81R5004 HLT-D
By: Ellis, Duncan S.B. No. 1974
A BILL TO BE ENTITLED
AN ACT
relating to the wrongful imprisonment of a person and to procedures
for providing compensation for that imprisonment and for
exonerating a wrongfully imprisoned person who is deceased.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Tim Cole
Posthumous Exonerations Act.
SECTION 2. Section 103.001, Civil Practice and Remedies
Code, is amended by adding Subsection (c) to read as follows:
(c) If a deceased person would be entitled to compensation
under Subsection (a)(2)(A) if living, the person's surviving
spouse, child, or parent is entitled to compensation under this
chapter.
SECTION 3. Section 103.003, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 103.003. LIMITATION ON TIME TO FILE. Not later than
the third anniversary of the date the person on whose imprisonment
the claim is based received the pardon or was found not guilty as
required by Section 103.001, a person seeking compensation under
this chapter must:
(1) file an application with the comptroller for
compensation under Subchapter B; or
(2) file suit against the state for compensation under
Subchapter C.
SECTION 4. Section 103.051, Civil Practice and Remedies
Code, is amended by reenacting and amending Subsection (a), as
amended by Chapters 1190 (H.B. 814) and 1388 (S.B. 1719), Acts of
the 80th Legislature, Regular Session, 2007, and by amending
Subsection (b-1) to read as follows:
(a) To apply for compensation under this subchapter, the
claimant must file with the comptroller's judiciary section:
(1) an application for compensation provided for that
purpose by the comptroller;
(2) a verified copy of the pardon or court order
justifying the application for compensation; [and]
(3) a statement provided by the Texas Department of
Criminal Justice verifying the length of imprisonment; and
(4) [incarceration (5)] if the claimant is applying
for compensation under Section 103.052(a)(2), a certified copy of
each child support order under which child support payments became
due during the time [the claimant] served in prison by the person on
whose imprisonment the claim is based and copies of the official
child support payment records described by Section 234.009, Family
Code, for that period.
(b-1) In determining the eligibility of a claimant, the
comptroller shall consider only the verified copy of the pardon or
court order filed by the claimant under Subsection (a). If the
pardon or court order does not clearly indicate on its face that the
pardon or the court order was granted or rendered on the basis of
[the claimant's] actual innocence [of the crime for which the
claimant was sentenced], the comptroller shall deny the claim. The
comptroller's duty to determine the eligibility of a claimant under
this section is purely ministerial.
SECTION 5. Sections 103.052(a), (a-1), and (c), Civil
Practice and Remedies Code, are amended to read as follows:
(a) A person who meets the requirements of Section 103.001
is entitled to compensation in an amount equal to:
(1) $50,000 multiplied by the number of years served
in prison, expressed as a fraction to reflect partial years; and
(2) compensation for child support payments owed by
the person on whose imprisonment the claim is based that became due
and interest on child support arrearages that accrued during the
time served in prison but were not paid.
(a-1) Notwithstanding Subsection (a)(1), a person sentenced
to death who meets the requirements of Section 103.001, or a
claimant whose claim is based on that person's imprisonment, is
entitled to compensation in an amount equal to $100,000 multiplied
by the number of years served in prison, expressed as a fraction to
reflect partial years.
(c) If requested by a [the] claimant described by Section
103.001(a), the Texas Department of Mental Health and Mental
Retardation shall provide appropriate counseling for one year to
the claimant at a mutually agreed-on location at no charge to the
claimant.
SECTION 6. Section 103.103, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 103.103. INSUFFICIENT STATE DEFENSES. The following
are not defenses to an action brought under this chapter:
(1) the judgment of conviction in the trial that
resulted in the [claimant's] imprisonment on which the claim is
based; or
(2) an indictment, information, complaint, or other
formal accusation.
SECTION 7. Section 103.104(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) In the suit, the court may admit as evidence the record
of the trial at which the person on whose imprisonment the claim is
based [petitioner] was convicted and the pardon or proclamation
issued to [the petitioner] by the governor, if applicable.
SECTION 8. Section 103.1041, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 103.1041. REQUIRED EVIDENCE. A claimant who brings a
suit under this subchapter for compensation under Section
103.052(a)(2) must submit to the court as evidence a certified copy
of each child support order under which child support payments
became due during the time the person on whose imprisonment the
claim is based [claimant] served in prison and copies of the
official child support payment records described by Section
234.009, Family Code, for that period.
SECTION 9. Sections 103.105(a) and (b), Civil Practice and
Remedies Code, are amended to read as follows:
(a) If the trier of fact finds that the petitioner is
entitled to compensation, the petitioner is entitled to:
(1) expenses incurred by the imprisoned person
[petitioner] in connection with all associated criminal
proceedings and appeals and in connection with obtaining the
person's [petitioner's] discharge from imprisonment, including any
fine or court costs paid and reasonable attorney's fees, including
reasonable attorney's fees for prosecuting the lawsuit under this
subchapter;
(2) wages, salary, or other earned income of the
imprisoned person that was lost as a direct result of the arrest,
prosecution, conviction, or wrongful imprisonment;
(3) medical and counseling expenses incurred by the
imprisoned person [petitioner] as a direct result of the arrest,
prosecution, conviction, or wrongful imprisonment; and
(4) child support payments owed by the imprisoned
person [petitioner] that became due and interest on child support
arrearages that accrued during the time served in prison but were
not paid.
(b) In determining the sum of money owed to the petitioner,
the trier of fact may not deduct any expenses incurred by the state
or any of its political subdivisions in connection with the arrest,
prosecution, conviction, and wrongful imprisonment of the person on
whose imprisonment the claim is based [petitioner], including
expenses for food, clothing, shelter, and medical services.
SECTION 10. Section 103.152(c), Civil Practice and Remedies
Code, is amended to read as follows:
(c) The amount of compensation awarded under Section
103.105(a)(4) must be paid on the imprisoned person's [claimant's]
behalf in a lump-sum payment to the state disbursement unit, as
defined by Section 101.0302, Family Code, for distribution to the
obligee under the child support order.
SECTION 11. Section 103.153(b), Civil Practice and Remedies
Code, is amended to read as follows:
(b) A person who receives compensation under this chapter
may not bring any action involving the same subject matter,
including an action involving the [person's] arrest, conviction, or
length of confinement of the person on whose imprisonment the claim
is based, against any governmental unit or an employee of any
governmental unit.
SECTION 12. Section 103.154, Civil Practice and Remedies
Code, is amended by amending Subsection (b) and adding Subsection
(b-1) to read as follows:
(b) Compensation [Except as provided by Subsection (c),
compensation] payments to a person described by Section 103.001(a)
continue after [under this chapter terminate on] the date of the
person's death. Any payments scheduled to be paid after that date
shall be paid to [are credited to the state and may not be paid to
any other person, including] the person's surviving spouse, heirs,
devisees, or beneficiaries under the person's will, or to the
person's estate.
(b-1) Except as provided by Subsection (c), compensation
payments to a person entitled to compensation under Section
103.001(c) terminate on the date of the person's death. Any
payments scheduled to be paid after that date are credited to the
state and may not be paid to any other person, including the
person's surviving spouse, heirs, devisees, or beneficiaries under
the person's will, or to the person's estate.
SECTION 13. Article 38.43(d), Code of Criminal Procedure,
is amended to read as follows:
(d) The attorney representing the state, clerk, or other
officer in possession of evidence described by Subsection (b) may
destroy the evidence, but only if the attorney, clerk, or officer:
(1) by mail notifies the following persons or entities
of the decision to destroy the evidence:
(A) the defendant or, if the defendant is
deceased, the surviving spouse of the defendant, if any, and each
surviving child or parent, if any, of the defendant;
(B) [,] the last attorney of record for the
defendant; [,] and
(C) the convicting court; [of the decision to
destroy the evidence] and
(2) does not receive [a written objection is not
received by the attorney, clerk, or officer] from a person or entity
entitled to notice under Subdivision (1) a written objection [the
defendant, attorney of record, or court] before the 91st day after
the later of the following dates:
(A) [(1)] the date on which the attorney
representing the state, clerk, or other officer receives proof that
the defendant or, if applicable, the surviving spouse, child, and
parent of the defendant, received notice of the planned destruction
of evidence; or
(B) [(2)] the date on which notice of the planned
destruction of evidence is mailed to the last attorney of record for
the defendant.
SECTION 14. Chapter 48, Code of Criminal Procedure, is
amended by adding Article 48.06 to read as follows:
Art. 48.06. APPLICATION FOR POSTHUMOUS PARDON FOR ACTUAL
INNOCENCE. (a) An application for a pardon under this article may
be submitted by the surviving spouse, if any, or a surviving child
or parent of an individual who:
(1) has been convicted of a criminal offense under the
laws of this state; and
(2) at the time of application is deceased.
(b) On receipt of an application under this article
accompanied by a sworn affidavit described by Subsection (c), the
Board of Pardons and Paroles shall consider recommending to the
governor a posthumous pardon for actual innocence for the
individual on whose behalf the application is filed.
(c) A sworn affidavit accompanying an application for a
posthumous pardon under this article must be signed by an applicant
described by Subsection (a) and must contain:
(1) specific facts regarding the offense of which the
individual on whose behalf the application is filed was convicted
that:
(A) were not admitted into evidence during the
individual's trial; and
(B) if proven, establish the individual's actual
innocence of the offense; or
(2) a statement that the convicting court has made a
finding under Article 64.04 that, had the results of forensic DNA
testing performed under Chapter 64 been available during the trial
of the offense of which the individual on whose behalf the
application is filed was convicted, it is reasonably probable that
the individual would not have been convicted.
SECTION 15. Chapter 55, Code of Criminal Procedure, is
amended by adding Article 55.011 to read as follows:
Art. 55.011. EXPUNCTION FOLLOWING POSTHUMOUS PARDON FOR
ACTUAL INNOCENCE. An individual who obtains for a deceased
individual a posthumous pardon for actual innocence as described by
Article 48.06 may file on behalf of that deceased individual an ex
parte petition for expunction under Section 2 or 2a, Article 55.02.
If the court finds that the deceased individual would be entitled to
expunction of any record or file that is the subject of the
petition, the court shall enter an order directing expunction.
SECTION 16. Articles 64.01(a) and (c), Code of Criminal
Procedure, are amended to read as follows:
(a) A convicted person or, if the convicted person is
deceased, the surviving spouse of the deceased person, if any, or a
surviving child or parent of the deceased person, may submit to the
convicting court a motion for forensic DNA testing of evidence
containing biological material. The motion must be accompanied by
an affidavit, sworn to by the [convicted] person submitting the
motion, containing statements of fact in support of the motion.
(c) A convicted person, other than a convicted person who is
deceased, is entitled to counsel during a proceeding under this
chapter. The convicting court shall appoint counsel for the
convicted person if the person informs the court that the person
wishes to submit a motion under this chapter, the court finds
reasonable grounds for a motion to be filed, and the court
determines that the person is indigent. Counsel must be appointed
under this subsection not later than the 45th day after the date the
court finds reasonable grounds or the date the court determines
that the person is indigent, whichever is later. Compensation of
counsel is provided in the same manner as is required by:
(1) Article 11.071 for the representation of a
petitioner convicted of a capital felony; and
(2) Chapter 26 for the representation in a habeas
corpus hearing of an indigent defendant convicted of a felony other
than a capital felony.
SECTION 17. Articles 64.03(a), (b), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) A convicting court may order forensic DNA testing under
this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition
making DNA testing possible; and
(ii) has been subjected to a chain of
custody sufficient to establish that it has not been substituted,
tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the [convicted] person submitting the motion
establishes by a preponderance of the evidence that:
(A) the convicted person would not have been
convicted if exculpatory results had been obtained through DNA
testing; and
(B) the request for the proposed DNA testing is
not made to unreasonably delay the execution of sentence or
administration of justice.
(b) If a [A] convicted person [who] pleaded guilty or nolo
contendere or, whether before or after conviction, made a
confession or similar admission in the case:
(1) any person authorized to submit a motion under
this chapter may submit the [a] motion; and
(2) [under this chapter, and] the convicting court is
prohibited from finding that identity was not an issue in the case
solely on the basis of that plea, confession, or admission, as
applicable.
(c) If the convicting court finds in the affirmative the
issues listed in Subsection (a)(1) and the [convicted] person
submitting the motion meets the requirements of Subsection (a)(2),
the court shall order that the requested forensic DNA testing be
conducted. The court may order the test to be conducted by:
(1) the Department of Public Safety;
(2) a laboratory operating under a contract with the
department; or
(3) on the request of the [convicted] person
submitting the motion, another laboratory if that laboratory is
accredited under Section 411.0205, Government Code.
(d) If the convicting court orders that the forensic DNA
testing be conducted by a laboratory other than a Department of
Public Safety laboratory or a laboratory under contract with the
department, the State of Texas is not liable for the cost of testing
under this subsection unless good cause for payment of that cost has
been shown. A political subdivision of the state is not liable for
the cost of testing under this subsection, regardless of whether
good cause for payment of that cost has been shown. If the court
orders that the testing be conducted by a laboratory described by
this subsection, the court shall include in the order requirements
that:
(1) the DNA testing be conducted in a timely and
efficient manner under reasonable conditions designed to protect
the integrity of the evidence and the testing process;
(2) the DNA testing employ a scientific method
sufficiently reliable and relevant to be admissible under Rule 702,
Texas Rules of Evidence; and
(3) on completion of the DNA testing, the results of
the testing and all data related to the testing 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 submitting the motion and the attorney representing the
state.
SECTION 18. Article 64.04, Code of Criminal Procedure, is
amended to read as follows:
Art. 64.04. FINDING. After examining the results of testing
under Article 64.03, the convicting court shall hold a hearing and
make a finding as to whether, had the results been available during
the trial of the offense, it is reasonably probable that the
convicted person would not have been convicted.
SECTION 19. (a) Except as provided by this section, Chapter
103, Civil Practice and Remedies Code, as amended by this Act,
applies only to an application or action for compensation under
that chapter filed on or after the effective date of this Act. An
application or action filed before the effective date of this Act is
governed by the law in effect immediately before that date, and the
former law is continued in effect for that purpose.
(b) Section 103.001(c), Civil Practice and Remedies Code,
as added by this Act, applies only to an application or action for
compensation under Chapter 103, Civil Practice and Remedies Code,
as amended by this Act, based on a pardon issued on or after the
effective date of this Act.
SECTION 20. (a) Article 38.43(d), Code of Criminal
Procedure, as amended by this Act, applies only to the destruction
of evidence that occurs on or after the effective date of this Act.
The destruction of evidence that occurs before the effective date
of this Act is governed by the law in effect when the evidence was
destroyed, and the former law is continued in effect for that
purpose.
(b) Chapter 64, Code of Criminal Procedure, as amended by
this Act, applies only to a motion for forensic DNA testing filed on
or after the effective date of this Act. A motion filed before the
effective date of this Act is covered by the law in effect when the
motion was filed, and the former law is continued in effect for that
purpose.
SECTION 21. This Act takes effect September 1, 2009.