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).