Office of House Bill AnalysisS.B. 3
By: Duncan
Criminal Jurisprudence
Committee Report (Amended)


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. 


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. 


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.

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

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


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


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.