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A BILL TO BE ENTITLED
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AN ACT
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relating to the collection, storage, preservation, analysis, |
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retrieval, and destruction of biological evidence. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 38.43, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 38.43. [PRESERVATION OF] EVIDENCE CONTAINING |
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BIOLOGICAL MATERIAL. (a) In this article, "biological evidence" |
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means: |
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(1) the contents of a sexual assault examination kit; |
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or |
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(2) any item that contains blood, semen, hair, saliva, |
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skin tissue, fingernail scrapings, bone, bodily fluids, or any |
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other identifiable biological material that was collected as part |
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of an investigation of an alleged felony offense or conduct |
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constituting a felony offense that might reasonably be used to [In a
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criminal case in which a defendant is convicted, the attorney
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representing the state, a clerk, or any other officer in possession
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of evidence described by Subsection (b) shall ensure the
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preservation of the evidence.
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[(b) This article applies to evidence that:
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[(1)
was in the possession of the state during the
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prosecution of the case; and
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[(2)
at the time of conviction was known to contain
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biological material that if subjected to scientific testing would
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more likely than not]: |
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(A) establish the identity of the person |
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committing the offense or engaging in the conduct constituting the |
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offense; or |
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(B) exclude a person from the group of persons |
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who could have committed the offense or engaged in the conduct |
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constituting the offense. |
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(b) This article applies to a governmental or public entity |
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or an individual, including a law enforcement agency, prosecutor's |
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office, court, public hospital, or crime laboratory, that is |
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charged with the collection, storage, preservation, analysis, or |
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retrieval of biological evidence. |
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(c) An entity or individual described by Subsection (b) |
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shall ensure that biological evidence collected pursuant to an |
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investigation or prosecution of a felony offense or conduct |
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constituting a felony offense is retained and [Except as provided
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by Subsection (d), material required to be preserved under this
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article must be] preserved: |
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(1) for not less than 40 years, or until the applicable |
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statute of limitations has expired, if there is an unapprehended |
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actor associated with the offense; or |
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(2) in a case in which a defendant has been convicted, |
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placed on deferred adjudication community supervision, or |
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adjudicated as having engaged in delinquent conduct and there are |
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no additional unapprehended actors associated with the offense: |
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(A) until the inmate is executed, dies, or is |
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released on parole, if the defendant is [was] convicted of a capital |
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felony; [or] |
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(B) [(2)] until the defendant dies, completes |
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the defendant's sentence, or is released on parole or mandatory |
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supervision, if the defendant is sentenced to a term of confinement |
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or imprisonment in the Texas Department of Criminal Justice; |
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(C) until the defendant completes the |
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defendant's term of community supervision, including deferred |
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adjudication community supervision, if the defendant is placed on |
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community supervision; |
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(D) until the defendant dies, completes the |
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defendant's sentence, or is released on parole, mandatory |
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supervision, or juvenile probation, if the defendant is committed |
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to the Texas Youth Commission; or |
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(E) until the defendant completes the |
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defendant's term of juvenile probation, including a term of |
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community supervision upon transfer of supervision to a criminal |
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court, if the defendant is placed on juvenile probation. |
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(d) The attorney representing the state, clerk, or other |
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officer in possession of biological evidence [described by
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Subsection (b)] may destroy the evidence after expiration of the |
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retention period specified by Subsection (c)[, but only] if the |
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attorney, clerk, or officer by mail notifies the defendant, the |
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last attorney of record for the defendant, and the convicting court |
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of the decision to destroy the evidence and a written objection is |
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not received by the attorney, clerk, or officer from the defendant, |
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attorney of record, or court before the 91st day after the later of |
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the following dates: |
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(1) the date on which the attorney representing the |
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state, clerk, or other officer receives proof that the defendant |
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received notice of the planned destruction of evidence; or |
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(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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(e) To the extent of any conflict, this article controls |
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over Article 2.21. |
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(f) The Department of Public Safety shall adopt standards |
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and rules authorizing [(f)(1)
This subsection applies only to
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evidence described by Subsection (b) that was used to prosecute and
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convict a defendant of an offense under Chapter 19, 21, or 22, Penal
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Code, if on conviction of the offense the defendant was sentenced to
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a term of imprisonment of 10 years or more.
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[(2) In] a county with a population less than 100,000 |
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to[, the attorney representing the state, clerk, or other officer
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in possession of any evidence to which this subsection applies
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shall] ensure the preservation of biological [the] evidence by |
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promptly delivering the evidence to the Department of Public Safety |
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for storage in accordance with Section 411.052, Government Code, |
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and department rules. |
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(g) The Department of Public Safety shall adopt standards |
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and rules, consistent with best practices, relating to a person |
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described by Subsection (b), that specify the manner of collection, |
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storage, preservation, and retrieval of biological evidence. |
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(h) A person described by Subsection (b) may solicit and |
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accept gifts, grants, donations, and contributions to support the |
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collection, storage, preservation, retrieval, and destruction of |
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biological evidence. |
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SECTION 2. (a) The Department of Public Safety of the |
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State of Texas, in adopting the initial standards and rules |
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required by Article 38.43, Code of Criminal Procedure, as amended |
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by this Act, shall consult with: |
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(1) large, medium, and small law enforcement agencies; |
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(2) law enforcement associations; |
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(3) scientific experts in the collection, |
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preservation, storage, and retrieval of biological evidence; and |
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(4) organizations engaged in the development of law |
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enforcement policy, such as: |
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(A) the National Institute of Standards and |
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Technology of the United States Commerce Department; |
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(B) the Texas District and County Attorneys |
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Association; |
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(C) the Texas Criminal Defense Lawyers |
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Association; |
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(D) the Texas Association of Property and |
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Evidence Inventory Technicians; and |
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(E) other organizations in this state that |
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represent clients pursuing claims of innocence based on |
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post-conviction biological evidence. |
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(b) The Department of Public Safety of the State of Texas |
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shall adopt the standards and rules required by Article 38.43, Code |
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of Criminal Procedure, as amended by this Act, not later than |
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September 1, 2012. |
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(c) The change in law made by Article 38.43, Code of |
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Criminal Procedure, as amended by this Act, applies to biological |
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evidence in the possession of an entity or individual described by |
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Subsection (b), Article 38.43, Code of Criminal Procedure, as |
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amended by this Act, on the effective date of this Act, regardless |
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of whether the evidence was collected before, on, or after the |
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effective date of this Act. |
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(d) Notwithstanding Subsection (c) of this section, an |
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entity or individual described by Subsection (b), Article 38.43, |
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Code of Criminal Procedure, as amended by this Act, is not required |
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to comply with the standards and rules adopted under Subsection |
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(g), Article 38.43, Code of Criminal Procedure, as added by this |
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Act, before January 1, 2013. |
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SECTION 3. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2011. |
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COMMITTEE AMENDMENT NO. |
1 |
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SECTION ____. Amend S.B. 1616 (Engrossed Version) with the |
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following: |
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(1) Section 1 Article 38.43, Code of Criminal Procedure |
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(page 3, line 20 and 21) unstrike "described by Subsection (b)" |
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(2) On page 3, line 21, replace "(b)" with "(a)". |
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(3) On page 3, line 21 and 22, strike "after expiration of |
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the retention period specified by Subsection (c)". |
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(4) On page 3, line 22, unstrike ", but only". |
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Hartnett |