By: McClendon H.B. No. 115

A BILL TO BE ENTITLED

AN ACT

relating to the creation of a commission to investigate convictions after exoneration and to prevent wrongful convictions.

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

SECTION 1. The legislature finds that: (a) Whenever a person convicted of a crime is found, through post-conviction DNA testing or the discovery of other new evidence, to have been innocent of that crime, a failure has occurred in the criminal justice system which wrongly convicted an innocent person and allowed the real perpetrator to remain undetected;

(b) Review of the causes of wrongful convictions enables the state to identify potential weaknesses in the state's criminal justice system, and the remedies that can strengthen the quality of criminal justice in the state;

(c) There is not presently any governmental entity in the state charged with conducting independent, expert reviews of matters concerning the conviction of persons who have been exonerated, necessary in order to identify the primary and potential causes of wrongful convictions in the state;

(d) The establishment of the commission would further the understanding of the particular and systemic causes of wrongful convictions, promote the adoption of positive reforms to enhance the accuracy of criminal investigations, strengthen the reliability of criminal prosecutions, protect the innocent, and enhance public safety;

(e) The people of the state would benefit from the creation of an Innocence Commission charged with identifying the various causes of wrongful convictions, identifying policies and procedures demonstrated to minimize the likelihood of wrongful convictions, proposing reforms to minimize the occurrence of wrongful convictions in the state, and conducting its work in a manner that is transparent, with the goal of keeping the public informed; and

(f) The establishment of the Texas Innocence Commission would bolster public confidence in the state's criminal justice system and help ensure that the administration of criminal justice in the state is fair, equitable, accurate and reliable.

SECTION 2. Chapter 43, Code of Criminal Procedure, is amended by adding Article 43.27 to read as follows:

Art. 43.27. TEXAS INNOCENCE COMMISSION

Sec. 1. CREATION. The Texas Innocence Commission is created.

Sec. 2. COMPOSITION. (a) The commission is composed of nine members, to be appointed by the Governor. Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.

(b) The regular term of office of the commissioners shall be four (4) years; but the initial members of each of three classes of three members each shall be chosen respectively for terms of one (1), two (2) and four (4) years. Interim vacancies shall be filled in the same manner as vacancies due to expiration of a full term, but only for the unexpired portion of the term in question. Commissioners shall receive no compensation for their services as such.

(c) The presiding officer of the commission shall be elected on an annual basis by the members of the commission. The commission may hold its meetings, hearings and other proceedings at such times and places as it shall determine, but shall meet in Austin at least once each year. A quorum shall consist of five (5) members. Proceedings shall be by majority vote of those present.

Sec. 3. QUALIFICATIONS. (a) Each member must be a registered voter of the state.

(b) A member of the commission may not hold any other public office or be an employee of any state department or agency, or be an employee or member of another state board or commission during the member's tenure on the commission.

(c) An individual may not be a member of the commission or act as the general counsel to the commission if the individual or individual's spouse is required to register as a lobbyist under Chapter 305, TEX. GOVT. CODE, because of the individual's activities for compensation on behalf of a profession or entity related to the operation of the commission.

(d) Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.

Sec. 4. REMOVAL. (a) It is a ground for removal from the commission that a member:

(1) does not have at the time of appointment the qualifications required by this Article;

(2) does not maintain during service on the commission the qualifications required by this Article;

(3) violates the prohibition established by this Article;

(4) is ineligible for membership under this Article;

(5) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(6) is absent from more than half of the regularly scheduled meetings that the member is eligible to attend during a calendar year, without an excuse approved by a majority vote of the commission.

(b) The validity of an action of the commission is not affected by the fact that it is taken when a ground for removal of a commission member exists.

Sec. 5. COMMISSION MEMBER TRAINING. (a) A person who is appointed to and qualifies for office as a member of the commission shall complete a training program that complies with this section.

(b) The training program must provide the person with information regarding:

(1) the legislation that created the commission;

(2) the programs operated by the commission;

(3) the role and functions of the commission;

(4) the rules of the commission with an emphasis on the rules that relate to its investigatory authority;

(5) the requirements of laws relating to public officials and public meetings, including conflict-of-interest laws; and

(6) any applicable ethics policies adopted by the commission or the Texas Ethics Commission.

Sec. 6. SUNSET PROVISION. The Texas Innocence Commission is subject to review under the Texas Sunset Act and shall be reviewed according to the periodic schedule for review of state agencies under Chapter 325, TEX. GOVT. CODE.

Sec. 7. DUTIES. (a) The commission shall make thorough review or investigation of all cases in which an innocent person was convicted and exonerated, including convictions vacated based on a plea to time served, to:

(1) identify the causes of wrongful convictions;

(2) ascertain errors and defects in the laws, rules, proof and procedures applied in prosecuting the defendant's case at issue or implicated by each identified cause of wrongful convictions;

(3) identify errors and defects in the criminal justice process in this state generally, utilizing peer-reviewed research, expert analysis and demographic data;

(4) consider and develop solutions and methods to correct the identified errors and defects through legislation, rule, regulation or procedural changes; and

(5) identify procedures, programs and educational or training opportunities demonstrated to eliminate or minimize the causes of wrongful convictions and prevent the future occurrence of wrongful convictions and resulting executions.

(b) The commission shall consider potential implementation plans, costs, cost savings, and the impact on the criminal justice system for each potential solution. The commission may receive gifts, grants, donations, and contributions as further provided in this Article and utilize said funds to implement the purposes of this enactment, and may enter into contracts for research and professional services as may be necessary or appropriate to facilitate the work and activities of the commission or complete the investigation of a particular post-exoneration case, including forensic testing and autopsies.

(c) In fulfilling its duties, the commission shall conduct a public hearing at least once annually, concerning but not limited to the work of the agency in regard to its review or investigation of specific and general matters being considered under this Article.

Sec. 8. REPORTS AND RECORDS. (a) The commission shall compile a detailed annual report of its findings and recommendations, including any proposed legislation and rule or policy changes necessary or appropriate to implement procedures and programs to prevent the causes and occurrence of future wrongful convictions or executions. The commission may also compile interim reports for the same or similar purposes. Official annual and interim reports issued by the commission shall be made available to the public upon request.

(b) The findings and recommendations contained in the official reports issued by the commission may be used as some evidence in any subsequent civil or criminal proceeding, according to the applicable procedural and evidentiary rules for the tribunal in which a particular matter is or may be pending.

(c) Working papers and records, including all documentary or other information, prepared or maintained by the commission, members or staff in performing the commission's duties under this article or other law to conduct an evaluation and prepare a report, are excepted from the public disclosure requirements of Section 552.021, TEX. GOVT. CODE. A record held by another entity that is considered to be confidential by law and that the commission receives in connection with the performance of the commission's functions under this article or another law remains confidential and is excepted from the public disclosure requirements of Section 552.021, TEX. GOVT. CODE.

Sec. 9. SUBMISSION. The commission shall submit the reports described by Sec. 8 to the governor, the lieutenant governor, the speaker of the house of representatives, and to the legislature not later than December 1 of each even-numbered year, or within sixty (60) days following the issuance of the report, whichever first occurs.

Sec. 10. GIFTS AND GRANTS. (a) The commission may apply for and accept gifts, grants, and donations from any organization described in Section 501(c) (3) or 501(c) (4) of the Internal Revenue Code for the purpose of funding any activity of the commission under this Article. The commission may apply for and accept grants under federal programs.

(b) The commission may also receive contributions from private individuals or entities.

(c) All gifts, grants, donations and contributions must be accepted in an open meeting by a majority of the members of the commission then present and voting, and shall be reported in the public records of the commission with the name of the donor and purpose of the gift, grant, contribution or donation accepted.

(d) The commission may authorize and disburse sub-grants of funds from those funds which it may accept from time to time under this Section for appropriate programs, services and activities related to and in accord with the purposes and activities of the commission.

Sec. 11. REIMBURSEMENT. A member of the commission shall receive no compensation for the services provided by the member in that capacity. A member is entitled to reimbursement by the commission for the member's actual and necessary expenses incurred in performing commission duties, subject to the availability of funds from general revenue that may from time to time be appropriated to the commission by the state; such reimbursements to members for actual and necessary expenses incurred may be authorized by the commission through funds received and administered by the commission from gifts, grants, donations and contributions it accepts under Sec. 10 of this Article.

Sec. 12. ASSISTANCE OF AND ACCESS TO STATE AGENCIES. (a) The Texas Legislative Council, the Legislative Budget Board, and the University of Texas at Austin shall assist the commission in performing the commission's duties.

(b) The commission may also request the assistance of other state agencies and officers. When assistance is requested, a state agency or officer shall assist the commission in carrying out its functions under this chapter. The commission or its designated staff member may inspect the records, documents, and files of any state agency in conjunction with its duties.

Sec. 13. OTHER LAW. The commission is not subject to Chapter 2110, Government Code.

SECTION 3. The appointments to the Texas Innocence Commission as required by Article 43.27, Code of Criminal Procedure, as added by this Act, shall be made not later than the sixtieth (60th) day after the effective date of this Act.

SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, 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, 2011.