81R10325 SJM-F
By: Miller of Comal H.B. No. 2858
A BILL TO BE ENTITLED
AN ACT
relating to the admissibility of a certificate of analysis or a
chain of custody affidavit in a criminal proceeding.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.41, Code of Criminal Procedure, is
amended by amending Sections 1, 3, 4, and 5 and adding Section 6 to
read as follows:
Sec. 1. A certificate of analysis that complies with this
article is admissible in evidence on behalf of the state or the
defendant to establish the results of a laboratory analysis of
physical evidence [conducted by or for a law enforcement agency]
without the necessity of the analyst personally appearing in court.
Sec. 3. A certificate of analysis under this article must
contain the following information certified under oath:
(1) the name, address, and phone number [names] of:
(A) the analyst who performed the test or
procedure;
(B) [and] the laboratory employing the analyst;
and
(C) the name of an analyst who supervised or
witnessed the test or procedure and who verified or approved the
results of the analysis and the interpretation of the data obtained
from the test or procedure;
(2) a statement that the laboratory employing the
analyst is accredited by a nationally recognized board or
association that accredits scientific [crime] laboratories;
(3) a description of the analyst's educational
background, training, and experience;
(4) a statement that the analyst's duties of
employment included the analysis of physical evidence [for one or
more law enforcement agencies];
(5) a general description of the tests or procedures
conducted by the analyst;
(6) a specific explanation of how the tests or
procedures were applied to the physical evidence;
(7) a statement that the tests or procedures used were
reliable and approved by the laboratory employing the analyst;
(8) a statement that the results of the analysis and
the interpretation of the data obtained from the test or procedure
were verified or approved by a supervising or witnessing analyst;
and
(9) [(7)] the results of the analysis.
Sec. 4. Not later than the 30th [20th] day before the trial
begins in a proceeding in which a certificate of analysis under this
article is to be introduced, the certificate must be filed with the
clerk of the court and a copy must be provided by fax, hand
delivery, or certified mail, return receipt requested, to the
opposing party. The certificate is not admissible under Section 1
if, not later than the 15th [10th] day after the date the opposing
party receives the copy of the certificate [before the trial
begins], the opposing party files a written objection to the use of
the certificate with the clerk of the court and provides a copy of
the objection by fax, hand delivery, or certified mail, return
receipt requested, to the offering party.
Sec. 5. A certificate of analysis is sufficient for
purposes of this article if it uses the following form or if it
otherwise substantially complies with this article:
CERTIFICATE OF ANALYSIS
BEFORE ME, the undersigned authority, personally appeared
______________________________, who being duly sworn, stated as
follows:
My name is __________. I am of sound mind, over the age of 18
years, capable of making this affidavit, and personally acquainted
with the facts stated in this affidavit.
I am employed by the __________, which was authorized to
conduct the analysis referenced in this affidavit. Part of my
duties for this laboratory involved the analysis of physical
evidence [for one or more law enforcement agencies]. This
laboratory is accredited by __________.
My educational background is as follows: (description of
educational background)
My training and experience that qualify me to perform the
tests or procedures referred to in this affidavit and determine the
results of those tests or procedures are as follows: (description
of training and experience)
I received the physical evidence listed on laboratory report
no. __________ (attached) on the ___ day of __________, 20___. On
the date indicated in the laboratory report, I conducted the
following tests or procedures on the physical evidence: (general
description of tests and procedures and specific explanation of the
application of a test or procedure to the physical evidence)
The tests and procedures used were reliable and approved by
the laboratory. The results are as indicated on the lab report. The
results of the analysis and the interpretation of the data I
obtained have been verified or approved by ________________, a
supervising or witnessing analyst.
_________________
Affiant
SWORN TO AND SUBSCRIBED before me on the ___ day of
__________, 20___.
_________________
Notary Public, State of Texas
Sec. 6. In this article, "physical evidence" has the
meaning assigned by Article 38.35.
SECTION 2. Article 38.42, Code of Criminal Procedure, is
amended by amending Section 4 and adding Section 6 to read as
follows:
Sec. 4. Not later than the 30th [20th] day before the trial
begins in a proceeding in which a chain of custody affidavit under
this article is to be introduced, the affidavit must be filed with
the clerk of the court and a copy must be provided by fax, hand
delivery, or certified mail, return receipt requested, to the
opposing party. The affidavit is not admissible under Section 1 if,
not later than the 15th [10th] day after the date the opposing party
receives the copy of the affidavit [before the trial begins], the
opposing party files a written objection to the use of the affidavit
with the clerk of the court and provides a copy of the objection by
fax, hand delivery, or certified mail, return receipt requested, to
the offering party.
Sec. 6. In this article, "physical evidence" has the
meaning assigned by Article 38.35.
SECTION 3. The change in law made by this Act applies only
to the admissibility of a certificate of analysis or chain of
custody affidavit in a criminal proceeding that commences on or
after the effective date of this Act. The admissibility of a
certificate of analysis or chain of custody affidavit in a criminal
proceeding that commenced before the effective date of this Act is
governed by the law in effect when the proceeding commenced, and the
former law is continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2009.