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