S.B. No. 1292
AN ACT
relating to DNA testing of biological evidence in certain capital
cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.43, Code of Criminal Procedure, is
amended by adding Subsections (i), (j), (k), (l), and (m) to read as
follows:
(i) Before a defendant is tried for a capital offense in
which the state is seeking the death penalty, subject to Subsection
(j), the state shall require either the Department of Public Safety
through one of its laboratories or a laboratory accredited under
Section 411.0205, Government Code, to perform DNA testing, in
accordance with the laboratory's capabilities at the time the
testing is performed, on any biological evidence that was collected
as part of an investigation of the offense and is in the possession
of the state. The laboratory that performs the DNA testing shall
pay for all DNA testing performed in accordance with this
subsection.
(j) As soon as practicable after the defendant is charged
with a capital offense, or on a motion by the state or the defendant
in a capital case, unless the state has affirmatively waived the
death penalty in writing, the court shall order the state and the
defendant to meet and confer about which biological materials
collected as part of an investigation of the offense qualify as
biological evidence that is required to be tested under Subsection
(i). If the state and the defendant agree on which biological
materials constitute biological evidence, the biological evidence
shall be tested in accordance with Subsection (i). If the state and
the defendant do not agree on which biological materials qualify as
biological evidence, the state or the defendant may request the
court to hold a hearing to determine the issue. On receipt of a
request for a hearing under this subsection, the court shall set a
date for the hearing and provide written notice of the hearing date
to the state and the defendant. At the hearing, there is a
rebuttable presumption that the biological material that the
defendant requests to be tested constitutes biological evidence
that is required to be tested under Subsection (i). This subsection
does not in any way prohibit the state from testing biological
evidence in the state's possession.
(k) If an item of biological evidence is destroyed or lost
as a result of DNA testing performed under Subsection (i), the
laboratory that tested the evidence must provide to the defendant
any bench notes prepared by the laboratory that are related to the
testing of the evidence and the results of that testing.
(l) The defendant's exclusive remedy for testing that was
not performed as required under Subsection (i) or (j) is to seek a
writ of mandamus from the court of criminal appeals at any time on
or before the date an application for a writ of habeas corpus is due
to be filed in the defendant's case under Section 4(a), Article
11.071. An application for a writ of mandamus under this subsection
does not toll any period of limitations applicable to a habeas
petition under state or federal law. The defendant is entitled to
only one application for a writ of mandamus under this subsection.
At any time after the date an application for a writ of habeas
corpus is filed in the defendant's case under Section 4(a), Article
11.071, the defendant may file one additional motion for forensic
testing under Chapter 64.
(m) A defendant may have another laboratory accredited
under Section 411.0205, Government Code, perform additional
testing of any biological evidence required to be tested under
Subsection (i). On an ex parte showing of good cause to the court, a
defendant may have a laboratory accredited under Section 411.0205,
Government Code, perform testing of any biological material that is
not required to be tested under Subsection (i). The defendant is
responsible for the cost of any testing performed under this
subsection.
SECTION 2. Subsections (i), (j), (k), (l), and (m), Article
38.43, Code of Criminal Procedure, as added by this Act, apply only
to a trial that commences on or after the effective date of this
Act, regardless of whether the alleged offense was committed
before, on, or after that date.
SECTION 3. This Act takes effect September 1, 2013.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1292 passed the Senate on
April 17, 2013, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 24, 2013, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1292 passed the House, with
amendments, on May 22, 2013, by the following vote: Yeas 145,
Nays 0, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor