By: Barrientos, et al. S.B. No. 638 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. Subsection (b), Section 411.145, Government Code, 1-7 is amended to read as follows: 1-8 (b) A fee collected under this section shall be deposited in 1-9 the state treasury to the credit of the state highway fund, and 1-10 money deposited under this section and under Article 102.020(h), 1-11 Code of Criminal Procedure, may be used only to defray the cost of 1-12 administering this subchapter. 1-13 SECTION 2. Subchapter G, Chapter 411, Government Code, is 1-14 amended by adding Sections 411.1471 and 411.1472 to read as 1-15 follows: 1-16 Sec. 411.1471. DNA RECORDS OF PERSONS CHARGED WITH OR 1-17 CONVICTED OF CERTAIN FELONIES. (a) This section applies to a 1-18 defendant who is: 1-19 (1) indicted or waives indictment for a felony 1-20 prohibited or punishable under any of the following Penal Code 1-21 sections: 1-22 (A) Section 20.04(a)(4); 1-23 (B) Section 21.11; 1-24 (C) Section 22.011; 1-25 (D) Section 22.021; 2-1 (E) Section 25.02; 2-2 (F) Section 30.02(d); 2-3 (G) Section 43.05; 2-4 (H) Section 43.25; or 2-5 (I) Section 43.26; 2-6 (2) arrested for a felony described by Subdivision (1) 2-7 after having been previously convicted of or placed on deferred 2-8 adjudication for an offense described by Subdivision (1) or an 2-9 offense punishable under Section 30.02(c)(2), Penal Code; or 2-10 (3) convicted of an offense under Section 21.07 or 2-11 21.08, Penal Code. 2-12 (b) After a defendant described by Subsection (a)(1) is 2-13 indicted or waives indictment, the court in which the case is 2-14 pending shall require the defendant to provide to a law enforcement 2-15 agency one or more specimens for the purpose of creating a DNA 2-16 record. A law enforcement agency arresting a defendant described 2-17 by Subsection (a)(2), immediately after fingerprinting the 2-18 defendant and at the same location as the fingerprinting occurs, 2-19 shall require the defendant to provide one or more specimens for 2-20 the purpose of creating a DNA record. After a defendant described 2-21 by Subsection (a)(3) is convicted or placed on deferred 2-22 adjudication, the court shall require the defendant to provide to a 2-23 law enforcement agency one or more specimens for the purpose of 2-24 creating a DNA record. 2-25 (c) A defendant described by Subsection (a)(1) or (3) may at 2-26 any time voluntarily provide a specimen for the purposes described 3-1 by Subsection (b). 3-2 (d) The director by rule shall require law enforcement 3-3 agencies taking a specimen under this section to preserve the 3-4 specimen and maintain a record of the collection of the specimen. 3-5 A law enforcement agency taking a specimen under this section may 3-6 use any method to take the specimen approved by the director in the 3-7 rule adopted under this subsection. The rule adopted by the 3-8 director must prohibit a law enforcement agency from taking a blood 3-9 sample for the purpose of creating a DNA record under this section. 3-10 The agency may either send the specimen to the director or send to 3-11 the director an analysis of the sample performed at a laboratory 3-12 chosen by the agency and approved by the director. 3-13 (e) Notwithstanding Subsection (d), on acquittal of a 3-14 defendant described by Subsection (a)(1) or (2) or dismissal of the 3-15 case against the defendant, the court shall order the law 3-16 enforcement agency taking the specimen to immediately destroy the 3-17 record of the collection of the specimen and require the department 3-18 to destroy the specimen and the record of its receipt. 3-19 (f) A defendant who provides a specimen under this section 3-20 is not required to provide a specimen under Section 411.1472 or 3-21 provide a sample or specimen under Section 411.148 or 411.150 3-22 unless an attorney representing the state in the prosecution of 3-23 felony offenses establishes to the satisfaction of the director 3-24 that the interests of justice or public safety require that the 3-25 defendant provide additional samples or specimens. 3-26 Sec. 411.1472. DNA RECORDS OF PERSONS PLACED ON COMMUNITY 4-1 SUPERVISION FOR CERTAIN OFFENSES. (a) This section applies to a 4-2 defendant placed on community supervision, including deferred 4-3 adjudication community supervision, for an offense listed in 4-4 Section 411.1471(a)(1). 4-5 (b) A court that grants deferred adjudication or places a 4-6 defendant on community supervision shall at the time of entering 4-7 the order or making the placement require the defendant to report 4-8 to a law enforcement agency to provide one or more specimens for 4-9 the purpose of creating a DNA record. 4-10 (c) The director by rule shall require law enforcement 4-11 agencies taking a specimen under this section to preserve the 4-12 specimen and maintain a record of the collection of the specimen. 4-13 A law enforcement agency taking a specimen under this section may 4-14 use any method to take the specimen approved by the director in the 4-15 rule adopted under this subsection. The rule adopted by the 4-16 director must prohibit a law enforcement agency from taking a blood 4-17 sample for the purpose of creating a DNA record under this section. 4-18 The agency may either send the specimen to the director or send to 4-19 the director an analysis of the sample performed at a laboratory 4-20 chosen by the agency and approved by the director. 4-21 (d) A defendant who provides a specimen under this section 4-22 is not required to provide a sample or specimen under Section 4-23 411.148 or 411.150 unless an attorney representing the state in the 4-24 prosecution of felony offenses establishes to the satisfaction of 4-25 the director that the interests of justice or public safety require 4-26 that the defendant provide an additional sample or specimen. 5-1 SECTION 3. Section 411.153, Government Code, is amended to 5-2 read as follows: 5-3 Sec. 411.153. CONFIDENTIALITY OF POSTCONFINEMENT DNA 5-4 RECORDS. (a) A DNA record stored in the DNA database is 5-5 confidential and is not subject to disclosure under the open 5-6 records law, Chapter 552. 5-7 (b) A person commits an offense if the person knowingly 5-8 discloses information in a DNA record or information related to a 5-9 DNA analysis of a blood specimen taken under Section 411.148 or 5-10 411.150 except as authorized by this chapter. An offense under 5-11 this subsection is a misdemeanor punishable by: 5-12 (1) a fine of not more than $1,000; 5-13 (2) confinement in the county jail for not more than 5-14 six months; or 5-15 (3) both the fine and confinement. 5-16 (c) A violation under this section constitutes official 5-17 misconduct. 5-18 SECTION 4. Subchapter G, Chapter 411, Government Code, is 5-19 amended by adding Sections 411.1531 and 411.1532 to read as 5-20 follows: 5-21 Sec. 411.1531. SEGREGATION OF RECORDS. The director by rule 5-22 shall segregate DNA records created under Sections 411.1471 and 5-23 411.1472 from records created under other provisions of this 5-24 chapter, except that if a DNA record of an individual would 5-25 otherwise be required to be created under Section 411.148 or 5-26 411.150, a record previously created for the individual under 6-1 Section 411.1471 or 411.1472 fulfills that requirement and may be 6-2 stored with records for other individuals created under Section 6-3 411.148 or 411.150. 6-4 Sec. 411.1532. CONFIDENTIALITY OF PRECONFINEMENT DNA 6-5 RECORDS. (a) A DNA record created under Section 411.1471 or 6-6 411.1472 is confidential and is not subject to disclosure under the 6-7 open records law, Chapter 552. 6-8 (b) A person commits an offense if the person knowingly 6-9 discloses information in a DNA record or information related to a 6-10 DNA analysis of a specimen taken under Section 411.1471 or 411.1472 6-11 except as authorized by this chapter. An offense under this 6-12 subsection is a felony of the third degree. 6-13 (c) A violation under this section constitutes official 6-14 misconduct. 6-15 SECTION 5. Chapter 17, Code of Criminal Procedure, is 6-16 amended by adding Article 17.47 to read as follows: 6-17 Art. 17.47. CONDITIONS REQUIRING SUBMISSION OF SPECIMEN. A 6-18 magistrate shall require as a condition of release of a defendant 6-19 described by Section 411.1471(a), Government Code, that the 6-20 defendant provide to a law enforcement agency one or more specimens 6-21 for the purpose of creating a DNA record. 6-22 SECTION 6. Subchapter A, Chapter 102, Code of Criminal 6-23 Procedure, is amended by adding Article 102.020 to read as follows: 6-24 Art. 102.020. COSTS ON CONVICTION FOR OFFENSES REQUIRING DNA 6-25 TESTING. (a) A person shall pay $250 as a court cost on 6-26 conviction of an offense listed in Section 411.1471(a)(1), 7-1 Government Code, and $50 as a court cost on conviction of an 7-2 offense listed in Section 411.1471(a)(3) of that code. 7-3 (b) The court shall assess and make a reasonable effort to 7-4 collect the cost due under this article whether or not any other 7-5 court cost is assessed or collected. 7-6 (c) For purposes of this article, a person is considered to 7-7 have been convicted if: 7-8 (1) a sentence is imposed; or 7-9 (2) the defendant receives community supervision or 7-10 deferred adjudication. 7-11 (d) Court costs under this article are collected in the same 7-12 manner as other fines or costs. An officer collecting the costs 7-13 shall keep separate records of the funds collected as costs under 7-14 this article and shall deposit the funds in the county treasury. 7-15 (e) The custodian of a county treasury shall: 7-16 (1) keep records of the amount of funds on deposit 7-17 collected under this article; and 7-18 (2) send to the comptroller before the last day of the 7-19 first month following each calendar quarter the funds collected 7-20 under this article during the preceding quarter. 7-21 (f) A county may retain 10 percent of the funds collected 7-22 under this article by an officer of the county as a collection fee 7-23 if the custodian of the county treasury complies with Subsection 7-24 (e). 7-25 (g) If no funds due as costs under this article are 7-26 deposited in a county treasury in a calendar quarter, the custodian 8-1 of the treasury shall file the report required for the quarter in 8-2 the regular manner and must state that no funds were collected. 8-3 (h) The comptroller shall deposit 35 percent of the funds 8-4 received under this article in the state treasury to the credit of 8-5 the state highway fund and 65 percent of the funds received under 8-6 this article to the credit of the criminal justice planning account 8-7 in the general revenue fund. 8-8 (i) Funds collected under this article are subject to audit 8-9 by the comptroller. 8-10 SECTION 7. Article 102.056, Code of Criminal Procedure, is 8-11 amended by adding Subsection (e) to read as follows: 8-12 (e) The legislature shall determine and appropriate the 8-13 necessary amount from the criminal justice planning account to the 8-14 criminal justice division of the governor's office for grants to 8-15 local law enforcement agencies performing duties imposed on those 8-16 agencies under Sections 411.1471 and 411.1472, Government Code. 8-17 SECTION 8. The director of the Department of Public Safety 8-18 of the State of Texas, not later than January 1, 2002, shall adopt 8-19 rules relating to duties imposed on law enforcement agencies under 8-20 Sections 411.1471 and 411.1472, Government Code, as added by this 8-21 Act. 8-22 SECTION 9. Section 411.1471, Government Code, as added by 8-23 this Act, and Article 17.47, Code of Criminal Procedure, as added 8-24 by this Act, apply to a defendant arrested on or after February 1, 8-25 2002. Section 411.1472, Government Code, as added by this Act, 8-26 applies to a defendant placed on deferred adjudication or community 9-1 supervision on or after February 1, 2002. 9-2 SECTION 10. (a) Article 102.020, Code of Criminal 9-3 Procedure, as added by this Act, and Section 411.1532, Government 9-4 Code, as added by this Act, apply only to an offense committed on 9-5 or after the effective date of this Act. For purposes of this 9-6 section, an offense is committed before the effective date of this 9-7 Act if any element of the offense occurs before the effective date. 9-8 (b) An offense committed before the effective date of this 9-9 Act is covered by the law in effect when the offense was committed, 9-10 and the former law is continued in effect for that purpose. 9-11 SECTION 11. This Act takes effect September 1, 2001.