By Hinojosa H.B. No. 366
77R2859 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to postconviction DNA testing.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Code of Criminal Procedure is amended by
1-5 adding Chapter 11A to read as follows:
1-6 CHAPTER 11A. POSTCONVICTION DNA TESTING
1-7 Art. 11A.01. APPLICATION OF OTHER LAWS. This chapter is
1-8 supplemental to any law governing habeas corpus or appeal and, to
1-9 the extent of any conflict, controls over a law relating to either
1-10 of those forms of relief.
1-11 Art. 11A.02. PETITION. A person sentenced for an offense may
1-12 file a petition in the convicting court requesting the forensic DNA
1-13 testing of any evidence that:
1-14 (1) is in the possession of the attorney representing
1-15 the state, law enforcement, or a court;
1-16 (2) relates to the investigation or prosecution that
1-17 resulted in the person's conviction; and
1-18 (3) is biological evidence or may contain biological
1-19 evidence.
1-20 Art. 11A.03. MANDATORY TESTING. On receipt of a petition and
1-21 after providing the attorney representing the state with notice and
1-22 an opportunity to respond to the allegations in the petition, the
1-23 court shall order DNA testing if the court finds that:
1-24 (1) a reasonable probability exists that the
2-1 petitioner would not have been prosecuted or convicted if
2-2 exculpatory results had been obtained through DNA testing;
2-3 (2) the evidence sought in the petition exists and is
2-4 in such a condition that DNA testing of the evidence is possible;
2-5 (3) the evidence has not been previously subjected to
2-6 DNA testing or, if previously subjected to DNA testing, the type of
2-7 DNA test requested in the petition is capable of resolving an issue
2-8 not resolved by the previous test; and
2-9 (4) the petition is filed to demonstrate innocence and
2-10 not to unreasonably delay the execution of a sentence or the
2-11 administration of justice.
2-12 Art. 11A.04. DISCRETIONARY TESTING. On receipt of a petition
2-13 and after providing the attorney representing the state with notice
2-14 and an opportunity to respond to the allegations in the petition,
2-15 the court may order DNA testing if the court finds that:
2-16 (1) a reasonable probability exists that DNA testing
2-17 of the evidence would produce results that would have rendered the
2-18 verdict or sentence in the case more favorable to the petitioner
2-19 had the results of the testing been available before conviction;
2-20 (2) the evidence sought in the petition exists and is
2-21 in such a condition that DNA testing of the evidence is possible;
2-22 (3) the evidence has not been previously subjected to
2-23 DNA testing or, if previously subjected to DNA testing, the type of
2-24 DNA test requested in the petition is capable of resolving an issue
2-25 not resolved by the previous test; and
2-26 (4) the petition is filed to demonstrate innocence and
2-27 not to unreasonably delay the execution of a sentence or the
3-1 administration of justice.
3-2 Art. 11A.05. COUNSEL; COSTS OF TESTING. (a) A court may
3-3 appoint counsel for an indigent petitioner at any time during a
3-4 proceeding under this chapter. Compensation of counsel is provided
3-5 in the same manner as is required by Chapter 26 for the
3-6 representation of indigent defendants.
3-7 (b) If a court orders DNA testing under Article 11A.03 and
3-8 the petitioner is determined by the court to be indigent, the
3-9 convicting county is responsible for the costs of testing. If a
3-10 court orders DNA testing under Article 11A.04, the court may
3-11 require the convicting county to pay the costs of testing or may
3-12 make the testing conditional on the petitioner paying the costs,
3-13 regardless of whether the petitioner is indigent.
3-14 Art. 11A.06. DISCOVERY. (a) A court may require the
3-15 attorney representing the state or the defendant to provide the
3-16 other party with any laboratory reports and notes and underlying
3-17 data resulting from any DNA testing of evidence related to the
3-18 petitioner's case.
3-19 (b) If either party before the filing of a petition under
3-20 this chapter has conducted DNA testing or other biological evidence
3-21 testing on evidence without the knowledge of the other party, the
3-22 party must reveal that testing in the petition requesting testing
3-23 or the response to the petition, as appropriate.
3-24 (c) If a court orders testing under this chapter, the court
3-25 shall require the production of laboratory reports prepared in
3-26 connection with the testing and may order the production of
3-27 underlying data and laboratory notes.
4-1 Art. 11A.07. PRESERVATION OF EVIDENCE. On the filing of a
4-2 petition under this chapter, unless the petition is summarily
4-3 dismissed, the court shall order the preservation, until
4-4 proceedings under this chapter are final, of all evidence in the
4-5 petitioner's case that is in the possession of the attorney
4-6 representing the state, law enforcement, a laboratory, or an
4-7 officer of the court and that may be subject to DNA testing.
4-8 Art. 11A.08. DISMISSAL OR SUBSEQUENT PROCEEDING. If the
4-9 results of DNA testing under this chapter are not favorable to the
4-10 petitioner, the court shall dismiss the petition and make further
4-11 orders as appropriate. If the results are favorable to the
4-12 petitioner, the court shall proceed on the matter and dispose of
4-13 the matter in the same manner as an application of habeas corpus
4-14 based on actual innocence.
4-15 SECTION 2. This Act takes effect September 1, 2001, and
4-16 applies to any person filing a petition under Chapter 11A, Code of
4-17 Criminal Procedure, as added by this Act, on or after that date,
4-18 regardless of when the alleged offense that is the subject of the
4-19 petition was committed.