82R22242 NAJ-D

By: Madden H.B. No. 3383

Substitute the following for H.B. No. 3383:

By: Driver C.S.H.B. No. 3383

A BILL TO BE ENTITLED

AN ACT

relating to private DNA laboratories performing forensic analyses on samples or specimens related to the investigation or prosecution of certain criminal offenses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Subchapter G, Chapter 411, Government Code, is amended to read as follows:

SUBCHAPTER G. DNA [DATABASE SYSTEM]

SECTION 2. Subchapter G, Chapter 411, Government Code, is amended by adding Sections 411.155 and 411.156 to read as follows:

Sec. 411.155. FORENSIC ANALYSES PERFORMED BY PRIVATE DNA LABORATORIES: CERTAIN OFFENSES AGAINST PROPERTY. (a) This section applies only to a sample or specimen related to the investigation or prosecution of an offense under Chapter 28, 29, 30, or 31, Penal Code.

(b) A law enforcement agency may submit a sample or specimen described by Subsection (a) to a private DNA laboratory for forensic analysis if:

(1) the private DNA laboratory is accredited by:

(A) the department; and

(B) the American Society of Crime Laboratory Directors, Forensic Quality Services International, or any other nonprofit professional association of persons actively involved in forensic science that is nationally recognized within the forensic science community; and

(2) the law enforcement agency pays all costs of the analysis.

Sec. 411.156. QUALITY ASSURANCE REVIEW FOR FORENSIC ANALYSES PERFORMED BY PRIVATE DNA LABORATORIES. (a) In this section, "analyst" means a person employed at a DNA laboratory who is qualified to perform some or all aspects of a forensic DNA analysis on a sample or specimen derived from a human body, physical evidence, or a crime scene.

(b) Subject to Subsection (c), with respect to forensic analyses performed by a private DNA laboratory under Section 411.155, a public DNA laboratory that services the geographic area where the law enforcement agency is located shall perform the quality assurance reviews required by the Federal Bureau of Investigation (FBI).

(c) If the public DNA laboratory does not have the personnel capacity to perform the necessary quality assurance reviews and if FBI regulations allow contractors to be used for that purpose, the public DNA laboratory shall use contractors to perform the quality assurance reviews required by the FBI. The law enforcement agency requesting the DNA testing shall pay the cost of the quality assurance reviews.

(d) If FBI regulations do not allow contractors to be used as described by Subsection (c) or if contractors are not available for that purpose, the public DNA laboratory shall enter into a barter agreement with the private DNA laboratory to enable personnel at the public DNA laboratory to perform the necessary quality assurance reviews. Under the barter agreement, the private DNA laboratory shall perform forensic DNA analyses for the public DNA laboratory in relation to the investigation or prosecution of a variety of offenses:

(1) at no cost to the public DNA laboratory; and

(2) in a volume necessary to enable the public DNA laboratory to perform all quality assurance reviews made necessary by this section.

(e) The barter agreement required by Subsection (d) must be calculated based on the following assumptions:

(1) unless the analyst has other testing-related duties, an analyst employed at the public DNA laboratory is able to perform quality assurance reviews each week on 50 samples or specimens analyzed by the private DNA laboratory;

(2) the public DNA laboratory is not required to perform a quality assurance review on a sample or specimen that fails to generate a DNA profile meeting the requirements necessary for uploading the sample or specimen to the CODIS database;

(3) the private DNA laboratory must agree to perform a set amount of forensic analyses, as calculated under Subsection (f), for the public DNA laboratory at no charge not later than the 60th day after the date the private DNA laboratory receives the samples or specimens;

(4) subject to Subdivision (2), the public DNA laboratory must perform a quality assurance review on each of the forensic analyses performed by the private DNA laboratory under Subdivision (3); and

(5) the public DNA laboratory must send the private DNA laboratory different types or categories of samples or specimens, such as a category relating to unscreened sexual assault evidence collection kits, in a proportion equal to the different types or categories of samples and specimens received for purposes of analysis by the public DNA laboratory during the 12-month period preceding the date of the agreement.

(f) The set amount of forensic analyses performed at no charge by a private DNA laboratory under Subsection (e)(3) as part of the barter agreement is equal to the total number of samples or specimens submitted to the public DNA laboratory for quality assurance review, divided by 50, which then must be multiplied by the total number of samples or specimens for which the public DNA laboratory has performed forensic analyses during the 12-month period preceding the date of the agreement, divided by the number of analysts employed at the public DNA laboratory during that period, and further divided by 52. The amount must be rounded to the nearest whole number.

(g) The public DNA laboratory is entitled to retain any costs saved as a result of the barter agreement and shall use the savings, if any, to expedite forensic analyses of samples or specimens related to violent offenses.

SECTION 3. This Act takes effect September 1, 2011.