HBA-LJP, EDN H.B. 366 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 366 By: Hinojosa Criminal Jurisprudence 2/11/2001 Introduced BACKGROUND AND PURPOSE There continue to be inmates in Texas prisons who maintain their innocence and have attempted to petition courts to allow post-conviction deoxyribonucleic acid (DNA) testing of biological evidence. Under current law, inmates can use a writ of habeas corpus to petition for DNA testing and bring newly discovered evidence and claims of innocence to a state or federal court's attention, but Texas law does not establish procedures or guidelines for the petition process. House Bill 366 creates guidelines for mandatory or discretionary DNA testing, the payment of DNA testing, and the preservation of DNA evidence. RULEMAKING AUTHORITY 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. ANALYSIS House Bill 366 amends the Code of Criminal Procedure to add a chapter relating to postconviction DNA testing and provides that this chapter controls over any law governing habeas corpus or appeal to the extent of any conflict. The bill authorizes a person sentenced for an offense to file a petition in the convicting court requesting the forensic DNA testing of any evidence that is in the possession of the attorney representing the state, law enforcement, or a court; relates to the investigation or prosecution that resulted in the person's conviction; and is biological evidence or may contain biological evidence. The bill requires the court, on receipt of a petition and after providing the attorney representing the state with notice and an opportunity to respond to the allegations in the petition, to order DNA testing if the court finds that: _a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; _the evidence sought in the petition exists and is in such a condition that DNA testing of the evidence is possible; _the evidence has not been previously subjected to DNA testing, or if previously subjected to DNA testing, the type of DNA test requested in the petition is capable of resolving an issue not resolved by the previous test; and _the petition is filed to demonstrate innocence and not to unreasonably delay the execution of a sentence or the administration of justice. The bill authorizes the court, on receipt of a petition and after providing the attorney representing the state with notice and an opportunity to respond to the allegations in the petition, to order DNA testing if the court finds that: _a reasonable probability exists that DNA testing of the evidence would produce results that would have rendered the verdict or sentence in the case more favorable to the petitioner had the results of the testing been available before conviction; _the evidence sought in the petition exists and is in such a condition that DNA testing of the evidence is possible; _the evidence has not been previously subjected to DNA testing, or if previously subjected to DNA testing, the type of DNA test requested in the petition is capable of resolving an issue not resolved by the previous test; and _the petition is filed to demonstrate innocence and not to unreasonably delay the execution of a sentence or the administration of justice. The bill authorizes a court to appoint counsel for an indigent petitioner at any time during a proceeding. Compensation of counsel is provided in the same manner as is required for arraignment. The bill provides that the convicting county is responsible for the costs of DNA testing if a court orders testing and the petitioner is determined by the court to be indigent. The bill authorizes a court that orders DNA testing to require the convicting county to pay the costs of testing or to make the testing conditional on the petitioner paying the costs, regardless of whether the petitioner is indigent. The bill authorizes a court to require the attorney representing the state or the defendant to provide the other party with any laboratory reports, notes and underlying data resulting from any DNA testing of evidence related to the petitioner's case. Before the filing of a petition, if either party has conducted DNA testing or other biological evidence testing on evidence without the knowledge of the other party, the party must reveal that testing in the petition requesting testing or the response to the petition. The bill provides that if a court orders DNA testing, the court shall require the production of laboratory reports prepared in connection with the testing and is authorized to order the production of underlying data and laboratory notes. H.B. 366 also requires that on the filing of a petition, unless the petition is summarily dismissed, the court shall order the preservation, until proceedings are final, of all evidence in the petitioner's case that is in the possession of the attorney representing the state, law enforcement, a laboratory, or an officer of the court and that may be subject to DNA testing. The bill requires the court to dismiss the petition and make further orders as appropriate if the results of DNA testing are not favorable to the petitioner. If the results are favorable to the petitioner, the court is required to proceed on the matter and to dispose of the matter in the same manner as an application of habeas corpus based on actual innocence. EFFECTIVE DATE September 1, 2001.