~cheenna~
07-15-2002, 09:49 PM
July 13th, 2002
From : nlbailey@earthlink.net
Friends,
Here is something we all need to do to try to correct a major problem that is occurring with great regularity in the Texas courts. It is very important that we all DO IT.
Since the new law was enacted making DNA testing available to persons in their post conviction appeals, Texas courts are routinely denying them the right to have the testing done. Not because of the law itself, but because of the application of the law, prisoners and their attorneys have not been able to reach the level of proof of innocence required by the courts to grant DNA testing.
Note that, in the law, posted in its entirety below, in addition to requirements regarding the quality and availability of the evidence itself, there is a requirement that the application for testing must prove to the satisfaction of the court that:
*identity was or is an issue in the case; AND that the convicted person has established by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing*
So far, not one applicant has reached the level of proof required by the court. As I understand it, the courts are defining that requirement to mean that the applicant must prove that exculpatory results will absolutely prove that they are innocent. It is impossible to reach the level of proof required.
It is extremely doubtful that this was the intent of the legislators who worked so hard to pass this law. It is unknown to me if they are aware that the law, as applied, is not being made available to the individuals it was designed to help.
There are two men on the execution schedule right now who have been denied DNA testing in spite of the best efforts of their attorneys. Bill Kutzner is scheduled to die August 7. Jessie Patrick is scheduled to die September 17. There may be others I am not aware of.
I am asking you all to take the time to contact the following
legislators and tell them how great it is that they passed the law and ask them if they are aware of how the courts are interpreting the law, making it impossible for prisoners to use it in support of their appeals. Inform them of the situation of these 2 men. Plead with them to step in and urge the attorney general and the governor to stay these executions and insists they be allowed to have DNA testing done. Ask them additionally to insist that the law they designed to
help clear the innocent be used in the way they designed it.
Please also write a letter using the same information plus your other reasons, requesting clemency for Bill Kutzner to the Board of Pardons and Paroles. Address is below legislator addresses.
Nancy
Contact info, followed by a printout of the DNA Law
The Honorable Robert Duncan - Sponsor of the law.
P. O. Box 12068
Austin, Texas 78711
512-463-0128 - fax 512-463-2424
robert.duncan@senate.state.tx.us
The Honorable Rodney G. Ellis
440 Louisiana, Suite 575
Houston, Texas 77002
(713) 236-0306 - fax 512-463-0005
rodney.ellis@senate.tx.us
The Honorable Royce West
5787 S. Hampton Road Suite 385
Dallas, TX 75232
(214) 467-0123 - fax 214-467-0050
royce.west@senate.state.tx.us
The Honorable Mike Moncrief
1701 ///river Run Road Suite 504, Box 54
Fort Worth, TX 76107
817-338-9424 - fax 512-463-0326
mike.moncrief@senate.tx.us
Rep. Juan Hinojosa
612 Nolana Suite 410B
McAllen, TX 78504
965-972-1841 - fax 512-463-0229
juan.hinojosa@house.st.tx.us
Rep. Scott Hochberg
4660 Beechnut #245
Houston, TX 77096
713-660-7783 - fax 512-463-5896
scott.hochberg@house.st.tx.us
Rep. Senfronia Thompson
10527 Homestead Road
Houston, TX 77016
(713) 633-3390
senfronia.thompson@house.st.us
Rep. Harold Dutton
9111 Eastex Frwy #336
Houston, Texas 77093
713-692-9192 - fax 512-463-8996
harold.dutton@bouse.st.tx.us
Texas Board of Pardons and Paroles
Executive Clemency Section
P.O. Box 13401, Capitol Station
Austin,
Texas 78711
512-406 54 52 - Fax 512 406 54 83
AN ACT relating to establishing procedures for the preservation of evidence containing DNA and post-conviction DNA testing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.39 to read as follows:
Art. 38.39. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL MATERIAL.
(a) In a criminal case in which a defendant is convicted, the
attorney representing the state, a clerk, or any other officer in possession of evidence described by Subsection
(b) shall ensure the preservation of the evidence.
(b) This article applies to evidence that:
(1) was in the possession of the state during the
prosecution of the case; and
(2) at the time of conviction was known to contain biological material that if subjected to scientific testing would more likely than not:
(A) establish the identity of the person committing the offense; or
(B) exclude a person from the group of persons who could have committed the offense.
(C) Except as provided by Subsection
(d), material required to be preserved under this article must be preserved:
(1) until the inmate is executed, dies, or is released on parole, if the defendant was convicted of a capital felony; or
(2) until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment.
(D) The attorney representing the state, clerk, or other officer in possession of evidence described by Subsection
(b) may destroy the evidence, but only if the attorney, clerk, or officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:
(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant.
(E) To the extent of any conflict, this article controls over
Article 2.21.
SECTION 2. Part 1, Code of Criminal Procedure, is amended by adding Chapter 64 to read as follows:
CHAPTER 64. MOTION FOR FORENSIC DNA TESTING
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. If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person. 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.
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.
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) a reasonable probability exists that the person would not have been prosecuted or 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.
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 the results are favorable to the convicted person. For the purposes of this article, results are favorable if, had the results been available before or during the trial of the offense, it is reasonably probable that the person would not have been prosecuted or convicted.
Art. 64.05. APPEALS. An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.
SECTION 3. Chapter 17, Code of Criminal Procedure, is amended by adding Article 17.47 to read as follows:
Art. 17.47. POSTTRIAL ACTIONS. A convicting court on entering a finding favorable to a convicted person under Article 64.04, after a hearing at which the attorney representing the state and the counsel for the defendant are entitled to appear, may release the convicted person on bail under this chapter pending the conclusion of court
proceedings or proceedings under Section 11, Article IV, Texas Constitution, and
Article 48.01.SECTION 4. Subsection (g), Section 411.142, Government Code, is amended to read as follows:
(g) The DNA database may contain DNA records for the
following:
(1) a person described by Section 411.148 or 411.150;
(2) a biological specimen of a deceased victim of a crime
(3) a biological specimen that is legally obtained in the
investigation of a crime, regardless of origin;
(4) results of testing ordered under Article 64.03,
Code of Criminal Procedure;
(5) an unidentified missing person, or unidentified
skeletal remains or body parts;
(6) [(5)] a close biological relative of a person
who has been reported missing to a law enforcement agency;
(7) [(6)] a person at risk of becoming lost, such as a child or a person declared by a court to be mentally
incapacitated, if the record is required by court order or a parent, conservator, or guardian of the person consents to the record; or
(8) [(7)] an unidentified person, if the record does not contain personal identifying information.
SECTION 5.
(a) If a person filed an application for a postconviction writ of habeas corpus that was denied or dismissed before September 1, 2001, and if the results of forensic testing
conducted under Article 64.03, Code of Criminal Procedure, as added by this Act, are favorable to the person, a claim based on actual innocence that is asserted in a subsequent application is, for
The purposes of Subsection (a), Section 4, Article 11.07, Code of Criminal Procedure, and Subsection (a), Section 5, Article 11.071, Code of Criminal Procedure, a claim the legal basis for which was unavailable on the date the applicant filed the previous application.
(b) An applicant whose application for a writ of habeas corpus is pending on September 1, 2001, on submitting a motion under Chapter 64, Code of Criminal Procedure, as added by this Act, is entitled to a stay of the proceeding pending a determination by the convicting court as to whether to order DNA testing and, on receiving favorable results, to amend the petition. The court of criminal appeals shall adopt rules to provide for a stay of proceedings and the filing of amendments as authorized by this subsection.
(c) The Texas Department of Criminal Justice shall provide notice of the provisions of this Act to all persons housed in facilities operated by or under contract with the department. In providing notice under this section, the Texas Department of Criminal Justice
shall:
(1) include notice of the provisions of this Act in a newspaper or similar publication published for persons housed in facilities operated by or under contract with the department;
(2) post notice of the provisions of this Act in each law library
maintained by the department or under contract with the department in a facility in which persons are housed; and
(2) ensure that adequate notice is provided to persons who are not housed in the general population of inmates.
SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If
This Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2001. S.B.No. 3
_______________________________
_______________________________
President of the Senate, Speaker of the House
I hereby certify that S.B. No. 3 passed the Senate on
February 19, 2001, by the following vote: Yeas 30, Nays
0, one present, not voting; March 26, 2001, Senate refused to concur in House amendments and requested appointment of Conference Committee;March 28, 2001, House granted request of the Senate; April 2, 2001, Senate adopted Conference Committee Report by the following vote:Yeas 30, Nays 0, one present, not voting.
______________________________ Secretary of the Senate
I hereby certify that S.B. No. 3 passed the House, with amendments, on March 22, 2001, by the following vote: Yeas 132, Nays 1, two present, not voting; March 28, 2001, HouseGranted request of the Senate for appointment of Conference Committee;
April 3, 2001, House adopted Conference Committee Report by the following vote: Yeas 147, Nays 0, one present, not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor
From : nlbailey@earthlink.net
Friends,
Here is something we all need to do to try to correct a major problem that is occurring with great regularity in the Texas courts. It is very important that we all DO IT.
Since the new law was enacted making DNA testing available to persons in their post conviction appeals, Texas courts are routinely denying them the right to have the testing done. Not because of the law itself, but because of the application of the law, prisoners and their attorneys have not been able to reach the level of proof of innocence required by the courts to grant DNA testing.
Note that, in the law, posted in its entirety below, in addition to requirements regarding the quality and availability of the evidence itself, there is a requirement that the application for testing must prove to the satisfaction of the court that:
*identity was or is an issue in the case; AND that the convicted person has established by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing*
So far, not one applicant has reached the level of proof required by the court. As I understand it, the courts are defining that requirement to mean that the applicant must prove that exculpatory results will absolutely prove that they are innocent. It is impossible to reach the level of proof required.
It is extremely doubtful that this was the intent of the legislators who worked so hard to pass this law. It is unknown to me if they are aware that the law, as applied, is not being made available to the individuals it was designed to help.
There are two men on the execution schedule right now who have been denied DNA testing in spite of the best efforts of their attorneys. Bill Kutzner is scheduled to die August 7. Jessie Patrick is scheduled to die September 17. There may be others I am not aware of.
I am asking you all to take the time to contact the following
legislators and tell them how great it is that they passed the law and ask them if they are aware of how the courts are interpreting the law, making it impossible for prisoners to use it in support of their appeals. Inform them of the situation of these 2 men. Plead with them to step in and urge the attorney general and the governor to stay these executions and insists they be allowed to have DNA testing done. Ask them additionally to insist that the law they designed to
help clear the innocent be used in the way they designed it.
Please also write a letter using the same information plus your other reasons, requesting clemency for Bill Kutzner to the Board of Pardons and Paroles. Address is below legislator addresses.
Nancy
Contact info, followed by a printout of the DNA Law
The Honorable Robert Duncan - Sponsor of the law.
P. O. Box 12068
Austin, Texas 78711
512-463-0128 - fax 512-463-2424
robert.duncan@senate.state.tx.us
The Honorable Rodney G. Ellis
440 Louisiana, Suite 575
Houston, Texas 77002
(713) 236-0306 - fax 512-463-0005
rodney.ellis@senate.tx.us
The Honorable Royce West
5787 S. Hampton Road Suite 385
Dallas, TX 75232
(214) 467-0123 - fax 214-467-0050
royce.west@senate.state.tx.us
The Honorable Mike Moncrief
1701 ///river Run Road Suite 504, Box 54
Fort Worth, TX 76107
817-338-9424 - fax 512-463-0326
mike.moncrief@senate.tx.us
Rep. Juan Hinojosa
612 Nolana Suite 410B
McAllen, TX 78504
965-972-1841 - fax 512-463-0229
juan.hinojosa@house.st.tx.us
Rep. Scott Hochberg
4660 Beechnut #245
Houston, TX 77096
713-660-7783 - fax 512-463-5896
scott.hochberg@house.st.tx.us
Rep. Senfronia Thompson
10527 Homestead Road
Houston, TX 77016
(713) 633-3390
senfronia.thompson@house.st.us
Rep. Harold Dutton
9111 Eastex Frwy #336
Houston, Texas 77093
713-692-9192 - fax 512-463-8996
harold.dutton@bouse.st.tx.us
Texas Board of Pardons and Paroles
Executive Clemency Section
P.O. Box 13401, Capitol Station
Austin,
Texas 78711
512-406 54 52 - Fax 512 406 54 83
AN ACT relating to establishing procedures for the preservation of evidence containing DNA and post-conviction DNA testing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.39 to read as follows:
Art. 38.39. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL MATERIAL.
(a) In a criminal case in which a defendant is convicted, the
attorney representing the state, a clerk, or any other officer in possession of evidence described by Subsection
(b) shall ensure the preservation of the evidence.
(b) This article applies to evidence that:
(1) was in the possession of the state during the
prosecution of the case; and
(2) at the time of conviction was known to contain biological material that if subjected to scientific testing would more likely than not:
(A) establish the identity of the person committing the offense; or
(B) exclude a person from the group of persons who could have committed the offense.
(C) Except as provided by Subsection
(d), material required to be preserved under this article must be preserved:
(1) until the inmate is executed, dies, or is released on parole, if the defendant was convicted of a capital felony; or
(2) until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment.
(D) The attorney representing the state, clerk, or other officer in possession of evidence described by Subsection
(b) may destroy the evidence, but only if the attorney, clerk, or officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:
(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant.
(E) To the extent of any conflict, this article controls over
Article 2.21.
SECTION 2. Part 1, Code of Criminal Procedure, is amended by adding Chapter 64 to read as follows:
CHAPTER 64. MOTION FOR FORENSIC DNA TESTING
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. If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person. 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.
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.
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) a reasonable probability exists that the person would not have been prosecuted or 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.
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 the results are favorable to the convicted person. For the purposes of this article, results are favorable if, had the results been available before or during the trial of the offense, it is reasonably probable that the person would not have been prosecuted or convicted.
Art. 64.05. APPEALS. An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.
SECTION 3. Chapter 17, Code of Criminal Procedure, is amended by adding Article 17.47 to read as follows:
Art. 17.47. POSTTRIAL ACTIONS. A convicting court on entering a finding favorable to a convicted person under Article 64.04, after a hearing at which the attorney representing the state and the counsel for the defendant are entitled to appear, may release the convicted person on bail under this chapter pending the conclusion of court
proceedings or proceedings under Section 11, Article IV, Texas Constitution, and
Article 48.01.SECTION 4. Subsection (g), Section 411.142, Government Code, is amended to read as follows:
(g) The DNA database may contain DNA records for the
following:
(1) a person described by Section 411.148 or 411.150;
(2) a biological specimen of a deceased victim of a crime
(3) a biological specimen that is legally obtained in the
investigation of a crime, regardless of origin;
(4) results of testing ordered under Article 64.03,
Code of Criminal Procedure;
(5) an unidentified missing person, or unidentified
skeletal remains or body parts;
(6) [(5)] a close biological relative of a person
who has been reported missing to a law enforcement agency;
(7) [(6)] a person at risk of becoming lost, such as a child or a person declared by a court to be mentally
incapacitated, if the record is required by court order or a parent, conservator, or guardian of the person consents to the record; or
(8) [(7)] an unidentified person, if the record does not contain personal identifying information.
SECTION 5.
(a) If a person filed an application for a postconviction writ of habeas corpus that was denied or dismissed before September 1, 2001, and if the results of forensic testing
conducted under Article 64.03, Code of Criminal Procedure, as added by this Act, are favorable to the person, a claim based on actual innocence that is asserted in a subsequent application is, for
The purposes of Subsection (a), Section 4, Article 11.07, Code of Criminal Procedure, and Subsection (a), Section 5, Article 11.071, Code of Criminal Procedure, a claim the legal basis for which was unavailable on the date the applicant filed the previous application.
(b) An applicant whose application for a writ of habeas corpus is pending on September 1, 2001, on submitting a motion under Chapter 64, Code of Criminal Procedure, as added by this Act, is entitled to a stay of the proceeding pending a determination by the convicting court as to whether to order DNA testing and, on receiving favorable results, to amend the petition. The court of criminal appeals shall adopt rules to provide for a stay of proceedings and the filing of amendments as authorized by this subsection.
(c) The Texas Department of Criminal Justice shall provide notice of the provisions of this Act to all persons housed in facilities operated by or under contract with the department. In providing notice under this section, the Texas Department of Criminal Justice
shall:
(1) include notice of the provisions of this Act in a newspaper or similar publication published for persons housed in facilities operated by or under contract with the department;
(2) post notice of the provisions of this Act in each law library
maintained by the department or under contract with the department in a facility in which persons are housed; and
(2) ensure that adequate notice is provided to persons who are not housed in the general population of inmates.
SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If
This Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2001. S.B.No. 3
_______________________________
_______________________________
President of the Senate, Speaker of the House
I hereby certify that S.B. No. 3 passed the Senate on
February 19, 2001, by the following vote: Yeas 30, Nays
0, one present, not voting; March 26, 2001, Senate refused to concur in House amendments and requested appointment of Conference Committee;March 28, 2001, House granted request of the Senate; April 2, 2001, Senate adopted Conference Committee Report by the following vote:Yeas 30, Nays 0, one present, not voting.
______________________________ Secretary of the Senate
I hereby certify that S.B. No. 3 passed the House, with amendments, on March 22, 2001, by the following vote: Yeas 132, Nays 1, two present, not voting; March 28, 2001, HouseGranted request of the Senate for appointment of Conference Committee;
April 3, 2001, House adopted Conference Committee Report by the following vote: Yeas 147, Nays 0, one present, not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor