87R3511 JSC-D

By: González of El Paso H.B. No. 1838

A BILL TO BE ENTITLED

AN ACT

relating to intelligence databases for combinations and criminal street gangs.

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

SECTION 1. Articles 67.054(b) and (c), Code of Criminal Procedure, are amended to read as follows:

(b) Criminal information collected under this chapter relating to a criminal street gang must:

(1) be relevant to the identification of an organization that is reasonably suspected of involvement in criminal activity; and

(2) consist of:

(A) a judgment under any law that includes, as a finding or as an element of a criminal offense, participation in a criminal street gang;

(B) a self-admission by an individual of criminal street gang membership that is made during a judicial proceeding; or

(C) except as provided by Subsection (c), any two of the following:

(i) a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

(ii) [an identification of the individual as a criminal street gang member by a reliable informant or other individual;

[(iii)] a corroborated identification of the individual as a criminal street gang member by a reliable [an] informant or other individual [of unknown reliability];

(iii) [(iv)] evidence that the individual frequents a documented area of a criminal street gang, [and] associates with known criminal street gang members, and is not a resident of the documented area;

(iv) [(v)] evidence that the individual has [uses, in more than an incidental manner, criminal street gang dress, hand signals,] tattoos[, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed,] that are associated with a criminal street gang that operates in an area frequented by the individual and described by Subparagraph (iii) [(iv)];

(v) [(vi)] evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity;

(vi) [(vii)] evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

(vii) [(viii)] evidence of the individual's use of technology, including the Internet, to recruit new criminal street gang members.

(c) Evidence described by Subsections (b)(2)(C)(iii) [(b)(2)(C)(iv)] and (vi) [(vii)] is not sufficient to create the eligibility of a person's information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C).

SECTION 2. Subchapter B, Chapter 67, Code of Criminal Procedure, is amended by adding Article 67.055 to read as follows:

Art. 67.055. NOTIFICATION OF PERSON. (a) An agency that submits information relating to a person to an intelligence database described by this chapter shall provide to the person by certified mail to the person's last known address not later than the 60th day after the date the information was submitted:

(1) notification regarding the inclusion of the person's information in the intelligence database;

(2) a description of the process for disputing the inclusion of information in the database, including associated costs or fees, processes and timelines, and any potential evidence necessary for purposes of a dispute; and

(3) a description of the process for removing information from the database following renunciation of criminal street gang membership.

(b) The department shall post on the department's Internet website information regarding the processes described by Subsections (a)(2) and (3).

SECTION 3. Article 67.101, Code of Criminal Procedure, is amended by adding Subsection (d) to read as follows:

(d) A person's inclusion in an intelligence database described by this chapter may not:

(1) be made available for or used in a determination of the person's employment eligibility;

(2) limit any rights given to the person by the United States Constitution or Texas Constitution; or

(3) limit the person's ability to obtain any federal or state license, permit, or benefit.

SECTION 4. Subchapter C, Chapter 67, Code of Criminal Procedure, is amended by adding Article 67.104 to read as follows:

Art. 67.104. ANNUAL SUMMARY. (a) The department shall annually summarize the information that is in the department's intelligence database maintained under Article 67.052.

(b) In the summary, the department shall disaggregate the total number of persons with information in the intelligence database by race, age, gender, ethnicity, and residential zip code. The department shall also specify the number of persons whose information has been retained in the intelligence database for more than five years and for more than 10 years.

(c) The department shall make the summary available on the department's Internet website.

SECTION 5. The heading to Subchapter D, Chapter 67, Code of Criminal Procedure, is amended to read as follows:

SUBCHAPTER D. REMOVAL OF INFORMATION AFTER EXPIRATION OF CERTAIN

PERIOD

SECTION 6. Articles 67.202(a), (b), (c), and (d), Code of Criminal Procedure, are amended to read as follows:

(a) On receipt of a written request of a person or the parent or guardian of a child that includes a showing by the person or the parent or guardian that a law enforcement agency may have collected criminal information under this chapter relating to the person or child that is inaccurate, [or] does not comply with the submission criteria under Article 67.054(b), or violates 28 C.F.R. Part 23, the Texas Constitution, or the United States Constitution, the head of the agency or the designee of the agency head shall review criminal information collected by the agency under this chapter relating to the person or child to determine whether [if]:

(1) probable cause [reasonable suspicion] exists to believe that the information is accurate; [and]

(2) the information complies with the submission criteria established under Article 67.054(b); and

(3) inclusion of the information in the applicable intelligence database violates 28 C.F.R. Part 23, the Texas Constitution, or the United States Constitution.

(b) If, after conducting a review of criminal information under Subsection (a), the agency head or designee determines that probable cause [reasonable suspicion] does not exist to believe that the information is accurate, [or] determines that the information does not comply with the submission criteria, or determines that inclusion of the information in the intelligence database violates 28 C.F.R. Part 23, the Texas Constitution, or the United States Constitution, the agency shall:

(1) promptly destroy all records containing the information; and

(2) not later than the 10th business day after the date of the determination, notify the department and the person who requested the review of the agency's determination and the destruction of the records.

(c) If, after conducting a review of criminal information under Subsection (a), the agency head or designee determines that probable cause [reasonable suspicion] exists to believe that the information is accurate, [and] determines that the information complies with the submission criteria, and determines that inclusion of the information in the intelligence database does not violate 28 C.F.R. Part 23, the Texas Constitution, or the United States Constitution, the agency shall notify the person who requested the review:

(1) of the agency's determination not later than the 10th business day after the date of the determination; and

(2) that the person is entitled to seek judicial review of the agency's determination under Article 67.203 not later than the 60th day after the date the person receives the written notification by the agency head or designee.

(d) Not later than the 10th business day after the date of [On] receipt of notice under Subsection (b)(2), the department [immediately] shall destroy all records containing the information that is the subject of the notice in the intelligence database maintained by the department under Article 67.052.

SECTION 7. Article 67.203, Code of Criminal Procedure, is amended to read as follows:

Art. 67.203. JUDICIAL REVIEW. (a) Not later than the 60th day after the date the person receives written notice under Article 67.202(c), a [A] person who is entitled to seek judicial review of a determination made under that subsection [Article 67.202(c)] may file a petition for review in district court in the county in which the person resides.

(a-1) A court may grant judicial review of a petition filed after the date prescribed by Subsection (a) if the petitioner shows good cause for filing after that date.

(b) On the filing of a petition for review under Subsection (a), the district court shall conduct a hearing in which the court shall make available to the person's counsel under Article 39.14 all criminal information that is the subject of the determination. The hearing shall be conducted [an in camera review of the criminal information that is the subject of the determination] to determine whether [if]:

(1) probable cause [reasonable suspicion] exists to believe that the information is accurate; [and]

(2) the information complies with the submission criteria under Article 67.054(b); and

(3) the inclusion of the information in the applicable intelligence database violates 28 C.F.R. Part 23, the Texas Constitution, or the United States Constitution.

(c) If, after a hearing [conducting an in camera review of criminal information under Subsection (b)], the court finds that probable cause [reasonable suspicion] does not exist to believe that the information is accurate, [or] finds that the information does not comply with the submission criteria, or finds that inclusion of the information in the intelligence database violates 28 C.F.R. Part 23, the Texas Constitution, or the United States Constitution, not later than the 10th business day after the date the court makes its finding, the court shall:

(1) order the law enforcement agency that collected the information to promptly destroy all records containing the information; and

(2) notify the department of the court's finding [determination] and the destruction of the records.

(c-1) Not later than the 10th business day after the date of receipt of notice under Subsection (c)(2), the department shall destroy all records containing the information that is the subject of the notice in the intelligence database maintained by the department under Article 67.052.

(d) A petitioner may appeal a final judgment of a district court [conducting an in camera review] under this article.

(e) Information that is the subject of [an in camera] review under this article is confidential and may not be disclosed, except the information is subject to disclosure as required by Article 39.14 or under a subpoena or other legal process.

SECTION 8. Subchapter E, Chapter 67, Code of Criminal Procedure, is amended by adding Article 67.204 to read as follows:

Art. 67.204. RIGHT TO REMOVAL OF INFORMATION AFTER RENUNCIATION. (a) A person who is no longer a member of a criminal street gang may renounce gang membership. The information of a person who renounces gang membership must be removed from the applicable intelligence database described by this chapter on the second anniversary of the renunciation.

(b) The department shall adopt rules and forms for the process by which a former member of a criminal street gang may renounce membership, provide evidence that the person is no longer a member of the gang, and be removed from an intelligence database.

SECTION 9. This Act takes effect September 1, 2021.