2005 Texas Code of Criminal Procedure CHAPTER 64. MOTION FOR FORENSIC DNA TESTING

CODE OF CRIMINAL PROCEDURE

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.  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.