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 the later of the following dates:
2-13 (1) the date on which the attorney representing the
2-14 state, clerk, or other officer receives proof that the defendant
2-15 received notice of the planned destruction of evidence; or
2-16 (2) the date on which notice of the planned
2-17 destruction of evidence is mailed to the last attorney of record
2-18 for the defendant.
2-19 (e) To the extent of any conflict, this article controls
2-20 over Article 2.21.
2-21 SECTION 2. Part 1, Code of Criminal Procedure, is amended by
2-22 adding Chapter 64 to read as follows:
2-23 CHAPTER 64. MOTION FOR FORENSIC DNA TESTING
2-24 Art. 64.01. MOTION. (a) A convicted person may submit to
2-25 the convicting court a motion for forensic DNA testing of evidence
2-26 containing biological material. The motion must be accompanied by
3-1 an affidavit, sworn to by the convicted person, containing
3-2 statements of fact in support of the motion.
3-3 (b) The motion may request forensic DNA testing only of
3-4 evidence described by Subsection (a) that was secured in relation
3-5 to the offense that is the basis of the challenged conviction and
3-6 was in the possession of the state during the trial of the offense,
3-7 but:
3-8 (1) was not previously subjected to DNA testing:
3-9 (A) because DNA testing was:
3-10 (i) not available; or
3-11 (ii) available, but not technologically
3-12 capable of providing probative results; or
3-13 (B) through no fault of the convicted person,
3-14 for reasons that are of a nature such that the interests of justice
3-15 require DNA testing; or
3-16 (2) although previously subjected to DNA testing, can
3-17 be subjected to testing with newer testing techniques that provide
3-18 a reasonable likelihood of results that are more accurate and
3-19 probative than the results of the previous test.
3-20 (c) A convicted person is entitled to counsel during a
3-21 proceeding under this chapter. If a convicted person informs the
3-22 convicting court that the person wishes to submit a motion under
3-23 this chapter and if the court determines that the person is
3-24 indigent, the court shall appoint counsel for the person.
3-25 Compensation of counsel is provided in the same manner as is
3-26 required by:
4-1 (1) Article 11.071 for the representation of a
4-2 petitioner convicted of a capital felony; and
4-3 (2) Chapter 26 for the representation in a habeas
4-4 corpus hearing of an indigent defendant convicted of a felony other
4-5 than a capital felony.
4-6 Art. 64.02. NOTICE TO STATE; RESPONSE. On receipt of the
4-7 motion, the convicting court shall:
4-8 (1) provide the attorney representing the state with a
4-9 copy of the motion; and
4-10 (2) require the attorney representing the state to:
4-11 (A) deliver the evidence to the court, along
4-12 with a description of the condition of the evidence; or
4-13 (B) explain in writing to the court why the
4-14 state cannot deliver the evidence to the court.
4-15 Art. 64.03. REQUIREMENTS; TESTING. (a) A convicting court
4-16 may order forensic DNA testing under this chapter only if:
4-17 (1) the court finds that:
4-18 (A) the evidence:
4-19 (i) still exists and is in a condition
4-20 making DNA testing possible; and
4-21 (ii) has been subjected to a chain of
4-22 custody sufficient to establish that it has not been substituted,
4-23 tampered with, replaced, or altered in any material respect; and
4-24 (B) identity was or is an issue in the case; and
4-25 (2) the convicted person establishes by a
4-26 preponderance of the evidence that:
5-1 (A) a reasonable probability exists that the
5-2 person would not have been prosecuted or convicted if exculpatory
5-3 results had been obtained through DNA testing; and
5-4 (B) the request for the proposed DNA testing is
5-5 not made to unreasonably delay the execution of sentence or
5-6 administration of justice.
5-7 (b) A convicted person who pleaded guilty or nolo contendere
5-8 in the case may submit a motion under this chapter, and the
5-9 convicting court is prohibited from finding that identity was not
5-10 an issue in the case solely on the basis of that plea.
5-11 (c) If the convicting court finds in the affirmative the
5-12 issues listed in Subsection (a)(1) and the convicted person meets
5-13 the requirements of Subsection (a)(2), the court shall order that
5-14 the requested forensic DNA testing be conducted. The court may
5-15 order the test to be conducted by the Department of Public Safety,
5-16 by a laboratory operating under a contract with the department, or,
5-17 on agreement of the parties, by another laboratory.
5-18 (d) If the convicting court orders that the forensic DNA
5-19 testing be conducted by a laboratory other than a Department of
5-20 Public Safety laboratory or a laboratory under contract with the
5-21 department, the State of Texas is not liable for the cost of
5-22 testing. If the court orders that the testing be conducted by a
5-23 laboratory described by this subsection, the court shall include in
5-24 the order requirements that:
5-25 (1) the DNA testing be conducted under reasonable
5-26 conditions designed to protect the integrity of the evidence and
6-1 the testing process;
6-2 (2) the DNA testing employ a scientific method
6-3 sufficiently reliable and relevant to be admissible under Rule 702,
6-4 Texas Rules of Evidence; and
6-5 (3) on completion of the DNA testing, the results of
6-6 the testing and all data related to the testing required for an
6-7 evaluation of the test results be immediately filed with the court
6-8 and copies of the results and data be served on the convicted
6-9 person and the attorney representing the state.
6-10 (e) The convicting court, not later than the 30th day after
6-11 the conclusion of a proceeding under this chapter, shall forward
6-12 the results to the Department of Public Safety.
6-13 Art. 64.04. FINDING. After examining the results of testing
6-14 under Article 64.03, the convicting court shall hold a hearing and
6-15 make a finding as to whether the results are favorable to the
6-16 convicted person. For the purposes of this article, results are
6-17 favorable if, had the results been available before or during the
6-18 trial of the offense, it is reasonably probable that the person
6-19 would not have been prosecuted or convicted.
6-20 Art. 64.05. APPEALS. An appeal of a finding under Article
6-21 64.03 or 64.04 is to a court of appeals, except that if the
6-22 convicted person was convicted in a capital case, the appeal of the
6-23 finding is a direct appeal to the court of criminal appeals.
6-24 SECTION 3. Chapter 17, Code of Criminal Procedure, is
6-25 amended by adding Article 17.47 to read as follows:
6-26 Art. 17.47. POSTTRIAL ACTIONS. A convicting court on
7-1 entering a finding favorable to a convicted person under Article
7-2 64.04, after a hearing at which the attorney representing the state
7-3 and the counsel for the defendant are entitled to appear, may
7-4 release the convicted person on bail under this chapter pending the
7-5 conclusion of court proceedings or proceedings under Section 11,
7-6 Article IV, Texas Constitution, and Article 48.01.
7-7 SECTION 4. Subsection (g), Section 411.142, Government Code,
7-8 is amended to read as follows:
7-9 (g) The DNA database may contain DNA records for the
7-10 following:
7-11 (1) a person described by Section 411.148 or 411.150;
7-12 (2) a biological specimen of a deceased victim of a
7-13 crime;
7-14 (3) a biological specimen that is legally obtained in
7-15 the investigation of a crime, regardless of origin;
7-16 (4) results of testing ordered under Article 64.03,
7-17 Code of Criminal Procedure;
7-18 (5) an unidentified missing person, or unidentified
7-19 skeletal remains or body parts;
7-20 (6) [(5)] a close biological relative of a person who
7-21 has been reported missing to a law enforcement agency;
7-22 (7) [(6)] a person at risk of becoming lost, such as a
7-23 child or a person declared by a court to be mentally incapacitated,
7-24 if the record is required by court order or a parent, conservator,
7-25 or guardian of the person consents to the record; or
7-26 (8) [(7)] an unidentified person, if the record does
8-1 not contain personal identifying information.
8-2 SECTION 5. (a) If a person filed an application for a
8-3 postconviction writ of habeas corpus that was denied or dismissed
8-4 before September 1, 2001, and if the results of forensic testing
8-5 conducted under Article 64.03, Code of Criminal Procedure, as added
8-6 by this Act, are favorable to the person, a claim based on actual
8-7 innocence that is asserted in a subsequent application is, for the
8-8 purposes of Subsection (a), Section 4, Article 11.07, Code of
8-9 Criminal Procedure, and Subsection (a), Section 5, Article 11.071,
8-10 Code of Criminal Procedure, a claim the legal basis for which was
8-11 unavailable on the date the applicant filed the previous
8-12 application.
8-13 (b) An applicant whose application for a writ of habeas
8-14 corpus is pending on September 1, 2001, on submitting a motion
8-15 under Chapter 64, Code of Criminal Procedure, as added by this Act,
8-16 is entitled to a stay of the proceeding pending a determination by
8-17 the convicting court as to whether to order DNA testing and, on
8-18 receiving favorable results, to amend the petition. The court of
8-19 criminal appeals shall adopt rules to provide for a stay of
8-20 proceedings and the filing of amendments as authorized by this
8-21 subsection.
8-22 (c) The Texas Department of Criminal Justice shall provide
8-23 notice of the provisions of this Act to all persons housed in
8-24 facilities operated by or under contract with the department. In
8-25 providing notice under this section, the Texas Department of
8-26 Criminal Justice shall:
9-1 (1) include notice of the provisions of this Act in a
9-2 newspaper or similar publication published for persons housed in
9-3 facilities operated by or under contract with the department;
9-4 (2) post notice of the provisions of this Act in each
9-5 law library maintained by the department or under contract with the
9-6 department in a facility in which persons are housed; and
9-7 (3) ensure that adequate notice is provided to persons
9-8 who are not housed in the general population of inmates.
9-9 SECTION 6. This Act takes effect immediately if it receives
9-10 a vote of two-thirds of all the members elected to each house, as
9-11 provided by Section 39, Article III, Texas Constitution. If this
9-12 Act does not receive the vote necessary for immediate effect, this
9-13 Act takes effect September 1, 2001.
S.B. No. 3
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 3 passed the Senate on
February 19, 2001, by the following vote: Yeas 30, Nays 0, one
present, not voting; March 26, 2001, Senate refused to concur in
House amendments and requested appointment of Conference Committee;
March 28, 2001, House granted request of the Senate; April 2, 2001,
Senate adopted Conference Committee Report by the following vote:
Yeas 30, Nays 0, one present, not voting.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 3 passed the House, with
amendments, on March 22, 2001, by the following vote: Yeas 132,
Nays 1, two present, not voting; March 28, 2001, House granted
request of the Senate for appointment of Conference Committee;
April 3, 2001, House adopted Conference Committee Report by the
following vote: Yeas 147, Nays 0, one present, not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor