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.