By: Ellis, Hinojosa S.B. No. 122
(In the Senate - Filed November 8, 2010; January 31, 2011,
read first time and referred to Committee on Criminal Justice;
March 28, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; March 28, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 122 By: Ellis
A BILL TO BE ENTITLED
AN ACT
relating to postconviction forensic DNA analysis.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 64.01, Code of Criminal Procedure, is
amended by amending Subsections (a) and (b) and adding Subsection
(a-1) to read as follows:
(a) In this section, "biological material":
(1) means an item that is in possession of the state
and that contains blood, semen, hair, saliva, skin tissue or cells,
fingernail scrapings, bone, bodily fluids, or other identifiable
biological evidence that may be suitable for forensic DNA testing;
and
(2) includes the contents of a sexual assault evidence
collection kit.
(a-1) A convicted 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, containing statements of fact in support
of the motion.
(b) The motion may request forensic DNA testing only of
evidence described by Subsection (a-1) [(a)] that was secured in
relation to the offense that is the basis of the challenged
conviction and was in the possession of the state during the trial
of the offense, but:
(1) was not previously subjected to DNA testing[:
[(A) because DNA testing was:
[(i) not available; or
[(ii) available, but not technologically
capable of providing probative results; or
[(B) through no fault of the convicted person,
for reasons that are of a nature such that the interests of justice
require DNA testing]; or
(2) although previously subjected to DNA testing, can
be subjected to testing with newer testing techniques that provide
a reasonable likelihood of results that are more accurate and
probative than the results of the previous test.
SECTION 2. Chapter 64, Code of Criminal Procedure, is
amended by adding Article 64.035 to read as follows:
Art. 64.035. UNIDENTIFIED DNA PROFILES. If an analyzed
sample meets the applicable requirements of state or federal
submission policies, on completion of the testing under Article
64.03, the convicting court shall order any unidentified DNA
profile to be compared with the DNA profiles in:
(1) the DNA database established by the Federal Bureau
of Investigation; and
(2) the DNA database maintained by the Department of
Public Safety under Subchapter G, Chapter 411, Government Code.
SECTION 3. 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 and any comparison of a DNA profile
under Article 64.035, 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 person
would not have been convicted.
SECTION 4. The change in law made by this Act applies to a
motion for forensic DNA testing filed on or after the effective date
of this Act. A motion for forensic DNA testing filed before the
effective date of this Act is covered by the law in effect at the
time the motion was filed, and the former law is continued in effect
for that purpose.
SECTION 5. This Act takes effect September 1, 2011.
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