We have an elderly woman who was recently the victim of a Robbery/Agg assault /attempted sexual assault/ burglary of hab..My victim is presently very alert but 90 years old and I am concerned that the Def may not get prosecuted if she becomes ill or dies. Have any of you ever set up a deposition and made a video with the Defendant present and his attorney doing cross just to be safe???? I guess if she dies we could still prosecute the Burglary of a habitation with intent to commit theft and let a family memeber tesitify about the deceased ownership of her home and that shewould not have allowed theDef to enter home at midnight ie Habit evidence of locking doors etc????? Hope we get the case asap.so we can move it quickly.

I've been grappling with much the same issue for a while. I've got an old case I'm hoping to indict soon and am terrified that some of my 75+ year old essential witnesses won't make it until trial.
I just don't see a lot of play in 39.02 that would permit the State to take depositions of witnesses.
Any chance the defense attorney will request an examining trial? You could call her to testify at that.
Also, how about asking the judge to set a really high bond so hopefully the defense will file a motion to reduce it right after indictment. You could call her to testify at the bond hearing as to the nature and circumstances of the offense. Clearly the defense would have an opportunity to cross and would have a similar motive in developing cross, so I don't see a complaint if you end up having to introduce that former testimony.
John B. has suggested maybe a "motion to preserve evidence," just requesting the judge to let you call her to the stand at a pretrial hearing....
If you come up with something else that might work, please let me know.

The Dallas DA's office tried mightily to open up PC 39.02, but to no avail. HB 1000 (78-R) would have helped out, but the defense bar killed it in the Senate.

If any of you have cases that are adversely affected by this inability to use something like 39.02, let us know -- the Dallas folks need more examples of injustices like that to help overcome the opposition next session ...

Since there is a statute providing for depositions my Judge says that a pretrial hearing to preserve testimony would not be appropriate...legislative problem... not ours to be creative. My witness is an awsome lady and would be a perfect advocate for change of the law to protect the elderly victims and witnesses who cannot testify.Thanks for the help. I'll do a deposition asap after we get the kid indicted.If someone is working on legislation let me know and I'll talk to our victim.