BILL ANALYSIS


                                                          H.B. 40
                                          By: McCall (Armbrister)
                                                 Criminal Justice
                                                          5-23-95
                                Senate Committee Report (Amended)
BACKGROUND

Statistics have shown that sex offenders tend to be repeat
offenders. DNA analysis technology could be a valuable tool to help
law enforcement officials solve crimes committed by sex offenders.

PURPOSE

As proposed, H.B. 40 requires DNA analysis of certain inmates and
creates a DNA database; provides penalties.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the director of the Department of Public Safety under SECTION 1
(Sections 411.144(a), 411.146(d)(2), 411.147(a) and (b), and
411.152, Government Code) and to the Department of Public Safety
under SECTION 1 (Section 411.150(b), Government Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 411, Government Code, by adding
Subchapter G, as follows:

               SUBCHAPTER G. DNA DATABASE SYSTEM

     Sec. 411.141. DEFINITIONS. Defines "DNA," "DNA database," "DNA
     laboratory," "DNA record," "FBI," "institution of higher
     education," "institutional division," and "penal institution."
     
     Sec. 411.142. DNA DATABASE. (a) Requires the director of the
     Department of Public Safety (director) to record DNA data and
     establish and maintain a computerized database that serves as
     the central depository in the state for DNA records.
     
     (b) Authorizes the director to maintain the DNA database in
       the Department of Public Safety's (department) crime
       laboratory in Austin or another suitable location.
       
       (c) Authorizes the director to receive, analyze, store, and
       destroy a record, blood sample or other specimen for the
       purposes described by Section 411.143.
       
       (d) Requires the DNA database to be capable of classifying,
       matching, and storing the results of analyses of DNA and
       other biological molecules.
       
       (e) Requires the director, with advice from the Department
       of Information Resources, to develop biennial plans to
       improve the reporting and accuracy of the DNA database; and
       develop and maintain a monitoring system capable of
       identifying inaccurate or incomplete information.
       
       (f) Requires the DNA database to be compatible with the
       national DNA identification index system (CODIS) used by the
       FBI to the extent required by the FBI to permit the useful
       exchange and storage of DNA records or information derived
       from those records.
       
       (g) Sets forth provisions for which the DNA database may
       contain DNA records.
       
       Sec. 411.143. PURPOSES. (a)-(c) Set forth the purposes of the
     DNA database.
     
     (d) Prohibits the information contained in the DNA database
       from being collected, analyzed, or stored to obtain
       information about human physical traits or predisposition
       for disease unless the purpose for obtaining the information
       is related to a purpose described by this section.
       
       (e) Prohibits the director from storing a name or other
       personal identifying information in the CODIS database.
       Authorizes a file or reference number to another information
       system to be included in the CODIS database only if the
       director determines the information is necessary.
       
       (f) Prohibits the DNA database from including criminal
       history record information, except as provided by this
       subchapter.
       
       Sec. 411.144. REGULATION OF DNA LABORATORIES; PENALTIES. (a)
     Requires the director, by rule, to establish procedures for a
     DNA laboratory or criminal justice or law enforcement agency
     in the collection, preservation, shipment, analysis, and use
     of a blood sample or other specimen for forensic DNA analysis
     in a manner that permits the exchange of DNA evidence between
     DNA laboratories and the use of the evidence on a criminal
     case.
     
     (b) Sets forth procedures a DNA laboratory or criminal
       justice or law enforcement agency shall follow.
       
       (c) Authorizes the director to enter and inspect the
       premises or audit the procedures of any DNA laboratory that
       provides DNA records or DNA forensic analyses to the
       department under this subchapter.
       
       (d) Sets forth provisions for a DNA laboratory conducting a
       DNA analysis under this subchapter.
       
       (e) Authorizes the director, if a DNA laboratory violates
       this subchapter or a rule adopted under this subchapter, to
       prohibit the laboratory from exchanging DNA records with
       another DNA laboratory or criminal justice or law
       enforcement agency. Authorizes a DNA laboratory prohibited
       from exchanging DNA records under this subsection to
       petition the director for a hearing to show cause why the
       laboratory's authority to exchange DNA records should be
       reinstated.
       
       (f) Provides that the director is the liaison for DNA data,
       records, evidence, and other related matters between the FBI
       and a DNA laboratory or a criminal justice or law
       enforcement agency.
       
       (g) Sets forth authorizations for the director.
       
       (h) Sets forth authorizations for the institutional
       division.
       
       Sec. 411.145. FEES. (a) Sets forth the provisions for which
     the director may collect a fee.
     
     (b) Provides that a fee collected under this section shall
       be deposited in the state treasury to the credit of the
       state highway fund and may be used only to defray the cost
       of administering this subchapter.
       
       Sec. 411.146. BLOOD SAMPLES OR OTHER SPECIMENS. (a) Prohibits
     the director from accepting a blood sample or other specimen
     taken from a person who is not deceased that is submitted
     voluntarily or as required by Section 411.148 or 411.150
     unless the sample or specimen is collected in an appropriately
     medically approved manner.
     
     (b) Prohibits a person collecting a blood sample or other
       specimen under this section from being held liable in any
       civil or criminal action if the person collects the sample
       or specimen according to generally accepted medical or other
       professional practices.
       
       (c) Requires the director to provide at no cost to a person
       described by Subsection (a) the specimen vials, mailing
       tubes and labels, report forms, and instructions for
       collection of blood samples or other specimens under this
       section.
       
       (d) Requires a person who collects a blood sample or other
       specimen under this section to send the sample or specimen
       to the director at the department's crime laboratory; or
       another location as required by the director, by rule.
       
       (e) Sets forth provisions for which a DNA laboratory may
       analyze a blood sample collected under this section or other
       DNA specimen.
       
       (f) Requires a second DNA specimen, if possible, to be
       obtained from a suspect in a criminal investigation if
       forensic DNA evidence is necessary for use as substantive
       evidence in the prosecution of a case.
       
       Sec. 411.147. ACCESS TO DNA DATABASE INFORMATION. (a) Requires
     the director, by rule, to establish procedures to prevent
     unauthorized access to the DNA database; and to release DNA
     records, specimens, or analyses from the DNA database.
     
     (b) Authorizes the director to adopt rules relating to the
       internal disclosure, access, or use of a sample, specimen,
       or DNA record in the department or a DNA laboratory.
       
       (c) Authorizes the director or a DNA laboratory that
       conducts forensic DNA analyses in the state to disclose a
       DNA record or allow access to a DNA sample specimen, or
       analysis only on written request or court order and only as
       provided by this section.
       
       (d) Sets forth entities to which the director may release
       all or part of a DNA record.
       
       (e) Sets forth provisions for which the director may release
       a DNA record, except personal identifying information
       contained in the record, to an entity.
       
       (f) Authorizes the director to release a record of the
       number of requests made for a defendant's DNA record and the
       name of the requesting person.
       
       (g) Authorizes the director to release a DNA record of a
       person who consents in writing to the release of the record
       to another person.
       
       (h) Authorizes a law enforcement agency to have access to
       DNA specimens through the agency's laboratory for law
       enforcement purposes.
       
       (i) Requires the director to maintain a record of requests
       made under this section.
       
       (j) Sets forth provisions by which the director or a DNA
       laboratory may respond to a nonwritten request for access to
       a DNA sample or other specimen or a DNA record.
       
       (k) Authorizes a written request for a DNA profile under
       this section to reference the sample, specimen, or record
       identification number.
       
       Sec. 411.148. DNA RECORDS OF CERTAIN INMATES. (a) Requires an
     inmate of the institutional division or other penal
     institution to provide one or more blood samples or other
     specimens taken by or at the request of the institutional
     division for the purpose of creating a DNA record if the
     inmate is ordered by a court to give the sample or specimen or
     is serving a sentence for a certain offense.
     
     (b) Requires the institutional division to obtain the sample
       or specimen from an inmate of the division during the
       diagnostic process. Requires the institutional division to
       obtain the sample or specimen from an inmate confined in
       another penal institution as soon as practicable if the
       Board of Pardons and Paroles informs the division that the
       inmate is likely to be paroled before being admitted to the
       division. Requires the administrator of the other penal
       institution to cooperate with the institutional division as
       necessary to allow the institutional division to perform its
       duties under this section.
       
       (c) Sets forth requirements for the institutional division.
       
       (d) Prohibits an inmate from being held past a statutory
       release date if the inmate fails or refuses to provide a
       blood sample or other specimen under this section.
       Authorizes a penal institution to take other lawful
       administrative action against the inmate.
       
       (e) Requires the institutional division to notify the
       director that an inmate described by Subsection (a) is to be
       released from the institutional division not earlier than
       the 120th day before the inmate's release date and not later
       than 90 days before the inmate's release date.
       
       Sec. 411.149. VOLUNTARY SUBMISSION OF BLOOD SAMPLES.
     Authorizes a person to voluntarily submit a blood sample or
     other specimen to the department for the purpose of creating
     a DNA record under this subchapter.
     
     Sec. 411.150. DNA RECORDS OF CERTAIN JUVENILES. (a) Requires
     a juvenile who is committed to the Texas Youth Commission to
     provide one or more blood samples or other specimens taken by
     or at the request of the commission for the purpose of
     creating a DNA record if the juvenile is ordered by a juvenile
     court to give the sample or specimen or is committed to the
     commission for an adjudication as having engaged in delinquent
     conduct that violates certain penal laws.
     
     (b) Requires the department, in conjunction with the Texas
       Youth Commission, to adopt rules regarding the collection,
       preservation, and shipment of a blood sample or other
       specimen of a juvenile described by this section.
       
       Sec. 411.151. EXPUNCTION OF DNA RECORDS. (a) Sets forth
     provisions under which the director shall expunge a DNA record
     of a person from the DNA database.
     
     (b) Authorizes a person to petition for the expunction of a
       DNA record under the procedures established under Article
       55.02, Code of Criminal Procedure, if the person is entitled
       to the expunction of records relating to the offense to
       which the DNA record is related under Article 55.01, Code of
       Criminal Procedure.
       
       Sec. 411.152. RULES. Authorizes the director to adopt rules
     necessary to administer or enforce this subchapter.
     
     Sec. 411.153. CONFIDENTIALITY OF DNA RECORDS. (a) Provides
     that a DNA record stored in the DNA database is confidential
     and is not subject to disclosure under the open records law,
     Chapter 552.
     
     (b) Provides that a person commits an offense if the person
       discloses information in a DNA record or information related
       to a DNA analysis of a blood specimen except as authorized
       by this chapter. Provides that an offense under this
       subsection is a misdemeanor punishable by a fine of not more
       than $1,000; confinement in the county jail for not more
       than six months; or both.
       
       (c) Provides that a violation under this section constitutes
       official misconduct.
       
       Sec. 411.154. ENFORCEMENT BY COURT ORDER. (a) Authorizes a
     district or county attorney or the attorney general, on the
     request of the director, to petition a district court for an
     order requiring a person to comply with this subchapter or a
     rule adopted under this subchapter; or refrain from acting in
     violation of this subchapter or a rule adopted under this
     subchapter.
     
     (b) Sets forth provisions for which the court may issue an
       order.
       
       (c) Provides that an order issued under this section is
       appealable as a criminal matter and if appealed is to be
       reviewed under an abuse of discretion standard.
       
       SECTION 2.   Amends Chapter 38, Code of Criminal Procedure, by adding
Article 38.351, as follows:

     Art. 38.351. ADMISSIBILITY OF FORENSIC DNA ANALYSIS. (a)
     Defines "DNA" and "DNA laboratory."
     
     (b) Provides that the relevant results of a forensic DNA
       analysis are admissible in a criminal proceeding for
       purposes of proving or disproving identity unless the court
       finds that the results are unreliable or untrustworthy as
       evidence because a DNA laboratory or law enforcement agency
       that collected, preserved, shipped, stored, analyzed, or
       used a blood sample or other specimen on which the results
       of the DNA analysis are based failed to substantially comply
       with certain rules.
       
       (c) Sets forth other evidence the court may admit relevant
       to a material issue in the proceeding.
       
       (d) Provides that expert testimony about the reliability and
       trustworthiness of the use of DNA as a scientific technique
       or the relevance of using DNA to prove or disprove identity
       is not necessary for the results of a forensic DNA analysis
       to be admitted as evidence under this article.
       
       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, as follows:

     (a) Provides that conditions of community supervision may
     include, among others, the conditions that the defendant shall
     reimburse the general revenue fund, rather than the crime
     victims' compensation fund, for any amounts paid under Chapter
     56B of this code (Crime Victims' Compensation Act) from that
     fund to a victim of the defendant's offense; and submit a
     blood sample or other specimen to the department under Chapter
     411G, Government Code, for the purpose of creating a DNA
     record of the defendant. Makes conforming changes.
     
     SECTION 4.     (a) Requires the director of the Department of Public
Safety to adopt the rules required by Chapter 411G, Government
Code, as added by this Act, not later than January 1, 1996.

     (b) Provides that the requirement that the institutional
     division of the Texas Department of Criminal Justice collect
     a blood sample or other specimen during the diagnostic process
     from an inmate described by Section 411.148(a), Government
     Code, as added by this Act, applies only to an inmate who has
     not completed the diagnostic process before February 1, 1996.
     Requires the division to collect a blood sample from an inmate
     confined in the division who has completed the diagnostic
     process before February 1, 1996, not later than 90 days before
     the inmate's earliest parole eligibility date, unless the
     inmate's earliest parole eligibility date is before May 1,
     1996, in which event the division shall collect the sample as
     soon as possible after February 1, 1996.
     
     SECTION 5.     Makes application of the change in law made by this Act
to Section 11(a), Article 42.12, Code of Criminal Procedure,
prospective beginning January 1, 1996.

SECTION 6. Makes application of the requirement that the Texas
Youth Commission collect a blood sample or other specimen from a
juvenile described by Section 411.150, Government Code, as added by
this Act, prospective beginning January 1, 1996.

SECTION 7. Effective date: September 1, 1995.

SECTION 8. Emergency clause.