By: West S.B. No. 1616
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the collection, storage, preservation, analysis,
  retrieval, and destruction of biological evidence.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 38.43, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 38.43.  [PRESERVATION OF] EVIDENCE CONTAINING
  BIOLOGICAL MATERIAL. (a)  In this article, "biological evidence"
  means:
               (1)  the contents of a sexual assault examination kit;
  or
               (2)  any item that contains blood, semen, hair, saliva,
  skin tissue, fingernail scrapings, bone, bodily fluids, or any
  other identifiable biological material that was collected as part
  of an investigation of an alleged felony offense or conduct
  constituting a felony offense that might reasonably be used to [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 engaging in the conduct constituting the
  offense; or
                     (B)  exclude a person from the group of persons
  who could have committed the offense or engaged in the conduct
  constituting the offense.
         (b)  This article applies to a governmental or public entity
  or an individual, including a law enforcement agency, prosecutor's
  office, court, public hospital, or crime laboratory, that is
  charged with the collection, storage, preservation, analysis, or
  retrieval of biological evidence.
         (c)  An entity or individual described by Subsection (b)
  shall ensure that biological evidence collected pursuant to an
  investigation or prosecution of a felony offense or conduct
  constituting a felony offense is retained and [Except as provided
  by Subsection (d), material required to be preserved under this
  article must be] preserved:
               (1)  for not less than 40 years, or until the applicable
  statute of limitations has expired, if there is an unapprehended
  actor associated with the offense; or
               (2)  in a case in which a defendant has been convicted,
  placed on deferred adjudication community supervision, or
  adjudicated as having engaged in delinquent conduct and there are
  no additional unapprehended actors associated with the offense:
                     (A)  until the inmate is executed, dies, or is
  released on parole, if the defendant is [was] convicted of a capital
  felony; [or]
                     (B) [(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 in the Texas Department of Criminal Justice;
                     (C)  until the defendant completes the
  defendant's term of community supervision, including deferred
  adjudication community supervision, if the defendant is placed on
  community supervision;
                     (D)  until the defendant dies, completes the
  defendant's sentence, or is released on parole, mandatory
  supervision, or juvenile probation, if the defendant is committed
  to the Texas Youth Commission; or
                     (E)  until the defendant completes the
  defendant's term of juvenile probation, including a term of
  community supervision upon transfer of supervision to a criminal
  court, if the defendant is placed on juvenile probation.
         (d)  The attorney representing the state, clerk, or other
  officer in possession of biological evidence [described by
  Subsection (b)] may destroy the evidence after expiration of the
  retention period specified by Subsection (c)[, 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)  The Department of Public Safety shall adopt standards
  and rules authorizing [(f)(1)     This subsection applies only to
  evidence described by Subsection (b) that was used to prosecute and
  convict a defendant of an offense under Chapter 19, 21, or 22, Penal
  Code, if on conviction of the offense the defendant was sentenced to
  a term of imprisonment of 10 years or more.
               [(2)  In] a county with a population less than 100,000
  to[, the attorney representing the state, clerk, or other officer
  in possession of any evidence to which this subsection applies
  shall] ensure the preservation of biological [the] evidence by
  promptly delivering the evidence to the Department of Public Safety
  for storage in accordance with Section 411.052, Government Code,
  and department rules.
         (g)  The Department of Public Safety shall adopt standards
  and rules, consistent with best practices, relating to a person
  described by Subsection (b), that specify the manner of collection,
  storage, preservation, and retrieval of biological evidence.
         (h)  A person described by Subsection (b) may solicit and
  accept gifts, grants, donations, and contributions to support the
  collection, storage, preservation, retrieval, and destruction of
  biological evidence.
         SECTION 2.  (a)  The Department of Public Safety of the
  State of Texas, in adopting the initial standards and rules
  required by Article 38.43, Code of Criminal Procedure, as amended
  by this Act, shall consult with:
               (1)  large, medium, and small law enforcement agencies;
               (2)  law enforcement associations;
               (3)  scientific experts in the collection,
  preservation, storage, and retrieval of biological evidence; and
               (4)  organizations engaged in the development of law
  enforcement policy, such as:
                     (A)  the National Institute of Standards and
  Technology of the United States Commerce Department;
                     (B)  the Texas District and County Attorneys
  Association;
                     (C)  the Texas Criminal Defense Lawyers
  Association;
                     (D)  the Texas Association of Property and
  Evidence Inventory Technicians; and
                     (E)  other organizations in this state that
  represent clients pursuing claims of innocence based on
  post-conviction biological evidence.
         (b)  The Department of Public Safety of the State of Texas
  shall adopt the standards and rules required by Article 38.43, Code
  of Criminal Procedure, as amended by this Act, not later than
  September 1, 2012.
         (c)  The change in law made by Article 38.43, Code of
  Criminal Procedure, as amended by this Act, applies to biological
  evidence in the possession of an entity or individual described by
  Subsection (b), Article 38.43, Code of Criminal Procedure, as
  amended by this Act, on the effective date of this Act, regardless
  of whether the evidence was collected before, on, or after the
  effective date of this Act.
         (d)  Notwithstanding Subsection (c) of this section, an
  entity or individual described by Subsection (b), Article 38.43,
  Code of Criminal Procedure, as amended by this Act, is not required
  to comply with the standards and rules adopted under Subsection
  (g), Article 38.43, Code of Criminal Procedure, as added by this
  Act, before January 1, 2013.
         SECTION 3.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  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.