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.