Texas 2009 - 81st Regular

Texas House Bill HB2858 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R10325 SJM-F
2	2	By: Miller of Comal H.B. No. 2858
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the admissibility of a certificate of analysis or a
8	8	chain of custody affidavit in a criminal proceeding.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 38.41, Code of Criminal Procedure, is
11	11	amended by amending Sections 1, 3, 4, and 5 and adding Section 6 to
12	12	read as follows:
13	13	Sec. 1. A certificate of analysis that complies with this
14	14	article is admissible in evidence on behalf of the state or the
15	15	defendant to establish the results of a laboratory analysis of
16	16	physical evidence [conducted by or for a law enforcement agency]
17	17	without the necessity of the analyst personally appearing in court.
18	18	Sec. 3. A certificate of analysis under this article must
19	19	contain the following information certified under oath:
20	20	(1) the name, address, and phone number [names] of:
21	21	(A) the analyst who performed the test or
22	22	procedure;
23	23	(B) [and] the laboratory employing the analyst;
24	24	and
25	25	(C) the name of an analyst who supervised or
26	26	witnessed the test or procedure and who verified or approved the
27	27	results of the analysis and the interpretation of the data obtained
28	28	from the test or procedure;
29	29	(2) a statement that the laboratory employing the
30	30	analyst is accredited by a nationally recognized board or
31	31	association that accredits scientific [crime] laboratories;
32	32	(3) a description of the analyst's educational
33	33	background, training, and experience;
34	34	(4) a statement that the analyst's duties of
35	35	employment included the analysis of physical evidence [for one or
36	36	more law enforcement agencies];
37	37	(5) a general description of the tests or procedures
38	38	conducted by the analyst;
39	39	(6) a specific explanation of how the tests or
40	40	procedures were applied to the physical evidence;
41	41	(7) a statement that the tests or procedures used were
42	42	reliable and approved by the laboratory employing the analyst;
43	43	(8) a statement that the results of the analysis and
44	44	the interpretation of the data obtained from the test or procedure
45	45	were verified or approved by a supervising or witnessing analyst;
46	46	and
47	47	(9) [(7)] the results of the analysis.
48	48	Sec. 4. Not later than the 30th [20th] day before the trial
49	49	begins in a proceeding in which a certificate of analysis under this
50	50	article is to be introduced, the certificate must be filed with the
51	51	clerk of the court and a copy must be provided by fax, hand
52	52	delivery, or certified mail, return receipt requested, to the
53	53	opposing party. The certificate is not admissible under Section 1
54	54	if, not later than the 15th [10th] day after the date the opposing
55	55	party receives the copy of the certificate [before the trial
56	56	begins], the opposing party files a written objection to the use of
57	57	the certificate with the clerk of the court and provides a copy of
58	58	the objection by fax, hand delivery, or certified mail, return
59	59	receipt requested, to the offering party.
60	60	Sec. 5. A certificate of analysis is sufficient for
61	61	purposes of this article if it uses the following form or if it
62	62	otherwise substantially complies with this article:
63	63	CERTIFICATE OF ANALYSIS
64	64	BEFORE ME, the undersigned authority, personally appeared
65	65	______________________________, who being duly sworn, stated as
66	66	follows:
67	67	My name is __________. I am of sound mind, over the age of 18
68	68	years, capable of making this affidavit, and personally acquainted
69	69	with the facts stated in this affidavit.
70	70	I am employed by the __________, which was authorized to
71	71	conduct the analysis referenced in this affidavit. Part of my
72	72	duties for this laboratory involved the analysis of physical
73	73	evidence [for one or more law enforcement agencies]. This
74	74	laboratory is accredited by __________.
75	75	My educational background is as follows: (description of
76	76	educational background)
77	77	My training and experience that qualify me to perform the
78	78	tests or procedures referred to in this affidavit and determine the
79	79	results of those tests or procedures are as follows: (description
80	80	of training and experience)
81	81	I received the physical evidence listed on laboratory report
82	82	no. __________ (attached) on the ___ day of __________, 20___. On
83	83	the date indicated in the laboratory report, I conducted the
84	84	following tests or procedures on the physical evidence: (general
85	85	description of tests and procedures and specific explanation of the
86	86	application of a test or procedure to the physical evidence)
87	87	The tests and procedures used were reliable and approved by
88	88	the laboratory. The results are as indicated on the lab report. The
89	89	results of the analysis and the interpretation of the data I
90	90	obtained have been verified or approved by ________________, a
91	91	supervising or witnessing analyst.
92	92	_________________
93	93	Affiant
94	94	SWORN TO AND SUBSCRIBED before me on the ___ day of
95	95	__________, 20___.
96	96	_________________
97	97	Notary Public, State of Texas
98	98	Sec. 6. In this article, "physical evidence" has the
99	99	meaning assigned by Article 38.35.
100	100	SECTION 2. Article 38.42, Code of Criminal Procedure, is
101	101	amended by amending Section 4 and adding Section 6 to read as
102	102	follows:
103	103	Sec. 4. Not later than the 30th [20th] day before the trial
104	104	begins in a proceeding in which a chain of custody affidavit under
105	105	this article is to be introduced, the affidavit must be filed with
106	106	the clerk of the court and a copy must be provided by fax, hand
107	107	delivery, or certified mail, return receipt requested, to the
108	108	opposing party. The affidavit is not admissible under Section 1 if,
109	109	not later than the 15th [10th] day after the date the opposing party
110	110	receives the copy of the affidavit [before the trial begins], the
111	111	opposing party files a written objection to the use of the affidavit
112	112	with the clerk of the court and provides a copy of the objection by
113	113	fax, hand delivery, or certified mail, return receipt requested, to
114	114	the offering party.
115	115	Sec. 6. In this article, "physical evidence" has the
116	116	meaning assigned by Article 38.35.
117	117	SECTION 3. The change in law made by this Act applies only
118	118	to the admissibility of a certificate of analysis or chain of
119	119	custody affidavit in a criminal proceeding that commences on or
120	120	after the effective date of this Act. The admissibility of a
121	121	certificate of analysis or chain of custody affidavit in a criminal
122	122	proceeding that commenced before the effective date of this Act is
123	123	governed by the law in effect when the proceeding commenced, and the
124	124	former law is continued in effect for that purpose.
125	125	SECTION 4. This Act takes effect September 1, 2009.