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A BILL TO BE ENTITLED
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AN ACT
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relating to the wrongful imprisonment of a person and to procedures |
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for providing compensation for that imprisonment and for |
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exonerating a wrongfully imprisoned person who is deceased. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act shall be known as the Tim Cole |
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Posthumous Exonerations Act. |
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SECTION 2. Section 103.001, Civil Practice and Remedies |
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Code, is amended by adding Subsection (c) to read as follows: |
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(c) If a deceased person would be entitled to compensation |
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under Subsection (a)(2)(A) if living, the person's surviving |
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spouse, child, or parent is entitled to compensation under this |
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chapter. |
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SECTION 3. Section 103.003, Civil Practice and Remedies |
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Code, is amended to read as follows: |
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Sec. 103.003. LIMITATION ON TIME TO FILE. Not later than |
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the third anniversary of the date the person on whose imprisonment |
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the claim is based received the pardon or was found not guilty as |
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required by Section 103.001, a person seeking compensation under |
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this chapter must: |
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(1) file an application with the comptroller for |
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compensation under Subchapter B; or |
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(2) file suit against the state for compensation under |
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Subchapter C. |
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SECTION 4. Section 103.051, Civil Practice and Remedies |
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Code, is amended by reenacting and amending Subsection (a), as |
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amended by Chapters 1190 (H.B. 814) and 1388 (S.B. 1719), Acts of |
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the 80th Legislature, Regular Session, 2007, and by amending |
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Subsection (b-1) to read as follows: |
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(a) To apply for compensation under this subchapter, the |
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claimant must file with the comptroller's judiciary section: |
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(1) an application for compensation provided for that |
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purpose by the comptroller; |
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(2) a verified copy of the pardon or court order |
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justifying the application for compensation; [and] |
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(3) a statement provided by the Texas Department of |
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Criminal Justice verifying the length of imprisonment; and |
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(4) [incarceration (5)] if the claimant is applying |
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for compensation under Section 103.052(a)(2), a certified copy of |
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each child support order under which child support payments became |
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due during the time [the claimant] served in prison by the person on |
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whose imprisonment the claim is based and copies of the official |
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child support payment records described by Section 234.009, Family |
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Code, for that period. |
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(b-1) In determining the eligibility of a claimant, the |
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comptroller shall consider only the verified copy of the pardon or |
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court order filed by the claimant under Subsection (a). If the |
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pardon or court order does not clearly indicate on its face that the |
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pardon or the court order was granted or rendered on the basis of |
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[the claimant's] actual innocence [of the crime for which the
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claimant was sentenced], the comptroller shall deny the claim. The |
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comptroller's duty to determine the eligibility of a claimant under |
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this section is purely ministerial. |
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SECTION 5. Sections 103.052(a), (a-1), and (c), Civil |
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Practice and Remedies Code, are amended to read as follows: |
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(a) A person who meets the requirements of Section 103.001 |
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is entitled to compensation in an amount equal to: |
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(1) $50,000 multiplied by the number of years served |
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in prison, expressed as a fraction to reflect partial years; and |
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(2) compensation for child support payments owed by |
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the person on whose imprisonment the claim is based that became due |
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and interest on child support arrearages that accrued during the |
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time served in prison but were not paid. |
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(a-1) Notwithstanding Subsection (a)(1), a person sentenced |
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to death who meets the requirements of Section 103.001, or a |
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claimant whose claim is based on that person's imprisonment, is |
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entitled to compensation in an amount equal to $100,000 multiplied |
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by the number of years served in prison, expressed as a fraction to |
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reflect partial years. |
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(c) If requested by a [the] claimant described by Section |
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103.001(a), the Texas Department of Mental Health and Mental |
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Retardation shall provide appropriate counseling for one year to |
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the claimant at a mutually agreed-on location at no charge to the |
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claimant. |
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SECTION 6. Section 103.103, Civil Practice and Remedies |
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Code, is amended to read as follows: |
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Sec. 103.103. INSUFFICIENT STATE DEFENSES. The following |
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are not defenses to an action brought under this chapter: |
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(1) the judgment of conviction in the trial that |
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resulted in the [claimant's] imprisonment on which the claim is |
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based; or |
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(2) an indictment, information, complaint, or other |
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formal accusation. |
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SECTION 7. Section 103.104(a), Civil Practice and Remedies |
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Code, is amended to read as follows: |
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(a) In the suit, the court may admit as evidence the record |
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of the trial at which the person on whose imprisonment the claim is |
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based [petitioner] was convicted and the pardon or proclamation |
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issued to [the petitioner] by the governor, if applicable. |
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SECTION 8. Section 103.1041, Civil Practice and Remedies |
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Code, is amended to read as follows: |
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Sec. 103.1041. REQUIRED EVIDENCE. A claimant who brings a |
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suit under this subchapter for compensation under Section |
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103.052(a)(2) must submit to the court as evidence a certified copy |
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of each child support order under which child support payments |
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became due during the time the person on whose imprisonment the |
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claim is based [claimant] served in prison and copies of the |
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official child support payment records described by Section |
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234.009, Family Code, for that period. |
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SECTION 9. Sections 103.105(a) and (b), Civil Practice and |
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Remedies Code, are amended to read as follows: |
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(a) If the trier of fact finds that the petitioner is |
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entitled to compensation, the petitioner is entitled to: |
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(1) expenses incurred by the imprisoned person |
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[petitioner] in connection with all associated criminal |
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proceedings and appeals and in connection with obtaining the |
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person's [petitioner's] discharge from imprisonment, including any |
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fine or court costs paid and reasonable attorney's fees, including |
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reasonable attorney's fees for prosecuting the lawsuit under this |
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subchapter; |
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(2) wages, salary, or other earned income of the |
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imprisoned person that was lost as a direct result of the arrest, |
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prosecution, conviction, or wrongful imprisonment; |
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(3) medical and counseling expenses incurred by the |
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imprisoned person [petitioner] as a direct result of the arrest, |
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prosecution, conviction, or wrongful imprisonment; and |
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(4) child support payments owed by the imprisoned |
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person [petitioner] that became due and interest on child support |
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arrearages that accrued during the time served in prison but were |
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not paid. |
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(b) In determining the sum of money owed to the petitioner, |
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the trier of fact may not deduct any expenses incurred by the state |
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or any of its political subdivisions in connection with the arrest, |
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prosecution, conviction, and wrongful imprisonment of the person on |
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whose imprisonment the claim is based [petitioner], including |
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expenses for food, clothing, shelter, and medical services. |
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SECTION 10. Section 103.152(c), Civil Practice and Remedies |
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Code, is amended to read as follows: |
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(c) The amount of compensation awarded under Section |
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103.105(a)(4) must be paid on the imprisoned person's [claimant's] |
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behalf in a lump-sum payment to the state disbursement unit, as |
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defined by Section 101.0302, Family Code, for distribution to the |
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obligee under the child support order. |
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SECTION 11. Section 103.153(b), Civil Practice and Remedies |
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Code, is amended to read as follows: |
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(b) A person who receives compensation under this chapter |
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may not bring any action involving the same subject matter, |
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including an action involving the [person's] arrest, conviction, or |
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length of confinement of the person on whose imprisonment the claim |
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is based, against any governmental unit or an employee of any |
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governmental unit. |
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SECTION 12. Section 103.154, Civil Practice and Remedies |
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Code, is amended by amending Subsection (b) and adding Subsection |
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(b-1) to read as follows: |
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(b) Compensation [Except as provided by Subsection (c),
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compensation] payments to a person described by Section 103.001(a) |
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continue after [under this chapter terminate on] the date of the |
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person's death. Any payments scheduled to be paid after that date |
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shall be paid to [are credited to the state and may not be paid to
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any other person, including] the person's surviving spouse, heirs, |
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devisees, or beneficiaries under the person's will, or to the |
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person's estate. |
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(b-1) Except as provided by Subsection (c), compensation |
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payments to a person entitled to compensation under Section |
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103.001(c) terminate on the date of the person's death. Any |
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payments scheduled to be paid after that date are credited to the |
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state and may not be paid to any other person, including the |
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person's surviving spouse, heirs, devisees, or beneficiaries under |
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the person's will, or to the person's estate. |
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SECTION 13. Article 38.43(d), Code of Criminal Procedure, |
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is amended to read as follows: |
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(d) The attorney representing the state, clerk, or other |
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officer in possession of evidence described by Subsection (b) may |
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destroy the evidence, but only if the attorney, clerk, or officer: |
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(1) by mail notifies the following persons or entities |
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of the decision to destroy the evidence: |
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(A) the defendant or, if the defendant is |
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deceased, the surviving spouse of the defendant, if any, and each |
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surviving child or parent, if any, of the defendant; |
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(B) [,] the last attorney of record for the |
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defendant; [,] and |
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(C) the convicting court; [of the decision to
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destroy the evidence] and |
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(2) does not receive [a written objection is not
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received by the attorney, clerk, or officer] from a person or entity |
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entitled to notice under Subdivision (1) a written objection [the
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defendant, attorney of record, or court] before the 91st day after |
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the later of the following dates: |
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(A) [(1)] the date on which the attorney |
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representing the state, clerk, or other officer receives proof that |
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the defendant or, if applicable, the surviving spouse, child, and |
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parent of the defendant, received notice of the planned destruction |
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of evidence; or |
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(B) [(2)] the date on which notice of the planned |
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destruction of evidence is mailed to the last attorney of record for |
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the defendant. |
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SECTION 14. Chapter 48, Code of Criminal Procedure, is |
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amended by adding Article 48.06 to read as follows: |
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Art. 48.06. APPLICATION FOR POSTHUMOUS PARDON FOR ACTUAL |
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INNOCENCE. (a) An application for a pardon under this article may |
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be submitted by the surviving spouse, if any, or a surviving child |
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or parent of an individual who: |
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(1) has been convicted of a criminal offense under the |
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laws of this state; and |
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(2) at the time of application is deceased. |
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(b) On receipt of an application under this article |
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accompanied by a sworn affidavit described by Subsection (c), the |
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Board of Pardons and Paroles shall consider recommending to the |
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governor a posthumous pardon for actual innocence for the |
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individual on whose behalf the application is filed. |
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(c) A sworn affidavit accompanying an application for a |
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posthumous pardon under this article must be signed by an applicant |
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described by Subsection (a) and must contain: |
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(1) specific facts regarding the offense of which the |
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individual on whose behalf the application is filed was convicted |
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that: |
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(A) were not admitted into evidence during the |
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individual's trial; and |
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(B) if proven, establish the individual's actual |
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innocence of the offense; or |
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(2) a statement that the convicting court has made a |
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finding under Article 64.04 that, had the results of forensic DNA |
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testing performed under Chapter 64 been available during the trial |
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of the offense of which the individual on whose behalf the |
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application is filed was convicted, it is reasonably probable that |
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the individual would not have been convicted. |
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SECTION 15. Chapter 55, Code of Criminal Procedure, is |
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amended by adding Article 55.011 to read as follows: |
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Art. 55.011. EXPUNCTION FOLLOWING POSTHUMOUS PARDON FOR |
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ACTUAL INNOCENCE. An individual who obtains for a deceased |
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individual a posthumous pardon for actual innocence as described by |
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Article 48.06 may file on behalf of that deceased individual an ex |
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parte petition for expunction under Section 2 or 2a, Article 55.02. |
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If the court finds that the deceased individual would be entitled to |
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expunction of any record or file that is the subject of the |
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petition, the court shall enter an order directing expunction. |
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SECTION 16. Articles 64.01(a) and (c), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) A convicted person or, if the convicted person is |
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deceased, the surviving spouse of the deceased person, if any, or a |
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surviving child or parent of the deceased person, may submit to the |
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convicting court a motion for forensic DNA testing of evidence |
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containing biological material. The motion must be accompanied by |
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an affidavit, sworn to by the [convicted] person submitting the |
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motion, containing statements of fact in support of the motion. |
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(c) A convicted person, other than a convicted person who is |
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deceased, is entitled to counsel during a proceeding under this |
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chapter. The convicting court shall appoint counsel for the |
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convicted person if the person informs the court that the person |
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wishes to submit a motion under this chapter, the court finds |
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reasonable grounds for a motion to be filed, and the court |
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determines that the person is indigent. Counsel must be appointed |
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under this subsection not later than the 45th day after the date the |
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court finds reasonable grounds or the date the court determines |
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that the person is indigent, whichever is later. Compensation of |
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counsel is provided in the same manner as is required by: |
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(1) Article 11.071 for the representation of a |
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petitioner convicted of a capital felony; and |
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(2) Chapter 26 for the representation in a habeas |
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corpus hearing of an indigent defendant convicted of a felony other |
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than a capital felony. |
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SECTION 17. Articles 64.03(a), (b), (c), and (d), Code of |
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Criminal Procedure, are amended to read as follows: |
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(a) A convicting court may order forensic DNA testing under |
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this chapter only if: |
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(1) the court finds that: |
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(A) the evidence: |
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(i) still exists and is in a condition |
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making DNA testing possible; and |
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(ii) has been subjected to a chain of |
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custody sufficient to establish that it has not been substituted, |
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tampered with, replaced, or altered in any material respect; and |
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(B) identity was or is an issue in the case; and |
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(2) the [convicted] person submitting the motion |
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establishes by a preponderance of the evidence that: |
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(A) the convicted person would not have been |
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convicted if exculpatory results had been obtained through DNA |
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testing; and |
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(B) the request for the proposed DNA testing is |
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not made to unreasonably delay the execution of sentence or |
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administration of justice. |
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(b) If a [A] convicted person [who] pleaded guilty or nolo |
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contendere or, whether before or after conviction, made a |
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confession or similar admission in the case: |
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(1) any person authorized to submit a motion under |
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this chapter may submit the [a] motion; and |
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(2) [under this chapter, and] the convicting court is |
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prohibited from finding that identity was not an issue in the case |
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solely on the basis of that plea, confession, or admission, as |
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applicable. |
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(c) If the convicting court finds in the affirmative the |
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issues listed in Subsection (a)(1) and the [convicted] person |
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submitting the motion meets the requirements of Subsection (a)(2), |
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the court shall order that the requested forensic DNA testing be |
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conducted. The court may order the test to be conducted by: |
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(1) the Department of Public Safety; |
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(2) a laboratory operating under a contract with the |
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department; or |
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(3) on the request of the [convicted] person |
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submitting the motion, another laboratory if that laboratory is |
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accredited under Section 411.0205, Government Code. |
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(d) If the convicting court orders that the forensic DNA |
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testing be conducted by a laboratory other than a Department of |
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Public Safety laboratory or a laboratory under contract with the |
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department, the State of Texas is not liable for the cost of testing |
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under this subsection unless good cause for payment of that cost has |
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been shown. A political subdivision of the state is not liable for |
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the cost of testing under this subsection, regardless of whether |
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good cause for payment of that cost has been shown. If the court |
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orders that the testing be conducted by a laboratory described by |
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this subsection, the court shall include in the order requirements |
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that: |
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(1) the DNA testing be conducted in a timely and |
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efficient manner under reasonable conditions designed to protect |
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the integrity of the evidence and the testing process; |
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(2) the DNA testing employ a scientific method |
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sufficiently reliable and relevant to be admissible under Rule 702, |
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Texas Rules of Evidence; and |
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(3) on completion of the DNA testing, the results of |
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the testing and all data related to the testing required for an |
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evaluation of the test results be immediately filed with the court |
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and copies of the results and data be served on the [convicted] |
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person submitting the motion and the attorney representing the |
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state. |
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SECTION 18. Article 64.04, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 64.04. FINDING. After examining the results of testing |
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under Article 64.03, the convicting court shall hold a hearing and |
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make a finding as to whether, had the results been available during |
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the trial of the offense, it is reasonably probable that the |
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convicted person would not have been convicted. |
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SECTION 19. (a) Except as provided by this section, Chapter |
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103, Civil Practice and Remedies Code, as amended by this Act, |
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applies only to an application or action for compensation under |
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that chapter filed on or after the effective date of this Act. An |
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application or action filed before the effective date of this Act is |
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governed by the law in effect immediately before that date, and the |
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former law is continued in effect for that purpose. |
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(b) Section 103.001(c), Civil Practice and Remedies Code, |
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as added by this Act, applies only to an application or action for |
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compensation under Chapter 103, Civil Practice and Remedies Code, |
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as amended by this Act, based on a pardon issued on or after the |
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effective date of this Act. |
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SECTION 20. (a) Article 38.43(d), Code of Criminal |
|
Procedure, as amended by this Act, applies only to the destruction |
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of evidence that occurs on or after the effective date of this Act. |
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The destruction of evidence that occurs before the effective date |
|
of this Act is governed by the law in effect when the evidence was |
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destroyed, and the former law is continued in effect for that |
|
purpose. |
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(b) Chapter 64, Code of Criminal Procedure, as amended by |
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this Act, applies only to a motion for forensic DNA testing filed on |
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or after the effective date of this Act. A motion filed before the |
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effective date of this Act is covered by the law in effect when the |
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motion was filed, and the former law is continued in effect for that |
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purpose. |
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SECTION 21. This Act takes effect September 1, 2009. |