By Duncan S.B. No. 3
77R1805 GWK-F
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 contains
1-13 biological material and:
1-14 (1) was in the possession of the state during the
1-15 prosecution of the case; and
1-16 (2) because of the presence of the biological
1-17 material, might establish the identity of the individual committing
1-18 the offense or any element of the offense for which the defendant
1-19 was convicted.
1-20 (c) Except as provided by Subsection (d), material required
1-21 to be preserved under this article must be preserved:
1-22 (1) until the inmate is executed, dies, or is released
1-23 on parole, if the defendant was convicted of a capital felony; or
1-24 (2) until the defendant dies, completes the
2-1 defendant's sentence, or is released on parole or mandatory
2-2 supervision, if the defendant is sentenced to a term of confinement
2-3 or imprisonment.
2-4 (d) The attorney representing the state, clerk, or other
2-5 officer in possession of evidence described by Subsection (b) may
2-6 destroy the evidence, but only if the attorney, clerk, or officer
2-7 by mail notifies the defendant, counsel for the defendant, and the
2-8 convicting court of the decision to destroy the evidence, and a
2-9 written objection is not received by the attorney, clerk, or
2-10 officer from the defendant, counsel, or court before the 91st day
2-11 after notice of the planned destruction of the evidence is mailed.
2-12 SECTION 2. Title 1, Code of Criminal Procedure, is amended by
2-13 adding Chapter 64 to read as follows:
2-14 CHAPTER 64. MOTION FOR FORENSIC DNA TESTING
2-15 Art. 64.01. MOTION. (a) A convicted person may submit to
2-16 the convicting court a motion for forensic DNA testing of evidence
2-17 containing biological material.
2-18 (b) The motion may request forensic DNA testing only of
2-19 evidence described by Subsection (a) that was secured in relation
2-20 to the offense that is the basis of the challenged conviction and
2-21 was in the possession of the state during the trial of the offense,
2-22 but:
2-23 (1) was not previously subjected to DNA testing
2-24 because DNA testing was not available; or
2-25 (2) although previously subjected to DNA testing, can
2-26 be subjected to testing with newer testing techniques that provide
2-27 a reasonable likelihood of results that are more accurate and
3-1 probative than the results of the previous test.
3-2 Art. 64.02. NOTICE TO STATE; RESPONSE. On receipt of the
3-3 motion, the trial court shall:
3-4 (1) provide the attorney representing the state with a
3-5 copy of the motion; and
3-6 (2) require the attorney representing the state to:
3-7 (A) deliver the evidence to the court, along
3-8 with a description of the condition of the evidence; or
3-9 (B) explain in writing to the court why the
3-10 state cannot deliver the evidence to the court.
3-11 Art. 64.03. REQUIREMENTS; TESTING. (a) A trial court may
3-12 order forensic DNA testing under this chapter only if:
3-13 (1) the trial court finds that:
3-14 (A) the evidence:
3-15 (i) still exists and is in a condition
3-16 making DNA testing possible; and
3-17 (ii) has been subjected to a chain of
3-18 custody sufficient to establish that it has not been substituted,
3-19 tampered with, replaced, or altered in any material respect; and
3-20 (B) identity was an issue in the case; and
3-21 (2) the convicted person establishes by a
3-22 preponderance of the evidence that:
3-23 (A) a reasonable probability exists that the
3-24 person would not have been prosecuted or convicted if exculpatory
3-25 results had been obtained through DNA testing; and
3-26 (B) the request for the proposed DNA testing is
3-27 not made to unreasonably delay the execution of sentence or
4-1 administration of justice.
4-2 (b) If the trial court finds in the affirmative the issues
4-3 listed in Subsection (a)(1) and the convicted person meets the
4-4 requirements of Subsection (a)(2), the trial court shall order that
4-5 the requested forensic DNA testing be conducted. The court may
4-6 order the test to be conducted by the Department of Public Safety,
4-7 by a laboratory operating under a contract with the department, or,
4-8 on agreement of the parties, by another laboratory.
4-9 (c) If the court orders that the forensic DNA testing be
4-10 conducted by a laboratory other than a Department of Public Safety
4-11 laboratory or a laboratory under contract with the department, the
4-12 State of Texas is not liable for the cost of testing. If the court
4-13 orders that the testing be conducted by a laboratory described by
4-14 this subsection, the court shall include in the order requirements
4-15 that:
4-16 (1) the DNA testing be conducted under reasonable
4-17 conditions designed to protect the integrity of the evidence and
4-18 the testing process;
4-19 (2) the DNA testing employ a scientific method
4-20 sufficiently reliable and relevant to be admissible under Rule 702,
4-21 Texas Rules of Evidence; and
4-22 (3) on completion of the DNA testing, the results of
4-23 the testing and all data related to the testing required for an
4-24 evaluation of the test results be immediately filed with the court
4-25 and copies of the results and data be served on the convicted
4-26 person and the attorney representing the state.
4-27 (d) The court, not later than the 30th day after the
5-1 conclusion of a proceeding under this chapter, shall forward the
5-2 results to the Department of Public Safety.
5-3 Art. 64.04. FINDING. After examining the results of testing
5-4 under Article 64.03, the court shall make a finding as to whether
5-5 the results are favorable to the convicted person. For the
5-6 purposes of this article, results are favorable if, had the results
5-7 been available before or during the trial of the offense, it is
5-8 reasonably probable that the person would not have been prosecuted
5-9 or convicted.
5-10 Art. 64.05. COURT'S DISCRETION. This chapter does not limit
5-11 a trial court's discretion to order DNA testing in the interest of
5-12 justice, if the trial court first makes a finding that results of
5-13 testing may be material to a claim of innocence.
5-14 SECTION 3. Section 411.142(g), Government Code, is amended to
5-15 read as follows:
5-16 (g) The DNA database may contain DNA records for the
5-17 following:
5-18 (1) a person described by Section 411.148 or 411.150;
5-19 (2) a biological specimen of a deceased victim of a
5-20 crime;
5-21 (3) a biological specimen that is legally obtained in
5-22 the investigation of a crime, regardless of origin;
5-23 (4) results of testing ordered under Article 64.03,
5-24 Code of Criminal Procedure;
5-25 (5) an unidentified missing person, or unidentified
5-26 skeletal remains or body parts;
5-27 (6) [(5)] a close biological relative of a person who
6-1 has been reported missing to a law enforcement agency;
6-2 (7) [(6)] a person at risk of becoming lost, such as a
6-3 child or a person declared by a court to be mentally incapacitated,
6-4 if the record is required by court order or a parent, conservator,
6-5 or guardian of the person consents to the record; or
6-6 (8) [(7)] an unidentified person, if the record does
6-7 not contain personal identifying information.
6-8 SECTION 4. (a) A person who was finally convicted before
6-9 September 1, 2001, and who wishes to submit a motion requesting
6-10 postconviction DNA testing under Chapter 64, Code of Criminal
6-11 Procedure, as added by this Act, must file a notice of intent to
6-12 submit the motion before September 1, 2005.
6-13 (b) If a person described by Subsection (a) of this section
6-14 filed an application for a postconviction writ of habeas corpus
6-15 that was denied or dismissed before September 1, 2001, and if the
6-16 results of forensic testing conducted under Article 64.03, Code of
6-17 Criminal Procedure, as added by this Act, are favorable to the
6-18 person, a claim based on actual innocence that is asserted in a
6-19 subsequent application is, for the purposes of Section 4(a),
6-20 Article 11.07, Code of Criminal Procedure, and Section 5(a),
6-21 Article 11.071, Code of Criminal Procedure, a claim the legal basis
6-22 for which was unavailable on the date the applicant filed the
6-23 previous application.
6-24 (c) An applicant whose application for a writ of habeas
6-25 corpus is pending on September 1, 2001, on submitting a motion
6-26 under Chapter 64, Code of Criminal Procedure, is entitled to a stay
6-27 of the proceeding pending a determination by the convicting court
7-1 as to whether to order DNA testing, and on receiving favorable
7-2 results, to amend the petition. The court of criminal appeals
7-3 shall adopt rules to provide for a stay of proceedings and the
7-4 filing of amendments as authorized by this subsection.
7-5 (d) The Texas Department of Criminal Justice shall provide
7-6 each inmate imprisoned in the institutional division of the
7-7 department on September 1, 2001, with a copy of this Act and a
7-8 brief description of this Act in layman's terms and in a language
7-9 the inmate understands. The department shall require the inmate to
7-10 sign a dated statement acknowledging that the inmate received the
7-11 documents described by this subsection. If the inmate refuses to
7-12 accept the documents, the department employee shall sign a dated
7-13 statement describing the refusal. The September 1, 2005, deadline
7-14 under Subsection (a) of this section by which an inmate must submit
7-15 a motion is extended by one day for each day after September 1,
7-16 2001, on which the department does not have a signed statement
7-17 acknowledging the inmate's receipt of documents or a signed
7-18 statement describing the inmate's refusal to accept documents.
7-19 SECTION 5. This Act takes effect September 1, 2001.