HBA-SEB C.S.S.B. 8 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 8 By: West, Royce Juvenile Justice and Family Issues 5/6/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE C.S.S.B. 8 authorizes a criminal justice agency to compile criminal information into a system for the purpose of investigating or prosecuting the criminal activities of criminal combinations and criminal street gangs. This bill also requires the Texas Department of Public Safety to establish and maintain a statewide criminal information database. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends the heading of Chapter 61, Code of Criminal Procedure, to read as follows: CHAPTER 61. New title: COMPILATION OF INFORMATION PERTAINING TO CRIMINAL COMBINATIONS AND CRIMINAL STREET GANGS SECTION 2. Amends Article 61.01, Code of Criminal Procedure, by amending Subdivision (1) and adding Subdivision (7) to define "criminal street gang" and "department." SECTION 3. Amends Article 61.02, Code of Criminal Procedure, as follows: Art. 61.02. New title: CRIMINAL COMBINATION AND CRIMINAL STREET GANG INFORMATION SYSTEM; SUBMISSION CRITERIA. (a) Authorizes a criminal justice agency to compile criminal information into a system, subject to Subsection (b), for the purpose of investigating or prosecuting the criminal activities of criminal combinations and criminal street gangs. (b) Authorizes a criminal justice agency to compile criminal information relating to a criminal street gang only if the information complies with submission criteria under Subsection (c). (c) Provides that criminal information relating to a criminal street gang must be relevant to the identification of and the criminal activity engaged in by an individual who or whose organization is reasonably suspected of involvement in criminal activity and must consist of any two other pieces of information relating to the identification of a person as a member of a criminal street gang. SECTION 4. Amends Article 61.03(c), Code of Criminal Procedure, to require a criminal justice agency to send information about a criminal street gang to the statewide database maintained by the Department of Public Safety (DPS) under Article 61.09, but only if the information complies with the submission criteria. SECTION 5. Amends Article 61.04(a), Code of Criminal Procedure, to authorize criminal information relating to a child associated with a combination or a criminal street gang to be compiled and released under this chapter, regardless of the child's age. SECTION 6. Amends Article 61.06, Code of Criminal Procedure, as follows: Art. 61.06. New title: REMOVAL OF RECORDS RELATING TO AN INDIVIDUAL OTHER THAN A CHILD. (a) Provides that information about a criminal street gang must be removed from an information system established under Article 61.02 and the statewide database maintained by DPS after five years, rather than destroyed after two years, under specific circumstances and subject to Subsection (b). Establishes that those circumstances are when the information relates to the investigation or prosecution of criminal activity engaged in by an individual other than a child and the individual who is the subject of the information has not been arrested for criminal activity reported to DPS under Chapter 60 (Criminal History Record System). (b) Establishes that the five-year period does not include any period during which an individual who is the subject of the information is confined in the institutional division or the state jail division of the Texas Department of Criminal Justice (TDCJ). Deletes existing text suspending requirements to destroy information until September 1, 1999. SECTION 7. Amends Chapter 61, Code of Criminal Procedure, by adding Articles 61.07-61.09, as follows: Art. 61.07. REMOVAL OF RECORDS RELATING TO A CHILD. (a) Provides that information about a criminal street gang must be removed from an information system established under Article 61.02 and the statewide database maintained by DPS after three years under specific circumstances and subject to Subsection (b). Establishes that those circumstances are when the information relates to the investigation or prosecution of criminal activity engaged in by a child and the child who is the subject of the information has not been arrested for criminal activity reported to DPS under Chapter 60 or taken into custody for delinquent conduct reported to DPS under Chapter 58, Family Code (Records; Juvenile Justice Information System). (b) Provides that the three-year period does not include any period during which the child is committed to the Texas Youth Commission for conduct that violates a penal law of the grade of felony or confined in the institutional division or the state jail division of TDCJ. Art. 61.08. RIGHT OF CERTAIN PERSONS TO REQUEST REVIEW OF CRIMINAL INFORMATION RELATING TO A CHILD. (a) Requires a criminal justice agency to review criminal information relating to a child or individual about whom criminal information has been collected when the individual was a child if the agency has sent the information to the statewide database maintained by DPS in order to determine if the information complies with the submission criteria. Requires the agency to review the information at the request of the child, the child's parent or guardian, or the individual. (b) Requires the criminal justice agency to immediately remove all records containing the information and to notify DPS and the person who requested the review of the agency's determination and the removal of the records if the agency determines that the information does not comply with the submission criteria. (c) Requires DPS to immediately remove all records containing information that is the subject of the notice under Subsection (b) from the statewide database maintained by DPS. Art. 61.09. STATEWIDE DATABASE. Requires DPS to establish and maintain a statewide database of criminal information reported to DPS under Article 61.03(c) if the information complies with the submission criteria. Requires DPS to designate a code to distinguish criminal information contained in the database relating to a child from criminal information contained in the database relating to an adult offender. SECTION 8. Repealer: Article 61.03(d), Code of Criminal Procedure (authorizing a local criminal justice agency to send information to a regional database). SECTION 9. Makes this Act applicable to information collected under Chapter 61, Code of Criminal Procedure, as amended by this Act, before, on, or after the effective date of this Act. SECTION 10. Provides that a criminal justice agency is not required to send information to the statewide database until September 1, 2000. Establishes that DPS is not required to establish a statewide database until September 1, 2000. Requires each criminal justice agency that collects criminal history information, not later than September 1, 2000, to review the information contained in the agency's system and collected on or before August 31, 1999, to determine if the information complies with the submission criteria. Requires each agency to remove all records containing any criminal information kept in the agency's system that does not comply with the submission criteria, unless the information consists solely of a self-admission by an individual of criminal street gang membership. SECTION 11. Effective date: September 1, 1999. SECTION 12. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute makes conforming changes in the caption. The substitute modifies the original by adding a new SECTION 1, which amends the heading of Chapter 61, Code of Criminal Procedure, to read as follows: CHAPTER 61. New title: COMPILATION OF INFORMATION PERTAINING TO CRIMINAL COMBINATIONS AND CRIMINAL STREET GANGS The substitute redesignates SECTIONS 1-3 of the original to SECTIONS 2-4 of the substitute. The substitute modifies the original in SECTION 2, as redesignated, to remove proposed Subdivision (8) from Article 61.01, Code of Criminal Procedure, which would have defined "intelligence database." The substitute modifies the original in SECTION 3, as redesignated, to amend Article 61.02, Code of Criminal Procedure, as follows: Art. 61.02. New title: CRIMINAL COMBINATION AND CRIMINAL STREET GANG INFORMATION SYSTEM; SUBMISSION CRITERIA. The substitute authorizes a criminal justice agency to compile criminal information into a system for the purpose of investigating or prosecuting the criminal activities of criminal combinations and, rather than or, criminal street gangs if the information meets submission criteria that differ from the submission criteria contained in the original bill. The submission criteria set forth in the substitute provide that the criminal information relating to a criminal street gang must be relevant to the identification of and the criminal activity engaged in by an individual who or whose organization is reasonably suspected of involvement in criminal activity and must consist of any enumerated types of information relating to the identification of a person as a member of a criminal street gang. The original would have authorized a law enforcement agency to compile the criminal information into a local or regional intelligence database only if the agency compiled and maintained the information in accordance with certain criminal intelligence operating policies and the submission criteria for gangs and gang members established by the Federal Bureau of Investigation (FBI) for the National Crime Information Center Violent Gang and Terrorist Organizations File. The substitute modifies the original in SECTION 4, as redesignated, to further amend Article 61.03(c), Code of Criminal Procedure, to require a criminal justice agency to send information about a criminal street gang to the statewide database maintained by DPS, but only if the information complies with the submission criteria. The original would have required a local law enforcement agency to send information relating to criminal street gangs to DPS. The substitute also removes amendments to Article 61.03(d), which would have required DPS to maintain information received from a local law enforcement agency in an intelligence database in accordance with certain criminal intelligence operating policies and the submission criteria for gangs and gang members established by the FBI. The substitute deletes SECTION 4 of the original, which would have amended Article 61.04, Code of Criminal Procedure, by adding Subsection (d), to authorize a governing body of a county or municipality served by a local law enforcement agency that collects criminal information to adopt a policy to notify the parent or guardian of a child about the agency's observations relating to the child's association with criminal street gangs. The substitute adds a new SECTION 5, which amends Article 61.04, Code of Criminal Procedure, to authorize criminal information relating to a child associated with a combination or a criminal street gang to be compiled and released, regardless of the child's age. The substitute adds a new SECTION 6, which amends Article 61.06, Code of Criminal Procedure. For a more complete analysis of SECTION 5, please see the Section-by-Section Analysis in this document. The substitute deletes SECTION 6 of the original, which would have repealed Article 61.06, Code of Criminal Procedure (Destruction of Records). The substitute redesignates SECTION 5 of the original to SECTION 7 of the substitute. The substitute modifies the original in SECTION 7, as redesignated, by adding Articles 61.07-61.09, Code of Criminal Procedure. The original would have added only Articles 61.07 and 61.08. The modifications to these articles are as follows: The substitute adds a new Article 61.07 (Removal of Records Relating to a Child) and redesignates proposed Article 61.07 to 61.08 in the substitute. For a more complete analysis of Article 61.07, please see the Section-by-Section Analysis. Article 61.08, as redesignated (New title: Right of Certain Persons to Request Review of Criminal Information Relating to a Child), is modified to require a criminal justice agency, rather than the head or designated head of a law enforcement agency, to review criminal information about a child or individual at the request of the child or individual about whom criminal information has been collected when the individual was a child, as well as the child's parent or guardian. The substitute requires the criminal justice agency and DPS to remove all records containing the information and to make specific notifications about the removal if the agency finds that the information does not comply with the submission criteria. The original would have required the law enforcement agency to destroy all records containing the information and to make specific notifications if the agency head or designee determines that reasonable suspicion exists to believe that the information is inaccurate. The substitute deletes proposed Article 61.08 (Judicial Review) which would have authorized a person entitled to seek judicial review of a determination to file a petition for review in district court. The original would have required a district court to conduct an in camera review of the criminal information to determine if reasonable suspicion exists to believe that the information is inaccurate and to order the law enforcement agency that collected the information to destroy the information upon such a determination. The substitute adds Article 61.09 (Statewide Database). For a more complete analysis of Article 61.09, please see the Section-by-Section Analysis. The substitute deletes SECTION 8 of the original, which would have required DPS to report to the legislature on the use and effectiveness of the intelligence maintained in the DPS database no later than December 1, 2000. The substitute adds new SECTIONS 8-11 and incorporates the text of SECTION 7 of the original into SECTION 10. In SECTION 10 of the substitute, the date by which a criminal justice agency, rather than law enforcement agency, must review its criminal information under Chapter 61, Code of Criminal Procedure, is modified. New session law is also set forth in SECTION 10. For a more complete analysis of the new material in SECTIONS 8-11, please see the Section-by-Section Analysis. The substitute redesignates the emergency clause from SECTION 9 of the original to SECTION 12 of the substitute and changes the emergency clause from the long version in the original to the short version in the substitute.