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.