81R5004 HLT-D

By: Gallego H.B. No. 3584

A BILL TO BE ENTITLED

AN ACT

relating to the wrongful imprisonment of a person and to procedures for providing compensation for that imprisonment and for exonerating a wrongfully imprisoned person who is deceased.

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

SECTION 1. This Act shall be known as the Tim Cole Posthumous Exonerations Act.

SECTION 2. Section 103.001, Civil Practice and Remedies Code, is amended by adding Subsection (c) to read as follows:

(c) If a deceased person would be entitled to compensation under Subsection (a)(2)(A) if living, the person's surviving spouse, child, or parent is entitled to compensation under this chapter.

SECTION 3. Section 103.003, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 103.003. LIMITATION ON TIME TO FILE. Not later than the third anniversary of the date the person on whose imprisonment the claim is based received the pardon or was found not guilty as required by Section 103.001, a person seeking compensation under this chapter must:

(1) file an application with the comptroller for compensation under Subchapter B; or

(2) file suit against the state for compensation under Subchapter C.

SECTION 4. Section 103.051, Civil Practice and Remedies Code, is amended by reenacting and amending Subsection (a), as amended by Chapters 1190 (H.B. 814) and 1388 (S.B. 1719), Acts of the 80th Legislature, Regular Session, 2007, and by amending Subsection (b-1) to read as follows:

(a) To apply for compensation under this subchapter, the claimant must file with the comptroller's judiciary section:

(1) an application for compensation provided for that purpose by the comptroller;

(2) a verified copy of the pardon or court order justifying the application for compensation; [and]

(3) a statement provided by the Texas Department of Criminal Justice verifying the length of imprisonment; and

(4) [incarceration (5)] if the claimant is applying for compensation under Section 103.052(a)(2), a certified copy of each child support order under which child support payments became due during the time [the claimant] served in prison by the person on whose imprisonment the claim is based and copies of the official child support payment records described by Section 234.009, Family Code, for that period.

(b-1) In determining the eligibility of a claimant, the comptroller shall consider only the verified copy of the pardon or court order filed by the claimant under Subsection (a). If the pardon or court order does not clearly indicate on its face that the pardon or the court order was granted or rendered on the basis of [the claimant's] actual innocence [of the crime for which the claimant was sentenced], the comptroller shall deny the claim. The comptroller's duty to determine the eligibility of a claimant under this section is purely ministerial.

SECTION 5. Sections 103.052(a), (a-1), and (c), Civil Practice and Remedies Code, are amended to read as follows:

(a) A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:

(1) $50,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years; and

(2) compensation for child support payments owed by the person on whose imprisonment the claim is based that became due and interest on child support arrearages that accrued during the time served in prison but were not paid.

(a-1) Notwithstanding Subsection (a)(1), a person sentenced to death who meets the requirements of Section 103.001, or a claimant whose claim is based on that person's imprisonment, is entitled to compensation in an amount equal to $100,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years.

(c) If requested by a [the] claimant described by Section 103.001(a), the Texas Department of Mental Health and Mental Retardation shall provide appropriate counseling for one year to the claimant at a mutually agreed-on location at no charge to the claimant.

SECTION 6. Section 103.103, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 103.103. INSUFFICIENT STATE DEFENSES. The following are not defenses to an action brought under this chapter:

(1) the judgment of conviction in the trial that resulted in the [claimant's] imprisonment on which the claim is based; or

(2) an indictment, information, complaint, or other formal accusation.

SECTION 7. Section 103.104(a), Civil Practice and Remedies Code, is amended to read as follows:

(a) In the suit, the court may admit as evidence the record of the trial at which the person on whose imprisonment the claim is based [petitioner] was convicted and the pardon or proclamation issued to [the petitioner] by the governor, if applicable.

SECTION 8. Section 103.1041, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 103.1041. REQUIRED EVIDENCE. A claimant who brings a suit under this subchapter for compensation under Section 103.052(a)(2) must submit to the court as evidence a certified copy of each child support order under which child support payments became due during the time the person on whose imprisonment the claim is based [claimant] served in prison and copies of the official child support payment records described by Section 234.009, Family Code, for that period.

SECTION 9. Sections 103.105(a) and (b), Civil Practice and Remedies Code, are amended to read as follows:

(a) If the trier of fact finds that the petitioner is entitled to compensation, the petitioner is entitled to:

(1) expenses incurred by the imprisoned person [petitioner] in connection with all associated criminal proceedings and appeals and in connection with obtaining the person's [petitioner's] discharge from imprisonment, including any fine or court costs paid and reasonable attorney's fees, including reasonable attorney's fees for prosecuting the lawsuit under this subchapter;

(2) wages, salary, or other earned income of the imprisoned person that was lost as a direct result of the arrest, prosecution, conviction, or wrongful imprisonment;

(3) medical and counseling expenses incurred by the imprisoned person [petitioner] as a direct result of the arrest, prosecution, conviction, or wrongful imprisonment; and

(4) child support payments owed by the imprisoned person [petitioner] that became due and interest on child support arrearages that accrued during the time served in prison but were not paid.

(b) In determining the sum of money owed to the petitioner, the trier of fact may not deduct any expenses incurred by the state or any of its political subdivisions in connection with the arrest, prosecution, conviction, and wrongful imprisonment of the person on whose imprisonment the claim is based [petitioner], including expenses for food, clothing, shelter, and medical services.

SECTION 10. Section 103.152(c), Civil Practice and Remedies Code, is amended to read as follows:

(c) The amount of compensation awarded under Section 103.105(a)(4) must be paid on the imprisoned person's [claimant's] behalf in a lump-sum payment to the state disbursement unit, as defined by Section 101.0302, Family Code, for distribution to the obligee under the child support order.

SECTION 11. Section 103.153(b), Civil Practice and Remedies Code, is amended to read as follows:

(b) A person who receives compensation under this chapter may not bring any action involving the same subject matter, including an action involving the [person's] arrest, conviction, or length of confinement of the person on whose imprisonment the claim is based, against any governmental unit or an employee of any governmental unit.

SECTION 12. Section 103.154, Civil Practice and Remedies Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows:

(b) Compensation [Except as provided by Subsection (c), compensation] payments to a person described by Section 103.001(a) continue after [under this chapter terminate on] the date of the person's death. Any payments scheduled to be paid after that date shall be paid to [are credited to the state and may not be paid to any other person, including] the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's estate.

(b-1) Except as provided by Subsection (c), compensation payments to a person entitled to compensation under Section 103.001(c) terminate on the date of the person's death. Any payments scheduled to be paid after that date are credited to the state and may not be paid to any other person, including the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's estate.

SECTION 13. Article 38.43(d), Code of Criminal Procedure, is amended to read as follows:

(d) The attorney representing the state, clerk, or other officer in possession of evidence described by Subsection (b) may destroy the evidence, but only if the attorney, clerk, or officer:

(1) by mail notifies the following persons or entities of the decision to destroy the evidence:

(A) the defendant or, if the defendant is deceased, the surviving spouse of the defendant, if any, and each surviving child or parent, if any, of the defendant;

(B) [,] the last attorney of record for the defendant; [,] and

(C) the convicting court; [of the decision to destroy the evidence] and

(2) does not receive [a written objection is not received by the attorney, clerk, or officer] from a person or entity entitled to notice under Subdivision (1) a written objection [the defendant, attorney of record, or court] before the 91st day after the later of the following dates:

(A) [(1)] the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant or, if applicable, the surviving spouse, child, and parent of the defendant, received notice of the planned destruction of evidence; or

(B) [(2)] the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant.

SECTION 14. Chapter 48, Code of Criminal Procedure, is amended by adding Article 48.06 to read as follows:

Art. 48.06. APPLICATION FOR POSTHUMOUS PARDON FOR ACTUAL INNOCENCE. (a) An application for a pardon under this article may be submitted by the surviving spouse, if any, or a surviving child or parent of an individual who:

(1) has been convicted of a criminal offense under the laws of this state; and

(2) at the time of application is deceased.

(b) On receipt of an application under this article accompanied by a sworn affidavit described by Subsection (c), the Board of Pardons and Paroles shall consider recommending to the governor a posthumous pardon for actual innocence for the individual on whose behalf the application is filed.

(c) A sworn affidavit accompanying an application for a posthumous pardon under this article must be signed by an applicant described by Subsection (a) and must contain:

(1) specific facts regarding the offense of which the individual on whose behalf the application is filed was convicted that:

(A) were not admitted into evidence during the individual's trial; and

(B) if proven, establish the individual's actual innocence of the offense; or

(2) a statement that the convicting court has made a finding under Article 64.04 that, had the results of forensic DNA testing performed under Chapter 64 been available during the trial of the offense of which the individual on whose behalf the application is filed was convicted, it is reasonably probable that the individual would not have been convicted.

SECTION 15. Chapter 55, Code of Criminal Procedure, is amended by adding Article 55.011 to read as follows:

Art. 55.011. EXPUNCTION FOLLOWING POSTHUMOUS PARDON FOR ACTUAL INNOCENCE. An individual who obtains for a deceased individual a posthumous pardon for actual innocence as described by Article 48.06 may file on behalf of that deceased individual an ex parte petition for expunction under Section 2 or 2a, Article 55.02. If the court finds that the deceased individual would be entitled to expunction of any record or file that is the subject of the petition, the court shall enter an order directing expunction.

SECTION 16. Articles 64.01(a) and (c), Code of Criminal Procedure, are amended to read as follows:

(a) A convicted person or, if the convicted person is deceased, the surviving spouse of the deceased person, if any, or a surviving child or parent of the deceased person, may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the [convicted] person submitting the motion, containing statements of fact in support of the motion.

(c) A convicted person, other than a convicted person who is deceased, is entitled to counsel during a proceeding under this chapter. The convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent. Counsel must be appointed under this subsection not later than the 45th day after the date the court finds reasonable grounds or the date the court determines that the person is indigent, whichever is later. Compensation of counsel is provided in the same manner as is required by:

(1) Article 11.071 for the representation of a petitioner convicted of a capital felony; and

(2) Chapter 26 for the representation in a habeas corpus hearing of an indigent defendant convicted of a felony other than a capital felony.

SECTION 17. Articles 64.03(a), (b), (c), and (d), Code of Criminal Procedure, are amended to read as follows:

(a) A convicting court may order forensic DNA testing under this chapter only if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is in a condition making DNA testing possible; and

(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and

(B) identity was or is an issue in the case; and

(2) the [convicted] person submitting the motion establishes by a preponderance of the evidence that:

(A) the convicted person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

(b) If a [A] convicted person [who] pleaded guilty or nolo contendere or, whether before or after conviction, made a confession or similar admission in the case:

(1) any person authorized to submit a motion under this chapter may submit the [a] motion; and

(2) [under this chapter, and] the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea, confession, or admission, as applicable.

(c) If the convicting court finds in the affirmative the issues listed in Subsection (a)(1) and the [convicted] person submitting the motion meets the requirements of Subsection (a)(2), the court shall order that the requested forensic DNA testing be conducted. The court may order the test to be conducted by:

(1) the Department of Public Safety;

(2) a laboratory operating under a contract with the department; or

(3) on the request of the [convicted] person submitting the motion, another laboratory if that laboratory is accredited under Section 411.0205, Government Code.

(d) If the convicting court orders that the forensic DNA testing be conducted by a laboratory other than a Department of Public Safety laboratory or a laboratory under contract with the department, the State of Texas is not liable for the cost of testing under this subsection unless good cause for payment of that cost has been shown. A political subdivision of the state is not liable for the cost of testing under this subsection, regardless of whether good cause for payment of that cost has been shown. If the court orders that the testing be conducted by a laboratory described by this subsection, the court shall include in the order requirements that:

(1) the DNA testing be conducted in a timely and efficient manner under reasonable conditions designed to protect the integrity of the evidence and the testing process;

(2) the DNA testing employ a scientific method sufficiently reliable and relevant to be admissible under Rule 702, Texas Rules of Evidence; and

(3) on completion of the DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results be immediately filed with the court and copies of the results and data be served on the [convicted] person submitting the motion and the attorney representing the state.

SECTION 18. Article 64.04, Code of Criminal Procedure, is amended to read as follows:

Art. 64.04. FINDING. After examining the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the convicted person would not have been convicted.

SECTION 19. (a) Except as provided by this section, Chapter 103, Civil Practice and Remedies Code, as amended by this Act, applies only to an application or action for compensation under that chapter filed on or after the effective date of this Act. An application or action filed before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(b) Section 103.001(c), Civil Practice and Remedies Code, as added by this Act, applies only to an application or action for compensation under Chapter 103, Civil Practice and Remedies Code, as amended by this Act, based on a pardon issued on or after the effective date of this Act.

SECTION 20. (a) Article 38.43(d), Code of Criminal Procedure, as amended by this Act, applies only to the destruction of evidence that occurs on or after the effective date of this Act. The destruction of evidence that occurs before the effective date of this Act is governed by the law in effect when the evidence was destroyed, and the former law is continued in effect for that purpose.

(b) Chapter 64, Code of Criminal Procedure, as amended by this Act, applies only to a motion for forensic DNA testing filed on or after the effective date of this Act. A motion filed before the effective date of this Act is covered by the law in effect when the motion was filed, and the former law is continued in effect for that purpose.

SECTION 21. This Act takes effect September 1, 2009.