By: Madla S.B. No. 874 A BILL TO BE ENTITLED AN ACT 1-1 relating to the requirement of DNA analysis of certain defendants 1-2 as a condition of community supervision and of certain inmates and 1-3 to the creation of a DNA database within the Department of Public 1-4 Safety of the State of Texas; providing penalties. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Title 1, Code of Criminal Procedure, is amended 1-7 by adding Chapter 61 to read as follows: 1-8 CHAPTER 61. DNA DATABASE SYSTEM 1-9 Art. 61.01. DEFINITIONS. In this chapter: 1-10 (1) "Community supervision and corrections department" 1-11 means a community supervision and corrections department 1-12 established under Article 42.131. 1-13 (2) "Criminal justice agency" has the meaning assigned 1-14 by Article 60.01. 1-15 (3) "Department" means the Department of Public Safety 1-16 of the State of Texas. 1-17 (4) "DNA" means deoxyribonucleic acid. 1-18 (5) "DNA analysis" means the scientific analysis of a 1-19 specimen for the purpose of determining DNA genetic marker 1-20 groupings specific to the specimen. 1-21 (6) "DNA database" means the database that contains 1-22 DNA records maintained by the department. 1-23 (7) "DNA laboratory" means a laboratory of the 1-24 Department of Public Safety of the State of Texas that performs DNA 2-1 analyses. 2-2 (8) "DNA record" means the results of a DNA analysis 2-3 performed by a DNA laboratory. 2-4 (9) "Institutional division" means the institutional 2-5 division of the Texas Department of Criminal Justice. 2-6 Art. 61.02. DNA DATABASE. (a) The department shall record 2-7 DNA data and establish and maintain a computerized DNA database 2-8 that serves as the record creation point for DNA records. 2-9 (b) The DNA database shall provide criminal justice agencies 2-10 with an accurate DNA records depository to assist the agencies in: 2-11 (1) conducting criminal investigations; 2-12 (2) participating in criminal proceedings; and 2-13 (3) if the relevant records are included in the 2-14 database, identifying human remains recovered by the agencies and 2-15 missing persons. 2-16 (c) Other purposes of the database include: 2-17 (1) assisting in the recovery or identification of 2-18 human remains from a disaster or for humanitarian purposes; 2-19 (2) assisting in the identification of living or 2-20 deceased missing persons; and 2-21 (3) if personal identifying information is removed: 2-22 (A) establishing a population statistics 2-23 database; 2-24 (B) assisting in identification research and 2-25 protocol development; and 2-26 (C) assisting in database quality control. 2-27 (d) The department, with advice from the Department of 3-1 Information Resources, shall develop biennial plans to improve the 3-2 reporting and accuracy of the DNA database and to develop and 3-3 maintain monitoring systems capable of identifying inaccurate or 3-4 incomplete information. 3-5 (e) The department shall establish standards for DNA 3-6 analysis by the DNA laboratory that meet or exceed the current 3-7 standards for quality assurance and proficiency testing for 3-8 forensic DNA analysis issued by the Federal Bureau of 3-9 Investigation. The DNA database may contain only DNA records of 3-10 DNA analyses performed according to the standards adopted by the 3-11 department. 3-12 (f) The DNA database must contain the following information: 3-13 (1) a DNA record for each inmate or defendant required 3-14 to provide a blood sample under Article 61.03(a) or Section 11(e), 3-15 Article 42.12; 3-16 (2) a DNA record for specimens derived from a human 3-17 body recovered from a crime scene; and 3-18 (3) a record of the requests made for DNA records 3-19 under this chapter. 3-20 (g) The DNA database may not include criminal history record 3-21 information. 3-22 (h) The DNA database may include: 3-23 (1) a DNA record of a family member or relative of a 3-24 missing person; or 3-25 (2) a DNA record of unidentified human remains. 3-26 (i) A DNA record may not be collected or stored to obtain 3-27 information about physical characteristic traits or predisposition 4-1 to disease and may not be used for any purpose other than to 4-2 facilitate personal identification of an offender or a missing or 4-3 deceased person. 4-4 (j) The Public Safety Commission, with the assistance of the 4-5 Texas Department of Health, by rule shall adopt procedures for the 4-6 collection and preservation of a specimen and the shipment of the 4-7 specimen to the DNA laboratory for DNA analysis and creation of a 4-8 DNA record under Subsection (f)(2) or (h). 4-9 (k) The Public Safety Commission by rule shall approve an 4-10 objective form of DNA analysis test, such as numerical 4-11 representation of DNA fragment lengths, digital image of 4-12 autoradiographies, or discrete allele assignment numbers, for a 4-13 specimen submitted to the DNA laboratory for DNA analysis. 4-14 Art. 61.03. OBTAINING AND PRESERVING CERTAIN BLOOD SAMPLES 4-15 FOR INVESTIGATION. (a) The institutional division shall obtain 4-16 for inclusion in the DNA database a blood sample from each inmate 4-17 who is serving a sentence for an offense under one or more of the 4-18 following sections of the Penal Code: 4-19 (1) Section 20.04(a)(4) (aggravated kidnapping), if 4-20 the defendant committed the offense with the intent to violate or 4-21 abuse the victim sexually; 4-22 (2) Section 21.11 (indecency with a child); 4-23 (3) Section 22.011 (sexual assault); 4-24 (4) Section 22.021 (aggravated sexual assault); 4-25 (5) Section 25.02 (prohibited sexual conduct); or 4-26 (6) Section 30.02 (burglary), punishable under 4-27 Subsection (d) of that section, if the defendant committed the 5-1 offense with the intent to commit a felony listed in this 5-2 subsection. 5-3 (b) The institutional division shall take the blood sample 5-4 from each inmate described by Subsection (a) not later than the 5-5 30th day after the date on which the inmate is transferred to the 5-6 custody of the division. 5-7 (c) The community supervision and corrections department 5-8 supervising a defendant placed on community supervision and 5-9 required to provide a blood sample under Section 11(e), Article 5-10 42.12, shall collect a blood sample from the defendant as provided 5-11 by the order of the court granting community supervision. 5-12 (d) The Texas Department of Criminal Justice shall provide 5-13 all equipment necessary for the collection and preservation of 5-14 blood samples under this article. The institutional division or a 5-15 community supervision and corrections department may employ or 5-16 contract for the services of a qualified person to withdraw blood 5-17 samples under this article. Only a licensed physician, registered 5-18 nurse, or other person approved as qualified to withdraw blood by 5-19 the Texas Department of Health is qualified to withdraw blood for 5-20 the purposes of this article. 5-21 (e) The institutional division or community supervision and 5-22 corrections department shall maintain a record of the taking of the 5-23 blood sample. 5-24 (f) The institutional division or community supervision and 5-25 corrections department shall send the blood sample to the DNA 5-26 laboratory for DNA analysis. The DNA laboratory shall create a 5-27 record from each sample received under this subsection. 6-1 (g) The Texas Board of Criminal Justice, with the assistance 6-2 of the Public Safety Commission and the Texas Department of Health, 6-3 by rule shall adopt procedures for: 6-4 (1) the collection and preservation of blood samples 6-5 under this article in a medically approved manner that permits the 6-6 DNA analysis of the samples by the DNA laboratory at a later date; 6-7 and 6-8 (2) the shipment of the samples to the DNA laboratory. 6-9 (h) The Texas Board of Criminal Justice by rule shall set a 6-10 fee to be charged to inmates and defendants required to provide a 6-11 blood sample under this article. The fee must be sufficient to 6-12 cover all costs associated with a DNA analysis and the creation and 6-13 maintenance of a record of the blood sample. The institutional 6-14 division or community supervision and corrections department 6-15 officer shall collect the fees as provided by rules of the board or 6-16 by court order and shall remit the fees to the comptroller for 6-17 deposit in the general revenue fund. 6-18 Art. 61.04. REQUESTS FOR DNA RECORDS. (a) The department 6-19 may release a DNA sample, analysis, or record: 6-20 (1) to a criminal justice agency for law enforcement 6-21 identification purposes; 6-22 (2) for a judicial proceeding, if otherwise admissible 6-23 under law; 6-24 (3) for criminal defense purposes to a defendant, if 6-25 related to the case in which the defendant is charged; or 6-26 (4) if personally identifiable information is removed, 6-27 for: 7-1 (A) a population statistics database; 7-2 (B) identification research and protocol 7-3 development; or 7-4 (C) quality control. 7-5 (b) The department may require a criminal justice agency to 7-6 provide the identity of any suspects in a criminal investigation 7-7 when requesting the comparison of DNA records to a DNA record of a 7-8 specific crime specimen. 7-9 (c) The department shall maintain at the DNA database a file 7-10 of requests made under this article. 7-11 (d) The Public Safety Commission by rule shall develop 7-12 procedures relating to the release of DNA samples, analyses, or 7-13 records from the DNA laboratory or DNA database. 7-14 Art. 61.05. EXPUNCTION OF DNA RECORDS. The department shall 7-15 expunge a DNA record of a person from the DNA database if the 7-16 person: 7-17 (1) notifies the department in writing that: 7-18 (A) a court has reversed the person's conviction 7-19 on which authority for including the person's DNA record in the DNA 7-20 database was based; and 7-21 (B) the case against the person has been 7-22 dismissed; and 7-23 (2) provides the department with a certified copy of 7-24 the court order that reversed the conviction and dismissed the 7-25 case. 7-26 Art. 61.06. CONFIDENTIALITY OF DNA RECORDS; CRIMINAL 7-27 PENALTIES. (a) Except as provided by Article 61.04, a DNA record 8-1 stored in the DNA database is confidential and is not subject to 8-2 disclosure under the open records law, Chapter 552, Government 8-3 Code. 8-4 (b) A person commits an offense if the person knowingly 8-5 discloses information in a DNA record except as authorized by this 8-6 chapter. An offense under this subsection is a Class A 8-7 misdemeanor. 8-8 (c) A person commits an offense if the person intentionally 8-9 obtains DNA information that identifies an individual from the DNA 8-10 database and the person is not authorized by the department to 8-11 obtain the information. An offense under this subsection is a 8-12 Class A misdemeanor. 8-13 (d) A person commits an offense if the person knowingly 8-14 mislabels or tampers with a DNA record or a blood sample or 8-15 specimen to be used to create a DNA record with the intent to 8-16 misidentify or change the identity of the record, blood sample, or 8-17 specimen. An offense under this subsection is a state jail felony. 8-18 SECTION 2. Section 11, Article 42.12, Code of Criminal 8-19 Procedure, is amended by adding Subsection (e) to read as follows: 8-20 (e) If the court grants community supervision to a defendant 8-21 convicted of an offense under Section 21.11, 22.011, 22.021, or 8-22 25.02, Penal Code, the court shall require the defendant as a 8-23 condition of community supervision to provide a sample of the 8-24 defendant's blood for the purpose of creating a DNA record of the 8-25 defendant under Chapter 61. The court shall require the defendant 8-26 to pay to a community supervision and corrections department 8-27 officer a fee established under Article 61.03(h). 9-1 SECTION 3. The governor shall apply for a federal DNA 9-2 identification grant and any other federal grants to create or 9-3 operate the state's DNA database as soon as practicable after 9-4 September 1, 1995. 9-5 SECTION 4. (a) The Texas Board of Criminal Justice and the 9-6 Public Safety Commission shall adopt rules required by Articles 9-7 61.02, 61.03, and 61.04, Code of Criminal Procedure, as added by 9-8 this Act, not later than April 1, 1997. 9-9 (b) The requirement that the institutional division of the 9-10 Texas Department of Criminal Justice take a blood sample from each 9-11 inmate described by Subsection (a), Article 61.03, Code of Criminal 9-12 Procedure, as added by this Act, not later than the 30th day after 9-13 the date on which the inmate is transferred to the custody of the 9-14 division applies only to each inmate convicted of an offense 9-15 committed on or after April 1, 1997. 9-16 (c) The change in law made by Subsection (e), Section 11, 9-17 Article 42.12, Code of Criminal Procedure, as added by this Act, 9-18 applies only to a defendant convicted of an offense committed on or 9-19 after April 1, 1997. 9-20 (d) For purposes of this section, an offense is committed 9-21 before April 1, 1997, if any element of the offense occurs before 9-22 that date. An inmate or a defendant convicted of an offense 9-23 committed before April 1, 1997, is covered by the law in effect 9-24 when the offense was committed, and the former law is continued in 9-25 effect for that purpose. 9-26 SECTION 5. (a) Except as provided by Subsections (b) and 9-27 (c) of this section, this Act takes effect September 1, 1996, but 10-1 only if the attorney general certifies that a federal DNA 10-2 identification grant or a federal grant for creating or operating 10-3 the state's DNA database was received by this state before that 10-4 date. 10-5 (b) Section 2 of this Act takes effect April 1, 1997, but 10-6 only if the attorney general certifies that a federal DNA 10-7 identification grant or a federal grant for creating or operating 10-8 the state's DNA database was received by this state before 10-9 September 1, 1996. 10-10 (c) Section 3 of this Act takes effect September 1, 1995. 10-11 SECTION 6. The importance of this legislation and the 10-12 crowded condition of the calendars in both houses create an 10-13 emergency and an imperative public necessity that the 10-14 constitutional rule requiring bills to be read on three several 10-15 days in each house be suspended, and this rule is hereby suspended.