Texas 2011 - 82nd Regular

Texas Senate Bill SB1616 Compare Versions

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1	1	By: West S.B. No. 1616
2	2	(Gallego, Anchia, Hartnett, Christian, Zedler)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the collection, storage, preservation, analysis,
8	8	retrieval, and destruction of biological evidence.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 38.43, Code of Criminal Procedure, is
11	11	amended to read as follows:
12	12	Art. 38.43. [PRESERVATION OF] EVIDENCE CONTAINING
13	13	BIOLOGICAL MATERIAL. (a) In this article, "biological evidence"
14	14	means:
15	15	(1) the contents of a sexual assault examination kit;
16	16	or
17	17	(2) any item that contains blood, semen, hair, saliva,
18	18	skin tissue, fingernail scrapings, bone, bodily fluids, or any
19	19	other identifiable biological material that was collected as part
20	20	of an investigation of an alleged felony offense or conduct
21	21	constituting a felony offense that might reasonably be used to [In a
22	22	criminal case in which a defendant is convicted, the attorney
23	23	representing the state, a clerk, or any other officer in possession
24	24	of evidence described by Subsection (b) shall ensure the
25	25	preservation of the evidence.
26	26	[(b) This article applies to evidence that:
27	27	[(1) was in the possession of the state during the
28	28	prosecution of the case; and
29	29	[(2) at the time of conviction was known to contain
30	30	biological material that if subjected to scientific testing would
31	31	more likely than not]:
32	32	(A) establish the identity of the person
33	33	committing the offense or engaging in the conduct constituting the
34	34	offense; or
35	35	(B) exclude a person from the group of persons
36	36	who could have committed the offense or engaged in the conduct
37	37	constituting the offense.
38	38	(b) This article applies to a governmental or public entity
39	39	or an individual, including a law enforcement agency, prosecutor's
40	40	office, court, public hospital, or crime laboratory, that is
41	41	charged with the collection, storage, preservation, analysis, or
42	42	retrieval of biological evidence.
43	43	(c) An entity or individual described by Subsection (b)
44	44	shall ensure that biological evidence collected pursuant to an
45	45	investigation or prosecution of a felony offense or conduct
46	46	constituting a felony offense is retained and [Except as provided
47	47	by Subsection (d), material required to be preserved under this
48	48	article must be] preserved:
49	49	(1) for not less than 40 years, or until the applicable
50	50	statute of limitations has expired, if there is an unapprehended
51	51	actor associated with the offense; or
52	52	(2) in a case in which a defendant has been convicted,
53	53	placed on deferred adjudication community supervision, or
54	54	adjudicated as having engaged in delinquent conduct and there are
55	55	no additional unapprehended actors associated with the offense:
56	56	(A) until the inmate is executed, dies, or is
57	57	released on parole, if the defendant is [was] convicted of a capital
58	58	felony; [or]
59	59	(B) [(2)] until the defendant dies, completes
60	60	the defendant's sentence, or is released on parole or mandatory
61	61	supervision, if the defendant is sentenced to a term of confinement
62	62	or imprisonment in the Texas Department of Criminal Justice;
63	63	(C) until the defendant completes the
64	64	defendant's term of community supervision, including deferred
65	65	adjudication community supervision, if the defendant is placed on
66	66	community supervision;
67	67	(D) until the defendant dies, completes the
68	68	defendant's sentence, or is released on parole, mandatory
69	69	supervision, or juvenile probation, if the defendant is committed
70	70	to the Texas Youth Commission; or
71	71	(E) until the defendant completes the
72	72	defendant's term of juvenile probation, including a term of
73	73	community supervision upon transfer of supervision to a criminal
74	74	court, if the defendant is placed on juvenile probation.
75	75	(d) The attorney representing the state, clerk, or other
76	76	officer in possession of biological evidence [described by
77	77	Subsection (b)] may destroy the evidence after expiration of the
78	78	retention period specified by Subsection (c)[, but only] if the
79	79	attorney, clerk, or officer by mail notifies the defendant, the
80	80	last attorney of record for the defendant, and the convicting court
81	81	of the decision to destroy the evidence and a written objection is
82	82	not received by the attorney, clerk, or officer from the defendant,
83	83	attorney of record, or court before the 91st day after the later of
84	84	the following dates:
85	85	(1) the date on which the attorney representing the
86	86	state, clerk, or other officer receives proof that the defendant
87	87	received notice of the planned destruction of evidence; or
88	88	(2) the date on which notice of the planned
89	89	destruction of evidence is mailed to the last attorney of record for
90	90	the defendant.
91	91	(e) To the extent of any conflict, this article controls
92	92	over Article 2.21.
93	93	(f) The Department of Public Safety shall adopt standards
94	94	and rules authorizing [(f)(1) This subsection applies only to
95	95	evidence described by Subsection (b) that was used to prosecute and
96	96	convict a defendant of an offense under Chapter 19, 21, or 22, Penal
97	97	Code, if on conviction of the offense the defendant was sentenced to
98	98	a term of imprisonment of 10 years or more.
99	99	[(2) In] a county with a population less than 100,000
100	100	to[, the attorney representing the state, clerk, or other officer
101	101	in possession of any evidence to which this subsection applies
102	102	shall] ensure the preservation of biological [the] evidence by
103	103	promptly delivering the evidence to the Department of Public Safety
104	104	for storage in accordance with Section 411.052, Government Code,
105	105	and department rules.
106	106	(g) The Department of Public Safety shall adopt standards
107	107	and rules, consistent with best practices, relating to a person
108	108	described by Subsection (b), that specify the manner of collection,
109	109	storage, preservation, and retrieval of biological evidence.
110	110	(h) A person described by Subsection (b) may solicit and
111	111	accept gifts, grants, donations, and contributions to support the
112	112	collection, storage, preservation, retrieval, and destruction of
113	113	biological evidence.
114	114	SECTION 2. (a) The Department of Public Safety of the
115	115	State of Texas, in adopting the initial standards and rules
116	116	required by Article 38.43, Code of Criminal Procedure, as amended
117	117	by this Act, shall consult with:
118	118	(1) large, medium, and small law enforcement agencies;
119	119	(2) law enforcement associations;
120	120	(3) scientific experts in the collection,
121	121	preservation, storage, and retrieval of biological evidence; and
122	122	(4) organizations engaged in the development of law
123	123	enforcement policy, such as:
124	124	(A) the National Institute of Standards and
125	125	Technology of the United States Commerce Department;
126	126	(B) the Texas District and County Attorneys
127	127	Association;
128	128	(C) the Texas Criminal Defense Lawyers
129	129	Association;
130	130	(D) the Texas Association of Property and
131	131	Evidence Inventory Technicians; and
132	132	(E) other organizations in this state that
133	133	represent clients pursuing claims of innocence based on
134	134	post-conviction biological evidence.
135	135	(b) The Department of Public Safety of the State of Texas
136	136	shall adopt the standards and rules required by Article 38.43, Code
137	137	of Criminal Procedure, as amended by this Act, not later than
138	138	September 1, 2012.
139	139	(c) The change in law made by Article 38.43, Code of
140	140	Criminal Procedure, as amended by this Act, applies to biological
141	141	evidence in the possession of an entity or individual described by
142	142	Subsection (b), Article 38.43, Code of Criminal Procedure, as
143	143	amended by this Act, on the effective date of this Act, regardless
144	144	of whether the evidence was collected before, on, or after the
145	145	effective date of this Act.
146	146	(d) Notwithstanding Subsection (c) of this section, an
147	147	entity or individual described by Subsection (b), Article 38.43,
148	148	Code of Criminal Procedure, as amended by this Act, is not required
149	149	to comply with the standards and rules adopted under Subsection
150	150	(g), Article 38.43, Code of Criminal Procedure, as added by this
151	151	Act, before January 1, 2013.
152	152	SECTION 3. This Act takes effect immediately if it receives
153	153	a vote of two-thirds of all the members elected to each house, as
154	154	provided by Section 39, Article III, Texas Constitution. If this
155	155	Act does not receive the vote necessary for immediate effect, this
156	156	Act takes effect September 1, 2011.
157	157	COMMITTEE AMENDMENT NO. 1
158	158	SECTION ____. Amend S.B. 1616 (Engrossed Version) with the
159	159	following:
160	160	(1) Section 1 Article 38.43, Code of Criminal Procedure
161	161	(page 3, line 20 and 21) unstrike "described by Subsection (b)"
162	162	(2) On page 3, line 21, replace "(b)" with "(a)".
163	163	(3) On page 3, line 21 and 22, strike "after expiration of
164	164	the retention period specified by Subsection (c)".
165	165	(4) On page 3, line 22, unstrike ", but only".
166	166	Hartnett