| 1 | 1 | | By: Hinojosa of Hidalgo S.B. No. 1937 |
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| 2 | 2 | | |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | |
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| 6 | 6 | | A BILL TO BE ENTITLED |
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| 7 | 7 | | AN ACT |
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| 8 | 8 | | relating to the testing of evidence containing biological materials |
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| 9 | 9 | | in capital cases. |
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| 10 | 10 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 11 | 11 | | SECTION 1. Articles 38.43(i), (j), and (k), Code of |
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| 12 | 12 | | Criminal Procedure, are amended to read as follows: |
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| 13 | 13 | | (i) Before a defendant is tried for a capital offense in |
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| 14 | 14 | | which the state is seeking the death penalty, subject to Subsection |
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| 15 | 15 | | (j), the state shall require either the Department of Public Safety |
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| 16 | 16 | | through one of its laboratories or a laboratory accredited under |
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| 17 | 17 | | Article 38.01 to perform nuclear DNA testing, in accordance with |
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| 18 | 18 | | the laboratory's capabilities at the time the testing is performed, |
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| 19 | 19 | | on any biological evidence that was collected as part of an |
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| 20 | 20 | | investigation of the offense and is in the possession of the state. |
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| 21 | 21 | | The laboratory that performs the nuclear DNA testing shall pay for |
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| 22 | 22 | | all nuclear DNA testing performed in accordance with this |
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| 23 | 23 | | subsection. |
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| 24 | 24 | | (j) As soon as practicable after the defendant is charged |
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| 25 | 25 | | with a capital offense, or on a motion by the state or the defendant |
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| 26 | 26 | | in a capital case, unless the state has affirmatively waived the |
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| 27 | 27 | | death penalty in writing, the court shall order the state, a subject |
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| 28 | 28 | | matter expert from the laboratory required to perform the testing |
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| 29 | 29 | | under Subsection (i), and the defendant to meet and confer about |
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| 30 | 30 | | which biological materials collected as part of an investigation of |
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| 31 | 31 | | the offense qualify as biological evidence that is required to be |
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| 32 | 32 | | tested under that subsection [Subsection (i)]. If the state, the |
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| 33 | 33 | | subject matter expert, and the defendant agree on which biological |
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| 34 | 34 | | materials constitute biological evidence, the biological evidence |
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| 35 | 35 | | shall be tested in accordance with Subsection (i). If the state, |
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| 36 | 36 | | the subject matter expert, and the defendant do not agree on which |
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| 37 | 37 | | biological materials qualify as biological evidence, the state or |
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| 38 | 38 | | the defendant may request the court to hold a hearing to determine |
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| 39 | 39 | | the issue. On receipt of a request for a hearing under this |
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| 40 | 40 | | subsection, the court shall set a date for the hearing and provide |
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| 41 | 41 | | written notice of the hearing date to the state, the laboratory |
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| 42 | 42 | | required to perform the testing, and the defendant. At the hearing, |
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| 43 | 43 | | there is a rebuttable presumption that the biological material that |
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| 44 | 44 | | the defendant requests to be tested constitutes biological evidence |
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| 45 | 45 | | that is required to be tested under Subsection (i). This subsection |
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| 46 | 46 | | does not in any way prohibit the state from testing biological |
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| 47 | 47 | | evidence in the state's possession. |
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| 48 | 48 | | (k) If an item of biological evidence is destroyed or lost |
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| 49 | 49 | | as a result of nuclear DNA testing performed under Subsection (i), |
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| 50 | 50 | | the laboratory that tested the evidence must provide to the |
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| 51 | 51 | | defendant any bench notes prepared by the laboratory that are |
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| 52 | 52 | | related to the testing of the evidence and the results of that |
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| 53 | 53 | | testing. |
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| 54 | 54 | | SECTION 2. Article 38.43, Code of Criminal Procedure, as |
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| 55 | 55 | | amended by this Act, applies to a capital case for which the |
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| 56 | 56 | | indictment was filed on or after the effective date of this Act. A |
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| 57 | 57 | | capital case for which the indictment was filed before the |
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| 58 | 58 | | effective date of this Act is governed by the law in effect on the |
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| 59 | 59 | | date the indictment was filed, and the former law is continued in |
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| 60 | 60 | | effect for that purpose. |
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| 61 | 61 | | SECTION 3. This Act takes effect September 1, 2025. |
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