Vol.11, No.15 Published by Texas Association of Counties October 5, 2001
Counties Required to Preserve DNA Evidence
The increased use of DNA evidence has prompted a new law that will have several impacts on counties. Senate Bill 3 affects any criminal case in which biological material is collected as evidence. Under the law that took effect April 5, Texas counties are now required to save DNA evidence for a longer period of time than is previously required, another step has been added in the appeals process and requirements for forensic testing of the evidence are provided for in the bill.Primary areas of change for counties are:
- DNA evidence must be kept until the convicted person is executed, dies, is released on parole or mandatory supervision or until the term of confinement is completed. Current timelines for keeping ÒregularÓ evidence follow conviction anniversary dates.
- DNA evidence may be destroyed prior to any of these dates if written notice is sent to the defendant, the convicting court, and the last attorney of record for the defendant notifying each of intentions to destroy the evidence. Current notification procedures vary, depending on county population.
- Written objections to the destruction of DNA evidence must be received before the 91st day (changed from 31st day) after receipt of notification.
- Provisions are added for a post conviction writ of habeas corpus: Motion For Forensic DNA Testing. Appointment of counsel for indigent defendants remains the same throughout the hearing process (the county will bear the cost in capital cases, then may apply for up to $25,000 reimbursement from the state. In non-capital cases the county will incur the cost for counsel).
- The state will pay for the forensic testing if conducted at the Department of Public Safety laboratory or a lab that contracts with DPS. If testing is done through any other lab, the cost will be incurred by the defense (i.e., the county in indigency cases).
- Test results must be immediately filed with the court and copies of results and data are to be served to the defendant and the attorney representing the state. Within 30 days after the conclusion of a court proceding, the results must be forwarded to DPS for entry into the DNA database.
Since SB 3 took effect, several unanswered questions have arisen:
- What about county liability concerns? There are currently no standard procedures for preservation and storage of DNA evidence, and none are provided for in the bill.
- What constitutes the type of DNA material that must be kept, and where are counties to find adequate space to keep the abundance of evidence?
- Current procedures for destruction of ÒregularÓ evidence are determined by conviction anniversary dates and length of sentence for the offense. Since DNA evidence must be kept for longer periods, county record-keeping processes are likely to be challenged in court and on appeal. Many counties are experiencing a backlog of evidence that has not yet been destroyed; adding a separate category of evidence with its own requirements will add to the challenge of efficient records management.
- What about the recovery of costs for DNA testing and additional appointment of counsel? Court costs for DNA testing were included in early versions of the bill, but were excluded from the final version. A new step in the appeals process will add to the countyÕs expenses incurred in the case of an indigent defense. There was not a fiscal note regarding county impact attached to the bill.