Innocence Commission Bill Adds Subpoenas, DNA Tests And Public Hearings

The text as introduced · 4,427 words

89R16142 MZM-F

By: Raymond
H.B. No. 5254

A BILL TO BE ENTITLED

AN ACT

relating to a claim of actual innocence by a person convicted of a

criminal offense; creating the Texas Innocence Inquiry Commission.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act shall be known as the Texas Innocence

Inquiry Commission Act.

SECTION 2. Title 1, Code of Criminal Procedure, is amended

by adding Chapter 68 to read as follows:

CHAPTER 68. ACTUAL INNOCENCE

SUBCHAPTER A. GENERAL PROVISIONS

Art. 68.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Innocence Inquiry

Commission created under Chapter 79A, Government Code.

(2) "Presiding officer" means the presiding officer of

the commission.

(3) "Underlying case" means a criminal case that

results in a person's conviction and is the basis for a claim of

actual innocence under this chapter.

(4) "Victim" means a "close relative of a deceased

victim," "guardian of a victim," or "victim," as those terms are

defined by Article 56A.001.

Art. 68.002. RULES AND PROCEDURES. The commission may

adopt the rules and procedures reasonably necessary to administer

this chapter, but may not adopt a rule or procedure that would

exclude from any portion of a commission hearing:

(1) the attorney representing the state; or

(2) the attorney representing the convicted person.

SUBCHAPTER B. COMMISSION CONSIDERATION OF

CLAIM OF ACTUAL INNOCENCE

Art. 68.051. CLAIM OF ACTUAL INNOCENCE. (a) The commission

may:

(1) open a formal inquiry into a credible claim of

actual innocence of a convicted person on the filing of a claim of

actual innocence under this article; or

(2) dismiss a claim of actual innocence filed under

this article.

(b) A claim of actual innocence may be filed with the

commission by:

(1) a court;

(2) a state or local agency;

(3) an attorney representing a person convicted of a

felony offense;

(4) a person convicted of a felony offense; or

(5) a commission member.

(c) A claim of actual innocence must be supported by new

evidence that was not available at trial.

(d) The commission may not consider a claim of actual

innocence for a convicted person who is:

(1) deceased; or

(2) a codefendant in the underlying case unless the

codefendant:

(A) on or before the 60th day following the date

the codefendant received notice under Article 68.052(a), files a

separate claim of actual innocence with the commission; or

(B) after the 60th day following the date the

codefendant received notice under Article 68.052(a), shows good

cause for the delay in filing a separate claim of actual innocence

with the commission and obtains the approval of the presiding

officer to file the claim.

Art. 68.052. NOTICE OF FORMAL INQUIRY; PROGRESS UPDATES.

(a) If the commission opens a formal inquiry into the actual

innocence of a convicted person, the commission shall provide

notice to:

(1) the victim in the underlying case, including:

(A) an explanation of the commission's process

for considering a claim of actual innocence; and

(B) a description of the victim's right to

present evidence, information, or concerns to the commission; and

(2) each codefendant in the underlying case, including

a statement that the codefendant must file a claim of actual

innocence with the commission not later than the 60th day after the

date of receipt of the notice or the codefendant's claim of actual

innocence may be barred.

(b) At least once during each 180-day period, the commission

shall provide updates on the progress of a formal inquiry into the

actual innocence of a convicted person to:

(1) the office of the attorney representing the state

in the underlying case; and

(2) the attorney representing the convicted person.

(c) The update must include a summary of the actions taken

by the commission since any previous update and the results of any

forensic testing conducted as part of the formal inquiry.

Art. 68.053. FORMAL INQUIRY; WRITTEN AGREEMENT. (a) To

conduct a formal inquiry into the actual innocence of a convicted

person, the commission may:

(1) hold hearings, take testimony, receive evidence,

and administer oaths;

(2) issue subpoenas that relate to the purposes of the

inquiry;

(3) require, by subpoena or otherwise, the attendance

and testimony of a witness and the production of any book, record,

correspondence, memorandum, paper, document, or item, as the

commission determines necessary to carry out its duties; and

(4) order forensic testing on any physical evidence

produced as part of a formal inquiry, including physical evidence

preserved by a state or local agency as described by Article 68.058.

(b) At any point during the formal inquiry, the attorney

representing the state and the attorney representing the convicted

person may submit to the commission a written statement agreeing

that evidence of factual innocence of the convicted person is

sufficient to merit judicial review. The commission shall refer the

matter to the court that convicted the person in the underlying case

for an actual innocence court hearing under Subchapter C. The

commission shall complete a file in relation to the claim to the

extent applicable under Article 68.055(d)(1)(A) and shall release

the file to the appropriate entities as otherwise described by that

article.

Art. 68.054. COMMISSION HEARING; PREHEARING CONFERENCE.

(a) On completion of a formal inquiry under Article 68.053, all

evidence examined during the formal inquiry must be presented to

the commission at a public hearing.

(b) Not later than the 30th day before the date of the

hearing, the commission shall notify each victim in the underlying

case of:

(1) the date and time of the hearing; and

(2) the victim's right to appear at the hearing.

(c) A victim who receives notice under Subsection (b) and

plans to attend the hearing shall notify the commission not later

than the 10th day before the date of the hearing.

(d) Not later than the 10th day before the date of the

hearing, the commission shall hold a prehearing conference with:

(1) the office of the attorney representing the state

in the underlying case;

(2) the attorney representing the convicted person;

(3) the presiding officer; and

(4) any commission members necessary to assist the

presiding officer, as designated by the presiding officer.

(e) The attorney representing the state shall be provided an

opportunity to:

(1) inspect at the prehearing conference any evidence

that may be presented to the commission at the hearing and that has

not been previously presented to a court; and

(2) not later than 72 hours before the time the hearing

is scheduled to begin, submit to the commission a written statement

to be included as part of the hearing record.

(f) During the hearing, evidence may be presented and

considered regardless of its admissibility at trial.

(g) The commission shall make an audiovisual recording of

the hearing.

Art. 68.055. COMMISSION DETERMINATION AND REFERRAL. (a)

At the conclusion of the hearing under Article 68.054, the

commission by record vote shall issue a commission determination

that further action is merited if at least:

(1) five commission members agree sufficient evidence

of actual innocence exists to merit further action for a convicted

person who was originally convicted after a trial on the merits; or

(2) six commission members agree sufficient evidence

of actual innocence exists to merit further action for a convicted

person who was originally convicted after a plea of guilty or no

contest.

(b) If the commission issues a commission determination

that further action is merited, the commission shall refer the case

to:

(1) the court that convicted the person in the

underlying case for an actual innocence court hearing under

Subchapter C; or

(2) the Board of Pardons and Paroles, recommending

issuance of a pardon to the convicted person in accordance with

Chapter 48.

(c) The commission shall issue a written statement with

findings of fact supporting the commission determination.

(d) If the commission refers the case for an actual

innocence court hearing under Subchapter C, the commission shall:

(1) create a file of:

(A) all evidence and material considered by the

commission, including evidence, written testimony, records,

updates, or other material collected or created by the commission

as part of the formal inquiry under Article 68.053 or presented to

the commission during the commission hearing under Article 68.054;

(B) the written statement with findings of fact

supporting the commission determination made at the conclusion of

the hearing; and

(C) a full transcript of the commission hearing;

(2) submit the file to the court that convicted the

person in the underlying case; and

(3) provide the attorney representing the state and

the attorney representing the convicted person with a copy of the

file.

(e) A commission referral to the Board of Pardons and

Paroles recommending issuance of a pardon to the convicted person

in accordance with Chapter 48 must:

(1) be in writing;

(2) be signed by a majority of the commission members;

(3) include any recommendations for remittance of

fines or forfeitures; and

(4) include the reasons for the recommendation.

(f) The commission shall notify the victim in the underlying

case of the commission determination under this article.

Art. 68.056. RIGHT TO COUNSEL. (a) In this article,

"indigent" has the meaning assigned by Article 1.051.

(b) If the commission opens a formal inquiry into the actual

innocence of a convicted person, the convicted person has a right to

be represented by counsel and, if the person is indigent, to have an

attorney appointed to represent the person in all proceedings under

this chapter.

(c) If the convicted person is not represented by counsel at

the time a formal inquiry into the actual innocence of the convicted

person is opened:

(1) the commission shall submit for review the matter

of the person's indigence to the court that convicted the person in

the underlying case; and

(2) the court shall determine whether the convicted

person is indigent and appoint counsel for a person the court

determines is indigent.

(d) Compensation of the appointed counsel is provided in the

same manner as would be provided for the filing of an application

for a writ of habeas corpus with respect to the person's conviction

in the underlying case.

Art. 68.057. SUBPOENA AUTHORITY. (a) A person authorized

to serve process under the Texas Rules of Civil Procedure may serve

a subpoena issued under this chapter. The person shall serve the

subpoena in accordance with the Texas Rules of Civil Procedure.

(b) If a person refuses to obey a subpoena issued under this

chapter, the commission may apply to the court that convicted the

person in the underlying case for an order requiring compliance

with the subpoena. The court shall issue the order if the court

finds good cause exists for issuance of the subpoena under this

chapter. Failure to obey the court order is punishable by the court

as contempt.

Art. 68.058. PRESERVATION OF EVIDENCE; FORENSIC TESTING.

(a) The commission in investigating a claim of actual innocence may

submit a written notice to a state or local agency requiring the

agency to preserve any evidence held by the agency in connection to

the investigation or conviction in the underlying case.

(b) After receiving written notice under Subsection (a),

the state or local agency shall preserve all relevant evidence

until the commission notifies the agency in writing that the

commission no longer requires preservation of the evidence.

(c) The state or local agency shall provide the commission

with:

(1) copies of all documents or papers preserved as

required by this article; and

(2) access to inspect and examine any physical

evidence preserved as required by this article.

(d) The results of any forensic DNA analysis performed under

this chapter must be compatible with the CODIS DNA database

established by the Federal Bureau of Investigation. The commission

must make the results available for inclusion in that database.

Art. 68.059. REFERRAL AND DISCLOSURE OF EVIDENCE. (a)

Evidence of a crime, professional misconduct, or other wrongdoing

discovered by the commission during a formal inquiry or commission

hearing shall be referred to an appropriate agency or organization.

(b) Exculpatory evidence discovered by the commission

during a formal inquiry or commission hearing shall be disclosed to

the convicted person and the attorney representing the convicted

person.

Art. 68.060. RIGHT TO ASSERT PRIVILEGE. The commission may

require the testimony of any person as part of a formal inquiry or

commission hearing under this chapter, including the convicted

person. The person being examined or the person's counsel is

entitled to refuse to answer a question on the grounds of any

constitutional or other privilege, including the privilege against

self-incrimination.

Art. 68.061. CONFIDENTIALITY. All evidence, written

testimony, records, updates, or other material collected or created

by the commission as part of a formal inquiry is confidential and is

not subject to disclosure under Chapter 552, Government Code.

Art. 68.062. REPORT. Not later than November 1 of each

year, the commission shall prepare and submit a report of its

activities and recommendations, including any legislative or

policy changes the commission recommends, to each standing

committee of the senate and the house of representatives with

primary jurisdiction over criminal justice and to the

administrative director of the Office of Court Administration of

the Texas Judicial System. The commission shall also publish the

report on its Internet website.

SUBCHAPTER C. ACTUAL INNOCENCE COURT HEARING

Art. 68.101. ACTUAL INNOCENCE COURT HEARING. (a) On

receipt from the commission of a referral under Subchapter B, a

court shall hold an actual innocence court hearing and make a

finding as to whether clear and convincing evidence of the

convicted person's actual innocence exists.

(b) Except as provided by Subsection (c), the office of the

attorney representing the state in the underlying case shall

provide representation for the state at the hearing.

(c) If the commission concludes there is credible evidence

of prosecutorial misconduct in the underlying case, the presiding

officer may request that the attorney general appoint a special

prosecutor to represent the state at the hearing. On receiving a

request under this article, the attorney general shall appoint a

qualified attorney who did not prosecute or assist in the

prosecution of the underlying case to represent this state at the

hearing.

(d) Not later than the 30th day before the date of the

hearing, the clerk of the court shall provide notice to the victim

in the underlying case.

(e) The court may require the testimony of any person as

part of the hearing, including the convicted person. The person

being examined or the person's counsel is entitled to refuse to

answer a question on the grounds of any constitutional or other

privilege, including the privilege against self-incrimination.

(f) Evidence may be presented and considered at the hearing

regardless of its admissibility at trial.

Art. 68.102. FINDING OF ACTUAL INNOCENCE. If the court

finds clear and convincing evidence of the convicted person's

actual innocence, the court shall enter an order overturning the

person's conviction and dismissing the charges against the person

with prejudice.

Art. 68.103. APPEAL. 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.

Art. 68.104. RECUSAL OF COMMISSION MEMBER. A commission

member shall recuse himself or herself from a hearing held under

Article 68.101 if the commission member was personally involved in

the investigation or prosecution of the underlying case.

Art. 68.105. POST-EXONERATION SUPPORT. If a person's

conviction is overturned due to a finding of actual innocence under

Article 68.102, the commission shall ensure the person has access

to:

(1) compensation in accordance with Section 103.001,

Civil Practice and Remedies Code;

(2) job training; and

(3) reintegration services, including services

provided to wrongfully imprisoned persons under Section 501.101,

Government Code.

SECTION 3. Subtitle F, Title 2, Government Code, is amended

by adding Chapter 79A to read as follows:

CHAPTER 79A. TEXAS INNOCENCE INQUIRY COMMISSION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 79A.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Innocence Inquiry

Commission.

(2) "Office" means the Office of Court Administration

of the Texas Judicial System.

(3) "Presiding officer" means the presiding officer of

the commission.

Sec. 79A.002. CREATION. The Texas Innocence Inquiry

Commission is created.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 79A.051. COMPOSITION; TERMS. (a) The commission is

composed of the following eight members:

(1) a district court judge;

(2) a prosecuting attorney;

(3) a criminal defense attorney;

(4) a peace officer, as defined by Article 2A.001,

Code of Criminal Procedure;

(5) a private investigator licensed under Chapter

1702, Occupations Code;

(6) a victim's rights advocate; and

(7) two members of the public.

(b) Each member of the commission serves a two-year term

expiring on February 1 of each odd-numbered year.

(c) The members of the commission shall be appointed, on a

rotating basis, by:

(1) the governor;

(2) the attorney general;

(3) the chief justice of the supreme court;

(4) the presiding judge of the court of criminal

appeals;

(5) the chair of the house committee with primary

jurisdiction over criminal jurisprudence; and

(6) the chair of the senate committee with primary

jurisdiction over criminal justice.

Sec. 79A.052. PRESIDING OFFICER. The governor shall

appoint one member of the commission to serve as the commission's

presiding officer.

Sec. 79A.053. VACANCY. A vacancy on the commission is

filled in the same manner as the original appointment.

Sec. 79A.054. MEETINGS; QUORUM. (a) The commission shall

meet at the call of the presiding officer.

(b) Five members of the commission constitute a quorum for

transacting commission business.

Sec. 79A.055. COMPENSATION. Subject to the availability of

funds, a commission member is entitled only to reimbursement for

the member's travel expenses as provided by Chapter 660 and the

General Appropriations Act.

Sec. 79A.056. GROUNDS FOR REMOVAL. (a) It is a ground for

removal from the commission that a member:

(1) cannot, because of illness or disability,

discharge the member's duties for a substantial period; or

(2) is absent from more than half of the called

meetings that the member is eligible to attend during a calendar

year, unless the absence is excused by a majority vote of the

commission.

(b) The validity of an action of the commission is not

affected by the fact that it is taken when a ground for removal of a

commission member exists.

Sec. 79A.057. ADMINISTRATIVE ATTACHMENT; LIMITATIONS ON

OFFICE DUTIES. (a) The commission is administratively attached to

the office.

(b) The office shall provide administrative support to the

commission as necessary to enable the commission to carry out the

purposes of this chapter.

(c) Only the commission may exercise the duties of the

commission under this chapter and Chapter 68, Code of Criminal

Procedure. Except as provided by Subsection (b), the office does

not have any authority or responsibility over the duties assigned

to the commission under this chapter or Chapter 68, Code of Criminal

Procedure.

SUBCHAPTER C. GENERAL POWERS AND DUTIES OF COMMISSION

Sec. 79A.101. RULES. The commission may adopt the rules and

procedures necessary to administer this chapter.

Sec. 79A.102. DUTIES. In accordance with Chapter 68, Code

of Criminal Procedure, the commission shall investigate,

determine, and refer credible claims of actual innocence by a

person convicted of an offense. The commission shall:

(1) establish a screening process and criteria for the

review of claims of actual innocence by the commission that only

permit claims in which the person has been convicted solely for one

or more felony offenses for which the person claims actual

innocence;

(2) coordinate the investigation of claims of actual

innocence accepted for commission review;

(3) maintain records of all investigations of claims

of actual innocence;

(4) prepare a written report outlining commission

investigations and each commission recommendation submitted to a

court or the Board of Pardons and Paroles; and

(5) identify and accept any available federal or state

funding for the purposes of this chapter or Chapter 68, Code of

Criminal Procedure.

Sec. 79A.103. CONSULTANTS. (a) The commission may appoint

consultants to assist the commission in its duties.

(b) Subject to the approval of the presiding officer and as

money permits, a consultant may contract for services necessary to

assist the commission in the performance of its duties.

Sec. 79A.104. ACCEPTANCE OF GIFTS, GRANTS, AND OTHER FUNDS.

The commission may accept gifts, grants, and other funds from any

public or private source to pay expenses incurred in performing its

duties under this chapter.

SECTION 4. Section 103.001(a), Civil Practice and Remedies

Code, is amended to read as follows:

(a) A person is entitled to compensation if:

(1) the person has served in whole or in part a

sentence in prison under the laws of this state; and

(2) the person:

(A) has received a full pardon on the basis of

innocence for the crime for which the person was sentenced;

(B) has been granted relief in accordance with a

writ of habeas corpus that is based on a court finding or

determination that the person is actually innocent of the crime for

which the person was sentenced; [ or ]

(C) has been granted relief in accordance with a

writ of habeas corpus and:

(i) the state district court in which the

charge against the person was pending has entered an order

dismissing the charge; and

(ii) the district court's dismissal order

is based on a motion to dismiss in which the state's attorney states

that no credible evidence exists that inculpates the defendant and,

either in the motion or in an affidavit, the state's attorney states

that the state's attorney believes that the defendant is actually

innocent of the crime for which the person was sentenced ; or

(D) has been granted relief in accordance with an

actual innocence court hearing under Chapter 68, Code of Criminal

Procedure .

SECTION 5. Section 103.003, Civil Practice and Remedies

Code, is amended to read as follows:

Sec. 103.003. LIMITATION ON TIME TO FILE. A person seeking

compensation under this chapter must file an application with the

comptroller for compensation under Subchapter B not later than the

third anniversary of the date:

(1) the person on whose imprisonment the claim is

based received a pardon as provided by Section 103.001(a)(2)(A);

(2) the person's application for a writ of habeas

corpus was granted as provided by Section 103.001(a)(2)(B); [ or ]

(3) an order of dismissal described by Section

103.001(a)(2)(C) was signed ; or

(4) a finding of actual innocence was entered as

provided by Section 103.001(a)(2)(D) .

SECTION 6. Article 43.141(d), Code of Criminal Procedure,

is amended to read as follows:

(d) The convicting court may modify or withdraw the order of

the court setting a date for execution in a death penalty case if

the court determines that additional proceedings are necessary on:

(1) a subsequent or untimely application for a writ of

habeas corpus filed under Article 11.071; [ or ]

(2) a motion for forensic testing of DNA evidence

submitted under Chapter 64 ; or

(3) a recommendation for an actual innocence court

hearing from the Texas Innocence Inquiry Commission under Chapter

68 .

SECTION 7. Article 44.01(a), Code of Criminal Procedure, is

amended to read as follows:

(a) The state is entitled to appeal an order of a court in a

criminal case if the order:

(1) dismisses an indictment, information, or

complaint or any portion of an indictment, information, or

complaint;

(2) arrests or modifies a judgment;

(3) grants a new trial;

(4) sustains a claim of former jeopardy;

(5) grants a motion to suppress evidence, a

confession, or an admission, if jeopardy has not attached in the

case and if the prosecuting attorney certifies to the trial court

that the appeal is not taken for the purpose of delay and that the

evidence, confession, or admission is of substantial importance in

the case; or

(6) is issued under Chapter 64 or 68 .

SECTION 8. Section 78.054(b), Government Code, is amended

to read as follows:

(b) The office may not represent a defendant in a federal

habeas review. The office may not represent a defendant in an action

or proceeding in state court other than an action or proceeding

that:

(1) is conducted under Article 11.071, Code of

Criminal Procedure;

(2) is collateral to the preparation of an application

under Article 11.071, Code of Criminal Procedure;

(3) concerns any other post-conviction matter in a

death penalty case other than a direct appeal, including an action

or proceeding under Article 46.05 or Chapter 64 or 68 , Code of

Criminal Procedure; or

(4) is conducted under Article 11.073, Code of

Criminal Procedure, or is collateral to the preparation of an

application under Article 11.073, Code of Criminal Procedure, if

the case was referred in writing to the office by the Texas Forensic

Science Commission under Section 4(h), Article 38.01, Code of

Criminal Procedure.

SECTION 9. Section 501.101(a), Government Code, is amended

to read as follows:

(a) In this section, "wrongfully imprisoned person" means a

person who:

(1) has served in whole or in part a sentence in a

facility operated by or under contract with the department; and

(2) has:

(A) received a pardon for innocence for the crime

for which the person was sentenced;

(B) been granted relief in accordance with a writ

of habeas corpus that is based on a court finding or determination

that the person is actually innocent of the crime for which the

person was sentenced; [ or ]

(C) been granted relief in accordance with a writ

of habeas corpus and:

(i) the state district court in which the

charge against the person was pending has entered an order

dismissing the charge; and

(ii) the district court's dismissal order

is based on a motion to dismiss in which the state's attorney states

that no credible evidence exists that inculpates the defendant and,

either in the motion or in an affidavit, the state's attorney states

that the state's attorney believes that the defendant is actually

innocent of the crime for which the person was sentenced ; or

(D) been granted relief in accordance with an

actual innocence court hearing under Chapter 68, Code of Criminal

Procedure .

SECTION 10. As soon as practicable after the effective date

of this Act, the Office of Court Administration of the Texas

Judicial System shall provide administrative support to the Texas

Innocence Inquiry Commission established by this Act, and the

appropriate appointing entities shall appoint members of the

commission as required by Section 79A.051, Government Code, as

added by this Act, to terms expiring February 1, 2027.

SECTION 11. This Act takes effect September 1, 2025.