Suspending limitations on conference committee
jurisdiction, H.B. No. 1068 (Driver/Hinojosa)
By: Hinojosa S.R. No. 1078
SENATE RESOLUTION
BE IT RESOLVED by the Senate of the State of Texas, 79th
Legislature, Regular Session, 2005, That Senate Rule 12.03 be
suspended in part as provided by Senate Rule 12.08 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) Senate Rule 12.03(2) is suspended to permit the
committee to omit amended Subsection (b), Section 411.142,
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) Senate Rule 12.03(1) is suspended to permit the
committee to add text to amended Subdivision (1), Subsection (g),
Section 411.142, 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) Senate Rule 12.03(1) is suspended to permit the
committee to add text to amended Subsection (f), Section 411.148,
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) Senate Rule 12.03(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) Senate Rule 12.03(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) Senate Rule 12.03(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) Senate Rule 12.03(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) Senate Rule 12.03(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) Senate Rule 12.03(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) Senate Rule 12.03(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.
_______________________________
President of the Senate
I hereby certify that the
above Resolution was adopted by
the Senate on May 29, 2005, by the
following vote: Yeas 31, Nays 0.
_______________________________
Secretary of the Senate