Texas 2009 - 81st Regular

Texas Senate Bill SB1974 Compare Versions

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

Old	New	Differences
1	1	81R5004 HLT-D
2	2	By: Ellis, Duncan S.B. No. 1974
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the wrongful imprisonment of a person and to procedures
8	8	for providing compensation for that imprisonment and for
9	9	exonerating a wrongfully imprisoned person who is deceased.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. This Act shall be known as the Tim Cole
12	12	Posthumous Exonerations Act.
13	13	SECTION 2. Section 103.001, Civil Practice and Remedies
14	14	Code, is amended by adding Subsection (c) to read as follows:
15	15	(c) If a deceased person would be entitled to compensation
16	16	under Subsection (a)(2)(A) if living, the person's surviving
17	17	spouse, child, or parent is entitled to compensation under this
18	18	chapter.
19	19	SECTION 3. Section 103.003, Civil Practice and Remedies
20	20	Code, is amended to read as follows:
21	21	Sec. 103.003. LIMITATION ON TIME TO FILE. Not later than
22	22	the third anniversary of the date the person on whose imprisonment
23	23	the claim is based received the pardon or was found not guilty as
24	24	required by Section 103.001, a person seeking compensation under
25	25	this chapter must:
26	26	(1) file an application with the comptroller for
27	27	compensation under Subchapter B; or
28	28	(2) file suit against the state for compensation under
29	29	Subchapter C.
30	30	SECTION 4. Section 103.051, Civil Practice and Remedies
31	31	Code, is amended by reenacting and amending Subsection (a), as
32	32	amended by Chapters 1190 (H.B. 814) and 1388 (S.B. 1719), Acts of
33	33	the 80th Legislature, Regular Session, 2007, and by amending
34	34	Subsection (b-1) to read as follows:
35	35	(a) To apply for compensation under this subchapter, the
36	36	claimant must file with the comptroller's judiciary section:
37	37	(1) an application for compensation provided for that
38	38	purpose by the comptroller;
39	39	(2) a verified copy of the pardon or court order
40	40	justifying the application for compensation; [and]
41	41	(3) a statement provided by the Texas Department of
42	42	Criminal Justice verifying the length of imprisonment; and
43	43	(4) [incarceration (5)] if the claimant is applying
44	44	for compensation under Section 103.052(a)(2), a certified copy of
45	45	each child support order under which child support payments became
46	46	due during the time [the claimant] served in prison by the person on
47	47	whose imprisonment the claim is based and copies of the official
48	48	child support payment records described by Section 234.009, Family
49	49	Code, for that period.
50	50	(b-1) In determining the eligibility of a claimant, the
51	51	comptroller shall consider only the verified copy of the pardon or
52	52	court order filed by the claimant under Subsection (a). If the
53	53	pardon or court order does not clearly indicate on its face that the
54	54	pardon or the court order was granted or rendered on the basis of
55	55	[the claimant's] actual innocence [of the crime for which the
56	56	claimant was sentenced], the comptroller shall deny the claim. The
57	57	comptroller's duty to determine the eligibility of a claimant under
58	58	this section is purely ministerial.
59	59	SECTION 5. Sections 103.052(a), (a-1), and (c), Civil
60	60	Practice and Remedies Code, are amended to read as follows:
61	61	(a) A person who meets the requirements of Section 103.001
62	62	is entitled to compensation in an amount equal to:
63	63	(1) $50,000 multiplied by the number of years served
64	64	in prison, expressed as a fraction to reflect partial years; and
65	65	(2) compensation for child support payments owed by
66	66	the person on whose imprisonment the claim is based that became due
67	67	and interest on child support arrearages that accrued during the
68	68	time served in prison but were not paid.
69	69	(a-1) Notwithstanding Subsection (a)(1), a person sentenced
70	70	to death who meets the requirements of Section 103.001, or a
71	71	claimant whose claim is based on that person's imprisonment, is
72	72	entitled to compensation in an amount equal to $100,000 multiplied
73	73	by the number of years served in prison, expressed as a fraction to
74	74	reflect partial years.
75	75	(c) If requested by a [the] claimant described by Section
76	76	103.001(a), the Texas Department of Mental Health and Mental
77	77	Retardation shall provide appropriate counseling for one year to
78	78	the claimant at a mutually agreed-on location at no charge to the
79	79	claimant.
80	80	SECTION 6. Section 103.103, Civil Practice and Remedies
81	81	Code, is amended to read as follows:
82	82	Sec. 103.103. INSUFFICIENT STATE DEFENSES. The following
83	83	are not defenses to an action brought under this chapter:
84	84	(1) the judgment of conviction in the trial that
85	85	resulted in the [claimant's] imprisonment on which the claim is
86	86	based; or
87	87	(2) an indictment, information, complaint, or other
88	88	formal accusation.
89	89	SECTION 7. Section 103.104(a), Civil Practice and Remedies
90	90	Code, is amended to read as follows:
91	91	(a) In the suit, the court may admit as evidence the record
92	92	of the trial at which the person on whose imprisonment the claim is
93	93	based [petitioner] was convicted and the pardon or proclamation
94	94	issued to [the petitioner] by the governor, if applicable.
95	95	SECTION 8. Section 103.1041, Civil Practice and Remedies
96	96	Code, is amended to read as follows:
97	97	Sec. 103.1041. REQUIRED EVIDENCE. A claimant who brings a
98	98	suit under this subchapter for compensation under Section
99	99	103.052(a)(2) must submit to the court as evidence a certified copy
100	100	of each child support order under which child support payments
101	101	became due during the time the person on whose imprisonment the
102	102	claim is based [claimant] served in prison and copies of the
103	103	official child support payment records described by Section
104	104	234.009, Family Code, for that period.
105	105	SECTION 9. Sections 103.105(a) and (b), Civil Practice and
106	106	Remedies Code, are amended to read as follows:
107	107	(a) If the trier of fact finds that the petitioner is
108	108	entitled to compensation, the petitioner is entitled to:
109	109	(1) expenses incurred by the imprisoned person
110	110	[petitioner] in connection with all associated criminal
111	111	proceedings and appeals and in connection with obtaining the
112	112	person's [petitioner's] discharge from imprisonment, including any
113	113	fine or court costs paid and reasonable attorney's fees, including
114	114	reasonable attorney's fees for prosecuting the lawsuit under this
115	115	subchapter;
116	116	(2) wages, salary, or other earned income of the
117	117	imprisoned person that was lost as a direct result of the arrest,
118	118	prosecution, conviction, or wrongful imprisonment;
119	119	(3) medical and counseling expenses incurred by the
120	120	imprisoned person [petitioner] as a direct result of the arrest,
121	121	prosecution, conviction, or wrongful imprisonment; and
122	122	(4) child support payments owed by the imprisoned
123	123	person [petitioner] that became due and interest on child support
124	124	arrearages that accrued during the time served in prison but were
125	125	not paid.
126	126	(b) In determining the sum of money owed to the petitioner,
127	127	the trier of fact may not deduct any expenses incurred by the state
128	128	or any of its political subdivisions in connection with the arrest,
129	129	prosecution, conviction, and wrongful imprisonment of the person on
130	130	whose imprisonment the claim is based [petitioner], including
131	131	expenses for food, clothing, shelter, and medical services.
132	132	SECTION 10. Section 103.152(c), Civil Practice and Remedies
133	133	Code, is amended to read as follows:
134	134	(c) The amount of compensation awarded under Section
135	135	103.105(a)(4) must be paid on the imprisoned person's [claimant's]
136	136	behalf in a lump-sum payment to the state disbursement unit, as
137	137	defined by Section 101.0302, Family Code, for distribution to the
138	138	obligee under the child support order.
139	139	SECTION 11. Section 103.153(b), Civil Practice and Remedies
140	140	Code, is amended to read as follows:
141	141	(b) A person who receives compensation under this chapter
142	142	may not bring any action involving the same subject matter,
143	143	including an action involving the [person's] arrest, conviction, or
144	144	length of confinement of the person on whose imprisonment the claim
145	145	is based, against any governmental unit or an employee of any
146	146	governmental unit.
147	147	SECTION 12. Section 103.154, Civil Practice and Remedies
148	148	Code, is amended by amending Subsection (b) and adding Subsection
149	149	(b-1) to read as follows:
150	150	(b) Compensation [Except as provided by Subsection (c),
151	151	compensation] payments to a person described by Section 103.001(a)
152	152	continue after [under this chapter terminate on] the date of the
153	153	person's death. Any payments scheduled to be paid after that date
154	154	shall be paid to [are credited to the state and may not be paid to
155	155	any other person, including] the person's surviving spouse, heirs,
156	156	devisees, or beneficiaries under the person's will, or to the
157	157	person's estate.
158	158	(b-1) Except as provided by Subsection (c), compensation
159	159	payments to a person entitled to compensation under Section
160	160	103.001(c) terminate on the date of the person's death. Any
161	161	payments scheduled to be paid after that date are credited to the
162	162	state and may not be paid to any other person, including the
163	163	person's surviving spouse, heirs, devisees, or beneficiaries under
164	164	the person's will, or to the person's estate.
165	165	SECTION 13. Article 38.43(d), Code of Criminal Procedure,
166	166	is amended to read as follows:
167	167	(d) The attorney representing the state, clerk, or other
168	168	officer in possession of evidence described by Subsection (b) may
169	169	destroy the evidence, but only if the attorney, clerk, or officer:
170	170	(1) by mail notifies the following persons or entities
171	171	of the decision to destroy the evidence:
172	172	(A) the defendant or, if the defendant is
173	173	deceased, the surviving spouse of the defendant, if any, and each
174	174	surviving child or parent, if any, of the defendant;
175	175	(B) [,] the last attorney of record for the
176	176	defendant; [,] and
177	177	(C) the convicting court; [of the decision to
178	178	destroy the evidence] and
179	179	(2) does not receive [a written objection is not
180	180	received by the attorney, clerk, or officer] from a person or entity
181	181	entitled to notice under Subdivision (1) a written objection [the
182	182	defendant, attorney of record, or court] before the 91st day after
183	183	the later of the following dates:
184	184	(A) [(1)] the date on which the attorney
185	185	representing the state, clerk, or other officer receives proof that
186	186	the defendant or, if applicable, the surviving spouse, child, and
187	187	parent of the defendant, received notice of the planned destruction
188	188	of evidence; or
189	189	(B) [(2)] the date on which notice of the planned
190	190	destruction of evidence is mailed to the last attorney of record for
191	191	the defendant.
192	192	SECTION 14. Chapter 48, Code of Criminal Procedure, is
193	193	amended by adding Article 48.06 to read as follows:
194	194	Art. 48.06. APPLICATION FOR POSTHUMOUS PARDON FOR ACTUAL
195	195	INNOCENCE. (a) An application for a pardon under this article may
196	196	be submitted by the surviving spouse, if any, or a surviving child
197	197	or parent of an individual who:
198	198	(1) has been convicted of a criminal offense under the
199	199	laws of this state; and
200	200	(2) at the time of application is deceased.
201	201	(b) On receipt of an application under this article
202	202	accompanied by a sworn affidavit described by Subsection (c), the
203	203	Board of Pardons and Paroles shall consider recommending to the
204	204	governor a posthumous pardon for actual innocence for the
205	205	individual on whose behalf the application is filed.
206	206	(c) A sworn affidavit accompanying an application for a
207	207	posthumous pardon under this article must be signed by an applicant
208	208	described by Subsection (a) and must contain:
209	209	(1) specific facts regarding the offense of which the
210	210	individual on whose behalf the application is filed was convicted
211	211	that:
212	212	(A) were not admitted into evidence during the
213	213	individual's trial; and
214	214	(B) if proven, establish the individual's actual
215	215	innocence of the offense; or
216	216	(2) a statement that the convicting court has made a
217	217	finding under Article 64.04 that, had the results of forensic DNA
218	218	testing performed under Chapter 64 been available during the trial
219	219	of the offense of which the individual on whose behalf the
220	220	application is filed was convicted, it is reasonably probable that
221	221	the individual would not have been convicted.
222	222	SECTION 15. Chapter 55, Code of Criminal Procedure, is
223	223	amended by adding Article 55.011 to read as follows:
224	224	Art. 55.011. EXPUNCTION FOLLOWING POSTHUMOUS PARDON FOR
225	225	ACTUAL INNOCENCE. An individual who obtains for a deceased
226	226	individual a posthumous pardon for actual innocence as described by
227	227	Article 48.06 may file on behalf of that deceased individual an ex
228	228	parte petition for expunction under Section 2 or 2a, Article 55.02.
229	229	If the court finds that the deceased individual would be entitled to
230	230	expunction of any record or file that is the subject of the
231	231	petition, the court shall enter an order directing expunction.
232	232	SECTION 16. Articles 64.01(a) and (c), Code of Criminal
233	233	Procedure, are amended to read as follows:
234	234	(a) A convicted person or, if the convicted person is
235	235	deceased, the surviving spouse of the deceased person, if any, or a
236	236	surviving child or parent of the deceased person, may submit to the
237	237	convicting court a motion for forensic DNA testing of evidence
238	238	containing biological material. The motion must be accompanied by
239	239	an affidavit, sworn to by the [convicted] person submitting the
240	240	motion, containing statements of fact in support of the motion.
241	241	(c) A convicted person, other than a convicted person who is
242	242	deceased, is entitled to counsel during a proceeding under this
243	243	chapter. The convicting court shall appoint counsel for the
244	244	convicted person if the person informs the court that the person
245	245	wishes to submit a motion under this chapter, the court finds
246	246	reasonable grounds for a motion to be filed, and the court
247	247	determines that the person is indigent. Counsel must be appointed
248	248	under this subsection not later than the 45th day after the date the
249	249	court finds reasonable grounds or the date the court determines
250	250	that the person is indigent, whichever is later. Compensation of
251	251	counsel is provided in the same manner as is required by:
252	252	(1) Article 11.071 for the representation of a
253	253	petitioner convicted of a capital felony; and
254	254	(2) Chapter 26 for the representation in a habeas
255	255	corpus hearing of an indigent defendant convicted of a felony other
256	256	than a capital felony.
257	257	SECTION 17. Articles 64.03(a), (b), (c), and (d), Code of
258	258	Criminal Procedure, are amended to read as follows:
259	259	(a) A convicting court may order forensic DNA testing under
260	260	this chapter only if:
261	261	(1) the court finds that:
262	262	(A) the evidence:
263	263	(i) still exists and is in a condition
264	264	making DNA testing possible; and
265	265	(ii) has been subjected to a chain of
266	266	custody sufficient to establish that it has not been substituted,
267	267	tampered with, replaced, or altered in any material respect; and
268	268	(B) identity was or is an issue in the case; and
269	269	(2) the [convicted] person submitting the motion
270	270	establishes by a preponderance of the evidence that:
271	271	(A) the convicted person would not have been
272	272	convicted if exculpatory results had been obtained through DNA
273	273	testing; and
274	274	(B) the request for the proposed DNA testing is
275	275	not made to unreasonably delay the execution of sentence or
276	276	administration of justice.
277	277	(b) If a [A] convicted person [who] pleaded guilty or nolo
278	278	contendere or, whether before or after conviction, made a
279	279	confession or similar admission in the case:
280	280	(1) any person authorized to submit a motion under
281	281	this chapter may submit the [a] motion; and
282	282	(2) [under this chapter, and] the convicting court is
283	283	prohibited from finding that identity was not an issue in the case
284	284	solely on the basis of that plea, confession, or admission, as
285	285	applicable.
286	286	(c) If the convicting court finds in the affirmative the
287	287	issues listed in Subsection (a)(1) and the [convicted] person
288	288	submitting the motion meets the requirements of Subsection (a)(2),
289	289	the court shall order that the requested forensic DNA testing be
290	290	conducted. The court may order the test to be conducted by:
291	291	(1) the Department of Public Safety;
292	292	(2) a laboratory operating under a contract with the
293	293	department; or
294	294	(3) on the request of the [convicted] person
295	295	submitting the motion, another laboratory if that laboratory is
296	296	accredited under Section 411.0205, Government Code.
297	297	(d) If the convicting court orders that the forensic DNA
298	298	testing be conducted by a laboratory other than a Department of
299	299	Public Safety laboratory or a laboratory under contract with the
300	300	department, the State of Texas is not liable for the cost of testing
301	301	under this subsection unless good cause for payment of that cost has
302	302	been shown. A political subdivision of the state is not liable for
303	303	the cost of testing under this subsection, regardless of whether
304	304	good cause for payment of that cost has been shown. If the court
305	305	orders that the testing be conducted by a laboratory described by
306	306	this subsection, the court shall include in the order requirements
307	307	that:
308	308	(1) the DNA testing be conducted in a timely and
309	309	efficient manner under reasonable conditions designed to protect
310	310	the integrity of the evidence and the testing process;
311	311	(2) the DNA testing employ a scientific method
312	312	sufficiently reliable and relevant to be admissible under Rule 702,
313	313	Texas Rules of Evidence; and
314	314	(3) on completion of the DNA testing, the results of
315	315	the testing and all data related to the testing required for an
316	316	evaluation of the test results be immediately filed with the court
317	317	and copies of the results and data be served on the [convicted]
318	318	person submitting the motion and the attorney representing the
319	319	state.
320	320	SECTION 18. Article 64.04, Code of Criminal Procedure, is
321	321	amended to read as follows:
322	322	Art. 64.04. FINDING. After examining the results of testing
323	323	under Article 64.03, the convicting court shall hold a hearing and
324	324	make a finding as to whether, had the results been available during
325	325	the trial of the offense, it is reasonably probable that the
326	326	convicted person would not have been convicted.
327	327	SECTION 19. (a) Except as provided by this section, Chapter
328	328	103, Civil Practice and Remedies Code, as amended by this Act,
329	329	applies only to an application or action for compensation under
330	330	that chapter filed on or after the effective date of this Act. An
331	331	application or action filed before the effective date of this Act is
332	332	governed by the law in effect immediately before that date, and the
333	333	former law is continued in effect for that purpose.
334	334	(b) Section 103.001(c), Civil Practice and Remedies Code,
335	335	as added by this Act, applies only to an application or action for
336	336	compensation under Chapter 103, Civil Practice and Remedies Code,
337	337	as amended by this Act, based on a pardon issued on or after the
338	338	effective date of this Act.
339	339	SECTION 20. (a) Article 38.43(d), Code of Criminal
340	340	Procedure, as amended by this Act, applies only to the destruction
341	341	of evidence that occurs on or after the effective date of this Act.
342	342	The destruction of evidence that occurs before the effective date
343	343	of this Act is governed by the law in effect when the evidence was
344	344	destroyed, and the former law is continued in effect for that
345	345	purpose.
346	346	(b) Chapter 64, Code of Criminal Procedure, as amended by
347	347	this Act, applies only to a motion for forensic DNA testing filed on
348	348	or after the effective date of this Act. A motion filed before the
349	349	effective date of this Act is covered by the law in effect when the
350	350	motion was filed, and the former law is continued in effect for that
351	351	purpose.
352	352	SECTION 21. This Act takes effect September 1, 2009.