By: West S.B. No. 1616
(In the Senate - Filed March 11, 2011; March 23, 2011, read
first time and referred to Committee on Criminal Justice;
April 27, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; April 27, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1616 By: Patrick
A BILL TO BE ENTITLED
AN ACT
relating to the collection, storage, preservation, retrieval, and
destruction of biological evidence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.43, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.43. [PRESERVATION OF] EVIDENCE CONTAINING
BIOLOGICAL MATERIAL. (a) In this article, "biological evidence"
means:
(1) the contents of a sexual assault examination kit;
or
(2) any item that contains blood, semen, hair, saliva,
skin tissue, fingernail scrapings, bone, bodily fluids, or any
other identifiable biological material that was collected as part
of an investigation of an alleged felony offense or conduct
constituting a felony offense that might reasonably be used to [In a
criminal case in which a defendant is convicted, the attorney
representing the state, a clerk, or any other officer in possession
of evidence described by Subsection (b) shall ensure the
preservation of the evidence.
[(b) This article applies to evidence that:
[(1) was in the possession of the state during the
prosecution of the case; and
[(2) at the time of conviction was known to contain
biological material that if subjected to scientific testing would
more likely than not]:
(A) establish the identity of the person
committing the offense or engaging in the conduct constituting the
offense; or
(B) exclude a person from the group of persons
who could have committed the offense or engaged in the conduct
constituting the offense.
(b) This article applies to a governmental or public entity
or an individual, including a law enforcement agency, prosecutor's
office, court, public hospital, or crime laboratory, that is
charged with the collection, storage, preservation, or retrieval of
biological evidence.
(c) The Department of Public Safety shall adopt rules
relating to a person that collects, stores, preserves, or retrieves
any biological evidence in relation to an investigation or
prosecution of a felony offense or conduct constituting a felony
offense. The rules adopted under this subsection must:
(1) require biological evidence to be retained for a
felony offense or conduct constituting a felony offense under
Chapter 19, 21, or 22, Penal Code;
(2) require biological evidence [Except as provided by
Subsection (d), material required] to be preserved [under this
article must be preserved]:
(A) for not less than 60 years if there is an
unapprehended actor associated with the offense; or
(B) in a case in which a defendant has been
convicted, placed on deferred adjudication community supervision,
or adjudicated as having engaged in delinquent conduct and there
are no additional unapprehended actors associated with the offense:
(i) [(1)] until the inmate is executed,
dies, or is released on parole, if the defendant is [was] convicted
of a capital felony; [or]
(ii) [(2)] until the defendant dies,
completes the defendant's sentence, or is released on parole or
mandatory supervision, if the defendant is sentenced to a term of
confinement or imprisonment in the Texas Department of Criminal
Justice;
(iii) until the defendant completes the
defendant's term of community supervision, including deferred
adjudication community supervision, if the defendant is placed on
community supervision;
(iv) until the defendant dies, completes
the defendant's sentence, or is released on parole, mandatory
supervision, or juvenile probation, if the defendant is committed
to the Texas Youth Commission; or
(v) until the defendant completes the
defendant's term of juvenile probation, including a term of
community supervision upon transfer of supervision to a criminal
court, if the defendant is placed on juvenile probation; and
(3) specify procedures for the collection, storage,
preservation, and retrieval of evidence.
(d) The attorney representing the state, clerk, or other
officer in possession of biological evidence [described by
Subsection (b)] may destroy the evidence after expiration of the
retention period specified by the rules adopted under Subsection
(c)(2)[, but only] if the attorney, clerk, or officer by mail
notifies the defendant, the last attorney of record for the
defendant, and the convicting court of the decision to destroy the
evidence and a written objection is not received by the attorney,
clerk, or officer from the defendant, attorney of record, or court
before the 91st day after the later of the following dates:
(1) the date on which the attorney representing the
state, clerk, or other officer receives proof that the defendant
received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned
destruction of evidence is mailed to the last attorney of record for
the defendant.
(e) To the extent of any conflict, this article controls
over Article 2.21.
(f) The Department of Public Safety shall adopt rules
authorizing [(f)(1) This subsection applies only to evidence
described by Subsection (b) that was used to prosecute and convict a
defendant of an offense under Chapter 19, 21, or 22, Penal Code, if
on conviction of the offense the defendant was sentenced to a term
of imprisonment of 10 years or more.
[(2) In] a county with a population less than 100,000
to [, the attorney representing the state, clerk, or other officer
in possession of any evidence to which this subsection applies
shall] ensure the preservation of biological [the] evidence by
promptly delivering the evidence to the Department of Public Safety
for storage in accordance with Section 411.052, Government Code,
and department rules.
(g) A person described by Subsection (b) may solicit and
accept gifts, grants, donations, and contributions to support the
collection, storage, preservation, retrieval, and destruction of
biological evidence.
SECTION 2. (a) The Department of Public Safety of the
State of Texas, in adopting the initial rules required by Article
38.43, Code of Criminal Procedure, as amended by this Act, shall
consult with:
(1) large, medium, and small law enforcement agencies;
(2) law enforcement associations;
(3) scientific experts in the collection,
preservation, storage, and retrieval of biological evidence; and
(4) organizations engaged in the development of law
enforcement policy, such as:
(A) the National Institute of Standards and
Technology of the United States Commerce Department;
(B) the Texas District and County Attorneys
Association;
(C) the Texas Criminal Defense Lawyers
Association;
(D) the Texas Association of Property and
Evidence Inventory Technicians; and
(E) other organizations in this state that
represent clients pursuing claims of innocence based on
post-conviction biological evidence.
(b) The Department of Public Safety of the State of Texas
shall adopt the rules required by Article 38.43, Code of Criminal
Procedure, as amended by this Act, not later than September 1, 2012.
(c) The change in law made by Article 38.43, Code of
Criminal Procedure, as amended by this Act, applies only to
biological evidence collected, stored, preserved, retrieved, or
destroyed on or after January 1, 2013. Biological evidence
collected, stored, preserved, retrieved, or destroyed before
January 1, 2013, is covered by the law that was in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.
* * * * *