HBA-EDN S.B. 3 77(R)BILL ANALYSIS Office of House Bill AnalysisS.B. 3 By: Duncan Criminal Jurisprudence 3/4/2001 Committee Report (Amended) BACKGROUND AND PURPOSE 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. Senate Bill 3 establishes procedures for the preservation and use of evidence containing DNA and postconviction DNA testing. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the court of criminal appeals in SECTION 4 of this bill. ANALYSIS Senate Bill 3 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 64.05). S.B. 3 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 court of criminal appeals to adopt rules for a stay of proceedings and the filing of amendments to 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). EFFECTIVE DATE On passage, or if the Act does not receive the necessary vote, the Act takes effect September 1, 2001. EXPLANATION OF AMENDMENTS Committee Amendment No. 1 provides that a convicted person is entitled to counsel during a proceeding and requires a court to appoint counsel for an indigent defendant who submits a motion for testing. The amendment sets forth procedures for appointment of such counsel. Committee Amendment No. 2 provides that a convicted person who pleaded guilty or nolo contendere in the case is authorized to submit a motion for testing, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea. Committee Amendment No. 3 provides for an appeal of a convicting court's determination to order testing. Committee Amendment No. 4 authorizes a convicted person to be released on bail pending a final determination of an appeal.