By: Bivins S.B. No. 1129
(In the Senate - Filed March 11, 2003; March 17, 2003, read
first time and referred to Committee on Criminal Justice;
April 23, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 4, Nays 0; April 23, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1129 By: Hinojosa
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 then 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.
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