By: McReynolds H.B. No. 3594

A BILL TO BE ENTITLED

AN ACT

relating to the preservation of biological evidence.

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

SECTION 1. Amend Article 38.43, Code of Criminal Procedure, as follows:

Art. 38.43. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL MATERIAL. (a) In a criminal case in which a defendant is convicted, the attorney representing the state, a clerk, or any other officer in possession of evidence described by Subsection (b) shall ensure the preservation of the evidence.

(b) This article applies to evidence that:

(1) was in the possession of the state during the prosecution of the case; and

(2) at the time of conviction was known to contain biological material that if subjected to scientific testing would more likely than not:

(A) establish the identity of the person committing the offense; or

(B) exclude a person from the group of persons who could have committed the offense.

(c) Except as provided by Subsection (d), material required to be preserved under this article must be preserved:

(1) until the inmate is executed, dies, or is released on parole, if the defendant was convicted of a capital felony; or

(2) until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment.

(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 by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:

(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or

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

(e) To the extent of any conflict, this article controls over Article 2.21.

(f) In a county with a population less than 100,000, an officer in possession of evidence described by Subsection (b) and used in the conviction of a crime under Chapter 19 or 21, Penal Code, shall ensure the preservation of the evidence by delivering the evidence to the Department of Public Safety for storage under Sec. 411.053 Government Code, according to regulations adopted by the department.

SECTION 2. Amend Subchapter D, Chapter 411, Government Code, by adding Section 411.053 as follows:

Sec. 411.053. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL MATERIAL. The department shall maintain a storage space for preservation of material containing biological evidence that was used in establishing a conviction on behalf of a county with a population less than 100,000. The department shall also maintain a storage space for the preservation of evidence of a sexual assault or other sex offense. The department shall adopt rules relating to the delivery, cataloguing, and preservation of evidence stored under this section.

SECTION 3. The Department of Public Safety shall adopt rules described by Section 411.155(b), Government Code, as added by this Act, not later than November 1, 2009. The Department of Public Safety shall accept evidence which contains biological material delivered to the department under Article 38.43(f), Code of Criminal Procedure, as added by this Act, for crimes occurring after January 1, 2010.

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