83R20399 KEL-D

By: Eiland H.B. No. 1038

Substitute the following for H.B. No. 1038:

By: Pickett C.S.H.B. No. 1038

A BILL TO BE ENTITLED

AN ACT

relating to the creation of DNA records for the DNA database system; authorizing the imposition of a fee.

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

SECTION 1. Subchapter A, Chapter 102, Code of Criminal Procedure, is amended by adding Article 102.015 to read as follows:

Art. 102.015. FEE FOR COLLECTION OF DNA AFTER CERTAIN ARRESTS. (a) This article applies only to a defendant arrested for an offense other than an offense punishable by fine only.

(b) The court shall order a defendant to whom this article applies to pay a fee of $27 to the arresting law enforcement agency to reimburse the agency for the cost of the evidence collection kit used to collect a DNA sample from the defendant under Section 411.148(a)(1)(C), Government Code.

SECTION 2. Section 103.024, Government Code, is amended to read as follows:

Sec. 103.024. MISCELLANEOUS FEES AND COSTS: CODE OF CRIMINAL PROCEDURE. Fees and costs shall be paid or collected under the Code of Criminal Procedure as follows:

(1) filing of a restitution lien (Art. 42.22, Code of Criminal Procedure) . . . $5;

(2) issuance and service of a warrant of arrest for certain offenses if prescribed by the municipality (Art. 45.203, Code of Criminal Procedure) . . . not to exceed $25; [and]

(3) a fee for each agency or organization designated by a registered sex offender for receipt of a copy of an order making the registration nonpublic (Art. [Sec.] 62.353, Code of Criminal Procedure) . . . $20; and

(4) a fee to reimburse a law enforcement agency for the cost of an evidence collection kit (Art. 102.015, Code of Criminal Procedure) . . . $27.

SECTION 3. The heading to Section 411.1471, Government Code, is amended to read as follows:

Sec. 411.1471. DNA RECORDS OF PERSONS CHARGED WITH OR CONVICTED OF CERTAIN OFFENSES [FELONIES].

SECTION 4. Section 411.1471(a), Government Code, is amended to read as follows:

(a) This section applies to a defendant who has not already provided a sample to an arresting agency as required by Section 411.148(a)(1)(C) and who [is]:

(1) is 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;

(I) Section 43.26;

(J) Section 21.02; or

(K) Section 20A.03;

(2) is 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) is convicted of an offense under Section 21.07 or 21.08, Penal Code.

SECTION 5. Section 411.148, Government Code, is amended by amending Subsections (a), (d), (f), and (h) and adding Subsection (d-1) to read as follows:

(a) This section applies to:

(1) an individual, other than a juvenile, who is:

(A) ordered by a magistrate or court to provide a DNA sample under Section 411.154 or other law, including as part of an order granting community supervision to the individual; [or]

(B) confined in a penal institution operated by or under contract with the Texas Department of Criminal Justice; or

(C) arrested for any offense punishable as a Class B misdemeanor or higher; or

(2) a juvenile who, following an adjudication for conduct constituting a felony, is:

(A) confined in a facility operated by or under contract with the Texas Juvenile Justice Department [Youth Commission]; or

(B) placed on probation, if the conduct constitutes a felony described by Section 54.0409, Family Code.

(d) If an individual described by Subsection (a)(1)(B) is received into custody by the Texas Department of Criminal Justice, that department shall collect the sample from the individual during the diagnostic process or at another time determined by the Texas Department of Criminal Justice. If an individual described by Subsection (a)(2)(A) is received into custody by the Texas Juvenile Justice Department [Youth Commission], the Texas Juvenile Justice Department [youth commission] shall collect the sample from the individual during the initial examination or at another time determined by the Texas Juvenile Justice Department [youth commission]. If an individual who is required under this section or other law to provide a DNA sample is in the custody or under the supervision of another criminal justice agency, such as a community supervision and corrections department, a parole office, or a local juvenile probation department or parole office, that agency shall collect the sample from the individual at a time determined by the agency. The duties imposed by this subsection do not apply if a sample has already been collected under Subsection (d-1).

(d-1) If an individual described by Subsection (a)(1)(C) is lawfully arrested, the arresting agency shall collect the sample from the individual during the fingerprinting and booking process.

(f) The Texas Department of Criminal Justice shall notify the director that an individual described by Subsection (a)(1)(B) is to be released from custody not earlier than the 120th day before the individual's statutory release date and not later than the 90th day before the individual's statutory release date. The [An] individual [described by Subsection (a)(1)(B)] may not be held past the individual's statutory release date if the individual fails or refuses to provide a DNA sample under this section. The Texas Department of Criminal Justice may take lawful administrative action, including disciplinary action resulting in the loss of good conduct time, against an individual [described by Subsection (a)(1)(B)] who refuses to provide a sample as required by Subsection (d) [under this section]. In this subsection, "statutory release date" means the date on which an individual is discharged from the individual's controlling sentence.

(h) An employee of a criminal justice agency or of an arresting agency may use force against an individual 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 the sample.

SECTION 6. Section 411.148(i)(1), Government Code, is amended to read as follows:

(1) The Texas Department of Criminal Justice as soon as practicable shall cause a sample to be collected from an individual, other than an individual who has already provided a sample to an arresting agency as required by Subsection (a)(1)(C), [described by Subsection (a)(1)(B)] if:

(A) the individual is confined in another penal institution after sentencing and before admission to the department; and

(B) the department determines that the individual is likely to be released before being admitted to the department.

SECTION 7. Section 411.151, Government Code, is amended by amending Subsection (a) and adding Subsection (f) to read as follows:

(a) The director shall expunge a DNA record of an individual from a DNA database, including the destruction of the associated DNA sample, if the person:

(1) notifies the director in writing that the DNA record has been ordered to be expunged under this section or Chapter 55, Code of Criminal Procedure, and provides the director with a certified copy of the court order that expunges the DNA record; or

(2) provides the director with:

(A) a certified copy of a court order issued under Section 58.003, Family Code, that seals the juvenile record of the adjudication that resulted in the DNA record;

(B) a certified copy of the judgment in the case showing an acquittal, an entry of nolle prosequi, or a discharge and dismissal after the successful completion of a pretrial diversion program or the successful completion of a period of deferred adjudication community supervision; or

(C) if the DNA sample was collected in relation to the arrest of the person, a sworn affidavit stating that no charges arising from the arrest have been filed before the first anniversary of the date of the person's arrest.

(f) When a person's DNA sample and DNA record are expunged from the DNA database under this subchapter, the director or the director's designee shall ensure that the person's DNA sample and DNA record are also expunged from the CODIS database.

SECTION 8. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies only to a person arrested for an offense committed on or after the effective date of this Act. A person arrested for an offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this subsection, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

(b) The change in law made by Section 7 of this Act in amending Section 411.151, Government Code, applies to the expunction of a DNA record from a DNA database regardless of whether the record was created before, on, or after the effective date of this Act.

SECTION 9. (a) Except as provided by Subsections (b) and (c) of this section, this Act takes effect September 1, 2013.

(b) Sections 1 through 6 of this Act take effect 30 days after the date on which the comptroller of public accounts certifies that the Department of Public Safety of the State of Texas has received sufficient gifts or grants or funds from sources other than the General Appropriations Act to improve its crime laboratory equipment and services to enable the analysis of DNA samples collected from arrested persons as required by Section 411.148(a)(1)(C), Government Code. The department shall provide to the comptroller timely notice of the receipt of sufficient gifts, grants, or funds.

(c) If the comptroller by September 1, 2015, does not make the certification described by Subsection (b) of this section, Sections 1 through 6 of this Act have no effect.