By: West S.B. No. 1616

(In the Senate - Filed March 11, 2011; March 23, 2011, read first time and referred to Committee on Criminal Justice; April 27, 2011, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 0; April 27, 2011, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1616 By: Patrick

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. The rules adopted under this subsection must:

(1) require biological evidence to be retained for a felony offense or conduct constituting a felony offense under Chapter 19, 21, or 22, Penal Code;

(2) require biological evidence [Except as provided by Subsection (d), material required] to be preserved [under this article must be preserved]:

(A) for not less than 60 years if there is an unapprehended actor associated with the offense; or

(B) 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:

(i) [(1)] until the inmate is executed, dies, or is released on parole, if the defendant is [was] convicted of a capital felony; [or]

(ii) [(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;

(iii) until the defendant completes the defendant's term of community supervision, including deferred adjudication community supervision, if the defendant is placed on community supervision;

(iv) 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

(v) 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; and

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

(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 the rules adopted under Subsection (c)(2)[, 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 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) 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 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 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 only to biological evidence collected, stored, preserved, retrieved, or destroyed on or after January 1, 2013. Biological evidence collected, stored, preserved, retrieved, or destroyed before January 1, 2013, 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.

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.

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