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.