In advising our property clerks about what to do with biological material that needs to be destroyed, I've developed some questions about Art. 38.39 that I'm hoping that someone has already researched and answered. I have defendants in a variety of different circumstances, as follows:

1. Defendant was sentenced to probation.
2. Defendant was sentenced to probation and has an MTR pending, but is currently at large.
3. Defendant was sentenced to probation, was revoked, and is currently in prison.
4. Defendant was sentenced to prison and is still there.

None of these are capital cases. It seems to me that 38.39(c)(2) only requires us to preserve evidence or comply with (d) if the defendant is in prison (and still alive). However, the part that says "until the defendant ... completes the defendant's sentence" makes me uncertain of this result. Does the probated sentence count as a sentence that has not been completed? In a straight probation, since the defendant is technically sentenced to TDC and that sentence is probated, does that mean the sentence is not completed?

I think that we can destroy the evidence in examples 1 and 2 without doing the subsection (d) notices, but that we must do the notices for examples 3 and 4. Does anyone disagree (or feel confident that they know??)?

When trying to figure out what the legislature meant, it rarely helps to look at the literal text. Take a step back and remember the problem: innocent people convicted for crimes they could have been exonerated for if DNA testing had been available or done.

So, I seriously doubt the legislature considered whether they meant for sentences to include probation. They just wanted to make sure we gave the defendant notice before we destroyed the biological material that could be used to exonerate him.

It was very clear that they wanted every defendant to have access to the new DNA law. I believe that because many prosecutors thought that was a stupid idea and fought against it. We lost.

So, I would give everyone notice before destruction.