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79R12873 RMB-F
By: Driver H.B. No. 1068
Substitute the following for H.B. No. 1068:
By: Jackson C.S.H.B. No. 1068
A BILL TO BE ENTITLED
AN ACT
relating to the collection and analysis of evidence and testimony
based on forensic analysis, crime laboratory accreditation, DNA
testing, and the creation and maintenance of DNA records; providing
a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.35, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.35. FORENSIC ANALYSIS OF EVIDENCE; ADMISSIBILITY.
(a) In this article:
(1) "Crime laboratory" includes a public or private
laboratory or other entity that conducts a forensic analysis
subject to this article.
(2) "Criminal action" includes an investigation,
complaint, arrest, bail, bond, trial, appeal, punishment, or other
matter related to conduct proscribed by a criminal offense.
(3) "Director" means the public safety director of the
Department of Public Safety.
(4) "Forensic analysis" means a medical, chemical,
toxicologic, ballistic, or other expert examination or test
performed on physical evidence, including DNA evidence, for the
purpose of determining the connection of the evidence to a criminal
action. The term includes an examination or test requested by a law
enforcement agency, prosecutor, criminal suspect or defendant, or
court. The term does not include:
(A) latent print examination;
(B) a test of a specimen of breath under Chapter
724, Transportation Code; [or]
(C) digital evidence;
(D) an examination or test excluded by rule under
Section 411.0205(c), Government Code;
(E) a presumptive test performed for the purpose
of determining compliance with a term or condition of community
supervision or parole and conducted by or under contract with a
community supervision and corrections department, the parole
division of the Texas Department of Criminal Justice, or the Board
of Pardons and Paroles; or
(F) an expert examination or test conducted
principally for the purpose of scientific research, medical
practice, civil or administrative litigation, or other purpose
unrelated to determining the connection of physical evidence to a
criminal action.
(5) [(2)] "Physical evidence" means any tangible
object, thing, or substance relating to a criminal action
[offense].
(b) A law enforcement agency, prosecutor, or court may
request [procure] a forensic analysis by a crime laboratory of
physical evidence if the evidence was obtained in connection with
the requesting entity's [agency's] investigation or disposition of
a criminal action and the requesting entity:
(A) controls the evidence;
(B) submits the evidence to the laboratory; or
(C) consents to the analysis [offense].
(c) A law enforcement agency, other governmental agency, or
private entity performing a forensic analysis of physical evidence
may require the requesting law enforcement agency to pay a fee for
such analysis.
(d)(1) Except as provided by Subsection (e), a forensic
analysis of physical [Physical] evidence under this article
[subjected to a forensic analysis,] and expert testimony relating
to [regarding] the evidence are[, under this article is] not
admissible in a criminal action [case] if, at the time of the
analysis [or the time the evidence is submitted to the court], the
crime laboratory [or other entity] conducting the analysis was not
accredited by the director [Department of Public Safety] under
Section 411.0205, Government Code.
(2) If before the date of the analysis the director
issues a certificate of accreditation under Section 411.0205,
Government Code, to a crime laboratory conducting the analysis, the
certificate is prima facie evidence that the laboratory was
accredited by the director at the time of the analysis.
(e) A forensic analysis of physical evidence under this
article and expert testimony relating to the evidence are not
inadmissible in a criminal action based solely on the accreditation
status of the crime laboratory conducting the analysis if the
laboratory:
(A) except for making proper application, was
eligible for accreditation by the director at the time of the
examination or test; and
(B) obtains accreditation from the director
before the time of testimony about the examination or test.
(f) A law enforcement agency, prosecutor, or crime
laboratory may petition a court to require, as a condition of
community supervision under Article 42.12, or petition the Board of
Pardons and Paroles to require, as a condition of release on parole
under Chapter 508, Government Code, a person to reimburse the
agency, prosecutor, or laboratory for the reasonable cost of the
confiscation, analysis, storage, or disposal of evidence,
including physical evidence, raw materials, controlled substances,
chemical precursors, drug paraphernalia, or other materials seized
in connection with the underlying offense.
[(e) Notwithstanding Subsection (d), physical evidence
subjected to a forensic analysis under this article is not
inadmissible in a criminal case based solely on the accreditation
status of the crime laboratory or other entity conducting the
analysis if the laboratory or entity:
[(1) has preserved one or more separate samples of the
physical evidence for use by the defense attorney or use under order
of the convicting court; and
[(2) has agreed to preserve those samples until all
appeals in the case are final. This subsection expires September 1,
2005.]
SECTION 2. Section 411.0205, Government Code, is amended to
read as follows:
Sec. 411.0205. CRIME LABORATORY ACCREDITATION PROCESS. (a)
In this section, "crime laboratory," "forensic analysis," and
"physical evidence" have the meanings assigned by Article 38.35,
Code of Criminal Procedure[, and "DNA laboratory" has the meaning
assigned by Section 411.141].
(b) The director by rule:
(1) shall establish an accreditation process for crime
laboratories[, including DNA laboratories,] and other entities
conducting forensic analyses of physical evidence for use in
criminal proceedings; and
(2) may modify or remove a crime laboratory exemption
under this section if the director determines that the underlying
reason for exemption no longer applies.
(c) The director by rule may exempt from the accreditation
process established under Subsection (b) a crime laboratory [or
other entity] conducting a forensic analysis or a type of analysis,
examination, or test [of physical evidence for use in criminal
proceedings] if the director determines that:
(1) independent accreditation is unavailable or
inappropriate for the laboratory [or entity] or the type of
analysis, examination, or test performed by the laboratory [or
entity];
(2) the type of analysis, examination, or test
performed by the laboratory [or entity] is admissible under a
well-established rule of evidence or a statute other than Article
38.35, Code of Criminal Procedure; [and]
(3) the type of analysis, examination, or test
performed by the laboratory [or entity] is routinely conducted
outside of a crime laboratory [or other applicable entity] by a
person other than an employee of the crime laboratory; or
(4) the laboratory:
(A) is located outside this state or, if located
in this state, is operated by a governmental entity other than the
state or a political subdivision of the state; and
(B) was accredited at the time of the analysis
under an accreditation process with standards that meet or exceed
the relevant standards of the process established by the director
under Subsection (b) [or other applicable entity].
(d) The director may at any reasonable time enter and
inspect the premises or audit the records, reports, procedures, or
other quality assurance matters of a crime laboratory that is
accredited or seeking accreditation under this section.
(e) The director may collect costs incurred under this
section for accrediting, inspecting, or auditing a crime
laboratory.
(f) If the director provides a copy of an audit or other
report made under this section, the director may charge $6 for the
copy, in addition to any other cost permitted under Chapter 552 or a
rule adopted under that chapter.
(g) Funds collected under this section shall be deposited in
the state treasury to the credit of the state highway fund, and
money deposited to the state highway fund under this section may be
used only to defray the cost of administering this section or
Subchapter G.
SECTION 3. Section 411.141, Government Code, is amended to
read as follows:
Sec. 411.141. DEFINITIONS. In this subchapter:
(1) "CODIS" means the FBI's Combined DNA Index System.
The term includes the national DNA index system sponsored by the
FBI.
(2) "Conviction" includes conviction by a jury or a
court, a guilty plea, a plea of nolo contendere, or a finding of not
guilty by reason of insanity.
(3) "Criminal justice agency" has the meaning assigned
by Article 60.01, Code of Criminal Procedure. The term includes a
penal institution, a community supervision and corrections
department, the parole division of the Texas Department of Criminal
Justice, the Board of Pardons and Paroles, a law enforcement
agency, or any other criminal justice agency permitted or required
to collect a DNA sample for forensic DNA analysis under this
subchapter. The term does not include a public defender agency or a
public servant engaged in a criminal defense law practice.
(4) "DNA" means deoxyribonucleic acid.
(5) [(2)] "DNA database" means one or more databases
that contain [the database that contains] forensic DNA records
maintained by the director.
(6) [(3)] "DNA laboratory" means a laboratory that
performs forensic DNA analysis on samples or specimens derived from
a human body, physical evidence, or a crime scene. The term
includes a department crime laboratory facility that conducts
forensic DNA analysis.
(7) [(4)] "DNA record" means the results of a forensic
DNA analysis performed by a DNA laboratory. The term includes a DNA
profile and related records, which may include a code or other
identifying number referenced to a separate database to locate:
(A) the originating entity; and
(B)[,] if known, the name and other personally
identifying information concerning the individual [of the person]
who is the subject of the analysis.
(8) "DNA sample" means a blood sample or other
biological sample or specimen provided by an individual under this
subchapter or submitted to the director under this subchapter for
DNA analysis or storage.
(9) [(5)] "FBI" means the Federal Bureau of
Investigation.
(10) "Forensic analysis" has the meaning assigned by
Article 38.35, Code of Criminal Procedure.
(11) [(6)] "Institution of higher education" has the
meaning assigned by Section 61.003, Education Code.
(12) [(7) "Institutional division" means the
institutional division of the Texas Department of Criminal Justice.
[(8)] "Penal institution" has the meaning assigned by
Section 1.07, Penal Code.
SECTION 4. Sections 411.142(b), (c), (d), (f), (g), and
(h), Government Code, are amended to read as follows:
(b)(1) The director may maintain a [the] DNA database in the
department's crime laboratory in Austin or another suitable
location.
(2) The director may maintain a separate database
containing a name or other personally identifying information
cross-referenced and searchable by name, code, or other identifier.
(3) A CODIS DNA database:
(A) may not store a name or other personally
identifying information;
(B) must be compatible with the national DNA
index system to the extent required by the FBI to permit the useful
exchange and storage of DNA records or information derived from
those records; and
(C) may store a code, file, or reference number
to another information system only if the director determines the
information is necessary to:
(i) generate an investigative lead or
exclusion;
(ii) support the statistical
interpretation of a test result; or
(iii) allow for the successful
implementation of a DNA database.
(4) A non-CODIS DNA database:
(A) may store a name or other personally
identifying information; and
(B) must be compatible with the national DNA
index system to the extent possible to permit the useful exchange
and storage of DNA records or information derived from those
records.
(c) The director may receive, analyze, store, and destroy a
record or DNA sample [, blood sample, or other specimen] for the
purposes described by Section 411.143.
(d) The DNA database must be capable of classifying,
matching, and storing the results of analyses of DNA [and other
biological molecules].
(f) A [The DNA database must be compatible with the national
DNA identification index system (CODIS) used by the FBI to the
extent required by the FBI to permit the useful exchange and storage
of DNA records or information derived from those records.
[(g) The] DNA database may contain DNA records for the
following:
(1) an individual [a person] described by this
subchapter, including Section 411.148, 411.149, or 411.150;
(2) a biological specimen of a deceased victim of a
crime;
(3) a biological specimen that is reasonably believed
to have been legally obtained in the investigation of a crime,
regardless of origin;
(4) results of testing ordered by a court under this
subchapter, Article 64.03, Code of Criminal Procedure, or other law
permitting or requiring the creation of a DNA record;
(5) an unidentified missing person, or unidentified
skeletal remains or body parts;
(6) a close biological relative of a person who has
been reported missing to a law enforcement agency;
(7) a person at risk of becoming lost, such as a child
or a person declared by a court to be mentally incapacitated, if the
record is required by court order or a parent, conservator, or
guardian of the person consents to the record; or
(8) an unidentified person, if the record does not
contain personal identifying information.
(g) The director [(h) The department] shall establish
standards for DNA analysis by the DNA laboratory that meet or exceed
the current standards for quality assurance and proficiency testing
for forensic DNA analysis issued by the FBI. The DNA database may
contain only DNA records of DNA analyses performed according to the
standards adopted by the director [department].
SECTION 5. Sections 411.143(a), (b), (c), and (e),
Government Code, are amended to read as follows:
(a) The principal purpose of the DNA database is to assist a
federal, state, or local criminal justice agency [or law
enforcement agencies] in the investigation or prosecution of a
criminal offense [sex-related offenses or other offenses] in which
biological evidence is recovered.
(b) In criminal cases, the purposes of the DNA database are
only for use in the investigation of an offense, the exclusion or
identification of suspects or offenders, and the prosecution or
defense of the case.
(c) Other purposes of the database include:
(1) assisting in the recovery or identification of
human remains from a disaster or for humanitarian purposes;
(2) assisting in the identification of living or
deceased missing persons; [and]
(3) if personal identifying information is removed:
(A) establishing a population statistics
database; and
(B) assisting in identification research,
forensic validation studies, or forensic [and] protocol
development; and
(4) retesting to validate or update the original
analysis or [(C)] assisting in database or DNA laboratory quality
control.
(e) A party contracting to carry out a function of another
entity under this subchapter shall comply with:
(1) a requirement imposed by this subchapter on the
other entity, unless the party or other entity is exempted by the
director; and
(2) any additional requirement imposed by the director
on the party. [The director may not store a name or other personal
identifying information in the CODIS database. A file or reference
number to another information system may be included in the CODIS
database only if the director determines the information is
necessary to:
[(1) generate an investigative lead or exclusion;
[(2) support the statistical interpretation of a test
result; or
[(3) allow for the successful implementation of the
DNA database.]
SECTION 6. Section 411.144, Government Code, is amended to
read as follows:
Sec. 411.144. REGULATION OF DNA LABORATORIES; PENALTIES.
(a) The director by rule shall establish procedures for a DNA
laboratory or criminal justice [or law enforcement] agency in the
collection, preservation, shipment, analysis, and use of a DNA
sample [blood sample or other specimen] for forensic DNA analysis
in a manner that permits the exchange of DNA evidence between DNA
laboratories and the use of the evidence in a criminal case.
(b) A DNA laboratory or criminal justice [or law
enforcement] agency shall follow the procedures:
(1) established by the director under this section;
and
(2) specified by the FBI, including use of comparable
test procedures, laboratory equipment, supplies, and computer
software.
(c) The director may at any reasonable time enter and
inspect the premises or audit the records, reports, procedures, or
other quality assurance matters of any DNA laboratory that:
(1) provides DNA records [or DNA forensic analyses] to
the director [department] under this subchapter; or
(2) conducts forensic analysis.
(d) A DNA laboratory conducting a forensic DNA analysis
under this subchapter shall:
(1) forward the DNA record of the analysis to the
director at the department's crime laboratory or another location
as required by the director [department]; and
(2) comply with this subchapter and rules adopted
under this subchapter.
(e) [If a DNA laboratory violates this subchapter or a rule
adopted under this subchapter, the director may prohibit the
laboratory from exchanging DNA records with another DNA laboratory
or criminal justice or law enforcement agency. A DNA laboratory
prohibited from exchanging DNA records under this subsection may
petition the director for a hearing to show cause why the
laboratory's authority to exchange DNA records should be
reinstated.
[(f)] The director is the Texas liaison for DNA data,
records, evidence, and other related matters between:
(1) the FBI; and
(2) a DNA laboratory or a criminal justice [or law
enforcement] agency.
(f) [(g)] The director may:
(1) conduct DNA analyses; or
(2) contract with a laboratory, state agency, private
entity, or institution of higher education for services to perform
DNA analyses for the director [department].
(g) This subchapter does not apply to crime scene collection
of evidence, including DNA evidence, by a law enforcement agency.
[(h) The institutional division may:
[(1) collect a blood sample or other specimen for
forensic DNA analysis; or
[(2) contract with a laboratory, state agency, private
entity, or institution of higher education for services to collect
a sample or other specimen under this subchapter.]
SECTION 7. Section 411.145, Government Code, is amended to
read as follows:
Sec. 411.145. FEES. (a) The director may collect a
reasonable fee under this subchapter for:
(1) [for] the DNA analysis of a DNA sample [blood
sample or other specimen] submitted voluntarily to the director
[department]; or
(2) [for] providing population statistics data or
other appropriate research data.
(b) If the director provides a copy of an audit or other
report made under this subchapter, the director may charge $6 for
the copy, in addition to any other cost permitted under Chapter 552
or a rule adopted under that chapter.
(c) A fee collected under this section shall be deposited in
the state treasury to the credit of the state highway fund, and
money deposited to the state highway fund under this section and
under Articles 42.12 and [Article] 102.020(h), Code of Criminal
Procedure, may be used only to defray the cost of administering this
subchapter and Section 411.0205.
SECTION 8. Section 411.146, Government Code, is amended to
read as follows:
Sec. 411.146. DNA SAMPLES [BLOOD SAMPLES OR OTHER
SPECIMENS]. (a) The director may not accept a DNA record or DNA
sample collected [blood sample or other specimen taken] from an
individual [a person] who at the time of collection is alive, unless
the director reasonably believes the sample was [is not deceased
that is] submitted voluntarily or as required by this subchapter
and is:
(1) a blood sample [Section 411.148 or 411.150 unless
the sample or specimen is] collected in a medically approved manner
by:
(A) [(1)] a physician, registered nurse,
licensed vocational nurse, licensed clinical laboratory
technologist; or
(B) an individual [(2) another person] who is
trained to properly collect blood samples under this subchapter; or
(2) a specimen other than a blood sample collected:
(A) in a manner approved by the director by rule
adopted under this section; and
(B) by an individual who is trained to properly
collect the specimen under this subchapter [or other specimens and
supervised by a licensed physician].
(b) [A person collecting a blood sample or other specimen
under this section may not be held liable in any civil or criminal
action if the person collects the sample or specimen in a reasonable
manner according to generally accepted medical or other
professional practices.
[(c)] The director shall provide at no cost to a person
collecting a DNA sample as described by Subsection (a) the
collection kits, [specimen vials, mailing tubes and] labels, report
forms, [and] instructions, and training for collection of DNA
[blood] samples [or other specimens] under this section.
(c)(1) The director shall adopt rules regarding the
collection, preservation, shipment, and analysis of a DNA database
sample under this subchapter, including the type of sample or
specimen taken.
(2) A criminal justice agency permitted or required to
collect a DNA sample for forensic DNA analysis under this
subchapter:
(A) may collect the sample or contract with a
phlebotomist, laboratory, state agency, private entity, or
institution of higher education for services to collect the sample
at the time determined by the agency; and
(B) shall:
(i) preserve each sample collected until it
is forwarded to the director under Subsection (d); and
(ii) maintain a record of the collection of
the sample.
(d) A criminal justice agency that [person who] collects a
DNA [blood] sample [or other specimen] under this section shall
send the sample [or specimen] to:
(1) the director at the department's crime laboratory;
or
(2) another location as required by the director by
rule.
(e) A DNA laboratory may analyze a DNA [blood] sample
collected under this section [or other DNA specimen] only:
(1) to type the genetic markers contained in the
sample [or specimen];
(2) for criminal justice or [and] law enforcement
purposes; or
(3) for other purposes described by this subchapter.
(f) If possible, a second DNA sample [specimen] must be
collected [obtained] from an individual [a suspect] in a criminal
investigation if forensic DNA evidence is necessary for use as
substantive evidence in the investigation, prosecution, or defense
of a case.
SECTION 9. Section 411.147, Government Code, is amended to
read as follows:
Sec. 411.147. ACCESS TO DNA DATABASE INFORMATION. (a) The
director by rule shall establish procedures:
(1) to prevent unauthorized access to a [the] DNA
database; and
(2) to release from a DNA database a DNA sample,
analysis, record, or other information maintained under this
subchapter [DNA records, specimens, or analyses from the DNA
database].
(b) The director may adopt rules relating to the internal
disclosure, access, or use of a sample[, specimen,] or DNA record in
[the department or] a DNA laboratory.
(c) The director [department] may release a DNA sample,
analysis, or record only:
(1) to a criminal justice agency for criminal justice
or law enforcement identification purposes;
(2) for a judicial proceeding, if otherwise admissible
under law;
(3) for criminal defense purposes to a defendant, if
related to the case in which the defendant is charged or released
from custody under Article 17.47, Code of Criminal Procedure, or
other court order; or
(4) for another purpose:
(A) described in Section 411.143; or
(B) required under federal law as a condition for
obtaining federal funding [if personally identifiable information
is removed, for:
[(A) a population statistics database;
[(B) identification research and protocol
development; or
[(C) quality control].
(d) The director may release a record of the number of
requests made for a defendant's individual DNA record and the name
of the requesting person.
(e) A criminal justice [law enforcement] agency may have
access to a DNA sample for a law enforcement purpose [specimens]
through:
(1) the agency's laboratory; or
(2) a laboratory used by the agency [for law
enforcement purposes].
(f) The director shall maintain a record of requests made
under this section.
SECTION 10. Section 411.148, Government Code, as amended by
Chapters 211 and 1509, Acts of the 77th Legislature, Regular
Session, 2001, is reenacted and amended to read as follows:
Sec. 411.148. MANDATORY DNA RECORD [RECORDS OF CERTAIN
INMATES]. (a) This section applies to:
(1) an individual who is:
(A) placed on community supervision or deferred
adjudication following conviction for a felony;
(B) ordered by a magistrate or court to provide a
sample under Section 411.150 or 411.154 or other law; or
(C) confined in a penal institution operated by
or under contract with the Texas Department of Criminal Justice; or
(2) a juvenile who is:
(A) after an adjudication for conduct
constituting a felony, confined in a facility operated by or under
contract with the Texas Youth Commission; or
(B) placed on community supervision or deferred
adjudication after adjudication for conduct constituting a felony.
(b) An individual described by Subsection (a) [inmate
serving a sentence for a felony in the institutional division]
shall provide one or more DNA [blood] samples [or other specimens]
for the purpose of creating a DNA record.
(c) A criminal justice agency shall collect a sample ordered
by a magistrate or court in compliance with the order.
(d) If an individual described by Subsection (a)(1)(C) is
received into custody by the Texas Department of Criminal Justice,
that department [(b) The institutional division] shall collect
[obtain] the sample [or specimen] from the individual [an inmate of
the division] during the diagnostic process or at another time
determined by the Texas Department of Criminal Justice.
(e) If an individual described by Subsection (a)(2) is
received into custody by the Texas Youth Commission, the youth
commission shall collect the sample from the individual during the
initial examination or at another time determined by the youth
commission.
(f) [The institutional division shall obtain the sample or
specimen from an inmate confined in another penal institution as
soon as practicable if the Board of Pardons and Paroles informs the
division that the inmate is likely to be paroled before being
admitted to the division. The administrator of the other penal
institution shall cooperate with the institutional division as
necessary to allow the institutional division to perform its duties
under this section.
[(c) The institutional division shall:
[(1) preserve each blood sample or other specimen
collected;
[(2) maintain a record of the collection of the sample
or specimen; and
[(3) send the sample or specimen to the director for
scientific analysis under this subchapter.
[(d) An inmate may not be held past a statutory release date
if the inmate fails or refuses to provide a blood sample or other
specimen under this section. A penal institution may take other
lawful administrative action against the inmate.
[(e)] The Texas Department of Criminal Justice and the Texas
Youth Commission, as appropriate, [institutional division] shall
notify the director that an individual [inmate] described by
Subsection (a) is to be released from custody [the institutional
division] not earlier than the 120th day before the individual's
[inmate's] release date and not later than the 90th day before the
individual's [inmate's] release date. The Texas Department of
Criminal Justice and the Texas Youth Commission, in consultation
with the director, shall determine the form of the notification
described by this subsection.
(g) [(f)] A medical staff employee of a criminal justice
agency [the institutional division] may collect [obtain] a
voluntary sample [or specimen] from an individual at any time
[inmate].
(h) [(g)] An employee of a criminal justice agency [the
institutional division] may use force against an individual
[inmate] required to provide a DNA sample under this section when
and to the degree the employee reasonably believes the force is
immediately necessary to collect [obtain] the sample [or specimen].
(i)(1) [(h)] The Texas Department of Criminal Justice as
soon as practicable shall cause a sample to be collected from an
individual described by Subsection (a)(1)(C) if:
(A) the individual is confined in another penal
institution after sentencing and before admission to the
department; and
(B) the department determines that the
individual is likely to be released before being admitted to the
department.
(2) The administrator of the other penal institution
shall cooperate with the Texas Department of Criminal Justice as
necessary to allow the Texas Department of Criminal Justice to
perform its duties under this subsection.
(j)(1) The Texas Youth Commission as soon as practicable
shall cause a sample to be collected from an individual described by
Subsection (a)(2) if:
(A) the individual is detained in another
juvenile detention facility after adjudication and before
admission to the youth commission; and
(B) the youth commission determines the
individual is likely to be released before being admitted to the
youth commission.
(2) The administrator of the other juvenile detention
facility shall cooperate with the Texas Youth Commission as
necessary to allow the youth commission to perform its duties under
this subsection [may contract with an individual or entity for the
provision of phlebotomy services under this section].
(k)(1) When a criminal justice agency of this state agrees
to accept custody or supervision of an individual from another
state or jurisdiction under an interstate compact or a reciprocal
agreement with a local, county, state, or federal agency, whether
the individual is confined or released, the acceptance is
conditional on the individual providing a DNA sample under this
subchapter if the individual was convicted of:
(A) an offense in the other jurisdiction that
involves the same conduct as an offense described by Subsection
(a)(1)(A) or (2); or
(B) an equivalent offense in any other
jurisdiction.
(2) The individual shall provide the DNA sample as
determined by the custodial or supervising entity.
(l) If, in consultation with the director, it is determined
that an acceptable sample has already been received from an
individual, additional samples are not required unless requested by
the director.
(m) The detention, arrest, or conviction of a person based
on a database match or database information is not invalid,
unlawful, or inadmissible based solely on mistaken or other
erroneous collection, storage, or retention of the sample or record
unless the error was an intentional or knowing act.
[(i) Notwithstanding Subsection (a), if at the beginning of
a fiscal year the executive director of the Texas Department of
Criminal Justice determines that sufficient funds have not been
appropriated to the department to obtain a sample from each inmate
otherwise required to provide a sample under Subsection (a), the
executive director shall direct the institutional division to give
priority to obtaining samples from inmates ordered by a court to
give the sample or specimen or serving sentences for:
[(1) an offense:
[(A) under Section 19.02, Penal Code (murder), or
Section 22.02, Penal Code (aggravated assault);
[(B) under Section 30.02, Penal Code (burglary),
if the offense is punishable under Subsection (c)(2) or (d) of that
section; or
[(C) for which the inmate is required to register
as a sex offender under Chapter 62, Code of Criminal Procedure; or
[(2) any offense if the inmate has previously been
convicted of or adjudicated as having engaged in:
[(A) an offense described in Subdivision (1); or
[(B) an offense under federal law or laws of
another state that involves the same conduct as an offense
described by Subdivision (1).]
SECTION 11. Section 411.149, Government Code, is amended to
read as follows:
Sec. 411.149. VOLUNTARY DNA RECORD [SUBMISSION OF BLOOD
SAMPLES]. An individual, including an individual required to
provide a DNA sample under this subchapter, [A person] may at any
time voluntarily provide or cause to be provided to a criminal
justice agency a sample to be forwarded [submit a blood sample or
other specimen] to the director [department] for the purpose of
creating a DNA record under this subchapter.
SECTION 12. Section 411.150, Government Code, is amended to
read as follows:
Sec. 411.150. COURT–ORDERED DNA RECORDS [OF CERTAIN
JUVENILES]. (a) A magistrate or court may order a suspect or
defendant to provide one or more DNA samples to a criminal justice
agency for the purpose of creating a DNA record if the individual:
(1) is the target of an evidentiary search warrant
seeking the sample under Article 18.02(10), Code of Criminal
Procedure, for any offense; or
(2) is released on any form of bail or bond after
arrest for a felony offense.
(b) A court shall order a defendant to provide one or more
samples to a criminal justice agency for the purpose of creating a
DNA record if the individual is indicted or waives indictment for a
felony offense.
(c) A court shall order a defendant to provide one or more
samples to a criminal justice agency for the purpose of creating a
DNA record if the individual is placed on community supervision or
deferred adjudication for a felony offense.
(d) A magistrate or court:
(1) shall order a sheriff, deputy sheriff, or other
peace officer or employee representing a local law enforcement
agency or a community supervision and corrections department to
collect or cause to be collected one or more samples from an
individual as required or permitted under this section unless a DNA
sample has already been obtained under this subchapter; and
(2) shall order the sample to be forwarded to the
director.
(e) An employee of a criminal justice agency may collect a
sample from an individual under this section if the employee
complies with each rule adopted by the director under this
subchapter, including collecting, preserving, maintaining a record
of the collection of, and forwarding the sample to the director.
This subsection does not authorize an otherwise unqualified person
to collect a blood sample.
(f) If in consultation with the director it is determined
that an acceptable sample has already been received from an
individual, additional samples are not required unless requested by
the director. [(a) A juvenile who is committed to the Texas Youth
Commission shall provide one or more blood samples or other
specimens taken by or at the request of the commission for the
purpose of creating a DNA record if the juvenile has not already
provided the required specimen under other state law and if the
juvenile is ordered by a juvenile court to give the sample or
specimen or is committed to the commission for an adjudication as
having engaged in delinquent conduct that violates:
[(1) an offense:
[(A) under Section 19.02, Penal Code (murder), or
Section 22.02, Penal Code (aggravated assault);
[(B) under Section 30.02, Penal Code (burglary),
if the offense is punishable under Subsection (c)(2) or (d) of that
section; or
[(C) for which the juvenile is required to
register as a sex offender under Chapter 62, Code of Criminal
Procedure; or
[(2) a penal law if the juvenile has previously been
convicted of or adjudicated as having engaged in:
[(A) a violation of a penal law described in
Subsection (a)(1); or
[(B) a violation of a penal law under federal law
or the laws of another state that involves the same conduct as a
violation of a penal law described by Subsection (a)(1).
[(b) The department, in conjunction with the Texas Youth
Commission, shall adopt rules regarding the collection,
preservation, and shipment of a blood sample or other specimen of a
juvenile described by this section.
[(c) The Texas Youth Commission shall:
[(1) obtain blood samples or other specimens from
juveniles under this section;
[(2) preserve each sample or other specimen collected;
[(3) maintain a record of the collection of the sample
or specimen; and
[(4) send the sample or specimen to the director for
scientific analysis under this subchapter.
[(d) A medical staff employee of the Texas Youth Commission
may obtain a voluntary sample or specimen from any juvenile.
[(e) An employee of the Texas Youth Commission may use force
against a juvenile required to provide a sample under this section
when and to the degree the employee reasonably believes the force is
immediately necessary to obtain the sample or specimen.
[(f) The Texas Youth Commission may contract with an
individual or entity for the provision of phlebotomy services under
this section.]
SECTION 13. Section 411.151, Government Code, is amended to
read as follows:
Sec. 411.151. EXPUNCTION OR REMOVAL OF DNA RECORDS. (a)
The director shall expunge a DNA record of an individual from a
[person from the] DNA database if the person:
(1) notifies the director in writing that the DNA
record has been ordered to be expunged under this section or Chapter
55, Code of Criminal Procedure, and provides the director with a
certified copy of the court order that expunges the DNA record; or
(2) provides the director with a certified copy of a
court order issued under Section 58.003, Family Code, that seals
the juvenile record of the adjudication that resulted in the DNA
record.
(b) A person may petition for the expunction of a DNA record
under the procedures established under Article 55.02, Code of
Criminal Procedure, if the person is entitled to the expunction of
records relating to the offense to which the DNA record is related
under Article 55.01, Code of Criminal Procedure.
(c) This section does not require the director to expunge a
record or destroy a sample if the director determines that the
individual is otherwise required to submit a DNA sample under this
subchapter.
(d) This section does not require the director to destroy an
item of physical evidence obtained during the investigation of a
criminal action.
(e) The director by rule may permit administrative removal
of a record, sample, or other information erroneously included in a
database.
SECTION 14. Section 411.152, Government Code, is amended to
read as follows:
Sec. 411.152. RULES. (a) The director may adopt rules
permitted by this subchapter that are necessary to administer or
enforce this subchapter but shall adopt a rule expressly required
by this subchapter.
(b) The director by rule may release or permit access to
information to confirm or deny whether an individual has a
preexisting record under this subchapter. After receiving a
request regarding an individual whose DNA record has been expunged
or removed under Section 411.151, the director shall deny the
preexisting record.
(c) The director by rule may exempt:
(1) a non-CODIS laboratory, procedure, or other matter
from a CODIS requirement;
(2) a laboratory conducting non-human forensic DNA
analysis from a rule adopted under this subchapter; and
(3) certain categories of individuals from a
requirement to provide an additional sample after an acceptable DNA
record exists for the individual.
(d) The director by rule may permit an attorney representing
the state in the prosecution of felony offenses to establish to the
satisfaction of the director that the interests of justice or
public safety require that an individual provide an additional
sample.
(e) The director by rule may determine whether a DNA sample
complies with a collection provision of this subchapter.
SECTION 15. Section 411.153, Government Code, as amended by
Chapters 1490 and 1509, Acts of the 77th Legislature, Regular
Session, 2001, is reenacted and amended to read as follows:
Sec. 411.153. CONFIDENTIALITY OF [POSTCONFINEMENT] DNA
RECORDS. (a) A DNA record stored in the DNA database is
confidential and is not subject to disclosure under the public
information [open records] law, Chapter 552.
(b) A person commits an offense if the person knowingly
discloses information in a DNA record or information related to a
DNA analysis of a sample collected [blood specimen taken] under
this subchapter [Section 411.148 or 411.150 except as authorized by
this chapter].
(c) An offense under this section [subsection] is a state
jail felony.
(d) [(c)] A violation under this section constitutes
official misconduct.
(e) It is an affirmative defense to prosecution under this
section that the actor reasonably believed the actor's conduct was
authorized by this subchapter or a rule adopted under this
subchapter.
SECTION 16. Section 411.154(b), Government Code, is amended
to read as follows:
(b) The court may issue an order requiring a person:
(1) to act in compliance with this subchapter or a rule
adopted under this subchapter;
(2) to refrain from acting in violation of this
subchapter or a rule adopted under this subchapter;
(3) to provide a DNA sample [give a blood sample or
other specimen]; or
(4) if the person has already provided a DNA sample
[given a blood sample or other specimen], to provide [give] another
sample if good cause is shown.
SECTION 17. Subchapter G, Chapter 411, Government Code, is
amended by adding Sections 411.155 and 411.156 to read as follows:
Sec. 411.155. OFFENSE: REFUSAL TO PROVIDE SAMPLE. (a) A
person commits an offense if the person knowingly fails or refuses
to provide a DNA sample and the person:
(1) is required to provide a sample under this
subchapter; and
(2) receives notification of the requirement to
provide the sample.
(b) An offense under this section is a felony of the third
degree.
Sec. 411.156. LIABILITY. (a) This section applies to a
person:
(1) ordering, collecting with or without force,
preserving, possessing, transmitting, receiving, analyzing,
releasing, disclosing, using, or maintaining a DNA sample or record
under this subchapter; or
(2) administering this subchapter.
(b) A person described in Subsection (a) is immune from
civil liability for any act or omission resulting in death, damage,
or injury if the person:
(1) acts in the course of duties under this subchapter
or a rule adopted under this subchapter;
(2) reasonably believes the person's act or omission
was in substantial compliance with this subchapter or a rule
adopted under this subchapter; and
(3) collects the sample in a reasonable manner
according to generally accepted medical or other professional
practices.
SECTION 18. Article 17.47, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.47. CONDITIONS REQUIRING SUBMISSION OF SPECIMEN. A
magistrate may [shall] require as a condition of release on bail or
bond of a defendant [described by Section 411.1471(a), Government
Code,] that the defendant provide to a local law enforcement agency
one or more specimens for the purpose of creating a DNA record under
Subchapter G, Chapter 411, Government Code.
SECTION 19. Sections 11(a) and (e), Article 42.12, Code of
Criminal Procedure, are amended to read as follows:
(a) The judge of the court having jurisdiction of the case
shall determine the conditions of community supervision and may, at
any time, during the period of community supervision alter or
modify the conditions. The judge may impose any reasonable
condition that is designed to protect or restore the community,
protect or restore the victim, or punish, rehabilitate, or reform
the defendant. Conditions of community supervision may include,
but shall not be limited to, the conditions that the defendant
shall:
(1) Commit no offense against the laws of this State or
of any other State or of the United States;
(2) Avoid injurious or vicious habits;
(3) Avoid persons or places of disreputable or harmful
character;
(4) Report to the supervision officer as directed by
the judge or supervision officer and obey all rules and regulations
of the community supervision and corrections department;
(5) Permit the supervision officer to visit him at his
home or elsewhere;
(6) Work faithfully at suitable employment as far as
possible;
(7) Remain within a specified place;
(8) Pay his fine, if one be assessed, and all court
costs whether a fine be assessed or not, in one or several sums;
(9) Support his dependents;
(10) Participate, for a time specified by the judge in
any community-based program, including a community-service work
program under Section 16 of this article;
(11) Reimburse the county in which the prosecution was
instituted for compensation paid to appointed counsel for defending
him in the case, if counsel was appointed, or if he was represented
by a county-paid public defender, in an amount that would have been
paid to an appointed attorney had the county not had a public
defender;
(12) Remain under custodial supervision in a community
corrections facility, obey all rules and regulations of such
facility, and pay a percentage of his income to the facility for
room and board;
(13) Pay a percentage of his income to his dependents
for their support while under custodial supervision in a community
corrections facility;
(14) Submit to testing for alcohol or controlled
substances;
(15) Attend counseling sessions for substance abusers
or participate in substance abuse treatment services in a program
or facility approved or licensed by the Texas Commission on Alcohol
and Drug Abuse;
(16) With the consent of the victim of a misdemeanor
offense or of any offense under Title 7, Penal Code, participate in
victim-defendant mediation;
(17) Submit to electronic monitoring;
(18) Reimburse the general revenue fund for any
amounts paid from that fund to a victim, as defined by Article 56.01
of this code, of the defendant's offense or if no reimbursement is
required, make one payment to the fund in an amount not to exceed
$50 if the offense is a misdemeanor or not to exceed $100 if the
offense is a felony;
(19) Reimburse a law enforcement agency or crime
laboratory for the costs of confiscation, analysis, storage, or
disposal of evidence, including physical evidence, raw materials,
controlled substances, chemical precursors, drug paraphernalia, or
other materials seized in connection with the offense and any other
costs incurred in the administration of services for the
defendant's case under Subchapter G, Chapter 411, Government Code;
(20) Pay all or part of the reasonable and necessary
costs incurred by the victim for psychological counseling made
necessary by the offense or for counseling and education relating
to acquired immune deficiency syndrome or human immunodeficiency
virus made necessary by the offense;
(21) Make one payment in an amount not to exceed $50 to
a crime stoppers organization as defined by Section 414.001,
Government Code, and as certified by the Crime Stoppers Advisory
Council;
(22) Submit a DNA [blood] sample [or other specimen]
to the Department of Public Safety under Subchapter G, Chapter 411,
Government Code, for the purpose of creating a DNA record of the
defendant; and
(23) In any manner required by the judge, provide
public notice of the offense for which the defendant was placed on
community supervision in the county in which the offense was
committed.
(e) A judge granting community supervision to a defendant
required to register as a sex offender under Chapter 62 shall
require that the defendant, as a condition of community
supervision:
(1) register under that chapter; and
(2) submit a DNA [blood] sample [or other specimen] to
the Department of Public Safety under Subchapter G, Chapter 411,
Government Code, for the purpose of creating a DNA record of the
defendant, unless the defendant has already submitted the required
sample [specimen] under other state law.
SECTION 20. Articles 102.020(a) and (h), Code of Criminal
Procedure, are amended to read as follows:
(a) A person shall pay $140 [$250] as a court cost on
conviction of or adjudication for an offense described in Section
411.148 [listed in Section 411.1471(a)(1)], Government Code, to
reimburse the department for services provided under Subchapter G,
Chapter 411, Government Code. Payment of a court cost under this
article shall be required as a condition of community supervision
under Article 42.12[, and $50 as a court cost on conviction of an
offense listed in Section 411.1471(a)(3) of that code].
(h) The comptroller shall deposit [35 percent of] the funds
received under this article in the state treasury to the credit of
the state highway fund [and 65 percent of the funds received under
this article to the credit of the criminal justice planning account
in the general revenue fund].
SECTION 21. The following are repealed:
(1) Article 102.056(e), Code of Criminal Procedure;
(2) Sections 411.0206, 411.143(f), 411.1471,
411.1472, 411.1481, 411.1531, and 411.1532, Government Code; and
(3) Section 481.160(f), Health and Safety Code.
SECTION 22. (a) The change in law made by this Act applies
to:
(1) evidence tested or offered into evidence on or
after the effective date of this Act; and
(2) an individual who, on or after the effective date
of this Act:
(A) is placed on community supervision or
deferred adjudication following conviction for a felony as
described in Section 411.148(a)(1)(A), Government Code, as amended
by this Act;
(B) is confined in a penal institution operated
by or under contract with the Texas Department of Criminal Justice
as described in Section 411.148(a)(1)(C), Government Code, as
amended by this Act;
(C) is confined in a facility operated by or
under contract with the Texas Youth Commission or placed on
community supervision or deferred adjudication after adjudication
for conduct constituting a felony as described in Section
411.148(a)(2), Government Code, as amended by this Act;
(D) voluntarily submits or causes to be submitted
a DNA sample as described in Section 411.149, Government Code, as
amended by this Act;
(E) is ordered by a magistrate or court to
provide a DNA sample under Section 411.150 or 411.154 or other law,
including an order issued under circumstances described in Section
411.150(a)(1), Government Code, as amended by this Act;
(F) is ordered by a magistrate or court to
provide a DNA sample if the individual is released on any form of
bail or bond after arrest for a felony offense as described in
Section 411.150(a)(2), Government Code, as amended by this Act;
(G) is ordered by a court to provide a specimen if
the individual is indicted or waives indictment for a felony as
described in Section 411.150(b), Government Code, as amended by
this Act; or
(H) is ordered by a court to provide a DNA sample
if the individual is placed on community supervision or deferred
adjudication for a felony offense as described in Section
411.150(c), Government Code, as amended by this Act.
(b) As required by Section 411.148, Government Code, as
amended by this Act, the Texas Department of Criminal Justice shall
collect a DNA sample from an inmate serving a sentence for a felony
from whom a DNA sample was not required before the effective date of
this Act. The department shall collect the sample during the
diagnostic process or at any other reasonable time determined by
the department.
(c) As required by Section 411.148, Government Code, as
amended by this Act, the Texas Youth Commission shall collect a DNA
sample from a juvenile committed to the Texas Youth Commission for a
felony from whom a DNA sample was not required before the effective
date of this Act or from a juvenile previously committed to the
Texas Youth Commission for a felony. The commission shall collect
the sample during the initial examination or at any other
reasonable time determined by the commission.
SECTION 23. This Act takes effect September 1, 2005.