1-1 AN ACT 1-2 relating to establishing procedures for the preservation of 1-3 evidence containing DNA and postconviction DNA testing. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 38, Code of Criminal Procedure, is 1-6 amended by adding Article 38.39 to read as follows: 1-7 Art. 38.39. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL 1-8 MATERIAL. (a) In a criminal case in which a defendant is 1-9 convicted, the attorney representing the state, a clerk, or any 1-10 other officer in possession of evidence described by Subsection (b) 1-11 shall ensure the preservation of the evidence. 1-12 (b) This article applies to evidence that: 1-13 (1) was in the possession of the state during the 1-14 prosecution of the case; and 1-15 (2) at the time of conviction was known to contain 1-16 biological material that if subjected to scientific testing would 1-17 more likely than not: 1-18 (A) establish the identity of the person 1-19 committing the offense; or 1-20 (B) exclude a person from the group of persons 1-21 who could have committed the offense. 1-22 (c) Except as provided by Subsection (d), material required 1-23 to be preserved under this article must be preserved: 1-24 (1) until the inmate is executed, dies, or is released 1-25 on parole, if the defendant was convicted of a capital felony; or 2-1 (2) until the defendant dies, completes the 2-2 defendant's sentence, or is released on parole or mandatory 2-3 supervision, if the defendant is sentenced to a term of confinement 2-4 or imprisonment. 2-5 (d) The attorney representing the state, clerk, or other 2-6 officer in possession of evidence described by Subsection (b) may 2-7 destroy the evidence, but only if the attorney, clerk, or officer 2-8 by mail notifies the defendant, the last attorney of record for the 2-9 defendant, and the convicting court of the decision to destroy the 2-10 evidence and a written objection is not received by the attorney, 2-11 clerk, or officer from the defendant, attorney of record, or court 2-12 before the 91st day after the later of the following dates: 2-13 (1) the date on which the attorney representing the 2-14 state, clerk, or other officer receives proof that the defendant 2-15 received notice of the planned destruction of evidence; or 2-16 (2) the date on which notice of the planned 2-17 destruction of evidence is mailed to the last attorney of record 2-18 for the defendant. 2-19 (e) To the extent of any conflict, this article controls 2-20 over Article 2.21. 2-21 SECTION 2. Part 1, Code of Criminal Procedure, is amended by 2-22 adding Chapter 64 to read as follows: 2-23 CHAPTER 64. MOTION FOR FORENSIC DNA TESTING 2-24 Art. 64.01. MOTION. (a) A convicted person may submit to 2-25 the convicting court a motion for forensic DNA testing of evidence 2-26 containing biological material. The motion must be accompanied by 3-1 an affidavit, sworn to by the convicted person, containing 3-2 statements of fact in support of the motion. 3-3 (b) The motion may request forensic DNA testing only of 3-4 evidence described by Subsection (a) that was secured in relation 3-5 to the offense that is the basis of the challenged conviction and 3-6 was in the possession of the state during the trial of the offense, 3-7 but: 3-8 (1) was not previously subjected to DNA testing: 3-9 (A) because DNA testing was: 3-10 (i) not available; or 3-11 (ii) available, but not technologically 3-12 capable of providing probative results; or 3-13 (B) through no fault of the convicted person, 3-14 for reasons that are of a nature such that the interests of justice 3-15 require DNA testing; or 3-16 (2) although previously subjected to DNA testing, can 3-17 be subjected to testing with newer testing techniques that provide 3-18 a reasonable likelihood of results that are more accurate and 3-19 probative than the results of the previous test. 3-20 (c) A convicted person is entitled to counsel during a 3-21 proceeding under this chapter. If a convicted person informs the 3-22 convicting court that the person wishes to submit a motion under 3-23 this chapter and if the court determines that the person is 3-24 indigent, the court shall appoint counsel for the person. 3-25 Compensation of counsel is provided in the same manner as is 3-26 required by: 4-1 (1) Article 11.071 for the representation of a 4-2 petitioner convicted of a capital felony; and 4-3 (2) Chapter 26 for the representation in a habeas 4-4 corpus hearing of an indigent defendant convicted of a felony other 4-5 than a capital felony. 4-6 Art. 64.02. NOTICE TO STATE; RESPONSE. On receipt of the 4-7 motion, the convicting court shall: 4-8 (1) provide the attorney representing the state with a 4-9 copy of the motion; and 4-10 (2) require the attorney representing the state to: 4-11 (A) deliver the evidence to the court, along 4-12 with a description of the condition of the evidence; or 4-13 (B) explain in writing to the court why the 4-14 state cannot deliver the evidence to the court. 4-15 Art. 64.03. REQUIREMENTS; TESTING. (a) A convicting court 4-16 may order forensic DNA testing under this chapter only if: 4-17 (1) the court finds that: 4-18 (A) the evidence: 4-19 (i) still exists and is in a condition 4-20 making DNA testing possible; and 4-21 (ii) has been subjected to a chain of 4-22 custody sufficient to establish that it has not been substituted, 4-23 tampered with, replaced, or altered in any material respect; and 4-24 (B) identity was or is an issue in the case; and 4-25 (2) the convicted person establishes by a 4-26 preponderance of the evidence that: 5-1 (A) a reasonable probability exists that the 5-2 person would not have been prosecuted or convicted if exculpatory 5-3 results had been obtained through DNA testing; and 5-4 (B) the request for the proposed DNA testing is 5-5 not made to unreasonably delay the execution of sentence or 5-6 administration of justice. 5-7 (b) A convicted person who pleaded guilty or nolo contendere 5-8 in the case may submit a motion under this chapter, and the 5-9 convicting court is prohibited from finding that identity was not 5-10 an issue in the case solely on the basis of that plea. 5-11 (c) If the convicting court finds in the affirmative the 5-12 issues listed in Subsection (a)(1) and the convicted person meets 5-13 the requirements of Subsection (a)(2), the court shall order that 5-14 the requested forensic DNA testing be conducted. The court may 5-15 order the test to be conducted by the Department of Public Safety, 5-16 by a laboratory operating under a contract with the department, or, 5-17 on agreement of the parties, by another laboratory. 5-18 (d) If the convicting court orders that the forensic DNA 5-19 testing be conducted by a laboratory other than a Department of 5-20 Public Safety laboratory or a laboratory under contract with the 5-21 department, the State of Texas is not liable for the cost of 5-22 testing. If the court orders that the testing be conducted by a 5-23 laboratory described by this subsection, the court shall include in 5-24 the order requirements that: 5-25 (1) the DNA testing be conducted under reasonable 5-26 conditions designed to protect the integrity of the evidence and 6-1 the testing process; 6-2 (2) the DNA testing employ a scientific method 6-3 sufficiently reliable and relevant to be admissible under Rule 702, 6-4 Texas Rules of Evidence; and 6-5 (3) on completion of the DNA testing, the results of 6-6 the testing and all data related to the testing required for an 6-7 evaluation of the test results be immediately filed with the court 6-8 and copies of the results and data be served on the convicted 6-9 person and the attorney representing the state. 6-10 (e) The convicting court, not later than the 30th day after 6-11 the conclusion of a proceeding under this chapter, shall forward 6-12 the results to the Department of Public Safety. 6-13 Art. 64.04. FINDING. After examining the results of testing 6-14 under Article 64.03, the convicting court shall hold a hearing and 6-15 make a finding as to whether the results are favorable to the 6-16 convicted person. For the purposes of this article, results are 6-17 favorable if, had the results been available before or during the 6-18 trial of the offense, it is reasonably probable that the person 6-19 would not have been prosecuted or convicted. 6-20 Art. 64.05. APPEALS. An appeal of a finding under Article 6-21 64.03 or 64.04 is to a court of appeals, except that if the 6-22 convicted person was convicted in a capital case, the appeal of the 6-23 finding is a direct appeal to the court of criminal appeals. 6-24 SECTION 3. Chapter 17, Code of Criminal Procedure, is 6-25 amended by adding Article 17.47 to read as follows: 6-26 Art. 17.47. POSTTRIAL ACTIONS. A convicting court on 7-1 entering a finding favorable to a convicted person under Article 7-2 64.04, after a hearing at which the attorney representing the state 7-3 and the counsel for the defendant are entitled to appear, may 7-4 release the convicted person on bail under this chapter pending the 7-5 conclusion of court proceedings or proceedings under Section 11, 7-6 Article IV, Texas Constitution, and Article 48.01. 7-7 SECTION 4. Subsection (g), Section 411.142, Government Code, 7-8 is amended to read as follows: 7-9 (g) The DNA database may contain DNA records for the 7-10 following: 7-11 (1) a person described by Section 411.148 or 411.150; 7-12 (2) a biological specimen of a deceased victim of a 7-13 crime; 7-14 (3) a biological specimen that is legally obtained in 7-15 the investigation of a crime, regardless of origin; 7-16 (4) results of testing ordered under Article 64.03, 7-17 Code of Criminal Procedure; 7-18 (5) an unidentified missing person, or unidentified 7-19 skeletal remains or body parts; 7-20 (6)(5)a close biological relative of a person who 7-21 has been reported missing to a law enforcement agency; 7-22 (7)(6)a person at risk of becoming lost, such as a 7-23 child or a person declared by a court to be mentally incapacitated, 7-24 if the record is required by court order or a parent, conservator, 7-25 or guardian of the person consents to the record; or 7-26 (8)(7)an unidentified person, if the record does 8-1 not contain personal identifying information. 8-2 SECTION 5. (a) If a person filed an application for a 8-3 postconviction writ of habeas corpus that was denied or dismissed 8-4 before September 1, 2001, and if the results of forensic testing 8-5 conducted under Article 64.03, Code of Criminal Procedure, as added 8-6 by this Act, are favorable to the person, a claim based on actual 8-7 innocence that is asserted in a subsequent application is, for the 8-8 purposes of Subsection (a), Section 4, Article 11.07, Code of 8-9 Criminal Procedure, and Subsection (a), Section 5, Article 11.071, 8-10 Code of Criminal Procedure, a claim the legal basis for which was 8-11 unavailable on the date the applicant filed the previous 8-12 application. 8-13 (b) An applicant whose application for a writ of habeas 8-14 corpus is pending on September 1, 2001, on submitting a motion 8-15 under Chapter 64, Code of Criminal Procedure, as added by this Act, 8-16 is entitled to a stay of the proceeding pending a determination by 8-17 the convicting court as to whether to order DNA testing and, on 8-18 receiving favorable results, to amend the petition. The court of 8-19 criminal appeals shall adopt rules to provide for a stay of 8-20 proceedings and the filing of amendments as authorized by this 8-21 subsection. 8-22 (c) The Texas Department of Criminal Justice shall provide 8-23 notice of the provisions of this Act to all persons housed in 8-24 facilities operated by or under contract with the department. In 8-25 providing notice under this section, the Texas Department of 8-26 Criminal Justice shall: 9-1 (1) include notice of the provisions of this Act in a 9-2 newspaper or similar publication published for persons housed in 9-3 facilities operated by or under contract with the department; 9-4 (2) post notice of the provisions of this Act in each 9-5 law library maintained by the department or under contract with the 9-6 department in a facility in which persons are housed; and 9-7 (3) ensure that adequate notice is provided to persons 9-8 who are not housed in the general population of inmates. 9-9 SECTION 6. This Act takes effect immediately if it receives 9-10 a vote of two-thirds of all the members elected to each house, as 9-11 provided by Section 39, Article III, Texas Constitution. If this 9-12 Act does not receive the vote necessary for immediate effect, this 9-13 Act takes effect September 1, 2001. S.B. No. 3 _______________________________ _______________________________ President of the Senate Speaker of the House I hereby certify that S.B. No. 3 passed the Senate on February 19, 2001, by the following vote: Yeas 30, Nays 0, one present, not voting; March 26, 2001, Senate refused to concur in House amendments and requested appointment of Conference Committee; March 28, 2001, House granted request of the Senate; April 2, 2001, Senate adopted Conference Committee Report by the following vote: Yeas 30, Nays 0, one present, not voting. _______________________________ Secretary of the Senate I hereby certify that S.B. No. 3 passed the House, with amendments, on March 22, 2001, by the following vote: Yeas 132, Nays 1, two present, not voting; March 28, 2001, House granted request of the Senate for appointment of Conference Committee; April 3, 2001, House adopted Conference Committee Report by the following vote: Yeas 147, Nays 0, one present, not voting. _______________________________ Chief Clerk of the House Approved: _______________________________ Date _______________________________ Governor