By: Driver H.B. No. 1068
A BILL TO BE ENTITLED
AN ACT
relating to evidence and testimony based on forensic analysis,
crime laboratory accreditation, and DNA testing and records.
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) "Director" means the director of the Texas
Department of Public Safety.
(2) "Crime laboratory" includes a public or private
laboratory or other entity that conducts a forensic analysis
subject to this article.
(3) "Criminal action" includes an investigation,
complaint, arrest, bail, bond, trial, appeal, punishment or other
matter related to conduct proscribed by a criminal offense.
(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) an examination or test excluded by rule under
Section 411.0205(c), Government Code;
(D) 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 or parole agency; or
(E) 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)(1) 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.
(2) If the requesting entity is a criminal suspect,
defendant, or legal representative of a suspect or defendant, the
individual or representative may request a forensic analysis by a
crime laboratory of physical evidence related to the action in
which the individual is suspected or charged and the individual:
(A) controls the evidence;
(B) submits the evidence to the laboratory; or
(C) obtains a court order.
(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) The burden of persuasion on an evidentiary matter under
this article is preponderance of the evidence. A court
determination under this article is reviewable as a matter of law.
(e)(1) Except as provided by Subsection (f), physical
[Physical] evidence subjected to a forensic analysis under this
article, and testimony regarding the evidence, [under this article]
is not admissible in a criminal 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, on a date 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 department at the time of the
analysis.
(f) Physical evidence subjected to a forensic analysis
under this article, and testimony regarding the evidence, is not
inadmissible in a criminal case 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.
(g) A law enforcement agency, prosecutor, or crime
laboratory may petition a court to require, as a condition of
community supervision under Article 42.12, Code of Criminal
Procedure, or petition the board of pardons and parole to require,
as a condition of release on parole under Chapter 508, Government
Code, a person to reimburse the agency 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.
(h) A defendant may petition a district court to order a law
enforcement agency or prosecutor's office to reimburse the
defendant for the defendant's reasonable cost of the analysis of
evidence, including physical evidence, in connection with an
offense if:
(1) a charge was filed;
(2) the defendant pleads and proves substantive
innocence on the charge;
(3) the defendant proves that no reasonable law
enforcement agency would have filed the charge or that no
reasonable prosecutor's office would have filed or prosecuted the
charge; and
(4) the charge:
(A) has been dismissed;
(B) is barred from further prosecution; or
(C) resulted in a verdict of not guilty.
(i) This article does not apply to the portion of an autopsy
conducted by a medical examiner or other forensic pathologist who
is a licensed physician.
[(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).
(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,
Government Code, or a rule adopted under that section.
(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 [or other applicable entity].
SECTION 3. Subchapter G, Government Code, is amended to
read as follows:
SUBCHAPTER G. DNA DATABASE SYSTEM
Sec. 411.141. DEFINITIONS. In this subchapter:
(1) "Anonymous DNA profile" means a DNA record that
does not include a code or other identifying number useable to
locate the name or other personally identifying information about
the individual who is the subject of the analysis.
(2) "CODIS" means the FBI's Combined DNA Index System.
The term includes the national DNA index system sponsored by the
FBI.
(3) "Conviction" includes conviction by a jury or a
court, guilty plea, plea of nolo contendere or a finding of not
guilty by reason of insanity.
(4) "Criminal justice agency" has the meaning assigned
by Article 60.01, Code of Criminal Procedure. The term includes a
penal institution, community supervision, law enforcement, or
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.
(5) "DNA" means deoxyribonucleic acid.
(6) [(2)] "DNA database" means one or more databases
that contain [the database that contains] forensic DNA records
maintained by the director.
(7) [(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.
(8) [(4)] "DNA record" means the results of a forensic
DNA analysis performed by a DNA laboratory, including 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.
(9) "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.
(10) [(5)] "FBI" means the Federal Bureau of
Investigation.
(11) "Forensic analysis" has the meaning assigned by
Article 38.35, Code of Criminal Procedure.
(12) [(6)] "Institution of higher education" has the
meaning assigned by Section 61.003, Education Code.
(13) [(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.
(14) "TDCJ" means the Texas Department of Criminal
Justice.
(15) "TYC" means the Texas Youth Commission.
Sec. 411.142. DNA DATABASE. (a) The director shall record
DNA data and establish and maintain a computerized database that
serves as the central depository in the state for DNA records.
(b) The director may maintain a [the] DNA database in the
department's crime laboratory in Austin or another suitable
location.
(1) 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.
(2) 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.
(3) A non-CODIS DNA database:
(A) may store a name or other personally
identifying information; and
(B) should 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].
(e) The director, with advice from the Department of
Information Resources, shall develop biennial plans to:
(1) improve the reporting and accuracy of the DNA
database; and
(2) develop and maintain a monitoring system capable
of identifying inaccurate or incomplete information.
(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 be 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
permitted 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] anonymous
DNA profile.
(g) The director [does not contain personal identifying
information.
[(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].
Sec. 411.143. PURPOSES. (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 the record is an anonymous DNA profile
[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.
(d) The information contained in the DNA database may not be
collected, analyzed, or stored to obtain information about human
physical traits or predisposition for disease unless the purpose
for obtaining the information is related to a purpose described by
this section.
(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) an 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.
[(f) Except as provided by this subchapter, the DNA database
may not include criminal history record information].
Sec. 411.144. REGULATION OF DNA LABORATORIES. (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.
[(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].
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,
Government Code, or a rule adopted under that section.
(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 Article 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.
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:
(1) [is not deceased that is] submitted voluntarily or
as required by this subchapter; and
(2) 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
(3) a specimen other than a blood sample collected in a
manner approved by the director in rule adopted under this section
by an individual who is trained to properly collect the specimen
under this subchapter.
(b) [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 may [shall] provide at no cost to a
person described by Subsection (a) the collection kits, [specimen
vials, mailing tubes and] labels, report forms, [and] instructions,
and training for collection of DNA samples [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 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 sample [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 sample [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.
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 39.14, Code of Criminal Procedure, or
other court order;
(4) for another purpose:
(A) described in Section 411.143; or
(B) required under federal law as a condition for
obtaining federal funding[; or
[(4) 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[.
[Sec. 411.1471. DNA RECORDS OF PERSONS CHARGED WITH OR
CONVICTED OF CERTAIN FELONIES. (a) This section applies to a
defendant who is:
[(1) indicted or waives indictment for a felony
prohibited or punishable under any of the following Penal Code
sections:
[(A) Section 20.04(a)(4);
[(B) Section 21.11;
[(C) Section 22.011;
[(D) Section 22.021;
[(E) Section 25.02;
[(F) Section 30.02(d);
[(G) Section 43.05;
[(H) Section 43.25; or
[(I) Section 43.26;
[(2) arrested for a felony described by Subdivision
(1) after having been previously convicted of or placed on deferred
adjudication for an offense described by Subdivision (1) or an
offense punishable under Section 30.02(c)(2), Penal Code; or
[(3) convicted of an offense under Section 21.07 or
21.08, Penal Code.
[(b) After a defendant described by Subsection (a)(1) is
indicted or waives indictment, the court in which the case is
pending shall require the defendant to provide to a law enforcement
agency one or more specimens for the purpose of creating a DNA
record. A law enforcement agency arresting a defendant described
by Subsection (a)(2), immediately after fingerprinting the
defendant and at the same location as the fingerprinting occurs,
shall require the defendant to provide one or more specimens for the
purpose of creating a DNA record. After a defendant described by
Subsection (a)(3) is convicted or placed on deferred adjudication,
the court shall require the defendant to provide to a law
enforcement agency one or more specimens for the purpose of
creating a DNA record.
[(c) A defendant described by Subsection (a)(1) or (3) may
at any time voluntarily provide a specimen for the purposes
described by Subsection (b).
[(d) The director by rule shall require law enforcement
agencies taking a specimen under this section to preserve the
specimen and maintain a record of the collection of the specimen. A
law enforcement agency taking a specimen under this section may use
any method to take the specimen approved by the director in the rule
adopted under this subsection. The rule adopted by the director
must prohibit a law enforcement agency from taking a blood sample
for the purpose of creating a DNA record under this section. The
agency may either send the specimen to the director or send to the
director an analysis of the sample performed at a laboratory chosen
by the agency and approved by the director.
[(e) Notwithstanding Subsection (d), on acquittal of a
defendant described by Subsection (a)(1) or (2) or dismissal of the
case against the defendant, the court shall order the law
enforcement agency taking the specimen to immediately destroy the
record of the collection of the specimen and require the department
to destroy the specimen and the record of its receipt.
[(f) A defendant who provides a specimen under this section
is not required to provide a specimen under Section 411.1472 or
provide a sample or specimen under Section 411.148 or 411.150
unless an attorney representing the state in the prosecution of
felony offenses establishes to the satisfaction of the director
that the interests of justice or public safety require that the
defendant provide additional samples or specimens.
[Sec. 411.1472. DNA RECORDS OF PERSONS PLACED ON COMMUNITY
SUPERVISION FOR CERTAIN OFFENSES. (a) This section applies to a
defendant placed on community supervision, including deferred
adjudication community supervision, for an offense listed in
Section 411.1471(a)(1).
[(b) A court that grants deferred adjudication or places a
defendant on community supervision shall at the time of entering
the order or making the placement require the defendant to report to
a law enforcement agency to provide one or more specimens for the
purpose of creating a DNA record.
[(c) The director by rule shall require law enforcement
agencies taking a specimen under this section to preserve the
specimen and maintain a record of the collection of the specimen. A
law enforcement agency taking a specimen under this section may use
any method to take the specimen approved by the director in the rule
adopted under this subsection. The rule adopted by the director
must prohibit a law enforcement agency from taking a blood sample
for the purpose of creating a DNA record under this section. The
agency may either send the specimen to the director or send to the
director an analysis of the sample performed at a laboratory chosen
by the agency and approved by the director.
[(d) A defendant who provides a specimen under this section
is not required to provide a sample or specimen under Section
411.148 or 411.150 unless an attorney representing the state in the
prosecution of felony offenses establishes to the satisfaction of
the director that the interests of justice or public safety require
that the defendant provide an additional sample or specimen].
Sec. 411.148. MANDATORY DNA RECORD. (a) This section
applies to:
(1) a suspect, defendant, or convict who is:
(A) arrested for a felony;
(B) ordered by a magistrate or court to provide a
sample under Section 411.150 or 411.154 or other law;
(C) confined in a penal institution operated by
or under contract with the Texas Department of Criminal Justice; or
(D) under the parole supervision of the Texas
Department of Criminal Justice; or
(2) a juvenile who is:
(A) confined in a facility operated by or under
contract with the Texas Youth Commission after adjudication for
conduct constituting a felony; or
(B) under the parole supervision of the Texas
Youth Commission after adjudication for conduct constituting a
felony.
(b) An individual described in Subsection (a) [DNA RECORDS
OF CERTAIN INMATES. (a) An inmate of the institutional division
or other penal institution] shall provide one or more DNA samples
[blood samples or other specimen taken by or at the request of the
institutional division] for the purpose of creating a DNA record.
(c)(1) If a law enforcement agency arrests a suspect
described by Subsection (a)(1)(A), the sheriff or other agency
accepting custody shall collect one or more samples for the purpose
of creating a DNA record.
(2) A criminal justice agency shall collect a sample
ordered by a magistrate or court in compliance with an order
described in Subsection (a)(1)(B).
(d) If an individual described in Subsection (a)(1)(C) is
received into custody by the Texas Department of Criminal Justice,
TDCJ [if the inmate has not already provided the required specimen
under other state law and if the inmate is ordered by a court to give
the sample or specimen or is serving a sentence 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 Subsection (a)(1);
or
[(B) an offense under federal law or laws of
another state that involves the same conduct as an offense
described by Subsection (a)(1).
[(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 TDCJ.
(e) If an individual described in Subsection (a)(1)(D) is
received into custody by the Texas Department of Criminal Justice,
TDCJ shall collect the sample from the individual at a time
determined by TDCJ.
(f) If an individual described in Subsection (a)(2) is
received into custody by the Texas Youth Commission, TYC shall
collect the sample from the individual during the initial
examination or at another time determined by TYC.
(g)(1) An individual may [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 individual [inmate] fails or refuses to provide a DNA
sample [blood sample or other specimen] under this section and
until the individual provides a sample determined to be adequate by
the director. A penal institution may take other lawful
administrative action against the individual [inmate].
(2) The Texas Department of Criminal Justice and Texas
Youth Commission [(e) The institutional division] shall notify
the director that an individual [inmate] described by Subsection
(a) is to be released from custody or supervision [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. TDCJ and TYC shall
determine the form of the notification described in this
subdivision in consultation with the director.
(3)[(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].
(4) An employee of a criminal justice agency [(g) An
employee of 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.
(h)(1) The Texas Department of Criminal Justice shall cause
to be collected a sample from an individual as soon as practicable
if:
(A) the individual described in Subsection
(a)(1)(D) is confined in another penal institution after sentence
and before admission to TDCJ; and
(B) the parole division informs the
institutional division that the individual is likely to be paroled
before being admitted to the division.
(2) The administrator of the other penal institution
shall cooperate with TDCJ as necessary to allow TDCJ to perform its
duties under this subsection.
(3) The Texas Youth Commission shall cause to be
collected a sample from an individual as soon as practicable if:
(A) the individual described in Subsection
(a)(2) is detained in another juvenile detention facility after
adjudication and before admission to TYC; and
(B) TYC determines the individual is likely to be
released before being admitted to TYC.
(4) The administrator of the other juvenile detention
facility shall cooperate with TYC as necessary to allow TYC to
perform its duties under this subsection.
(i)(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 or
not 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 which
involves the same conduct as an offense described in Subsection
(a); 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.
(j) The detention, arrest, or conviction of a person based
upon 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 [or specimen.
[(h) The Texas Department of Criminal Justice may contract
with an individual or entity for the provision of phlebotomy
services under this section].
Section 411.1481. DNA RECORDS: CAPITAL MURDER. (a) This
section applies to:
(1) an inmate serving a sentence in the institutional
division of the Texas Department of Criminal Justice for an offense
under Section 19.03, Penal Code (capital murder); and
(2) a juvenile committed to the Texas Youth Commission
for an adjudication as having engaged in delinquent conduct that
violates Section 19.03, Penal Code (capital murder).
(b) The institutional division or the commission, as
appropriate, shall obtain a sample or specimen from an inmate or
juvenile described by Subsection (a) for the purpose of creating a
DNA record and shall perform duties in respect to obtaining,
preserving, maintaining a record of, and sending the sample or
specimen to the director in the same manner as if the sample or
specimen were obtained under Section 411.148.
Sec. 411.149. VOLUNTARY DNA RECORD. An individual,
including an individual required to provide a DNA sample under this
subchapter [SUBMISSION OF BLOOD SAMPLES. 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.
Sec. 411.150. COURT ORDERED DNA RECORDS. (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 is:
(1) the target of an evidentiary search warrant
seeking the sample under Article 18.02(10), Code of Criminal
Procedure, for any offense; or
(2) convicted of or placed on community supervision or
deferred adjudication for any offense.
(b) A magistrate or court may order a suspect or defendant
to provide one or more samples to a criminal justice agency for the
purpose of creating a DNA record if the individual is released on
any form of bail or bond after arrest 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 indicted or waives indictment for a
felony offense.
(d) 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.
(e) A magistrate or court:
(1) should order a sheriff, deputy sheriff, or other
peace officer or employee representing a local law enforcement or
community supervision agency to collect or cause to be collected
one or more samples from an individual as required or permitted
under this section; and
(2) shall order the sample to be forwarded to the
director.
(f) 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, and forwarding the sample to the director. This
subsection does not authorize an otherwise unqualified person to
collect a blood sample [OF CERTAIN JUVENILES. (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].
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 on the grounds that the conviction or
adjudication on which the authority for including that individual's
DNA record was based:
(1) has been reversed and the case dismissed; or
(2) was the subject of a pardon expressly based on
subsequent proof of innocence.
(b) Except as provided by Subsection (c), the director shall
expunge all DNA records and identifiable information in the
database related to the individual and destroy the DNA sample from
the individual if the director receives from the individual [if the
person]:
(1) a written request for expunction;
(2) [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
the final [a] court order reversing and dismissing the conviction
or delinquency adjudication or a certified copy of a pardon
expressly based on subsequent proof of innocence; and
(3) any other information necessary to ascertain the
validity of the request.
(c)(1) After receiving a valid request for expunction, the
director may retain the DNA record as an anonymous DNA profile.
(2) 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.
(3) This section does not require the director to
destroy an item of physical evidence obtained from a sample under
this section.
(4) The director may by rule permit administrative
removal of a record, sample, or other information erroneously
included in a database.
(d) Except as provided by Subsection (e), Chapter 55, Code
of Criminal Procedure, and [issued under] Section 58.003, Family
Code, do not apply to a record maintained under this subchapter.
(e) [If the underlying investigation resulted in an arrest
but not a conviction, regular or deferred community supervision, or
other form of probation,] Chapter 55, Code of Criminal Procedure,
and Section 58.003, Family Code, apply to a record maintained under
this subchapter if:
(1) the underlying investigation resulted in an
arrest; and
(2) no conviction, regular or deferred community
supervision, or other form of probation arose out of the same
criminal episode described in Subdivision (1) [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].
Sec. 411.152. RULES. (a) The director may adopt rules
necessary to administer or enforce this subchapter, including a
rule expressly required or permitted under this subchapter.
(b) The director by rule may release or permit access to
information to confirm or deny whether an individual has a
pre-existing record under this subchapter. After receiving a
request on an individual whose DNA record has been expunged or
removed under Section 411.151, the director shall deny the
pre-existing 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 a 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 the individual provide an additional
sample.
(e)(1) The director by rule may exempt one or more
categories of felony offenses from the provisions of this
subchapter.
(2) The executive director of the Texas Department of
Criminal Justice by rule may exempt one or more categories of felony
offenses from the provisions of Section 411.148.
(3) The executive director of the Texas Youth
Commission by rule may exempt one or more categories of
adjudications for a felony offense from the provisions of Section
411.148.
(f)(1) An exemption under Subsection (e) must contain a
statement from the relevant director that the director's entity has
not received sufficient funds under a grant or appropriation to
collect, store, or analyze a sample from each exempted individual.
(2) A director contemplating an exemption under
Subsection (e)(2) and (3) shall give priority to collecting samples
from an individual confined, adjudicated, or under supervision for
conduct constituting:
(A) an offense:
(i) under Section 19.02, Penal Code
(murder), Section 19.03, Penal Code (capital murder), or Section
22.02, Penal Code (aggravated assault);
(ii) under Section 30.02, Penal Code
(burglary), if the offense is punishable under Subsection (c)(2) or
(d) of that section; or
(iii) for which the individual is required
to register as a sex offender under Chapter 62, Code of Criminal
Procedure;
(B) an attempt, conspiracy, or solicitation of an
offense described in Paragraph (A); or
(C) any offense if the individual has previously
been convicted of or adjudicated as having engaged in:
(i) an offense described in Paragraph (A);
(ii) an attempt, conspiracy, or
solicitation of an offense described in Paragraph (A); or
(iii) an offense under federal law or laws
of another state that involves the same conduct as an offense
described by Paragraph (A) or (B).
(g) The director by rule may determine whether a blood
sample or other specimen complies with a collection provision of
this subchapter.
Sec. 411.153. CONFIDENTIALITY OF 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 under this subchapter [blood
specimen taken under 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 [Sec. 411.1531. SEGREGATION OF RECORDS. The director
by rule shall segregate DNA records created under Sections 411.1471
and 411.1472 from records created under other provisions of this
chapter, except that if a DNA record of an individual would
otherwise be required to be created under Section 411.148 or
411.150, a record previously created for the individual under
Section 411.1471 or 411.1472 fulfills that requirement and may be
stored with records for other individuals created under Section
411.148 or 411.150.
[Sec. 411.1532. CONFIDENTIALITY OF PRECONFINEMENT DNA
RECORDS. (a) A DNA record created under Section 411.1471 or
411.1472 is confidential and is not subject to disclosure under the
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 specimen taken under Section 411.1471 or 411.1472
except as authorized by this chapter. An offense under this
subsection is a felony of the third degree.
[(c) A violation under this section constitutes official
misconduct].
Sec. 411.154. ENFORCEMENT BY COURT ORDER. (a) On the
request of the director, a district or county attorney or the
attorney general may petition a district court for an order
requiring a person to:
(1) comply with this subchapter or a rule adopted
under this subchapter; or
(2) refrain from acting in violation of this
subchapter or a rule adopted under this subchapter.
(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.
(c) An order issued under this section is appealable as a
criminal matter and if appealed is to be reviewed under an abuse of
discretion standard.
Sec. 411.155. ADMISSIBILITY AS EVIDENCE. (a) In a criminal
action or proceeding, evidence of a DNA profile is admissible to
prove or disprove any relevant fact, if the court finds that the
technique underlying the evidence is scientifically valid and was
properly applied.
(b) The admission of the DNA profile does not require a
finding of general acceptance in the relevant scientific community
of DNA profile evidence.
Sec. 411.156. 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) Except as provided by Subsection (c) an offense under
this section is a felony of the third degree.
(c) An offense under this section is a state jail felony if
the defendant proves by a preponderance of the evidence that a
specimen was provided or taken within 24 hours of the notification
described in Subsection (a)(2).
(d) It is no defense to prosecution under this section that
a sample was taken by force after initial refusal.
Sec. 411.157. 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) reasonably believes the person's act or omission
was in substantial compliance with this subchapter or a rule
adopted under this subchapter; and
(2) collects the sample in a reasonable manner
according to generally accepted medical or other professional
practices; or
(3) acts in the course of duties under this subchapter
or a rule adopted under this subchapter.
SECTION 4. 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 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 5. Article 38.39, Code of Criminal Procedure, as
added by Acts 77th Leg., Regular Session, Ch. 2, Section 1, is
renumbered as Article 38.43, Code of Criminal Procedure, and
amended by amending Subsection (d) to read as follows:
(d)(1) A law enforcement agency or crime laboratory may
destroy evidence in its possession if the entity reasonably
believes the evidence:
(A) does not contain biological material likely
to establish or exclude identity as described in Subsection (b)(2);
(B) is not relevant to a pending criminal or
civil action, including a direct appeal; or [and]
(C) is not subject to a court order prohibiting
destruction.
(2) The attorney representing the state, clerk, or
other officer in possession of evidence described by Subsection
(b)(2) may destroy the evidence, but only if the attorney, clerk, or
officer by mail notifies the defendant, the last attorney of record
for the defendant, and the convicting court of the decision to
destroy the evidence and a written objection is not received by the
attorney, clerk, or officer from the defendant, attorney of record,
or court before the 91st day after the later of the following dates:
(A) [(1)] the date on which the attorney
representing the state, clerk, or other officer receives proof that
the defendant received notice of the planned destruction of
evidence; or
(B) [(2)] the date on which notice of the planned
destruction of evidence is mailed to the last attorney of record for
the defendant.
SECTION 6. Section 11, Article 42.12, Code of Criminal
Procedure, is amended by amending Subdivision (19) to read as
follows:
(19) Reimburse a law enforcement agency, prosecutor,
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;
SECTION 7. Article 102.020, Code of Criminal Procedure, is
amended by amending Subsections (a) and (h) to read as follows:
(a) A person shall pay $100 [$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[, 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 8. Article 12.01, Code of Criminal Procedure, is
amended to read as follows:
(a) Except as provided in Article 12.03, felony indictments
may be presented within these limits, and not afterward:
(1) no limitation:
(A) murder, capital murder, [and] manslaughter,
or other offense if the offense resulted in the death of an
individual;
(B) sexual assault or other offense, if during
the investigation of the offense:
(i) biological matter is collected and
subjected to forensic DNA testing; and
(ii) the testing results show that the
matter does not match the victim or any other individual [person]
whose identity is readily ascertained; or
(C) an offense punishable as a first degree
felony or by confinement in the institutional division for life [an
offense involving leaving the scene of an accident under Section
550.021, Transportation Code, if the accident resulted in the death
of a person];
(2) ten years from the 18th birthday of the victim of
the offense:
(A) indecency with a child under Section
21.11(a), Penal Code; or
(B) sexual assault of a child under Section
22.011(a)(2), Penal Code;
(3) ten years from the date of the commission of the
offense:
(A) theft of any real, personal, or mixed
estate[, real, personal or mixed,] by an executor, administrator,
guardian, [or] trustee, or other fiduciary, with intent to defraud
another who is [any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust] interested in the [such] estate;
(B) theft by a public servant of government
property over which the public servant [he] exercises control in
the public servant's [his] official capacity;
(C) forgery, tampering with a governmental
record, or other offense that involves destroying, concealing,
altering, [the] uttering, using, possessing or passing of a
document or record [forged instruments];
(D) an offense subject to enhanced punishment
under Section 12.47 [injury to a child, elderly individual, or
disabled individual punishable as a felony of the first degree
under Section 22.04], Penal Code, because of bias or prejudice;
(E) sexual assault;[, except as provided by
Subdivision (1) or (5); or]
(F) arson;
(G) [(3) seven years from the date of the
commission of the offense:
[(A)] misapplication of fiduciary property or
property of a financial institution;
(H) [(B)] securing execution of document by
deception; or
(I) an offense described in Subdivisions [(C) a
violation under Sections] 153.403(22)-(39), Tax Code; or
(4) five years from the date of the commission of the
offense:
[(A) theft, burglary, robbery;
[(B) kidnapping;
[(C) injury to a child, elderly individual, or
disabled individual that is not punishable as a felony of the first
degree under Section 22.04, Penal Code; or
[(D) abandoning or endangering a child;
[(5) ten years from the 18th birthday of the victim of
the offense:
[(A) indecency with a child under Section
21.11(a)(1) or (2), Penal Code; or
[(B) except as provided by Subdivision (1),
sexual assault under Section 22.011(a)(2), Penal Code, or
aggravated sexual assault under Section 22.021(a)(1)(B), Penal
Code; or
[(6) three years from the date of the commission of the
offense:] all other felonies.
(b) If Subsection (a) provides more than one limitation
period for the same offense, the longest period of limitation shall
apply.
SECTION 9. The following sections are repealed:
(1) Section 411.0206, Government Code;
(2) Subsection (f), Section 481.160, Health and Safety
Code; and
(3) Subsection (e), Article 102.056, Code of Criminal
Procedure.
SECTION 10. This Act takes effect September 1, 2005.
SECTION 11. (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 arrested 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 under the parole supervision of the Texas
Department of Criminal Justice as described in Section
411.148(a)(1)(D), Government Code, as amended by this Act;
(D) is confined in a facility operated by or
under contract with the Texas Youth Commission or on parole
supervision after adjudication for conduct constituting a felony as
described in Section 411.148(a)(2), Government Code, as amended by
this Act;
(E) voluntarily submits or causes to be submitted
a DNA sample as described in Section 411.149, Government Code, as
amended by this Act;
(F) is ordered by a magistrate or court to
provide a DNA sample if the individual is the target of an
evidentiary search warrant under Article 18.02(10), Code of
Criminal Procedure, for any offense as described in Section
411.150(a)(1), Government Code, as amended by this Act;
(G) is ordered by a magistrate or court to
provide a DNA sample if the individual is convicted of or placed on
community supervision or deferred adjudication for any offense as
described in Section 411.150(a)(2), Government Code, as amended by
this Act;
(H) is ordered by a magistrate or court to
provide a specimen other than a blood 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(b), Government Code, as
amended by this Act;
(I) is ordered by a court to provide a specimen
other than a blood sample if the individual is indicted or waives
indictment for a felony as described in Section 411.150(c),
Government Code, as amended by this Act; or
(J) 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(d), 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 commission of 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 commission of a
felony. The commission shall collect the sample during the initial
examination or at any other reasonable time determined by the
commission.
[(d) Previous law continued in effect . . .]