82R10028 JSC-D

By: West S.B. No. 1616

A BILL TO BE ENTITLED

AN ACT

relating to the collection, storage, preservation, 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, or retrieval of biological evidence.

(c) The Department of Public Safety shall adopt rules relating to a person that collects, stores, preserves, or retrieves any biological evidence in relation to an investigation or prosecution of a felony offense or conduct constituting a felony offense specifying:

(1) the felony offenses with respect to which biological evidence must be retained;

(2) the period for which the evidence must be retained for each offense specified under Subdivision (1);

(3) procedures for the collection, storage, preservation, and retrieval of the evidence; and

(4) procedures for the destruction of the evidence after expiration of the retention period prescribed under Subdivision (2) [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.

(e) The Department of Public Safety shall adopt 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.

SECTION 2. Section 411.052(a), Government Code, as added by Chapter 1179 (H.B. 3594), Acts of the 81st Legislature, Regular Session, 2009, is amended to read as follows:

(a) The department:

(1) shall maintain a storage space for the preservation of evidence containing biological material that is delivered to the department under Article 38.43(e) [38.43(f)], Code of Criminal Procedure; and

(2) may maintain a storage space for the preservation of evidence of a sexual assault or other sex offense.

SECTION 3. Subchapter A, Chapter 102, Code of Criminal Procedure, is amended by adding Article 102.021 to read as follows:

Art. 102.021. COSTS ON CONVICTION TO FUND PRESERVATION OF BIOLOGICAL EVIDENCE. (a) A defendant convicted of a felony offense shall pay a fee of $25 as a cost of court.

(b) For purposes of this article, a person is considered to have been convicted if:

(1) a sentence is imposed on the person;

(2) the person receives community supervision, including deferred adjudication; or

(3) the court defers final disposition of the person's case.

(c) The clerk of the court shall collect the costs described by this article. The clerk shall keep separate records of the funds collected as costs under this article and shall deposit the funds in the county or municipal treasury, as appropriate.

(d) The custodian of a county or municipal treasury shall:

(1) keep records of the amount of funds on deposit collected under this article; and

(2) send to the comptroller before the last day of the first month following each calendar quarter the funds collected under this article during the preceding quarter.

(e) A county or municipality may retain 10 percent of the funds collected under this article by an officer of the county or municipality as a collection fee if the custodian of the county or municipal treasury complies with Subsection (d).

(f) If no funds due as costs under this article are deposited in a county or municipal treasury in a calendar quarter, the custodian of the treasury shall file the report required for the quarter in the regular manner and must state that no funds were collected.

(g) The comptroller shall deposit the funds received under this article to the credit of the biological evidence preservation account in the general revenue fund, to be used only for the purposes of Article 38.43.

(h) Funds collected under this article are subject to audit by the comptroller.

SECTION 4. Subchapter B, Chapter 102, Government Code, is amended by adding Section 102.02105 to read as follows:

Sec. 102.02105. ADDITIONAL COURT COST ON CONVICTION: CODE OF CRIMINAL PROCEDURE. A person convicted of a felony offense shall pay a cost on conviction, in addition to all other costs, to fund proper collection, storage, preservation, retrieval, and destruction of biological evidence under Article 38.43, Code of Criminal Procedure (Art. 102.021, Code of Criminal Procedure) . . . $25.

SECTION 5. (a) The Department of Public Safety shall adopt the rules required by Article 38.43, Code of Criminal Procedure, as amended by this Act, not later than January 1, 2012.

(b) The change in law made by Article 38.43, Code of Criminal Procedure, as amended by this Act, applies only to biological evidence collected, stored, preserved, retrieved, or destroyed on or after January 1, 2012. Biological evidence collected, stored, preserved, retrieved, or destroyed before January 1, 2012, is covered by the law that was in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

(c) The change in law made by Article 102.021, Code of Criminal Procedure, and Section 102.02105, Government Code, as added by this Act, applies only to an offense committed on or after January 1, 2012. An offense committed before January 1, 2012, is governed by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this subsection, an offense was committed before January 1, 2012, if any element of the offense occurred before that date.

SECTION 6. 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.