81R10325 SJM-F

By: Miller of Comal H.B. No. 2858

A BILL TO BE ENTITLED

AN ACT

relating to the admissibility of a certificate of analysis or a chain of custody affidavit in a criminal proceeding.

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

SECTION 1. Article 38.41, Code of Criminal Procedure, is amended by amending Sections 1, 3, 4, and 5 and adding Section 6 to read as follows:

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. 3. A certificate of analysis under this article must contain the following information certified under oath:

(1) the name, address, and phone number [names] of:

(A) the analyst who performed the test or procedure;

(B) [and] the laboratory employing the analyst; and

(C) the name of an analyst who supervised or witnessed the test or procedure and who verified or approved the results of the analysis and the interpretation of the data obtained from the test or procedure;

(2) a statement that the laboratory employing the analyst is accredited by a nationally recognized board or association that accredits scientific [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 general description of the tests or procedures conducted by the analyst;

(6) a specific explanation of how the tests or procedures were applied to the physical evidence;

(7) a statement that the tests or procedures used were reliable and approved by the laboratory employing the analyst;

(8) a statement that the results of the analysis and the interpretation of the data obtained from the test or procedure were verified or approved by a supervising or witnessing analyst; and

(9) [(7)] the results of the analysis.

Sec. 4. Not later than the 30th [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 15th [10th] day after the date the opposing party receives the copy of the certificate [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: (general description of tests and procedures and specific explanation of the application of a test or procedure to the physical evidence)

The tests and procedures used were reliable and approved by the laboratory. The results are as indicated on the lab report. The results of the analysis and the interpretation of the data I obtained have been verified or approved by ________________, a supervising or witnessing analyst. _________________ Affiant

SWORN TO AND SUBSCRIBED before me on the ___ day of __________, 20___. _________________

Notary Public, State of Texas

Sec. 6. In this article, "physical evidence" has the meaning assigned by Article 38.35.

SECTION 2. Article 38.42, Code of Criminal Procedure, is amended by amending Section 4 and adding Section 6 to read as follows:

Sec. 4. Not later than the 30th [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 15th [10th] day after the date the opposing party receives the copy of the affidavit [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. 6. In this article, "physical evidence" has the meaning assigned by Article 38.35.

SECTION 3. The change in law made by this Act applies only to the admissibility of a certificate of analysis or chain of custody affidavit in a criminal proceeding that commences on or after the effective date of this Act. The admissibility of a certificate of analysis or chain of custody affidavit in a criminal proceeding that commenced before the effective date of this Act is governed by the law in effect when the proceeding commenced, and the former law is continued in effect for that purpose.

SECTION 4. This Act takes effect September 1, 2009.