This website will be unavailable from Thursday, May 30, 2024 at 6:00 p.m. through Monday, June 3, 2024 at 7:00 a.m. due to data center maintenance.


                                                                                



By:  Bivins                                                       S.B. No. 1129

A BILL TO BE ENTITLED
AN ACT
relating to the admissibility in a criminal proceeding of certain laboratory analyses of physical evidence or statements as to the chain of custody of physical evidence. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 38, Code of Criminal Procedure, is amended by adding Articles 38.41 and 38.42 to read as follows: Art. 38.41. CERTIFICATE OF ANALYSIS Sec. 1. A certificate of analysis that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court. Sec. 2. This article does not limit the right of a party to summon a witness or to introduce admissible evidence relevant to the results of the analysis. Sec. 3. A certificate of analysis under this article must contain the following information certified under oath: (1) the names of the analyst and the laboratory employing the analyst; (2) a statement that the laboratory employing the analyst is accredited by a nationally recognized board or association that accredits crime laboratories; (3) a description of the analyst's educational background, training, and experience; (4) a statement that the analyst's duties of employment included the analysis of physical evidence for one or more law enforcement agencies; (5) a description of the tests or procedures conducted by the analyst; (6) a statement that the tests or procedures used were reliable and approved by the laboratory employing the analyst; and (7) the results of the analysis. Sec. 4. Not later than the 20th day before the trial begins in a proceeding in which a certificate of analysis under this article is to be introduced, the certificate must be filed with the clerk of the court and a copy must be provided by fax, hand delivery, or certified mail, return receipt requested, to the opposing party. The certificate is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate with the clerk of the court and provides a copy of the objection by fax, hand delivery, or certified mail, return receipt requested, to the offering party. Sec. 5. A certificate of analysis is sufficient for purposes of this article if it uses the following form or if it otherwise substantially complies with this article:
CERTIFICATE OF ANALYSIS
BEFORE ME, the undersigned authority, personally appeared ____________________, who being duly sworn, stated as follows: My name is __________. I am of sound mind, over the age of 18 years, capable of making this affidavit, and personally acquainted with the facts stated in this affidavit. I am employed by the ___________, which was authorized to conduct the analysis referenced in this affidavit. Part of my duties for this laboratory involved the analysis of physical evidence for one or more law enforcement agencies. This laboratory is accredited by ___________. My educational background is as follows: (description of educational background) My training and experience that qualify me to perform the tests or procedures referred to in this affidavit and determine the results of those tests or procedures are as follows: (description of training and experience) I received the physical evidence listed on laboratory report no. _______ (attached) on the _____ day of _________, 20___. On the date indicated in the laboratory report, I conducted the following tests or procedures on the physical evidence: (description of tests and procedures) The tests and procedures used were reliable and approved by the laboratory. The results are as indicated on the lab report. ___________________________________ Affiant SWORN TO AND SUBSCRIBED before me on the ___ day of _________, 20___. ___________________________________ Notary Public, State of Texas Art. 38.42. CHAIN OF CUSTODY AFFIDAVIT Sec. 1. A chain of custody affidavit that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the chain of custody of physical evidence without the necessity of any person in the chain of custody personally appearing in court. Sec. 2. This article does not limit the right of a party to summon a witness or to introduce admissible evidence relevant to the chain of custody. Sec. 3. A chain of custody affidavit under this article must contain the following information stated under oath: (1) the affiant's name and address; (2) a description of the item of evidence and its container, if any, obtained by the affiant; (3) the name of the affiant's employer on the date the affiant obtained custody of the physical evidence; (4) the date and method of receipt and the name of the person from whom or location from which the item of physical evidence was received; (5) the date and method of transfer and the name of the person to whom or location to which the item of physical evidence was transferred; and (6) a statement that the item of evidence was transferred in essentially the same condition as received except for any minor change resulting from field or laboratory testing procedures. Sec. 4. Not later than the 20th day before the trial begins in a proceeding in which a chain of custody affidavit under this article is to be introduced, the affidavit must be filed with the clerk of the court and a copy must be provided by fax, hand delivery, or certified mail, return receipt requested, to the opposing party. The affidavit is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the affidavit with the clerk of the court and provides a copy of the objection by fax, hand delivery, or certified mail, return receipt requested, to the offering party. Sec. 5. A chain of custody affidavit is sufficient for purposes of this article if it uses the following form or if it otherwise substantially complies with this article:
CHAIN OF CUSTODY AFFIDAVIT
BEFORE ME, the undersigned authority, personally appeared ______________________, who being by me duly sworn, stated as follows: My name is ______________________. I am of sound mind, over the age of 18 years, capable of making this affidavit, and personally acquainted with the facts stated in this affidavit. My address is ________________________. On the ____ day of ___________, 20___, I was employed by ___________________. On that date, I came into possession of the physical evidence described as follows: (description of evidence) I received the physical evidence from ________________ (name of person or description of location) on the _____ day of __________, 20___, by ___________________ (method of receipt). This physical evidence was in a container described and marked as follows: (description of container) I transferred the physical evidence to _________________ (name of person or description of location) on the ______ day of ___________, 20___, by ___________________ (method of delivery). During the time that the physical evidence was in my custody, I did not make any changes or alterations to the condition of the physical evidence except for those resulting from field or laboratory testing procedures, and the physical evidence or a representative sample of the physical evidence was transferred in essentially the same condition as received. _________________________ Affiant SWORN TO AND SUBSCRIBED before me on the _____ day of __________, 20___. ________________________ Notary Public, State of Texas SECTION 2. This Act takes effect September 1, 2003.