1-1 By: Duncan, et al. S.B. No. 3
1-2 (In the Senate - Filed January 17, 2001; January 22, 2001,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 February 13, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0;
1-6 February 13, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 3 By: Duncan
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to establishing procedures for the preservation of
1-11 evidence containing DNA and postconviction DNA testing.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Chapter 38, Code of Criminal Procedure, is
1-14 amended by adding Article 38.39 to read as follows:
1-15 Art. 38.39. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL
1-16 MATERIAL. (a) In a criminal case in which a defendant is
1-17 convicted, the attorney representing the state, a clerk, or any
1-18 other officer in possession of evidence described by Subsection (b)
1-19 shall ensure the preservation of the evidence.
1-20 (b) This article applies to evidence that:
1-21 (1) was in the possession of the state during the
1-22 prosecution of the case; and
1-23 (2) at the time of conviction was known to contain
1-24 biological material that if subjected to scientific testing would
1-25 more likely than not:
1-26 (A) establish the identity of the person
1-27 committing the offense; or
1-28 (B) exclude a person from the group of persons
1-29 who could have committed the offense.
1-30 (c) Except as provided by Subsection (d), material required
1-31 to be preserved under this article must be preserved:
1-32 (1) until the inmate is executed, dies, or is released
1-33 on parole, if the defendant was convicted of a capital felony; or
1-34 (2) until the defendant dies, completes the
1-35 defendant's sentence, or is released on parole or mandatory
1-36 supervision, if the defendant is sentenced to a term of confinement
1-37 or imprisonment.
1-38 (d) The attorney representing the state, clerk, or other
1-39 officer in possession of evidence described by Subsection (b) may
1-40 destroy the evidence, but only if the attorney, clerk, or officer
1-41 by mail notifies the defendant, the last attorney of record for the
1-42 defendant, and the convicting court of the decision to destroy the
1-43 evidence and a written objection is not received by the attorney,
1-44 clerk, or officer from the defendant, attorney of record, or court
1-45 before the 91st day after notice of the planned destruction of the
1-46 evidence is mailed.
1-47 (e) To the extent of any conflict, this article controls
1-48 over Article 2.21.
1-49 SECTION 2. Part 1, Code of Criminal Procedure, is amended by
1-50 adding Chapter 64 to read as follows:
1-51 CHAPTER 64. MOTION FOR FORENSIC DNA TESTING
1-52 Art. 64.01. MOTION. (a) A convicted person may submit to
1-53 the convicting court a motion for forensic DNA testing of evidence
1-54 containing biological material. The motion must be accompanied by
1-55 an affidavit, sworn to by the convicted person, containing
1-56 statements of fact in support of the motion.
1-57 (b) The motion may request forensic DNA testing only of
1-58 evidence described by Subsection (a) that was secured in relation
1-59 to the offense that is the basis of the challenged conviction and
1-60 was in the possession of the state during the trial of the offense,
1-61 but:
1-62 (1) was not previously subjected to DNA testing:
1-63 (A) because DNA testing was:
1-64 (i) not available; or
2-1 (ii) available, but not technologically
2-2 capable of providing probative results; or
2-3 (B) through no fault of the convicted person,
2-4 for reasons that are of a nature such that the interests of justice
2-5 require DNA testing; or
2-6 (2) although previously subjected to DNA testing, can
2-7 be subjected to testing with newer testing techniques that provide
2-8 a reasonable likelihood of results that are more accurate and
2-9 probative than the results of the previous test.
2-10 Art. 64.02. NOTICE TO STATE; RESPONSE. On receipt of the
2-11 motion, the convicting court shall:
2-12 (1) provide the attorney representing the state with a
2-13 copy of the motion; and
2-14 (2) require the attorney representing the state to:
2-15 (A) deliver the evidence to the court, along
2-16 with a description of the condition of the evidence; or
2-17 (B) explain in writing to the court why the
2-18 state cannot deliver the evidence to the court.
2-19 Art. 64.03. REQUIREMENTS; TESTING. (a) A convicting court
2-20 may order forensic DNA testing under this chapter only if:
2-21 (1) the court finds that:
2-22 (A) the evidence:
2-23 (i) still exists and is in a condition
2-24 making DNA testing possible; and
2-25 (ii) has been subjected to a chain of
2-26 custody sufficient to establish that it has not been substituted,
2-27 tampered with, replaced, or altered in any material respect; and
2-28 (B) identity was or is an issue in the case; and
2-29 (2) the convicted person establishes by a
2-30 preponderance of the evidence that:
2-31 (A) a reasonable probability exists that the
2-32 person would not have been prosecuted or convicted if exculpatory
2-33 results had been obtained through DNA testing; and
2-34 (B) the request for the proposed DNA testing is
2-35 not made to unreasonably delay the execution of sentence or
2-36 administration of justice.
2-37 (b) If the convicting court finds in the affirmative the
2-38 issues listed in Subsection (a)(1) and the convicted person meets
2-39 the requirements of Subsection (a)(2), the court shall order that
2-40 the requested forensic DNA testing be conducted. The court may
2-41 order the test to be conducted by the Department of Public Safety,
2-42 by a laboratory operating under a contract with the department, or,
2-43 on agreement of the parties, by another laboratory.
2-44 (c) If the convicting court orders that the forensic DNA
2-45 testing be conducted by a laboratory other than a Department of
2-46 Public Safety laboratory or a laboratory under contract with the
2-47 department, the State of Texas is not liable for the cost of
2-48 testing. If the court orders that the testing be conducted by a
2-49 laboratory described by this subsection, the court shall include in
2-50 the order requirements that:
2-51 (1) the DNA testing be conducted under reasonable
2-52 conditions designed to protect the integrity of the evidence and
2-53 the testing process;
2-54 (2) the DNA testing employ a scientific method
2-55 sufficiently reliable and relevant to be admissible under Rule 702,
2-56 Texas Rules of Evidence; and
2-57 (3) on completion of the DNA testing, the results of
2-58 the testing and all data related to the testing required for an
2-59 evaluation of the test results be immediately filed with the court
2-60 and copies of the results and data be served on the convicted
2-61 person and the attorney representing the state.
2-62 (d) The convicting court, not later than the 30th day after
2-63 the conclusion of a proceeding under this chapter, shall forward
2-64 the results to the Department of Public Safety.
2-65 Art. 64.04. FINDING. After examining the results of testing
2-66 under Article 64.03, the convicting court shall hold a hearing and
2-67 make a finding as to whether the results are favorable to the
2-68 convicted person. For the purposes of this article, results are
2-69 favorable if, had the results been available before or during the
3-1 trial of the offense, it is reasonably probable that the person
3-2 would not have been prosecuted or convicted.
3-3 Art. 64.05. APPEALS. An appeal of a finding under Article
3-4 64.04 is to a court of appeals, except that if the convicted person
3-5 was convicted in a capital case, the appeal of the finding is a
3-6 direct appeal to the court of criminal appeals.
3-7 SECTION 3. Subsection (g), Section 411.142, Government Code,
3-8 is amended to read as follows:
3-9 (g) The DNA database may contain DNA records for the
3-10 following:
3-11 (1) a person described by Section 411.148 or 411.150;
3-12 (2) a biological specimen of a deceased victim of a
3-13 crime;
3-14 (3) a biological specimen that is legally obtained in
3-15 the investigation of a crime, regardless of origin;
3-16 (4) results of testing ordered under Article 64.03,
3-17 Code of Criminal Procedure;
3-18 (5) an unidentified missing person, or unidentified
3-19 skeletal remains or body parts;
3-20 (6) [(5)] a close biological relative of a person who
3-21 has been reported missing to a law enforcement agency;
3-22 (7) [(6)] a person at risk of becoming lost, such as a
3-23 child or a person declared by a court to be mentally incapacitated,
3-24 if the record is required by court order or a parent, conservator,
3-25 or guardian of the person consents to the record; or
3-26 (8) [(7)] an unidentified person, if the record does
3-27 not contain personal identifying information.
3-28 SECTION 4. (a) If a person filed an application for a
3-29 postconviction writ of habeas corpus that was denied or dismissed
3-30 before September 1, 2001, and if the results of forensic testing
3-31 conducted under Article 64.03, Code of Criminal Procedure, as added
3-32 by this Act, are favorable to the person, a claim based on actual
3-33 innocence that is asserted in a subsequent application is, for the
3-34 purposes of Subsection (a), Section 4, Article 11.07, Code of
3-35 Criminal Procedure, and Subsection (a), Section 5, Article 11.071,
3-36 Code of Criminal Procedure, a claim the legal basis for which was
3-37 unavailable on the date the applicant filed the previous
3-38 application.
3-39 (b) An applicant whose application for a writ of habeas
3-40 corpus is pending on September 1, 2001, on submitting a motion
3-41 under Chapter 64, Code of Criminal Procedure, as added by this Act,
3-42 is entitled to a stay of the proceeding pending a determination by
3-43 the convicting court as to whether to order DNA testing and, on
3-44 receiving favorable results, to amend the petition. The court of
3-45 criminal appeals shall adopt rules to provide for a stay of
3-46 proceedings and the filing of amendments as authorized by this
3-47 subsection.
3-48 (c) The Texas Department of Criminal Justice shall provide
3-49 notice of the provisions of this Act to all persons housed in
3-50 facilities operated by or under contract with the department. In
3-51 providing notice under this section, the Texas Department of
3-52 Criminal Justice shall:
3-53 (1) include notice of the provisions of this Act in a
3-54 newspaper or similar publication published for persons housed in
3-55 facilities operated by or under contract with the department;
3-56 (2) post notice of the provisions of this Act in each
3-57 law library maintained by the department or under contract with the
3-58 department in a facility in which persons are housed; and
3-59 (3) ensure that adequate notice is provided to persons
3-60 who are not housed in the general population of inmates.
3-61 SECTION 5. This Act takes effect immediately if it receives
3-62 a vote of two-thirds of all the members elected to each house, as
3-63 provided by Section 39, Article III, Texas Constitution. If this
3-64 Act does not receive the vote necessary for immediate effect, this
3-65 Act takes effect September 1, 2001.
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