SRC-JBJ C.S.S.B. 3 77(R)BILL ANALYSIS
Senate Research CenterC.S.S.B. 3
77R6404 GWK-DBy: Duncan
Jurisprudence
2/13/2001
Committee Report (Substituted)
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, C.S.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:
_was in the possession of the state during the prosecution of the
case; and
_at the time of conviction was known to contain biological material
that if subjected to scientific testing would more likely than not
establish the identity of the person committing the offense, or exclude a
person from the group of persons who could have committed the offense.
(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, the last attorney of record 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, attorney of record, or court before the 91st day after notice of
the planned destruction of the evidence is mailed.
(e) Provides that to the extent of any conflict, this article controls
over Article 2.21.
SECTION 2. Amends Part I, 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. Requires the motion to be accompanied by an
affidavit, sworn to by the convicted person, containing statements of fact
in support of the motion.
(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 was available, but not technologically capable of
providing probative results, or through no fault of the convicted person,
for reasons that are of a nature such that the interests of justice require
DNA testing; 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 convicting court to
order forensic DNA testing under this chapter only if:
_the 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 court, if the convicting 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 convicting 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 convicting 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 convicting court, after examining the
results of testing under Article 64.03, to hold a hearing and 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. APPEALS. Provides that an appeal of a finding under Article
64.04 is to a court of appeals, except that if the convicted person was
convicted in a capital case, the appeal of the finding is a direct appeal
to the court of criminal appeals.
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) Provides that if a person 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.
(b) 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.
(c) Requires the Texas Department of Criminal Justice (department) to
provide notice of the provisions of this Act to all persons housed in
facilities operated by or under contract with the department. Requires the
department to meet certain conditions in providing notice under this
section.
SECTION 5. Effective date: upon passage or September 1, 2001.
SUMMARY OF COMMITTEE CHANGES
SECTION 1. Differs from the original by amending provisions relating to
the application of Article 38.39, Code of Criminal Procedure, to certain
evidence. Replaces references to the "counsel of the defendant" with the
"last attorney of record." Adds provision regarding conflicts with Article
2.21, Code of Criminal Procedure.
SECTION 2. Differs from the original by requiring certain items to be
submitted with the motion. Amends the criteria under which a motion may be
filed to request forensic DNA testing. Replaces references to the "trial
court" with the "convicting court." Amends provisions relating to a
finding as to whether the test results are favorable to the convicted
person to require the convicting court to hold a hearing. Deletes
previously proposed Article 64.05, Code of Criminal Procedure, relating to
the court's discretion. Adds provisions relating to the appeal of findings
under proposed Article 64.04, Code of Criminal Procedure.
SECTION 3. No change.
SECTION 4. Differs from the original by deleting provisions relating to
the filing of a notice of intent to submit a motion under this Act.
Deletes the reference to previously proposed Subsection (a) of this
section. Amends provisions relating to the Texas Department of Criminal
Justice's dissemination of information regarding this Act.
SECTION 5. Differs from original by amending the effective date of this
Act.