77R11624 GWK-D
By Kitchen, Keel H.B. No. 1726
Substitute the following for H.B. No. 1726:
By Kitchen C.S.H.B. No. 1726
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the taking of a specimen from a person arrested for,
1-3 charged with, or convicted of certain offenses for the purposes of
1-4 DNA analysis; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter G, Chapter 411, Government Code, is
1-7 amended by adding Sections 411.1471 and 411.1472 to read as
1-8 follows:
1-9 Sec. 411.1471. DNA RECORDS OF PERSONS CHARGED WITH OR
1-10 CONVICTED OF CERTAIN FELONIES. (a) This section applies to a
1-11 defendant who is:
1-12 (1) indicted or waives indictment for a felony
1-13 prohibited or punishable under any of the following Penal Code
1-14 sections:
1-15 (A) Section 20.04(a)(4);
1-16 (B) Section 21.11;
1-17 (C) Section 22.011;
1-18 (D) Section 22.021;
1-19 (E) Section 25.02;
1-20 (F) Section 30.02(d);
1-21 (G) Section 43.05;
1-22 (H) Section 43.25; or
1-23 (I) Section 43.26;
1-24 (2) arrested for a felony described by Subdivision (1)
2-1 after having been previously convicted of or placed on deferred
2-2 adjudication for an offense described by Subdivision (1) or an
2-3 offense punishable under Section 30.02(c)(2), Penal Code; or
2-4 (3) convicted of an offense under Section 21.07 or
2-5 21.08, Penal Code.
2-6 (b) After a defendant described by Subsection (a)(1) is
2-7 indicted or waives indictment, the court in which the case is
2-8 pending shall require the defendant to provide to a law enforcement
2-9 agency one or more specimens for the purpose of creating a DNA
2-10 record. A law enforcement agency arresting a defendant described
2-11 by Subsection (a)(2), immediately after fingerprinting the
2-12 defendant and at the same location as the fingerprinting occurs,
2-13 shall require the defendant to provide one or more specimens for
2-14 the purpose of creating a DNA record. After a defendant described
2-15 by Subsection (a)(3) is convicted or placed on deferred
2-16 adjudication, the court shall require the defendant to provide to a
2-17 law enforcement agency one or more specimens for the purpose of
2-18 creating a DNA record.
2-19 (c) A defendant described by Subsection (a)(1) or (3) may at
2-20 any time voluntarily provide a specimen for the purposes described
2-21 by Subsection (b).
2-22 (d) The director by rule shall require law enforcement
2-23 agencies taking a specimen under this section to preserve the
2-24 specimen and maintain a record of the collection of the specimen. A
2-25 law enforcement agency taking a specimen under this section may use
2-26 any method to take the specimen approved by the director in the
2-27 rule adopted under this subsection. The rule adopted by the
3-1 director must prohibit a law enforcement agency from taking a blood
3-2 sample for the purpose of creating a DNA record under this section.
3-3 The agency may either send the specimen to the director or send to
3-4 the director an analysis of the sample performed at a laboratory
3-5 chosen by the agency and approved by the director.
3-6 (e) Notwithstanding Subsection (d), on acquittal of a
3-7 defendant described by Subsection (a)(1) or (2) or dismissal of the
3-8 case against the defendant, the court shall order the law
3-9 enforcement agency taking the specimen to immediately destroy the
3-10 record of the collection of the specimen and require the department
3-11 to destroy the specimen and the record of its receipt.
3-12 (f) A defendant who provides a specimen under this section
3-13 is not required to provide a specimen under Section 411.1472 or
3-14 provide a sample or specimen under Section 411.148 or 411.150
3-15 unless an attorney representing the state in the prosecution of
3-16 felony offenses establishes to the satisfaction of the director
3-17 that the interests of justice or public safety require that the
3-18 defendant provide additional samples or specimens.
3-19 Sec. 411.1472. DNA RECORDS OF PERSONS PLACED ON COMMUNITY
3-20 SUPERVISION FOR CERTAIN OFFENSES. (a) This section applies to a
3-21 defendant placed on community supervision, including deferred
3-22 adjudication community supervision, for an offense listed in
3-23 Section 411.1471(a).
3-24 (b) A court that grants deferred adjudication or places a
3-25 defendant on community supervision shall at the time of entering
3-26 the order or making the placement require the defendant to report
3-27 to a law enforcement agency to provide one or more specimens for
4-1 the purpose of creating a DNA record.
4-2 (c) The director by rule shall require law enforcement
4-3 agencies taking a specimen under this section to preserve the
4-4 specimen and maintain a record of the collection of the specimen. A
4-5 law enforcement agency taking a specimen under this section may use
4-6 any method to take the specimen approved by the director in the
4-7 rule adopted under this subsection. The rule adopted by the
4-8 director must prohibit a law enforcement agency from taking a blood
4-9 sample for the purpose of creating a DNA record under this section.
4-10 The agency may either send the specimen to the director or send to
4-11 the director an analysis of the sample performed at a laboratory
4-12 chosen by the agency and approved by the director.
4-13 (d) A defendant who provides a specimen under this section
4-14 is not required to provide a sample or specimen under Section
4-15 411.148 or 411.150 unless an attorney representing the state in the
4-16 prosecution of felony offenses establishes to the satisfaction of
4-17 the director that the interests of justice or public safety require
4-18 that the defendant provide an additional sample or specimen.
4-19 SECTION 2. Section 411.153, Government Code, is amended to
4-20 read as follows:
4-21 Sec. 411.153. CONFIDENTIALITY OF POST-CONFINEMENT DNA
4-22 RECORDS. (a) A DNA record stored in the DNA database is
4-23 confidential and is not subject to disclosure under the open
4-24 records law, Chapter 552.
4-25 (b) A person commits an offense if the person knowingly
4-26 discloses information in a DNA record or information related to a
4-27 DNA analysis of a blood specimen taken under Section 411.148 or
5-1 411.150 except as authorized by this chapter. An offense under
5-2 this subsection is a misdemeanor punishable by:
5-3 (1) a fine of not more than $1,000;
5-4 (2) confinement in the county jail for not more than
5-5 six months; or
5-6 (3) both the fine and confinement.
5-7 (c) A violation under this section constitutes official
5-8 misconduct.
5-9 SECTION 3. Subchapter G, Chapter 411, Government Code, is
5-10 amended by adding Section 411.1531 to read as follows:
5-11 Sec. 411.1531. CONFIDENTIALITY OF PRE-CONFINEMENT DNA
5-12 RECORDS. (a) A DNA record created under Section 411.1471 or
5-13 411.1472 is confidential and is not subject to disclosure under the
5-14 open records law, Chapter 552.
5-15 (b) A person commits an offense if the person knowingly
5-16 discloses information in a DNA record or information related to a
5-17 DNA analysis of a specimen taken under Section 411.1471 or 411.1472
5-18 except as authorized by this chapter. An offense under this
5-19 subsection is a felony of the third degree.
5-20 (c) A violation under this section constitutes official
5-21 misconduct.
5-22 SECTION 4. Chapter 17, Code of Criminal Procedure, is amended
5-23 by adding Article 17.47 to read as follows:
5-24 Art. 17.47. CONDITIONS REQUIRING SUBMISSION OF SPECIMEN. A
5-25 magistrate shall require as a condition of release of a defendant
5-26 described by Section 411.1471(a), Government Code, that the
5-27 defendant provide to a law enforcement agency one or more specimens
6-1 for the purpose of creating a DNA record.
6-2 SECTION 5. Subchapter A, Chapter 102, Code of Criminal
6-3 Procedure, is amended by adding Article 102.020 to read as follows:
6-4 Art. 102.020. COSTS ON CONVICTION FOR OFFENSES REQUIRING DNA
6-5 TESTING. (a) A person shall pay $250 as a court cost on conviction
6-6 of an offense listed in Section 411.1471(a)(1), Government Code,
6-7 and $50 as a court cost on conviction of an offense listed in
6-8 Section 411.1471(a)(3) of that code.
6-9 (b) The court shall assess and make a reasonable effort to
6-10 collect the cost due under this article whether or not any other
6-11 court cost is assessed or collected.
6-12 (c) For purposes of this article, a person is considered to
6-13 have been convicted if:
6-14 (1) a sentence is imposed; or
6-15 (2) the defendant receives community supervision or
6-16 deferred adjudication.
6-17 (d) Court costs under this article are collected in the same
6-18 manner as other fines or costs. An officer collecting the costs
6-19 shall keep separate records of the funds collected as costs under
6-20 this article and shall deposit the funds in the county treasury.
6-21 (e) The custodian of a county treasury shall:
6-22 (1) keep records of the amount of funds on deposit
6-23 collected under this article; and
6-24 (2) send to the comptroller before the last day of the
6-25 first month following each calendar quarter the funds collected
6-26 under this article during the preceding quarter.
6-27 (f) A county may retain 10 percent of the funds collected
7-1 under this article by an officer of the county as a collection fee
7-2 if the custodian of the county treasury complies with Subsection
7-3 (e).
7-4 (g) If no funds due as costs under this article are
7-5 deposited in a county treasury in a calendar quarter, the custodian
7-6 of the treasury shall file the report required for the quarter in
7-7 the regular manner and must state that no funds were collected.
7-8 (h) The comptroller shall deposit the funds received under
7-9 this article to the credit of the criminal justice planning account
7-10 in the general revenue fund.
7-11 (i) Funds collected under this article are subject to audit
7-12 by the comptroller.
7-13 SECTION 6. Article 102.056, Code of Criminal Procedure, is
7-14 amended by adding Subsection (e) to read as follows:
7-15 (e) The legislature shall determine and appropriate the
7-16 necessary amount from the criminal justice planning account to the
7-17 criminal justice division of the governor's office for grants to
7-18 local law enforcement agencies performing duties imposed on those
7-19 agencies under Sections 411.1471 and 411.1472, Government Code.
7-20 SECTION 7. The director of the Texas Department of Public
7-21 Safety, not later than January 1, 2002, shall adopt rules relating
7-22 to duties imposed on law enforcement agencies under Sections
7-23 411.1471 and 411.1472, Government Code, as added by this Act.
7-24 SECTION 8. Section 411.1471, Government Code, as added by
7-25 this Act, and Article 17.47, Code of Criminal Procedure, as added
7-26 by this Act, apply to a defendant arrested on or after February 1,
7-27 2002. Section 411.1472, Government Code, as added by this Act,
8-1 applies to a defendant placed on deferred adjudication or community
8-2 supervision on or after February 1, 2002.
8-3 SECTION 9. (a) Article 102.020, Code of Criminal Procedure,
8-4 as added by this Act, and Section 411.1531, Government Code, as
8-5 added by this Act, apply only to an offense committed on or after
8-6 the effective date of this Act. For purposes of this section, an
8-7 offense is committed before the effective date of this Act if any
8-8 element of the offense occurs before the effective date.
8-9 (b) An offense committed before the effective date of this
8-10 Act is covered by the law in effect when the offense was committed,
8-11 and the former law is continued in effect for that purpose.
8-12 SECTION 10. This Act takes effect September 1, 2001.