BILL ANALYSIS
C.S.H.B. 40
By: McCall
04-10-95
Committee Report (Substituted)
BACKGROUND
Statistics have shown that sex offenders tend to be repeat
offenders. If this fact holds true, these offenders will try to
commit sexual offenses and may not be caught in the act once
released from prison. If these offenders submit DNA samples to the
already existent registry upon release, then there is a good chance
in matching samples taken from a victim of a sex crime and a known
convicted sex offender. This technology could be a valuable tool
to help law enforcement solve sex crimes and keep these repeat
offenders incarcerated for longer periods of time.
PURPOSE
The purpose of HB 40 is to assist federal, state, and local
criminal justice/law enforcement agencies in the investigation or
prosecution of sex related offenses or other offenses in which
biological evidence is recovered. In practice, this bill sets up
a DNA database to collect DNA samples from convicted sex offenders.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill expressly delegates
rulemaking authority to the director of the Department of Public
Safety in several parts of Section 1 of the bill:
[Expressly delegated in Section 411.144 (a) of the Government Code]
[Although not expressly delegated, rulemaking authority is
referenced in Sections 411.144(b),(d),(e)]
[Although not expressly delegated, rulemaking authority is implied
in Section 411.145]
[Expressly delegated in Section 411.147 (a),(b) of the Government
Code]
[Expressly delegated in Section 411.152 of the Government Code]
[Although not expressly delegated, rulemaking authority is
referenced in Section 411.154 (a),(b)]
It is the committee's opinion that this bill expressly delegates
rulemaking authority to the Department of Public Safety in
conjunction with the Texas Youth Commission in Section 1 of this
bill:
[Section 411.150 (b) of the Government Code]
It is the committee's opinion that the bill does not expressly
delegate rulemaking authority, but does reference rulemaking
authority, in Section 2 of the bill:
[Chapter 38, Code of Criminal Procedure, Article 38.351(b)].
It is the committee's opinion that the bill expressly delegates
rulemaking authority to the director of the Department of Public
Safety in Section 4 (a) of the bill.
SECTION BY SECTION ANALYSIS
Section 1. Amends Chapter 411, Government Code by adding
Subchapter G, which outlines the DNA DATABASE SYSTEM in 14
Sections.
Section 411.141 sets out eight (8) definitions used in the DNA
database system.
Section 411.142 instructs the director to set up the central
depository in Texas for a computerized DNA database to record DNA
data. The DNA database will be used to receive, analyze, classify,
match, and store DNA data that may assist law enforcement agencies.
The DNA database will be compatable with the CODIS system used by
the FBI. The director will develop a plan to insure the integrity
of the DNA system.
Section 411.143 allows the DNA system to assist law enforcement
agencies in investigation/ prosecution of sex related offenses and
other criminal cases, in identification for humanitarian purposes,
in identifying missing persons, and in establishing a population
statistics database without personal identifiers. The information
in the database will only be used in assisting law enforcement
agencies, and will not include criminal history record information.
Section 411.144 requires the director to establish procedures for
collection, preservation, shipment, analysis, and use of DNA matter
that would permit the exchange of DNA matter between DNA
laboratories and allow its use in criminal cases. The DNA lab or
criminal justice agency will follow the procedures established by
the director and specified by the FBI. The director may inspect
the premises or audit the procedures of any DNA lab that provides
DNA records or analysis to the department. A DNA lab conducting an
analysis is required to comply with the law and the rules adopted
by the director, and forward the records to the department's crime
lab. If a DNA lab violates this law or the rules established by
the director, the director can prohibit the lab from exchanging DNA
records with another DNA lab/criminal justice agency/law
enforcement agency. A DNA lab so prohibited may petition the
director to show cause for reinstatement of authority to exchange
records. The director is the liaison for DNA materials between the
FBI and the department's DNA lab. The director may contract for
services to perform DNA analysis. The institutional division may
contract for services to collect DNA material.
Section 411.145 allows the director to collect a reasonable fee for
providing DNA analysis that is submitted voluntarily, or for
providing population statistics data. Fees are deposited in the
state treasury for credit to the state highway fund.
Section 411.146 states that blood samples/specimens must be
collected by the proper medically approved personnel. The person
collecting the blood may not be held liable if he/she follows
generally accepted medical practices. The director shall provide
the necessary equipment for collecting blood samples. A person who
collects a blood sample must send the sample to the DPS crime lab
or another designated location. A DNA lab may analyze a DNA
specimen only to type the genetic markers for criminal justice/law
enforcement purposes or for other purposes described in this
subchapter.
Section 411.147 requires the director to adopt rules to prevent
unauthorized access to the DNA database and to allow the release of
DNA records, specimens, or analyses. The director is given the
discretion to adopt rules regarding internal disclosure of DNA
material. The director or a DNA lab may disclose DNA records only
as provided in this section. The director may release all or part
of a DNA record to specific entities under certain circumstances.
The director may release a record of the number of requests made
for a defendant's DNA record and the name of the requesting person.
The director may release the DNA record of a person if he consents
in writing. A law enforcement agency may have access to DNA
specimens for law enforcement purposes. The director will maintain
a record of requests made under this section. Responses to
nonwritten requests for access to DNA samples/records/etc. may be
provided to the requestor (minus personal identifying information),
or the request may be answered by stating that the sample exists
but may be retrieved only by written request. A written request
may reference the sample, specimen, or identification number.
Section 411.148 An inmate is required to give blood samples or
other specimens for use as a DNA record if the inmate meets certain
specific criteria. The institutional division will obtain DNA
samples from its own inmates during the diagnostic process; the
institutional division will obtain DNA samples from inmates in
other penal institutions as soon as practicable. The institutional
division will preserve, maintain, and report the samples to the
director. An inmate cannot be held past his statutory release date
for failure to provide a DNA sample. The specific intent of a
felon to arouse or gratify the sexual desire of any person will be
entered in the judgment, and is a question of law. The
institutional division will notify the director between 90-120 days
before the inmates release.
Section 411.149 A person may voluntarily submit a blood sample to
the department.
Section 411.150 Juveniles at the TYC who are found guilty of
indecency with a child, sexual assault, or aggravated sexual
assualt are subject to DNA fingerprinting. The department, along
with the Texas Youth Commission, will adopt rules to outline the
DNA fingerprinting.
Section 411.151 DNA records will be expunged upon the presentation
of a proper court order. A person can petition for expunction if
the person is entitled to expunction, obtains a pardon, shows that
the offense for which the DNA record is related has been reversed.
Section 411.152 The director may adopt rules necessary to
administer and enforce the chapter.
Section 411.153 DNA records are not subject to the open records
law, Chapter 552, Government Code.
Section 411.154 District courts may require a person to comply
with this subchapter or rules adopted under this subchapter.
Section 2. Amends Chapter 38, Code of Criminal Procedure, by
amending Article 38.351:
Art. 38.351 Defines DNA and DNA laboratory. The results of a DNA
analysis are admissable in a criminal proceeding to prove identity
unless the court finds the results are unreliable due to a DNA
laboratory failing to follow Subchapter G, Chapter 411, Government
Code or a rule adopted under that code. Evidence that proves
identity or shows the probability of identity is also admissable in
a criminal proceeding. Expert testimony that establishes the
reliability of a DNA technique is not necessary.
Section 3. Amends Section 11(a), Article 42.12, Code of Criminal
Procedure, as amended by Chapters 806 and 900, Acts of the 73rd
Legislature, Regular Session, 1993 by:
Changing the fund to which reimbursement may be paid from the crime
victims compensation fund to the general revenue fund. Allows the
judge to impose as a condition of community service the condition
that the defendant submit a blood sample or other specimen to the
Department of Public Safety under Subchapter G, Chapter 411,
Government Code.
Section 4. The director of the Department of Public Safety shall
adopt the rules no later that January 1, 1996. The requirement for
inmates to give blood sample applies to inmates who have not
completed the diagnostic process before February 1, 1996.
Section 5. The change in the the Code of Criminal Procedure
applies to a person convicted of an offense on or after January 1,
1996.]
Section 6. The requirement that the Texas Youth Commission collect
blood samples from juveniles applies only to juveniles adjudicated
for conduct that violates a penal law after Junary 1, 1996.
Section 7. Effective date.
Section 8. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The intent of these two bills are the same. The original bill (six
pages) is considerably shorter than the substitute (twenty pages)
and was meant as a foundation for DNA fingerprinting. The
substitute is more comprehensive in its approach, as it lays out
more detail in such areas as rulemaking authority and collection
processes.
The original bill amended Chapter 61 of the Code of Criminal
Procedure, and delegates rulemaking authority to the Texas Board of
Criminal Justice and the Public Safety Commission. The original
did not address the purposes for which the DNA analysis may be
used, nor did it address the regulation of DNA laboratories and the
penalties for improper operation. Fees were not addressed in the
original; the Texas Youth Commission, the DNA testing of juveniles,
the admissability of DNA evidence in Chapter 38 of the Code of
Criminal Procedure, and the conditions of community supervision was
not mentioned. Sexual intent offenses and prior convictions are
not addressed.
The substitute bill directs its amendments to Chapter 411 of the
Government Code, Chapter 38 of the Code of Criminal Procedure, and
Section 11(a), Article 42.12, Code of Criminal Procedure. The
substitute bill delegates rulemaking authority to the director of
the Department of Public Safety and the Texas Youth Commission.
The DNA testing of juveniles is addressed repeatedly. The use of
DNA testing as evidence and the court's implementation of this DNA
collection system are addressed in Sections 2 and 3, which were not
present in the original bill.
SUMMARY OF COMMITTEE ACTION
Pursuant to a public notice posted on March 23, 1995, in accordance
with House rules, the Committee on Public Safety met in a public
hearing on March 28, 1995 and considered HB 40.
Representative Madden laid out a committee substitute to HB 40.
The following people testified for HB 40:
Patsy Day, representing Victims Outreach.
Grant Hartline, representing Texas Association Against Sexual
Assualt.
Sgt. S.C. Van Vleck, representing the Fort Worth Police
Department.
Kenneth Williams, representing himself.
Representative Driver moved to adopt the substitute. The motion
passed without objection.
Representative McCoulskey moved to report CSHB 40 to the full house
with the recommendation that it do pass and be printed.
Representative Madden seconded the motion. The motion prevailed by
the following vote:
AYE: Representatives Oakley, Bailey, Carter, Driver, Luna,
Madden, McCoulskey (7).
NAY: none (0).
PNV: none (0).
ABSENT: Representatives Allen, Edwards (2).