78R5225 GWK-D

By:  Hochberg                                                     H.B. No. 1011



A BILL TO BE ENTITLED

AN ACT

relating to postconviction DNA testing.                                       
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Article 64.01(c), Code of Criminal Procedure, is 
amended to read as follows:
	(c)  A convicted person is entitled to counsel during a 
proceeding under this chapter.  The convicting court shall appoint 
counsel for the convicted person if the [If a convicted] person 
informs the [convicting] court that the person wishes to submit a 
motion under this chapter, the court finds reasonable grounds for a 
motion to be filed, and [if] the court determines that the person is 
indigent[, the court shall appoint counsel for the person].  
Compensation of counsel is provided in the same manner as is 
required by:
		(1)  Article 11.071 for the representation of a 
petitioner convicted of a capital felony; and
		(2)  Chapter 26 for the representation in a habeas 
corpus hearing of an indigent defendant convicted of a felony other 
than a capital felony.
	SECTION 2.  Article 64.03(a), Code of Criminal Procedure, is 
amended to read as follows:
	(a)  A convicting court may order forensic DNA testing under 
this chapter only if:
		(1)  the court finds that:                                                    
			(A)  the evidence:                                                           
				(i)  still exists and is in a condition 
making DNA testing possible; and  
				(ii)  has been subjected to a chain of 
custody sufficient to establish that it has not been substituted, 
tampered with, replaced, or altered in any material respect; and
			(B)  identity was or is an issue in the case; and                            
		(2)  the convicted person establishes by a 
preponderance of the evidence that:
			(A)  [a reasonable probability exists that] the 
person would not have been [prosecuted or] convicted if exculpatory 
results had been obtained through DNA testing; and
			(B)  the request for the proposed DNA testing is 
not made to unreasonably delay the execution of sentence or 
administration of justice.
	SECTION 3.  Article 64.04, Code of Criminal Procedure, is 
amended to read as follows:
	Art. 64.04.  FINDING.  After examining the results of 
testing under Article 64.03, the convicting court shall hold a 
hearing and make a finding as to whether the results are favorable 
to the convicted person.  For the purposes of this article, results 
are favorable if, had the results been available [before or] during 
the trial of the offense, it is reasonably probable that the person 
would not have been [prosecuted or] convicted.
	SECTION 4.  Article 64.05, Code of Criminal Procedure, is 
amended to read as follows:
	Art. 64.05.  APPEALS.  An appeal [of a finding] under this 
chapter [Article 64.03 or 64.04] is to a court of appeals in the 
same manner as an appeal of any other criminal matter, except that 
if the convicted person was convicted in a capital case and was 
sentenced to death, the appeal of the finding is a direct appeal to 
the court of criminal appeals.
	SECTION 5.  Article 44.01(a), Code of Criminal Procedure, is 
amended to read as follows:
	(a)  The state is entitled to appeal an order of a court in a 
criminal case if the order:
		(1)  dismisses an indictment, information, or 
complaint or any portion of an indictment, information, or 
complaint;
		(2)  arrests or modifies a judgment;                                          
		(3)  grants a new trial;                                                      
		(4)  sustains a claim of former jeopardy; [or]               
		(5)  grants a motion to suppress evidence, a 
confession, or an admission, if jeopardy has not attached in the 
case and if the prosecuting attorney certifies to the trial court 
that the appeal is not taken for the purpose of delay and that the 
evidence, confession, or admission is of substantial importance in 
the case; or
		(6)  is issued under Chapter 64.                                       
	SECTION 6.  The change in law made by this Act applies only 
to a convicted person who on or after the effective date of this Act 
submits a motion for forensic DNA testing of evidence under Article 
64.01, Code of Criminal Procedure, as amended by this Act.  A 
convicted person who submits a motion under Article 64.01 before 
the effective date of this Act is covered by the law in effect when 
the motion was submitted, and the former law is continued in effect 
for that purpose.
	SECTION 7.  This Act takes effect September 1, 2003.