutors to disclose most evidence in their possession, and many jurisdictions operated with closed file policies. Disclosure was often selective and discretionary, leading to widespread concerns about trial by ambush and the routine withholding of potentially exculpatory evidence. The resulting system bred wrongful convictions and undermined public trust.
The Michael Morton Act addressed these failures by:
- Requiring the disclosure of all material evidence, broadly defined;
- Expanding “the State” to include law enforcement and all government agencies involved in investigations;
- Creating a clear documentary trail for discovery compliance;
- Empowering trial judges to sanction discovery violations, including by excluding improperly withheld evidence.
This represented not just a procedural change but a philosophical shift: from trial by ambush to trial by full disclosure.
HB 3330 and SB 1124 directly attack each of these pillars.
How HB 3330 and SB 1124 Undermine the Michael Morton Act
A. Redefining “The State” to Create Discovery Loopholes
Under the Michael Morton Act, and as confirmed by the Texas Court of Criminal Appeals in State v. Heath (2024), “the State” includes not just prosecutors but law enforcement officers and any agency involved in the investigation. This is essential to ensure that all relevant evidence, even if it never physically touches the prosecutor’s file, is turned over to the defense.
HB 3330 and SB 1124 would dramatically narrow this definition, limiting “the State” to only the prosecuting attorney and the specific agency that filed the charges. Under HB 3330 and SB 1124, evidence held by any government agency outside the prosecuting attorney’s office or the primary investigating agency could fall outside the scope of the State’s discovery obligations. That means a 911 recording stored by a regional communications center, an autopsy report at the medical examiner’s office, a toxicology analysis held by a lab under DPS contract, or even witness statements gathered during a parallel TABC investigation might not be disclosed—unless the defense happens to know of their existence and specifically requests them. The proposed definition encourages compartmentalization of evidence and invites prosecutors to claim ignorance of materials held by sister agencies, undermining the Morton Act’s goal of full and fair disclosure. This redefinition invites exactly the kind of “willful ignorance” the Michael Morton Act was meant to eliminate. Prosecutors could credibly claim they had no duty to seek out exculpatory or impeaching evidence beyond their own agency.
B. Letting Prosecutors Pre-Screen Relevance: A Built-In Conflict
The Michael Morton Act requires disclosure of anything material “to any matter involved in the action.” Courts, including in Watkins v. State (2021), have interpreted materiality broadly, noting that it includes anything logically connected to a consequential fact, even if not independently exculpatory.
HB 3330 and SB 1124 shift the standard: only evidence “relevant to a fact of consequence” must be disclosed. Worse, prosecutors would have sole authority to initially decide relevance. Defense discovery requests would also have to be “timely and specific.”
The danger here is obvious. Prosecutors — incentivized to win convictions — would naturally under-assess the significance of information harmful to their case. This is precisely what happened in Michael Morton’s own prosecution. It would again allow prosecutors to self-censor evidence under the guise of subjective “relevance” determinations.
Further, the “specific request” requirement traps the defense: counsel cannot ask for an item by name if they do not know it exists. The result is that unknown evidence could legally remain hidden.
C. Weakening Judicial Remedies for Discovery Violations
Currently, trial courts can exclude undisclosed evidence as a remedy for discovery violations. This is essential to ensuring compliance: if the consequence for withholding evidence is merely a delay, there is little incentive to comply promptly.
HB 3330 and SB 1124 limit judicial power dramatically. Judges could exclude evidence only if:
- The State knowingly withheld it, or
- There is actual, incurable prejudice.
This standard would all but eliminate exclusion as a meaningful remedy. Most discovery violations stem from negligence or disorganization, not provable “bad faith.” Courts are historically reluctant to find actual prejudice if a continuance can arguably cure the problem.
State v. Heath shows why discretion matters. There, a 911 recording was discovered late. The trial court excluded it, and the CCA affirmed. Heath was not an outlier — it was a textbook application of the Michael Morton Act’s protections.
By gutting exclusion authority, these bills would greenlight sloppy or even tactical late disclosure.
D. Shifting Discovery Burdens Onto the Defense
The bills would flip the discovery dynamic: forcing the defense to initiate specific, justified requests rather than requiring the State to produce everything material.
This creates a serious constitutional concern. The Fifth Amendment protects not just against self-incrimination but against forced disclosure of defense theories. Forcing defense counsel to reveal strategy to justify discovery violates that principle. Moreover, it risks creating litigation over discovery itself — endless mini-hearings about the “necessity” of information before defense lawyers even know what exists.
These bills attempt to sneak reciprocal discovery in through the back door.
E. Allowing Redaction and Withholding Without Court Approval
In civil litigation under Texas Rule of Civil Procedure 192.3, parties must produce entire relevant documents. Redactions must be justified and subject to court scrutiny. HB 3330 and SB 1124 would allow prosecutors, unilaterally, to redact parts of materials they deem irrelevant or privileged. The defense would only be able to challenge redactions after the fact.
Allowing unilateral prosecutorial redactions, especially of factual material, creates serious risk that crucial evidence will never be disclosed or will be so delayed as to be useless.
Rebutting the Justifications for HB 3330 and SB 1124
A. The Heath Decision Was a Reaffirmation, Not a Radical Shift
Supporters of HB 3330 point to State v. Heath as justification for rolling back discovery protections, claiming the case introduced unworkable burdens by holding prosecutors responsible for evidence they never personally reviewed.
This is a misreading of Heath. The Court of Criminal Appeals held that when a law enforcement agency involved in the investigation possesses evidence, that evidence is imputed to the State — even if the individual prosecutor didn’t know about it. That is not a novel legal principle. It is a faithful application of both the letter and the spirit of the Michael Morton Act.
The Court of Criminal Appeals recognized that the duty to disclose includes a duty to inquire. Prosecutors cannot blind themselves to relevant information simply because it is housed in a different branch of the government.
The “as soon as practicable” standard means that diligence is required, and delays caused by poor communication or bureaucratic silos are not acceptable excuses.
Heath did not expand the law; it enforced it. The problem wasn’t with the law — it was with the prosecution’s failure to meet it. Gutting the Michael Morton Act because the courts finally applied it correctly is both illogical and dangerous.
B. The “Defense Gamesmanship” Narrative Is a Red Herring
Some proponents argue that defense attorneys lie in wait — failing to alert prosecutors to overlooked evidence, only to spring an objection at trial. They frame this as a kind of trap.
But the responsibility to disclose evidence lies with the State. The defense has no legal or ethical duty to assist prosecutors in fulfilling their obligations. Suggesting otherwise flips the adversarial system on its head.
Delays and surprises do not help the defense — they lead to continuances, strained client relationships, and missed opportunities to prepare. The notion that defense attorneys are engaged in “gotcha” tactics is unsupported and distracts from the real problem: the State not following the law.
If prosecutors don’t want evidence excluded, the solution is simple: disclose it on time.
C. Complaints About Discovery Volume and Privacy Are Misleading
Another argument raised is that modern criminal cases involve enormous volumes of data — and that prosecutors are overwhelmed by having to review and produce it. But inconvenience is not a justification for denying defendants the right to a fair trial.
Technology has made disclosure easier, not harder. Digital portals, cloud-based discovery platforms, and metadata search tools allow offices to share entire case files efficiently. The burden argument rings hollow in a post-Michael Morton Act world where most large counties already operate with open file systems.
As for privacy, Texas law already contains tools to protect sensitive information. Articles 39.14 and 39.15 of the Code of Criminal Procedure allow redaction of victim contact information and shielding of sensitive personal records. Courts can issue protective orders when needed. The Michael Morton Act does not require reckless disclosure — it requires fair disclosure.
HB 3330 and SB 1124 go well beyond addressing legitimate privacy concerns. They give prosecutors a broad, unilateral veto over disclosure — one that can easily be abused or misapplied.
Testimony on HB 3330
A summary of the testimony on House Bill 3330 is included below:
Supporters of HB 3330
| Name |
Affiliation |
Stance |
Key Points |
| Rep. David Cook |
Author of HB 3330 |
Support |
Says the bill clarifies discovery responsibilities; claims it does not repeal the Michael Morton Act. |
| DA Brett Ligon |
Montgomery County District Attorney |
Support |
Frames the bill as a response to “gamesmanship” and lack of clear remedy post-Heath. |
| Jennifer Tharp |
Comal County District Attorney |
Support |
Supports most provisions of the bill, especially OP and Q; suggests future collaboration is welcome. |
Opponents of HB 3330
| Name |
Affiliation |
Stance |
Key Points |
| Michael Morton |
Wrongfully convicted exoneree |
Oppose |
By Letter. Believes HB 3330 would undo key protections of the Michael Morton Act. |
| Rep. Joe Moody |
Texas House of Representatives |
Oppose |
Presented Morton’s letter; warned of undermining discovery transparency. |
| Ginny Andrews |
Texas Catholic Conference of Bishops |
Oppose |
Argues HB 3330 weakens safeguards against wrongful convictions. |
| Alan Place |
Texas Criminal Defense Lawyers Association (TCDLA) |
Oppose |
Says the bill reverses 50 years of case law and limits defense access to evidence. |
| Mike Ware |
Innocence Project of Texas |
Oppose |
Warns the bill enables concealment of evidence and would lead to more wrongful convictions. |
| Burke Butler |
Texas Defender Service |
Oppose |
Calls HB 3330 a gutting of the Michael Morton Act; emphasizes transparency. |
| Richard Miles |
Exoneree; Founder of Miles of Freedom |
Oppose |
Points to his own wrongful conviction due to undisclosed evidence. |
| Amanda Marzullo |
Austin Community Law Center |
Oppose |
Criticizes the narrowing of discovery standards and burden shifting. |
| Sam Bassett |
TCDLA and Self |
Oppose |
Warns against diluting protections that prevent law enforcement cover-ups. |
| Joe Patton |
Dallas County Public Defender’s Office |
Oppose |
Concerned about vague standards and increased litigation over discovery disputes. |
| John Raley |
Attorney for Michael Morton |
Oppose |
Urges against letting prosecutors again become evidence gatekeepers. |
| Bay Scoggin |
Innocence Project |
Oppose |
Adds organizational opposition to the bill based on wrongful conviction risks. |
| Jeremy Rosenthal |
Criminal defense attorney, McKinney |
Oppose |
Stated the current discovery law is working; emphasized prosecutors should embrace disclosure as part of modern practice. |
| Nicole DeBorde Hochglaube |
Former President, Harris County Criminal Lawyers Association |
Oppose |
Argued the bill weakens the Michael Morton Act by limiting judicial discretion and imposing unfair constraints on raising discovery violations; emphasized urgency by traveling from court to testify. |
Why Texas Must Reject HB 3330 and SB 1124
The Michael Morton Act was not simply a legislative fix — it was a moral reckoning. It stood for the proposition that justice requires transparency, that the State cannot be trusted to self-police without accountability, and that a fair trial demands full disclosure of all relevant facts.
HB 3330 and SB 1124 threaten to undo this progress.
Texas already leads the nation in exonerations. The response to that sobering fact should be to strengthen safeguards, not dismantle them. The public deserves a system that values truth more than conviction rates, and defendants deserve a level playing field when their liberty is at stake.
The Fight Isn’t Over: Why Vigilance Still Matters
Even if HB 3330 is left pending in committee this session, the threat it represents is very real — and growing. Its Senate companion, SB 1124 passed the Senate. On April 15, 2025, SB 1124 was approved and sent to the House the next day, where it was referred to the Criminal Jurisprudence Committee. Considered as House Bill 3330, the legislation was left pending in committee on April 22, 2025 – at least for now.
If it advances, these sweeping changes to Texas discovery law could move quickly through the House and become law.
This is not the first attempt to roll back the Michael Morton Act. In 2019, Senator Joan Huffman introduced SB 2136, which, like the current bills, sought to limit courts’ ability to exclude evidence unless the State acted in bad faith and caused irreparable harm — the same high bar proposed now. That bill failed, but the strategy behind it has not gone away.
Even if HB 3330 and SB 1124 stall this year, they are part of a broader, persistent effort to narrow the State’s discovery duties and reduce the consequences for noncompliance. Each time these ideas are introduced — whether they pass or not — they gain traction and risk becoming the new norm if met with silence.
That’s why defense lawyers, judges, and the public must stay vigilant. The Michael Morton Act was a landmark reform rooted in the simple idea that fairness requires transparency. Letting this rollback quietly die without resistance only ensures it will return — maybe under a new number or hidden in broader legislation.
If Texas is serious about justice, it must remain serious about accountability. These bills deserve to fail — and to fail loudly.