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