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 * * * * *