John T. Floyd Law Firm
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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.
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