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                               * * * * *