2009 Texas Code
CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE
CHAPTER 64. MOTION FOR FORENSIC DNA TESTING  

CODE OF CRIMINAL PROCEDURE

TITLE 1. 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.

Counsel must be appointed under this subsection not later than

the 45th day after the date the court finds reasonable grounds or

the date the court determines that the person is indigent,

whichever is later. 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.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1006, Sec. 2, eff. September 1, 2007.

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. (a) 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 take one of

the following actions in response to the motion not later than

the 60th day after the date the motion is served on the attorney

representing the state:

(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.

(b) The convicting court may proceed under Article 64.03 after

the response period described by Subsection (a)(2) has expired,

regardless of whether the attorney representing the state

submitted a response under that subsection.

Added by Acts 2001, 77th Leg., ch. 2, Sec. 2, eff. April 5, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1006, Sec. 3, eff. September 1, 2007.

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 or,

whether before or after conviction, made a confession or similar

admission 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,

confession, or admission, as applicable.

(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:

(1) the Department of Public Safety;

(2) a laboratory operating under a contract with the department;

or

(3) on the request of the convicted person, another laboratory

if that laboratory is accredited under Section 411.0205,

Government Code.

(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 under this subsection unless good cause for payment of

that cost has been shown. A political subdivision of the state

is not liable for the cost of testing under this subsection,

regardless of whether good cause for payment of that cost has

been shown. 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 in a timely and efficient

manner 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.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1006, Sec. 4, eff. September 1, 2007.

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.

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