1-1 By: Madla S.B. No. 874 1-2 (In the Senate - Filed March 2, 1995; March 6, 1995, read 1-3 first time and referred to Committee on Criminal Justice; 1-4 April 12, 1995, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 7, Nays 0; April 12, 1995, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 874 By: Moncrief 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to the requirement of DNA analysis of certain defendants 1-11 as a condition of community supervision and of certain inmates and 1-12 to the creation of a DNA database within the Department of Public 1-13 Safety of the State of Texas; providing penalties. 1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-15 SECTION 1. Title 1, Code of Criminal Procedure, is amended 1-16 by adding Chapter 61 to read as follows: 1-17 CHAPTER 61. DNA DATABASE SYSTEM 1-18 Art. 61.01. DEFINITIONS. In this chapter: 1-19 (1) "Community supervision and corrections department" 1-20 means a community supervision and corrections department 1-21 established under Article 42.131. 1-22 (2) "Criminal justice agency" has the meaning assigned 1-23 by Article 60.01. 1-24 (3) "Department" means the Department of Public Safety 1-25 of the State of Texas. 1-26 (4) "DNA" means deoxyribonucleic acid. 1-27 (5) "DNA analysis" means the scientific analysis of a 1-28 specimen for the purpose of determining DNA genetic marker 1-29 groupings specific to the specimen. 1-30 (6) "DNA database" means the database that contains 1-31 DNA records maintained by the department. 1-32 (7) "DNA laboratory" means a laboratory of the 1-33 Department of Public Safety of the State of Texas that performs DNA 1-34 analyses. 1-35 (8) "DNA record" means the results of a DNA analysis 1-36 performed by a DNA laboratory. 1-37 (9) "Institutional division" means the institutional 1-38 division of the Texas Department of Criminal Justice. 1-39 Art. 61.02. DNA DATABASE. (a) The department shall record 1-40 DNA data and establish and maintain a computerized DNA database 1-41 that serves as the record creation point for DNA records. 1-42 (b) The DNA database shall provide criminal justice agencies 1-43 with an accurate DNA records depository to assist the agencies in: 1-44 (1) conducting criminal investigations; 1-45 (2) participating in criminal proceedings; and 1-46 (3) if the relevant records are included in the 1-47 database, identifying human remains recovered by the agencies and 1-48 missing persons. 1-49 (c) Other purposes of the database include: 1-50 (1) assisting in the recovery or identification of 1-51 human remains from a disaster or for humanitarian purposes; 1-52 (2) assisting in the identification of living or 1-53 deceased missing persons; and 1-54 (3) if personal identifying information is removed: 1-55 (A) establishing a population statistics 1-56 database; 1-57 (B) assisting in identification research and 1-58 protocol development; and 1-59 (C) assisting in database quality control. 1-60 (d) The department, with advice from the Department of 1-61 Information Resources, shall develop biennial plans to improve the 1-62 reporting and accuracy of the DNA database and to develop and 1-63 maintain monitoring systems capable of identifying inaccurate or 1-64 incomplete information. 1-65 (e) The department shall establish standards for DNA 1-66 analysis by the DNA laboratory that meet or exceed the current 1-67 standards for quality assurance and proficiency testing for 1-68 forensic DNA analysis issued by the Federal Bureau of 2-1 Investigation. The DNA database may contain only DNA records of 2-2 DNA analyses performed according to the standards adopted by the 2-3 department. 2-4 (f) The DNA database must contain the following information: 2-5 (1) a DNA record for each inmate or defendant required 2-6 to provide a blood sample under Article 61.03(a) or Section 11(e), 2-7 Article 42.12; 2-8 (2) a DNA record for specimens derived from a human 2-9 body recovered from a crime scene; and 2-10 (3) a record of the requests made for DNA records 2-11 under this chapter. 2-12 (g) The DNA database may not include criminal history record 2-13 information. 2-14 (h) The DNA database may include: 2-15 (1) a DNA record of a family member or relative of a 2-16 missing person; or 2-17 (2) a DNA record of unidentified human remains. 2-18 (i) A DNA record may not be collected or stored to obtain 2-19 information about physical characteristic traits or predisposition 2-20 to disease and may not be used for any purpose other than to 2-21 facilitate personal identification of an offender or a missing or 2-22 deceased person. 2-23 (j) The Public Safety Commission, with the assistance of the 2-24 Texas Department of Health, by rule shall adopt procedures for the 2-25 collection and preservation of a specimen and the shipment of the 2-26 specimen to the DNA laboratory for DNA analysis and creation of a 2-27 DNA record under Subsection (f)(2) or (h). 2-28 (k) The Public Safety Commission by rule shall approve an 2-29 objective form of DNA analysis test, such as numerical 2-30 representation of DNA fragment lengths, digital image of 2-31 autoradiographies, or discrete allele assignment numbers, for a 2-32 specimen submitted to the DNA laboratory for DNA analysis. 2-33 Art. 61.03. OBTAINING AND PRESERVING CERTAIN BLOOD SAMPLES 2-34 FOR INVESTIGATION. (a) The institutional division shall obtain 2-35 for inclusion in the DNA database a blood sample from each inmate 2-36 who is serving a sentence for an offense under one or more of the 2-37 following sections of the Penal Code: 2-38 (1) Section 20.04(a)(4) (aggravated kidnapping), if 2-39 the defendant committed the offense with the intent to violate or 2-40 abuse the victim sexually; 2-41 (2) Section 21.11 (indecency with a child); 2-42 (3) Section 22.011 (sexual assault); 2-43 (4) Section 22.021 (aggravated sexual assault); 2-44 (5) Section 25.02 (prohibited sexual conduct); or 2-45 (6) Section 30.02 (burglary), punishable under 2-46 Subsection (d) of that section, if the defendant committed the 2-47 offense with the intent to commit a felony listed in this 2-48 subsection. 2-49 (b) The institutional division shall take the blood sample 2-50 from each inmate described by Subsection (a) not later than the 2-51 30th day after the date on which the inmate is transferred to the 2-52 custody of the division. 2-53 (c) The community supervision and corrections department 2-54 supervising a defendant placed on community supervision and 2-55 required to provide a blood sample under Section 11(e), Article 2-56 42.12, shall collect a blood sample from the defendant as provided 2-57 by the order of the court granting community supervision. 2-58 (d) The Texas Department of Criminal Justice shall provide 2-59 all equipment necessary for the collection and preservation of 2-60 blood samples under this article. The institutional division or a 2-61 community supervision and corrections department may employ or 2-62 contract for the services of a qualified person to withdraw blood 2-63 samples under this article. Only a licensed physician, registered 2-64 nurse, or other person approved as qualified to withdraw blood by 2-65 the Texas Department of Health is qualified to withdraw blood for 2-66 the purposes of this article. 2-67 (e) The institutional division or community supervision and 2-68 corrections department shall maintain a record of the taking of the 2-69 blood sample. 2-70 (f) The institutional division or community supervision and 3-1 corrections department shall send the blood sample to the DNA 3-2 laboratory for DNA analysis. The DNA laboratory shall create a 3-3 record from each sample received under this subsection. 3-4 (g) The Texas Board of Criminal Justice, with the assistance 3-5 of the Public Safety Commission and the Texas Department of Health, 3-6 by rule shall adopt procedures for: 3-7 (1) the collection and preservation of blood samples 3-8 under this article in a medically approved manner that permits the 3-9 DNA analysis of the samples by the DNA laboratory at a later date; 3-10 and 3-11 (2) the shipment of the samples to the DNA laboratory. 3-12 (h) The Texas Board of Criminal Justice by rule shall set a 3-13 fee to be charged to inmates and defendants required to provide a 3-14 blood sample under this article. The fee must be sufficient to 3-15 cover all costs associated with a DNA analysis and the creation and 3-16 maintenance of a record of the blood sample. The institutional 3-17 division or community supervision and corrections department 3-18 officer shall collect the fees as provided by rules of the board or 3-19 by court order and shall remit the fees to the comptroller for 3-20 deposit in the general revenue fund. 3-21 Art. 61.04. REQUESTS FOR DNA RECORDS. (a) The department 3-22 may release a DNA sample, analysis, or record: 3-23 (1) to a criminal justice agency for law enforcement 3-24 identification purposes; 3-25 (2) for a judicial proceeding, if otherwise admissible 3-26 under law; 3-27 (3) for criminal defense purposes to a defendant, if 3-28 related to the case in which the defendant is charged; or 3-29 (4) if personally identifiable information is removed, 3-30 for: 3-31 (A) a population statistics database; 3-32 (B) identification research and protocol 3-33 development; or 3-34 (C) quality control. 3-35 (b) The department may require a criminal justice agency to 3-36 provide the identity of any suspects in a criminal investigation 3-37 when requesting the comparison of DNA records to a DNA record of a 3-38 specific crime specimen. 3-39 (c) The department shall maintain at the DNA database a file 3-40 of requests made under this article. 3-41 (d) The Public Safety Commission by rule shall develop 3-42 procedures relating to the release of DNA samples, analyses, or 3-43 records from the DNA laboratory or DNA database. 3-44 Art. 61.05. EXPUNCTION OF DNA RECORDS. The department shall 3-45 expunge a DNA record of a person from the DNA database if the 3-46 person: 3-47 (1) notifies the department in writing that: 3-48 (A) a court has reversed the person's conviction 3-49 on which authority for including the person's DNA record in the DNA 3-50 database was based; and 3-51 (B) the case against the person has been 3-52 dismissed; and 3-53 (2) provides the department with a certified copy of 3-54 the court order that reversed the conviction and dismissed the 3-55 case. 3-56 Art. 61.06. CONFIDENTIALITY OF DNA RECORDS; CRIMINAL 3-57 PENALTIES. (a) Except as provided by Article 61.04, a DNA record 3-58 stored in the DNA database is confidential and is not subject to 3-59 disclosure under the open records law, Chapter 552, Government 3-60 Code. 3-61 (b) A person commits an offense if the person knowingly 3-62 discloses information in a DNA record except as authorized by this 3-63 chapter. An offense under this subsection is a Class A 3-64 misdemeanor. 3-65 (c) A person commits an offense if the person intentionally 3-66 obtains DNA information that identifies an individual from the DNA 3-67 database and the person is not authorized by the department to 3-68 obtain the information. An offense under this subsection is a 3-69 Class A misdemeanor. 3-70 (d) A person commits an offense if the person knowingly 4-1 mislabels or tampers with a DNA record or a blood sample or 4-2 specimen to be used to create a DNA record with the intent to 4-3 misidentify or change the identity of the record, blood sample, or 4-4 specimen. An offense under this subsection is a state jail felony. 4-5 SECTION 2. Section 11, Article 42.12, Code of Criminal 4-6 Procedure, is amended by adding Subsection (e) to read as follows: 4-7 (e) If the court grants community supervision to a defendant 4-8 convicted of an offense under Section 21.11, 22.011, 22.021, or 4-9 25.02, Penal Code, the court shall require the defendant as a 4-10 condition of community supervision to provide a sample of the 4-11 defendant's blood for the purpose of creating a DNA record of the 4-12 defendant under Chapter 61. The court shall require the defendant 4-13 to pay to a community supervision and corrections department 4-14 officer a fee established under Article 61.03(h). 4-15 SECTION 3. The governor shall apply for a federal DNA 4-16 identification grant and any other federal grants to create or 4-17 operate the state's DNA database as soon as practicable after 4-18 September 1, 1995. 4-19 SECTION 4. (a) The Texas Board of Criminal Justice and the 4-20 Public Safety Commission shall adopt rules required by Articles 4-21 61.02, 61.03, and 61.04, Code of Criminal Procedure, as added by 4-22 this Act, not later than April 1, 1997. 4-23 (b) The requirement that the institutional division of the 4-24 Texas Department of Criminal Justice take a blood sample from each 4-25 inmate described by Subsection (a), Article 61.03, Code of Criminal 4-26 Procedure, as added by this Act, not later than the 30th day after 4-27 the date on which the inmate is transferred to the custody of the 4-28 division applies only to each inmate convicted of an offense 4-29 committed on or after April 1, 1997. 4-30 (c) The change in law made by Subsection (e), Section 11, 4-31 Article 42.12, Code of Criminal Procedure, as added by this Act, 4-32 applies only to a defendant convicted of an offense committed on or 4-33 after April 1, 1997. 4-34 (d) For purposes of this section, an offense is committed 4-35 before April 1, 1997, if any element of the offense occurs before 4-36 that date. An inmate or a defendant convicted of an offense 4-37 committed before April 1, 1997, is covered by the law in effect 4-38 when the offense was committed, and the former law is continued in 4-39 effect for that purpose. 4-40 SECTION 5. (a) Except as provided by Subsections (b) and 4-41 (c) of this section, this Act takes effect September 1, 1996, but 4-42 only if the attorney general certifies that a federal DNA 4-43 identification grant or a federal grant for creating or operating 4-44 the state's DNA database was received by this state before that 4-45 date. 4-46 (b) Section 2 of this Act takes effect April 1, 1997, but 4-47 only if the attorney general certifies that a federal DNA 4-48 identification grant or a federal grant for creating or operating 4-49 the state's DNA database was received by this state before 4-50 September 1, 1996. 4-51 (c) Section 3 of this Act takes effect September 1, 1995. 4-52 SECTION 6. The importance of this legislation and the 4-53 crowded condition of the calendars in both houses create an 4-54 emergency and an imperative public necessity that the 4-55 constitutional rule requiring bills to be read on three several 4-56 days in each house be suspended, and this rule is hereby suspended. 4-57 * * * * *