| Art. 64.01. Motion
(a) A convicted person may submit to the convicting
court a motion for forensic DNA testing of evidence
containing biological material. The motion must
be accompanied by an affidavit, sworn to by the
convicted person, containing statements of fact
in support of the motion.
(b) The motion may request forensic DNA testing
only of evidence described by Subsection (a) that
was secured in relation to the offense that is
the basis of the challenged conviction and was
in the possession of the state during the trial
of the offense, but:
(1) was not previously subjected to DNA testing:
(A) because DNA testing was:
(i) not available; or
(ii) available, but not technologically capable
of providing probative results; or
(B) through no fault of the convicted person,
for reasons that are of a nature such that the
interests of justice require DNA testing; or
(2) although previously subjected to DNA testing,
can be subjected to testing with newer testing
techniques that provide a reasonable likelihood
of results that are more accurate and probative
than the results of the previous test.
(c) A convicted person is entitled to counsel
during a proceeding under this chapter. The
convicting court shall appoint counsel for the
convicted person if the person informs the court
that the person wishes to submit a motion under
this chapter, the court finds reasonable grounds
for a motion to be filed, and the court determines
that the person is indigent. Compensation of
counsel is provided in the same manner as is
required by:
(1) Article 11.071 for the representation of
a petitioner convicted of a capital felony; and
(2) Chapter 26 for the representation in a habeas
corpus hearing of an indigent defendant convicted
of a felony other than a capital felony.
Added by Acts 2001, 77th Leg., ch. 2, Sec. 2,
eff. April 5, 2001. Subsec. (c) amended by Acts
2003, 78th Leg., ch. 13, Sec. 1, eff. Sept. 1,
2003.
Art. 64.011. Guardians and Other Representatives
(a) In this chapter, "guardian of a convicted
person" means a person who is the legal guardian
of the convicted person, whether the legal relationship
between the guardian and convicted person exists
because of the age of the convicted person or
because of the physical or mental incompetency
of the convicted person.
(b) A guardian of a convicted person may submit
motions for the convicted person under this chapter
and is entitled to counsel otherwise provided
to a convicted person under this chapter.
Added by Acts 2003, 78th Leg., ch. 13, Sec. 2,
eff. Sept. 1, 2003.
Art. 64.02. Notice to State; Response
On receipt of the motion, the convicting court
shall:
(1) provide the attorney representing the state
with a copy of the
motion; and
(2) require the attorney representing the state
to:
(A) deliver the evidence to the court, along
with a description of
the condition of the evidence; or
(B) explain in writing to the court why the state
cannot deliver the
evidence to the court.
Added by Acts 2001, 77th Leg., ch. 2, Sec. 2,
eff. April 5, 2001.
Art. 64.03. Requirements; Testing
(a) A convicting court may order forensic DNA
testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making
DNA testing possible; and
(ii) has been subjected to a chain of custody
sufficient to establish that it has not been
substituted, tampered with, replaced, or altered
in any material respect; and
(B) identity was or is an issue in the case;
and
(2) the convicted person establishes by a preponderance
of the evidence that:
(A) the person would not have been convicted
if exculpatory results had been obtained through
DNA testing; and
(B) the request for the proposed DNA testing
is not made to unreasonably delay the execution
of sentence or administration of justice.
(b) A convicted person who pleaded guilty or
nolo contendere in the case may submit a motion
under this chapter, and the convicting court
is prohibited from finding that identity was
not an issue in the case solely on the basis
of that plea.
(c) If the convicting court finds in the affirmative
the issues listed in Subsection (a)(1) and the
convicted person meets the requirements of Subsection
(a)(2), the court shall order that the requested
forensic DNA testing be conducted. The court
may order the test to be conducted by the Department
of Public Safety, by a laboratory operating
under a contract with the department, or, on
agreement of the parties, by another laboratory.
(d) If the convicting court orders that the
forensic DNA testing be conducted by a laboratory
other than a Department of Public Safety laboratory
or a laboratory under contract with the department,
the State of Texas is not liable for the cost
of testing. If the court orders that the testing
be conducted by a laboratory described by this
subsection, the court shall include in the order
requirements that:
(1) the DNA testing be conducted under reasonable
conditions designed to protect the integrity
of the evidence and the testing process;
(2) the DNA testing employ a scientific method
sufficiently reliable and relevant to be admissible
under Rule 702, Texas Rules of Evidence; and
(3) on completion of the DNA testing, the
results of the testing and all data related
to the testing required for an evaluation
of the test results be immediately filed with
the court and copies of the results and data
be served on the convicted person and the
attorney representing the state.
(e) The convicting court, not later than the
30th day after the conclusion of a proceeding
under this chapter, shall forward the results
to the Department of Public Safety.
Added by Acts 2001, 77th Leg., ch. 2, Sec. 2,
eff. April 5, 2001. Subsec. (a) amended by Acts
2003, 78th Leg., ch. 13, Sec. 3, eff. Sept. 1,
2003.
Art. 64.04. Finding
After examining the results of testing under
Article 64.03, the convicting court shall hold
a hearing and make a finding as to whether, had
the results been available during the trial of
the offense, it is reasonably probable that the
person would not have been convicted.
Added by Acts 2001, 77th Leg., ch. 2, Sec. 2,
eff. April 5, 2001.
Amended by Acts 2003, 78th Leg., ch. 13, Sec.
4, eff. Sept. 1, 2003.
Art. 64.05. Appeals
An appeal under this chapter is to a court of
appeals in the same manner as an appeal of any
other criminal matter, except that if the convicted
person was convicted in a capital case and was
sentenced to death, the appeal is a direct appeal
to the court of criminal appeals.
Added by Acts 2001, 77th Leg., ch. 2, Sec. 2,
eff. April 5, 2001.
Amended by Acts 2003, 78th Leg., ch. 13, Sec.
5, eff. Sept. 1, 2003. |
