By Hinojosa                                           H.B. No. 1474
         77R6289 GWK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to establishing procedures for the preservation of
 1-3     evidence containing DNA and postconviction DNA testing.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Chapter 38, Code of Criminal Procedure, is
 1-6     amended by adding Article 38.39 to read as follows:
 1-7           Art. 38.39.  PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL
 1-8     MATERIAL. (a)  In a criminal case in which a defendant is
 1-9     convicted, the attorney representing the state, a clerk, or any
1-10     other officer in possession of evidence described by Subsection
1-11     (b), shall ensure the preservation of the evidence.
1-12           (b)  This article applies to evidence that:
1-13                 (1)  was in the possession of the state during the
1-14     prosecution of the case; and
1-15                 (2)  at the time of conviction was known to contain
1-16     biological material that if subjected to scientific testing would
1-17     more likely than not:
1-18                       (A)  establish the identity of the person
1-19     committing the offense; or
1-20                       (B)  exclude a person from the group of persons
1-21     who could have committed the offense.
1-22           (c)  Except as provided by Subsection (d), material required
1-23     to be preserved under this article must be preserved:
1-24                 (1)  until the inmate is executed, dies, or is released
 2-1     on parole, if the defendant was convicted of a capital felony; or
 2-2                 (2)  until the defendant dies, completes the
 2-3     defendant's sentence, or is released on parole or mandatory
 2-4     supervision, if the defendant is sentenced to a term of confinement
 2-5     or imprisonment.
 2-6           (d)  The attorney representing the state, clerk, or other
 2-7     officer in possession of evidence described by Subsection (b) may
 2-8     destroy the evidence, but only if the attorney, clerk, or officer
 2-9     by mail notifies the defendant, the last attorney of record for the
2-10     defendant, and the convicting court of the decision to destroy the
2-11     evidence, and a written objection is not received by the attorney,
2-12     clerk, or officer from the defendant, attorney of record, or court
2-13     before the 91st day after notice of the planned destruction of the
2-14     evidence is mailed.
2-15           (e)  To the extent of any conflict, this article controls
2-16     over Article 2.21.
2-17           SECTION 2. Part 1, Code of Criminal Procedure, is amended by
2-18     adding Chapter 64 to read as follows:
2-19                CHAPTER 64.  MOTION FOR FORENSIC DNA TESTING
2-20           Art. 64.01.  MOTION. (a)  A convicted person may submit to
2-21     the convicting court a motion for forensic DNA testing of evidence
2-22     containing biological material.  The motion must be accompanied by
2-23     an affidavit, sworn to by the convicted person, containing
2-24     statements of fact in support of the motion.
2-25           (b)  The motion may request forensic DNA testing only of
2-26     evidence described by Subsection (a) that was secured in relation
2-27     to the offense that is the basis of the challenged conviction and
 3-1     was in the possession of the state during the trial of the offense,
 3-2     but:
 3-3                 (1)  was not previously subjected to DNA testing:
 3-4                       (A)  because DNA testing was:
 3-5                             (i)  not available; or
 3-6                             (ii)  available, but not technologically
 3-7     capable of providing probative results; or
 3-8                       (B)  through no fault of the convicted person,
 3-9     for reasons that are of a nature such that the interests of justice
3-10     require DNA testing; or
3-11                 (2)  although previously subjected to DNA testing, can
3-12     be subjected to testing with newer testing techniques that provide
3-13     a reasonable likelihood of results that are more accurate and
3-14     probative than the results of the previous test.
3-15           Art. 64.02.  NOTICE TO STATE; RESPONSE.  On receipt of the
3-16     motion, the convicting court shall:
3-17                 (1)  provide the attorney representing the state with a
3-18     copy of the motion; and
3-19                 (2)  require the attorney representing the state to:
3-20                       (A)  deliver the evidence to the court, along
3-21     with a description of the condition of the evidence; or
3-22                       (B)  explain in writing to the court why the
3-23     state cannot deliver the evidence to the court.
3-24           Art. 64.03.  REQUIREMENTS; TESTING.  (a)  A convicting court
3-25     may order forensic DNA testing under this chapter only if:
3-26                 (1)  the court finds that:
3-27                       (A)  the evidence:
 4-1                             (i)  still exists and is in a condition
 4-2     making DNA testing possible; and
 4-3                             (ii)  has been subjected to a chain of
 4-4     custody sufficient to establish that it has not been substituted,
 4-5     tampered with, replaced, or altered in any material respect; and
 4-6                       (B)  identity was or is an issue in the case; and
 4-7                 (2)  the convicted person establishes by a
 4-8     preponderance of the evidence that:
 4-9                       (A)  a reasonable probability exists that the
4-10     person would not have been prosecuted or convicted if exculpatory
4-11     results had been obtained through DNA testing; and
4-12                       (B)  the request for the proposed DNA testing is
4-13     not made to unreasonably delay the execution of sentence or
4-14     administration of justice.
4-15           (b)  If the convicting court finds in the affirmative the
4-16     issues listed in Subsection (a)(1) and the convicted person meets
4-17     the requirements of Subsection (a)(2), the court shall order that
4-18     the requested forensic DNA testing be conducted.  The court may
4-19     order the test to be conducted by the Department of Public Safety,
4-20     by a laboratory operating under a contract with the department, or,
4-21     on agreement of the parties, by another laboratory.
4-22           (c)  If the convicting court orders that the forensic DNA
4-23     testing be conducted by a laboratory other than a Department of
4-24     Public Safety laboratory or a laboratory under contract with the
4-25     department, the State of Texas is not liable for the cost of
4-26     testing.  If the court orders that the testing be conducted by a
4-27     laboratory described by this subsection, the court shall include in
 5-1     the order requirements that:
 5-2                 (1)  the DNA testing be conducted under reasonable
 5-3     conditions designed to protect the integrity of the evidence and
 5-4     the testing process;
 5-5                 (2)  the DNA testing employ a scientific method
 5-6     sufficiently reliable and relevant to be admissible under Rule 702,
 5-7     Texas Rules of Evidence; and
 5-8                 (3)  on completion of the DNA testing, the results of
 5-9     the testing and all data related to the testing required for an
5-10     evaluation of the test results be immediately filed with the court
5-11     and copies of the results and data be served on the convicted
5-12     person and the attorney representing the state.
5-13           (d)  The convicting court, not later than the 30th day after
5-14     the conclusion of a proceeding under this chapter, shall forward
5-15     the results to the Department of Public Safety.
5-16           Art. 64.04.  FINDING.  After examining the results of testing
5-17     under Article 64.03, the convicting court shall hold a hearing and
5-18     make a finding as to whether the results are favorable to the
5-19     convicted person.  For the purposes of this article, results are
5-20     favorable if, had the results been available before or during the
5-21     trial of the offense, it is reasonably probable that the person
5-22     would not have been prosecuted or convicted.
5-23           Art. 64.05.  APPEALS. An appeal of a finding under Article
5-24     64.04 is to a court of appeals, except that if the convicted person
5-25     was convicted in a capital case, the appeal of the finding is a
5-26     direct appeal to the court of criminal appeals.
5-27           SECTION 3. Section 411.142(g), Government Code, is amended to
 6-1     read as follows:
 6-2           (g)  The DNA database may contain DNA records for the
 6-3     following:
 6-4                 (1)  a person described by Section 411.148 or 411.150;
 6-5                 (2)  a biological specimen of a deceased victim of a
 6-6     crime;
 6-7                 (3)  a biological specimen that is legally obtained in
 6-8     the investigation of a crime, regardless of origin;
 6-9                 (4)  results of testing ordered under Article 64.03,
6-10     Code of Criminal Procedure;
6-11                 (5)  an unidentified missing person, or unidentified
6-12     skeletal remains or body parts;
6-13                 (6) [(5)]  a close biological relative of a person who
6-14     has been reported missing to a law enforcement agency;
6-15                 (7) [(6)]  a person at risk of becoming lost, such as a
6-16     child or a person declared by a court to be mentally incapacitated,
6-17     if the record is required by court order or a parent, conservator,
6-18     or guardian of the person consents to the record; or  
6-19                 (8) [(7)]  an unidentified person, if the record does
6-20     not contain personal identifying information.
6-21           SECTION 4. (a)  If a person filed an application for a
6-22     postconviction writ of habeas corpus that was denied or dismissed
6-23     before September 1, 2001, and if the results of forensic testing
6-24     conducted under Article 64.03, Code of Criminal Procedure, as added
6-25     by this Act, are favorable to the person, a claim based on actual
6-26     innocence that is asserted in a subsequent application is, for the
6-27     purposes of Section 4(a), Article 11.07, Code of Criminal
 7-1     Procedure, and Section 5(a), Article 11.071, Code of Criminal
 7-2     Procedure, a claim the legal basis for which was unavailable on the
 7-3     date the applicant filed the previous application.
 7-4           (b)  An applicant whose application for a writ of habeas
 7-5     corpus is pending on September 1, 2001, on submitting a motion
 7-6     under Chapter 64, Code of Criminal Procedure, is entitled to a stay
 7-7     of the proceeding pending a determination by the convicting court
 7-8     as to whether to order DNA testing, and on receiving favorable
 7-9     results, to amend the petition.  The court of criminal appeals
7-10     shall adopt rules to provide for a stay of proceedings and the
7-11     filing of amendments as authorized by this subsection.
7-12           (c)  The Texas Department of Criminal Justice shall provide
7-13     notice of the provisions of this Act to all persons housed in
7-14     facilities operated by or under contract with the department.  In
7-15     providing notice under this section, the Texas Department of
7-16     Criminal Justice shall:
7-17                 (1)  include notice of the provisions of this Act in a
7-18     newspaper or similar publication published for persons housed in
7-19     facilities operated by or under contract with the department;
7-20                 (2)  post notice of the provisions of this Act in each
7-21     law library maintained by the department or under contract with the
7-22     department in a facility in which persons are housed; and
7-23                 (3)  ensure that adequate notice is provided to persons
7-24     who are not housed in the general population of inmates.
7-25           SECTION 5.  This Act takes effect immediately if it receives
7-26     a vote of two-thirds of all the members elected to each house, as
7-27     provided by Section 39, Article III, Texas Constitution.  If this
 8-1     Act does not receive the vote necessary for immediate effect, this
 8-2     Act takes effect September 1, 2001.