By: Deshotel H.B. No. 3816

A BILL TO BE ENTITLED

AN ACT

relating to the execution of an innocent person as the subject of a court of inquiry.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Articles 52.01 (a)-(c), Code of Criminal Procedure, are amended to read as follows:

(a) When a judge of any district court of this state, acting in the judge's [his] capacity as magistrate, has probable cause to believe that an offense has been committed against the laws of this state or that an innocent person has been executed by the state, the judge [he] may request that the presiding judge of the administrative judicial district appoint a district judge to commence a Court of Inquiry. The district judge, who shall be appointed in accordance with Subsection (b), may summon and examine any witness in relation to the offense in accordance with the rules hereinafter provided, which procedure is defined as a "Court of Inquiry".

(b)(1) Before requesting the presiding judge to appoint a district judge to commence a Court of Inquiry, a judge must enter into the minutes of the judge's [his] court a sworn affidavit stating the substantial facts establishing probable cause that a specific offense has been committed against the laws of this state or that an innocent person has been executed by the state.

(2) After the affidavit has been entered into the minutes of the judge's [his] court and a copy filed with the district clerk, the judge shall request the presiding judge of the administrative judicial district in which the affidavit is filed to appoint a district judge to commence the Court of Inquiry. The district judge appointed to commence the Court of Inquiry shall issue a written order commencing the Court of Inquiry and stating its scope. The presiding judge shall not name the judge who requests the Court of Inquiry to preside over the Court of Inquiry.

(c) The district or county attorney of the district or county in which the Court of Inquiry is held shall assist the district judge in conducting the Court of Inquiry. The attorney shall examine witnesses and evidence admitted before the court to determine if an offense has been committed or if an innocent person has been executed by the state and shall render other assistance to the judge as is necessary in the proceeding.

SECTION 2. Article 52.04(b), Code of Criminal Procedure, is amended to read as follows:

(b) If the Court of Inquiry pertains to an allegation that an offense has been committed arising out of the activities of a state governmental entity or its officers or employees, the officers and employees of that state governmental entity shall be indemnified for attorney's fees incurred as a result of exercising the employees' or officers' right to counsel under Subsection (a) if:

(1) the officer or employee is found not guilty after a trial or appeal or the complaint, information, or indictment is dismissed without a plea of guilty or nolo contendere being entered; and

(2) the judge commencing the Court of Inquiry, or the judge to whom the Court of Inquiry was transferred pursuant to Article 52.01(e), determines that the complaint, information, or indictment presented against the person was dismissed because:

(A) the presentment was made on mistake, false information, or other similar basis, indicating absence of probable cause to believe, at the time of dismissal, the person committed the offense; or

(B) the complaint, information, or indictment was void.

SECTION 3. Article 52.08, Code of Criminal Procedure, is amended to read as follows:

Art. 52.08. CRIMINAL PROSECUTIONS; EXECUTIONS. (a) If it appears [appear] from a Court of Inquiry or any testimony adduced therein, that an offense has been committed, the Judge shall issue a warrant for the arrest of the offender as if complaint had been made and filed.

(b) If it appears from a Court of Inquiry or any testimony adduced in the court that an innocent person has been executed, the judge shall notify the governor and attorney general of that fact.

SECTION 4. 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. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.