SRC-JBJ S.B. 3 77(R) BILL ANALYSIS
Senate Research Center S.B. 3
77R1805 GWK-FBy: Duncan
Jurisprudence
1/25/2001
As Filed
DIGEST AND PURPOSE
Current statutes regulating the use of biological evidence, particularly
evidence containing DNA, have been surpassed by developments in the science
of biological evidence and other related technologies, unnecessarily
inhibiting the use of such evidence. As proposed, S.B. 3 establishes
procedures for the preservation and use of evidence containing DNA and
postconviction DNA testing.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the court of criminal appeals
in SECTION 4 of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 38, Code of Criminal Procedure, by adding
Article 38.39, as follows:
Art. 38.39. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL MATERIAL. (a)
Requires the attorney representing the state, a clerk, or any other officer
in possession of evidence described by Subsection (b), in a criminal case
in which a defendant is convicted, to ensure the preservation of the
evidence.
(b) Provides that this article applies to evidence that contains
biological material and:
_was in the possession of the state during the prosecution of the
case; and
_because of the presence of the biological material, might establish
the identity of the individual committing the offense or any element of the
offense for which the defendant was convicted.
(c) Requires material required to be preserved under this article, except
as provided by Subsection (d), to be preserved:
_until the inmate is executed, dies, or is released on parole, if the
defendant was convicted or a capital felony; or
_until the defendant dies, completes the defendant's sentence, or is
released on parole or mandatory supervision, if the defendant is sentenced
to a term of confinement or imprisonment.
(d) Authorizes the attorney representing the state, clerk, or other
officer in possession of evidence described by Subsection (b) to destroy
the evidence, but only if the attorney, clerk, or officer by mail notifies
the defendant, counsel for the defendant, and the convicting court of the
decision to destroy the evidence, and written objection is not received by
the attorney, clerk, or officer from the defendant, counsel, or court
before the 91st day after notice of the planned destruction of the evidence
is mailed.
SECTION 2. Amends Title 1, Code of Criminal Procedure, by adding Chapter
64, as follows:
CHAPTER 64. MOTION FOR FORENSIC DNA TESTING
Art. 64.01. MOTION. (a) Authorizes a convicted person to submit to the
convicting court a motion for forensic DNA testing of evidence containing
biological material.
(b) Authorizes the motion to request forensic DNA testing only of evidence
described by Subsection (a) that was secured in relation to the offense
that is the basis of the challenge conviction and was in the possession of
the state during the trial of the offense, but:
_was not previously subjected to DNA testing because DNA testing was
not available; or
_although previously subjected to DNA testing, can be subjected to
testing with newer testing techniques that provide a reasonable likelihood
of results that are more accurate and probative than the results of the
previous test.
Art. 64.02. NOTICE TO STATE; RESPONSE. Requires the trial court, on
receipt of the motion, to:
_provide the attorney representing the state with a copy of the motion;
and
_require the attorney representing the state to deliver the evidence to
the court, along with a description of the condition of the evidence, or
explain in writing to the court why the state cannot deliver the evidence
to the court.
Art. 64.03. REQUIREMENTS; TESTING. (a) Authorizes a trial court to order
forensic DNA testing under this chapter only if:
_the trial court finds that the evidence meets certain specific
criteria; and
_the convicted person establishes by a preponderance of the evidence a
reasonable probability exists that the person would not have been
prosecuted or convicted if exculpatory results had been obtained through
DNA testing, and the request for the proposed DNA testing is not made to
unreasonably delay the execution of sentence or administration of justice.
(b) Requires the trial court, if the trial court finds in the affirmative
the issues listed in Subsection (a)(1) and the convicted person meets the
requirements in Subsection (a)(2), to order that the requested forensic DNA
testing be conducted. Authorizes the court to order the test to be
conducted by the Department of Public Safety (DPS), by a laboratory
operating under a contract with DPS, or, on agreement of the parties, by
another laboratory.
(c) Provides that the State of Texas is not liable for the cost of testing
if the court orders that the forensic DNA testing be conducted by a
laboratory other than a DPS laboratory or a laboratory under contract with
DPS. Requires the court, if the court orders that the testing be conducted
by a laboratory described by this subsection, to include in the order
requirements that:
_the DNA testing be conducted under reasonable conditions designed to
protect the integrity of the evidence and the testing process;
_the DNA testing employ a scientific method sufficiently reliable and
relevant to be admissible under Rule 702 (Testimony by Experts), Texas
Rules of Evidence; and
_on completion of the DNA testing, the results of the testing and all
data related to the testing required for an evaluation of the test results
be immediately filed with the court and copies of the results and data be
served on the convicted person and the attorney representing the state.
(d) Requires the court, not later than the 30th day after the conclusion
of a proceeding under this chapter, to forward the results to DPS.
Art. 64.04. FINDING. Requires the court, after examining the results of
testing under Article 64.03, to make a finding as to whether the results
are favorable to the convicted person. Provides that, for the purposes of
this article, results are favorable if, had the results been available
before or during the trial of the offense, it is reasonably probable that
the person would not have been prosecuted or convicted.
Art. 64.05. COURT'S DISCRETION. Provides that this chapter does not limit
a trial court's discretion to order DNA testing in the interest of justice,
if the trial court first makes a finding that results of testing may be
material to a claim of innocence.
SECTION 3. Amends Section 411.142(g), Government Code, to authorize the
DNA database to contain DNA records of certain samples, including results
of testing ordered under Article 64.03, Code of Criminal Procedure.
SECTION 4. (a) Requires a person who was finally convicted before
September 1, 2001, and who wishes to submit a motion requesting
postconviction DNA testing under Chapter 64, Code of Criminal Procedure, as
added by this Act, to file a notice of intent to submit the motion before
September 1, 2005.
(b) Provides that if a person described by Subsection (a) of this section
filed an application for a postconviction writ of habeas corpus that was
denied or dismissed before September 1, 2001, and if the results of
forensic testing conducted under Article 64.03, Code of Criminal Procedure,
as added by this Act, are favorable to the person, a claim based on actual
innocence that is asserted in a subsequent application is, for the purposes
of Section 4(a), Article 11.07, Code of Criminal Procedure, and Section
5(a), Article 11.071, Code of Criminal Procedure, a claim the legal basis
for which was unavailable on the date the applicant filed the previous
application.
(c) Provides that an applicant whose application for a writ of habeas
corpus is pending on September 1, 2001, on submitting a motion under
Chapter 64, Code of Criminal Procedures, is entitled to a stay of the
proceeding pending a determination by the convicting court as to whether to
order DNA testing, and on receiving favorable results, to amend the
petition. Requires the court of criminal appeals to adopt rules to provide
for a stay of proceedings and the filing of amendments as authorized by
this subsection.
(d) Requires the Texas Department of Criminal Justice (TDCJ) to provide
each inmate imprisoned in the institutional division of TDCJ on September
1, 2001, with a copy of this Act and a brief description of this Act in
layman's terms and in a language the inmate understands. Requires TDCJ to
require the inmate to sign a dated statement acknowledging that the inmate
received the documents described by this subsection. Requires the TDCJ
employee, if the inmate refuses to accept the document, to sign a dated
statement describing the refusal. Provides that the September 1, 2005,
deadline under Subsection (a) of this section by which an inmate must
submit a motion is extended by one day for each day after September 1,
2001, on which TDCJ does not have a signed statement acknowledging the
inmate's receipt of documents or a signed statement describing the inmate's
refusal to accept documents.
SECTION 5. Effective date: September 1, 2001.