79R20191 RMB-F
Suspending limitations on conference committee
jurisdiction, H.B. No. 1068 (Driver/Hinojosa)
By: Driver H.R. No. 2239
R E S O L U T I O N
BE IT RESOLVED by the House of Representatives of the State of
Texas, 79th Legislature, Regular Session, 2005, That House Rule 13,
Section 9(a), be suspended in part as provided by House Rule 13,
Section 9(f), to enable the conference committee appointed to
resolve the differences on House Bill 1068 (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) to consider and
take action on the following matters:
(1) House Rule 13, Section 9(a)(2), is suspended to permit
the committee to omit amended Section 411.142(b), Government Code.
The omitted language reads 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.
Explanation: The change is necessary to permit the
continuation of current law.
(2) House Rule 13, Section 9(a)(1), is suspended to permit
the committee to add text to amended Section 411.142(g)(1),
Government Code, to read as follows:
(1) an individual [a person] described by this
subchapter, including Section 411.1471, 411.148, or 411.150;
Explanation: The change is necessary to clarify that the DNA
records of an individual described by Section 411.1471, Government
Code, may be contained in the DNA database.
(3) House Rule 13, Section 9(a)(1), is suspended to permit
the committee to add text to amended Section 411.148(f), Government
Code, to read as follows:
(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 Youth Commission
shall notify the director that an individual described by
Subsection (a) is to be released from custody not earlier than the
10th day before the individual'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.
Explanation: The change is necessary to require the Texas
Youth Commission to notify the director of the Department of Public
Safety of the release from custody of certain individuals not
earlier than the 10th day before the date each individual is to be
released.
(4) House Rule 13, Section 9(a)(2), is suspended to permit
the committee to omit amended Section 411.150, Government Code.
The omitted text reads 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;
(2) is released on any form of bail or bond after
arrest for a felony offense; or
(3) is indicted or waives indictment 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 placed on community supervision or
deferred adjudication for a felony offense.
(c) 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.
(d) 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.
(e) 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.]
Explanation: The change is necessary to permit the
continuation of current law.
(5) House Rule 13, Section 9(a)(2), is suspended to permit
the committee to omit Sections 411.155 and 411.156, Government
Code. The omitted language reads 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.
Explanation: The change is necessary to prevent the creation
of an offense based on the refusal to provide a DNA sample and the
imposition of liability on certain individuals.
(6) House Rule 13, Section 9(a)(3), is suspended to permit
the committee to add text to amended Article 17.47, Code of Criminal
Procedure, to read as follows:
Art. 17.47. CONDITIONS REQUIRING SUBMISSION OF SPECIMEN.
(a) 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.
(b) A magistrate 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.
Explanation: The change is necessary to require the
provision of a DNA sample by certain defendants.
(7) House Rule 13, Section 9(a)(1), is suspended to permit
the committee to change the text of amended Subdivision (19),
Subsection (a), Section 11, Article 42.12, Code of Criminal
Procedure, to read as follows:
(19) Reimburse a law enforcement agency for the
analysis, storage, or disposal of raw materials, controlled
substances, chemical precursors, drug paraphernalia, or other
materials seized in connection with the offense;
Explanation: The change is necessary to permit the
continuation of current law.
(8) House Rule 13, Section 9(a)(2), is suspended to permit
the committee to omit amended Subsections (a) and (h), Article
102.020, Code of Criminal Procedure. The omitted language reads as
follows:
(a) A person shall pay $160 [$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 90 [35] percent of the
funds received under this article in the state treasury to the
credit of the state highway fund and 10 [65] percent of the funds
received under this article to the credit of an institution
administering the functions of the Missing Persons DNA Database as
described by Section 105.451, Education Code [the criminal justice
planning account in the general revenue fund].
Explanation: The change is necessary to prevent the
imposition of additional costs on conviction that are related to
the regulation of DNA samples and forensic labs.
(9) House Rule 13, Section 9(a)(2), is suspended to permit
the committee to omit Section 411.1471, Government Code, from the
list of sections to be repealed.
Explanation: The change is necessary to permit the
continuation of current law.
(10) House Rule 13, Section 9(a)(1), is suspended to permit
the committee to change the text of Subsections (a) and (c) of
SECTION 22 to read as follows:
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 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)(B), Government Code, as
amended by this Act;
(B) is confined in a facility operated by or
under contract with the Texas Youth Commission after adjudication
for conduct constituting a felony as described in Section
411.148(a)(2), Government Code, as amended by this Act;
(C) voluntarily submits or causes to be submitted
a DNA sample as described in Section 411.149, Government Code, as
amended by this Act; or
(D) is ordered by a magistrate or court to
provide a DNA sample under Subsection G, Chapter 411, Government
Code.
(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.
Explanation: The change is necessary to conform the
transition language to the substantive provisions of the bill.