In 2013, with an increasing number of wrongful convictions—many of which were based on flawed forensic evidence (“junk science“) such as disproven arson investigation techniques, bite mark analysis, misapplied bloodstain pattern analysis, and shaking baby syndrome—the Texas Legislature enacted the first legal pathway for an inmate to challenge their conviction when new or advanced science discredited the evidence used to convict.
This pathway was created through the codification of Article 11.073 of the Texas Code of Criminal Procedure. This new law was primarily driven by the case of Michael Morton, who was wrongfully convicted due to misinterpreted forensic evidence and blatant prosecutorial misconduct. Morton spent 25 years in prison for the murder of his wife and was later exonerated through DNA evidence.
The law thus had one basic purpose: to “accommodate evolving science“ and provide a meaningful pathway to overturn convictions based on debunked or unreliable scientific evidence.
Laced with good intentions, the law quickly faced a serious dilemma: the Texas Court of Criminal Appeals (“CCA”), whose conservative judges preferred to defer to state prosecutors’ use and manipulation of junk science evidence, quickly undermined those intentions. As the Texas Tribune reported on May 14, 2025, the CCA, in a long line of cases, has rejected 40 percent of all Article 11.073 cases filed since 2013 on procedural grounds without even examining the merits of the junk science claims.
Worse yet, in a July 2024 report, “An Unfulfilled Promise: The Efficacy of Article 11.073,“ the Texas Defender Service (“TDS”) found that not a single person on death row has successfully used the law to secure a new trial because of the CCA’s rulings.
The reason?
The legislative standard intended in Article 11.073 under which an innocent person may secure a reversal of conviction is twofold: (1) they must show the evidence was flawed and (2) that without this flawed evidence, the jury would have returned a “not guilty“ verdict.
“But in practice, the CCA does not apply this standard, “the TDS report found. Instead, it usually only grants relief if a person can show evidence strong enough to eliminate any rational basis for their conviction, such as exonerating DNA evidence or an alternate perpetrator. This is the legal ‘actual innocence‘ standard, and it is higher than the standard written in the 11.073 statute. The legal ‘actual innocence’ standard also places an impossibly high burden on innocent people convicted based on flawed forensic evidence. For the vast majority of people who are actually innocent, meeting the high evidentiary burden of the legal ‘actual innocence‘ standard years—or decades—after their conviction is out of the question.”
This higher actual innocence standard carved out by the CCA prompted the 2025 Texas Legislature to clean up the interpretation mess the court has methodically created—a mess that Attorney General Ken Paxton and Gov. Greg Abbott contributed to in the Robert Roberson case last year by rejecting his claim of false forensic evidence, as the Tribune reported at the time.
With HB 115, lawmakers passed the bill authored by Rep. David Cook (R-Mansfield) by a lopsided vote of 124 to 14, which will codify specific criteria that the CCA must accept as the will of the legislature. Those changes are:
- Lower the Standard of Proof: HB 115 changes the standard of proof for securing reversal of conviction from the higher bar of “on the preponderance of evidence, the defendant would not have been convicted“ to the lower bar of there is a “reasonable likelihood“ that the new or debunked evidence “could have affected“ the conviction or sentence.”
- Court-Appointed Counsel for Indigent Defendants: indigent defendants are entitled to a court-appointed attorney in habeas corpus proceedings if they raise a claim under Article 11.073, or in other cases if the court determines that justice requires legal representation.
- Written Decision Required: the CCA must issue a written decision addressing the merits of an Article 11.073 claim rather than denying it without explanation.
- Relaxes Procedural Barriers: the CCA is empowered to consider subsequent habeas corpus applications that would otherwise be dismissed if “justice requires“ the court’s review, giving the court greater flexibility in hearing wrongful conviction claims.
- Access to Evidence in Habeas Proceedings: Habeas attorneys can petition the district courts for access to documents relevant to their claims, thereby facilitating the attorneys’ ability to effectively secure evidence to support their habeas claims.
- Clarification of Relief Standards: courts are explicitly allowed to grant relief in habeas proceedings when new scientific evidence contradicts or negates evidence used at trial.
- Effective Date: The changes to habeas corpus applications apply only to those petitions filed on or after December 1, 2025.
Testifying before the House Criminal Jurisprudence Committee in April, Chase Baumgartner, an attorney with the Innocence Project of Texas, told lawmakers that Article 11.073 is “a commitment to Texans that science in our criminal trial was not just a sword of the state, but also a shield for the wrongfully convicted and the unfairly prosecuted. House Bill 115 reaffirms that commitment and shores up where our current law has fallen short.”
We agree with Baumgartner and Burke Butler, executive director of the TDS, assessment that “no innocent person should ever serve out a sentence without having their case considered on the merits. The fixes in HB 115 would ensure that innocent people convicted based on junk science have a genuine pathway for relief.”
