By: Bailey, et al. (Senate Sponsor - Gallegos) H.B. No. 2703
(In the Senate - Received from the House May 2, 2003;
May 7, 2003, read first time and referred to Committee on Criminal
Justice; May 22, 2003, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 0, 1
present not voting; May 22, 2003, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2703 By: Ellis
A BILL TO BE ENTITLED
AN ACT
relating to the testing of certain physical evidence, crime
laboratory accreditation, and the admissibility of evidence
examined or tested by a crime laboratory.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Article 38.35, Code of Criminal
Procedure, is amended to read as follows:
Art. 38.35. FORENSIC ANALYSIS OF EVIDENCE; ADMISSIBILITY.
SECTION 2. Article 38.35(a)(1), Code of Criminal Procedure,
is amended to read as follows:
(1) "Forensic analysis" means a medical, chemical,
toxicologic, ballistic, or other expert examination or [and] test
performed on physical evidence, including DNA evidence, for the
purpose of determining the [its] connection of the evidence to a
criminal action. The term does not include:
(A) latent print examination;
(B) a test of a specimen of breath under Chapter
724, Transportation Code; or
(C) an examination or test excluded by rule under
Section 411.0205(c), Government Code.
SECTION 3. Article 38.35, Code of Criminal Procedure, is
amended by adding Subsections (d) and (e) to read as follows:
(d) Physical evidence subjected to a forensic analysis, and
testimony regarding the evidence, under this article is not
admissible in a criminal case if, at the time of the analysis or the
time the evidence is submitted to the court, the crime laboratory or
other entity conducting the analysis was not accredited by the
Department of Public Safety under Section 411.0205, Government
Code.
(e) Notwithstanding Subsection (d), physical evidence
subjected to a forensic analysis under this article is not
inadmissible in a criminal case based solely on the accreditation
status of the crime laboratory or other entity conducting the
analysis if the laboratory or entity:
(1) has preserved one or more separate samples of the
physical evidence for use by the defense attorney or use under order
of the convicting court; and
(2) has agreed to preserve those samples until all
appeals in the case are final. This subsection expires September 1,
2005.
SECTION 4. Subchapter A, Chapter 411, Government Code, is
amended by adding Sections 411.0205, and 411.0206, to read as
follows:
Sec. 411.0205. CRIME LABORATORY ACCREDITATION PROCESS.
(a) In this section, "forensic analysis" and "physical evidence"
have the meanings assigned by Article 38.35, Code of Criminal
Procedure, and "DNA laboratory" has the meaning assigned by Section
411.141.
(b) The director by rule shall establish an accreditation
process for crime laboratories, including DNA laboratories, and
other entities conducting forensic analyses of physical evidence
for use in criminal proceedings.
(c) The director by rule may exempt from the accreditation
process established under Subsection (b) a crime laboratory or
other entity conducting a forensic analysis of physical evidence
for use in criminal proceedings if the director determines that:
(1) independent accreditation is unavailable or
inappropriate for the laboratory or entity or the type of
examination or test performed by the laboratory or entity;
(2) the type of examination or test performed by the
laboratory or entity is admissible under a well-established rule of
evidence or a statute other than Article 38.35, Code of Criminal
Procedure; and
(3) the type of examination or test performed by the
laboratory or entity is routinely conducted outside of a crime
laboratory or other applicable entity by a person other than an
employee of the crime laboratory or other applicable entity.
Sec. 411.0206. REGULATION OF DNA TESTING. The director
shall by rule regulate DNA testing, including regulation of DNA
laboratories.
SECTION 5. The public safety director of the Department of
Public Safety of the State of Texas shall adopt rules under Section
411.0205, Government Code, as added by this Act, not later than the
61st day after the effective day of this Act.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution, and
applies to evidence tested after September 1, 2003. If this Act
does not receive the vote necessary for immediate effect, this Act
takes effect September 1, 2003, and applies to evidence tested
after that date.
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