1-1 By: Barrientos S.B. No. 638 1-2 (In the Senate - Filed February 9, 2001; February 12, 2001, 1-3 read first time and referred to Committee on Jurisprudence; 1-4 April 19, 2001, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 5, Nays 0; April 19, 2001, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 638 By: Ellis 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to the taking of a specimen from a person arrested for, 1-11 charged with, or convicted of certain offenses for the purposes of 1-12 DNA analysis; providing penalties. 1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-14 SECTION 1. Subsection (b), Section 411.145, Government Code, 1-15 is amended to read as follows: 1-16 (b) A fee collected under this section shall be deposited in 1-17 the state treasury to the credit of the state highway fund, and 1-18 money deposited under this section and under Article 102.020(h), 1-19 Code of Criminal Procedure, may be used only to defray the cost of 1-20 administering this subchapter. 1-21 SECTION 2. Subchapter G, Chapter 411, Government Code, is 1-22 amended by adding Sections 411.1471 and 411.1472 to read as 1-23 follows: 1-24 Sec. 411.1471. DNA RECORDS OF PERSONS CHARGED WITH OR 1-25 CONVICTED OF CERTAIN FELONIES. (a) This section applies to a 1-26 defendant who is: 1-27 (1) indicted or waives indictment for a felony 1-28 prohibited or punishable under any of the following Penal Code 1-29 sections: 1-30 (A) Section 20.04(a)(4); 1-31 (B) Section 21.11; 1-32 (C) Section 22.011; 1-33 (D) Section 22.021; 1-34 (E) Section 25.02; 1-35 (F) Section 30.02(d); 1-36 (G) Section 43.05; 1-37 (H) Section 43.25; or 1-38 (I) Section 43.26; 1-39 (2) arrested for a felony described by Subdivision (1) 1-40 after having been previously convicted of or placed on deferred 1-41 adjudication for an offense described by Subdivision (1) or an 1-42 offense punishable under Section 30.02(c)(2), Penal Code; or 1-43 (3) convicted of an offense under Section 21.07 or 1-44 21.08, Penal Code. 1-45 (b) After a defendant described by Subsection (a)(1) is 1-46 indicted or waives indictment, the court in which the case is 1-47 pending shall require the defendant to provide to a law enforcement 1-48 agency one or more specimens for the purpose of creating a DNA 1-49 record. A law enforcement agency arresting a defendant described 1-50 by Subsection (a)(2), immediately after fingerprinting the 1-51 defendant and at the same location as the fingerprinting occurs, 1-52 shall require the defendant to provide one or more specimens for 1-53 the purpose of creating a DNA record. After a defendant described 1-54 by Subsection (a)(3) is convicted or placed on deferred 1-55 adjudication, the court shall require the defendant to provide to a 1-56 law enforcement agency one or more specimens for the purpose of 1-57 creating a DNA record. 1-58 (c) A defendant described by Subsection (a)(1) or (3) may at 1-59 any time voluntarily provide a specimen for the purposes described 1-60 by Subsection (b). 1-61 (d) The director by rule shall require law enforcement 1-62 agencies taking a specimen under this section to preserve the 1-63 specimen and maintain a record of the collection of the specimen. 1-64 A law enforcement agency taking a specimen under this section may 2-1 use any method to take the specimen approved by the director in the 2-2 rule adopted under this subsection. The rule adopted by the 2-3 director must prohibit a law enforcement agency from taking a blood 2-4 sample for the purpose of creating a DNA record under this section. 2-5 The agency may either send the specimen to the director or send to 2-6 the director an analysis of the sample performed at a laboratory 2-7 chosen by the agency and approved by the director. 2-8 (e) Notwithstanding Subsection (d), on acquittal of a 2-9 defendant described by Subsection (a)(1) or (2) or dismissal of the 2-10 case against the defendant, the court shall order the law 2-11 enforcement agency taking the specimen to immediately destroy the 2-12 record of the collection of the specimen and require the department 2-13 to destroy the specimen and the record of its receipt. 2-14 (f) A defendant who provides a specimen under this section 2-15 is not required to provide a specimen under Section 411.1472 or 2-16 provide a sample or specimen under Section 411.148 or 411.150 2-17 unless an attorney representing the state in the prosecution of 2-18 felony offenses establishes to the satisfaction of the director 2-19 that the interests of justice or public safety require that the 2-20 defendant provide additional samples or specimens. 2-21 Sec. 411.1472. DNA RECORDS OF PERSONS PLACED ON COMMUNITY 2-22 SUPERVISION FOR CERTAIN OFFENSES. (a) This section applies to a 2-23 defendant placed on community supervision, including deferred 2-24 adjudication community supervision, for an offense listed in 2-25 Section 411.1471(a). 2-26 (b) A court that grants deferred adjudication or places a 2-27 defendant on community supervision shall at the time of entering 2-28 the order or making the placement require the defendant to report 2-29 to a law enforcement agency to provide one or more specimens for 2-30 the purpose of creating a DNA record. 2-31 (c) The director by rule shall require law enforcement 2-32 agencies taking a specimen under this section to preserve the 2-33 specimen and maintain a record of the collection of the specimen. 2-34 A law enforcement agency taking a specimen under this section may 2-35 use any method to take the specimen approved by the director in the 2-36 rule adopted under this subsection. The rule adopted by the 2-37 director must prohibit a law enforcement agency from taking a blood 2-38 sample for the purpose of creating a DNA record under this section. 2-39 The agency may either send the specimen to the director or send to 2-40 the director an analysis of the sample performed at a laboratory 2-41 chosen by the agency and approved by the director. 2-42 (d) A defendant who provides a specimen under this section 2-43 is not required to provide a sample or specimen under Section 2-44 411.148 or 411.150 unless an attorney representing the state in the 2-45 prosecution of felony offenses establishes to the satisfaction of 2-46 the director that the interests of justice or public safety require 2-47 that the defendant provide an additional sample or specimen. 2-48 SECTION 3. Section 411.153, Government Code, is amended to 2-49 read as follows: 2-50 Sec. 411.153. CONFIDENTIALITY OF POSTCONFINEMENT DNA 2-51 RECORDS. (a) A DNA record stored in the DNA database is 2-52 confidential and is not subject to disclosure under the open 2-53 records law, Chapter 552. 2-54 (b) A person commits an offense if the person knowingly 2-55 discloses information in a DNA record or information related to a 2-56 DNA analysis of a blood specimen taken under Section 411.148 or 2-57 411.150 except as authorized by this chapter. An offense under 2-58 this subsection is a misdemeanor punishable by: 2-59 (1) a fine of not more than $1,000; 2-60 (2) confinement in the county jail for not more than 2-61 six months; or 2-62 (3) both the fine and confinement. 2-63 (c) A violation under this section constitutes official 2-64 misconduct. 2-65 SECTION 4. Subchapter G, Chapter 411, Government Code, is 2-66 amended by adding Sections 411.1531 and 411.1532 to read as 2-67 follows: 2-68 Sec. 411.1531. SEGREGATION OF RECORDS. The director by rule 2-69 shall segregate DNA records created under Sections 411.1471 and 3-1 411.1472 from records created under other provisions of this 3-2 chapter, except that if a DNA record of an individual would 3-3 otherwise be required to be created under Section 411.148 or 3-4 411.150, a record previously created for the individual under 3-5 Section 411.1471 or 411.1472 fulfills that requirement and may be 3-6 stored with records for other individuals created under Section 3-7 411.148 or 411.150. 3-8 Sec. 411.1532. CONFIDENTIALITY OF PRECONFINEMENT DNA 3-9 RECORDS. (a) A DNA record created under Section 411.1471 or 3-10 411.1472 is confidential and is not subject to disclosure under the 3-11 open records law, Chapter 552. 3-12 (b) A person commits an offense if the person knowingly 3-13 discloses information in a DNA record or information related to a 3-14 DNA analysis of a specimen taken under Section 411.1471 or 411.1472 3-15 except as authorized by this chapter. An offense under this 3-16 subsection is a felony of the third degree. 3-17 (c) A violation under this section constitutes official 3-18 misconduct. 3-19 SECTION 5. Chapter 17, Code of Criminal Procedure, is 3-20 amended by adding Article 17.47 to read as follows: 3-21 Art. 17.47. CONDITIONS REQUIRING SUBMISSION OF SPECIMEN. A 3-22 magistrate shall require as a condition of release of a defendant 3-23 described by Section 411.1471(a), Government Code, that the 3-24 defendant provide to a law enforcement agency one or more specimens 3-25 for the purpose of creating a DNA record. 3-26 SECTION 6. Subchapter A, Chapter 102, Code of Criminal 3-27 Procedure, is amended by adding Article 102.020 to read as follows: 3-28 Art. 102.020. COSTS ON CONVICTION FOR OFFENSES REQUIRING DNA 3-29 TESTING. (a) A person shall pay $250 as a court cost on 3-30 conviction of an offense listed in Section 411.1471(a)(1), 3-31 Government Code, and $50 as a court cost on conviction of an 3-32 offense listed in Section 411.1471(a)(3) of that code. 3-33 (b) The court shall assess and make a reasonable effort to 3-34 collect the cost due under this article whether or not any other 3-35 court cost is assessed or collected. 3-36 (c) For purposes of this article, a person is considered to 3-37 have been convicted if: 3-38 (1) a sentence is imposed; or 3-39 (2) the defendant receives community supervision or 3-40 deferred adjudication. 3-41 (d) Court costs under this article are collected in the same 3-42 manner as other fines or costs. An officer collecting the costs 3-43 shall keep separate records of the funds collected as costs under 3-44 this article and shall deposit the funds in the county treasury. 3-45 (e) The custodian of a county treasury shall: 3-46 (1) keep records of the amount of funds on deposit 3-47 collected under this article; and 3-48 (2) send to the comptroller before the last day of the 3-49 first month following each calendar quarter the funds collected 3-50 under this article during the preceding quarter. 3-51 (f) A county may retain 10 percent of the funds collected 3-52 under this article by an officer of the county as a collection fee 3-53 if the custodian of the county treasury complies with Subsection 3-54 (e). 3-55 (g) If no funds due as costs under this article are 3-56 deposited in a county treasury in a calendar quarter, the custodian 3-57 of the treasury shall file the report required for the quarter in 3-58 the regular manner and must state that no funds were collected. 3-59 (h) The comptroller shall deposit 35 percent of the funds 3-60 received under this article in the state treasury to the credit of 3-61 the state highway fund and 65 percent of the funds received under 3-62 this article to the credit of the criminal justice planning account 3-63 in the general revenue fund. 3-64 (i) Funds collected under this article are subject to audit 3-65 by the comptroller. 3-66 SECTION 7. Article 102.056, Code of Criminal Procedure, is 3-67 amended by adding Subsection (e) to read as follows: 3-68 (e) The legislature shall determine and appropriate the 3-69 necessary amount from the criminal justice planning account to the 4-1 criminal justice division of the governor's office for grants to 4-2 local law enforcement agencies performing duties imposed on those 4-3 agencies under Sections 411.1471 and 411.1472, Government Code. 4-4 SECTION 8. The director of the Department of Public Safety 4-5 of the State of Texas, not later than January 1, 2002, shall adopt 4-6 rules relating to duties imposed on law enforcement agencies under 4-7 Sections 411.1471 and 411.1472, Government Code, as added by this 4-8 Act. 4-9 SECTION 9. Section 411.1471, Government Code, as added by 4-10 this Act, and Article 17.47, Code of Criminal Procedure, as added 4-11 by this Act, apply to a defendant arrested on or after February 1, 4-12 2002. Section 411.1472, Government Code, as added by this Act, 4-13 applies to a defendant placed on deferred adjudication or community 4-14 supervision on or after February 1, 2002. 4-15 SECTION 10. (a) Article 102.020, Code of Criminal 4-16 Procedure, as added by this Act, and Section 411.1532, Government 4-17 Code, as added by this Act, apply only to an offense committed on 4-18 or after the effective date of this Act. For purposes of this 4-19 section, an offense is committed before the effective date of this 4-20 Act if any element of the offense occurs before the effective date. 4-21 (b) An offense committed before the effective date of this 4-22 Act is covered by the law in effect when the offense was committed, 4-23 and the former law is continued in effect for that purpose. 4-24 SECTION 11. This Act takes effect September 1, 2001. 4-25 * * * * *