Office of House Bill AnalysisH.B.  1474
By: Hinojosa
Criminal Jurisprudence


Current statutes regulating the use of biological evidence, particularly
DNA evidence, are becoming obsolete by developments in the science of
biological evidence and other related technologies, unnecessarily
inhibiting the use of such evidence.  DNA advancements have made the use of
DNA more precise for identification purposes, and therefore the use of
postconviction DNA testing can increase the ability to prevent wrongful
convictions.  House Bill 1474 establishes procedures for the preservation
and use of evidence containing DNA and postconviction DNA testing. 


It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 


House Bill 1474  amends the Code of Criminal Procedure to establish
procedures for the preservation of evidence containing DNA and
postconviction DNA testing.  In a criminal case in which a defendant is
convicted, the bill requires the preservation of evidence that was in the
possession of the state during the prosecution of the case and at the time
of the conviction was known to contain biological material that if
subjected to scientific testing would more likely than not establish the
identity of the person committing the offense or exclude a person from the
group of persons who could have committed the offense.  The bill provides
that material required to be preserved under these provisions must be
preserved until the inmate is executed, dies, completes the inmate's
sentence, or is released on parole or mandatory supervision.  The bill
authorizes the attorney representing the state, clerk, or other officer in
possession of evidence to destroy the evidence described above, but only if
the  defendant, the last attorney of record for the defendant, and the
convicting court are notified by mail of the decision to destroy the
evidence, and a written objection is not received before the 91st day after
notice is mailed (Sec. 38.39). 

The bill authorizes a convicted person to submit a motion to the convicting
court for forensic DNA testing (testing) of evidence containing biological
material, but only for evidence that is related to the conviction being
challenged and that was in the possession of the state during the trial but
was not previously subjected to testing, or can be subjected to further
testing using newer techniques that provide a reasonable likelihood of
results that are more accurate and probative.  The bill requires the court,
on receipt of the motion, to provide the attorney representing the state
with a copy of the motion and to require the state to deliver the evidence
to the court or explain in writing why the state cannot deliver the
evidence (Secs.  64.01 and 64.02).   

The bill authorizes a convicting court to order testing only if:

_the court finds that the evidence still exists in a condition making
testing possible and has not been substituted, tampered with, replaced, or
altered in any material respect, and identity was or is an issue in the
case; and 

 _the convicted person establishes by a preponderance of the evidence that
a reasonable probability exists that the person would not have been
prosecuted or convicted if exculpatory results had been obtained through
testing, and the request for the proposed testing is not made to
unreasonably delay the execution of sentence or administration of justice.

The bill provides that, if the court finds in the affirmative the issues
listed above and the convicted person meets the requirements listed above,
the court is required to order that testing be conducted.  The bill sets
forth where the court is authorized to order the test to be conducted.  The
bill requires the court to include in the order requirements that: 

_the testing be conducted under reasonable conditions designed to protect
the integrity of the evidence and the testing process; 

_the testing employ a scientific method sufficiently reliable and relevant
to be admissible under Rule 702 (Testimony by Experts), Texas Rules of
Evidence; and 

_on completion of the testing, the results and all data required for an
evaluation of the test results be immediately filed with the court and
copies of the results and data be served on the convicted person and the
attorney representing the state. 

The bill requires the convicting court to forward the results to the Texas
Department of Public Safety not later than the 30th day after the
conclusion of a proceeding under these provisions (Sec. 64.03). 

The bill requires the convicting court, after examining the results of
testing, to hold a hearing and make a finding as to whether the results are
favorable to the convicted person.  The bill provides that results are
favorable if, had the results been available before or during the trial, it
is reasonably probable that the person would not have been prosecuted or
convicted.  The bill sets forth an appeals process (Secs.  64.04 and

H.B. 1474 amends the Government Code to authorize the DNA database to
contain DNA records of certain samples, including results of forensic DNA
testing (Sec. 411.142). 

The bill provides that, if a person filed an application for a
postconviction writ of habeas corpus (application) that was denied or
dismissed before September 1, 2001, and the results of testing are
favorable, a claim based on actual innocence asserted in a subsequent
application is a claim of legal basis. The bill entitles an applicant whose
application is pending on September 1, 2001 to a stay of the proceeding
pending a determination by the court as to whether to order testing, and on
receiving favorable results, to amend the petition.  The bill requires the
Texas Department of Criminal Justice (TDCJ) to provide notice of these
provisions to all persons housed in facilities operated by or under
contract with TDCJ (SECTION 4). 


On passage, or if the Act does not receive the necessary vote, the Act
takes effect September 1, 2001.