H.B. No. 40
1-1 AN ACT
1-2 relating to the requirement of DNA analysis of certain inmates and
1-3 to the creation of a DNA database; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 411, Government Code, is amended by
1-6 adding Subchapter G to read as follows:
1-7 SUBCHAPTER G. DNA DATABASE SYSTEM
1-8 Sec. 411.141. DEFINITIONS. In this subchapter:
1-9 (1) "DNA" means deoxyribonucleic acid.
1-10 (2) "DNA database" means the database that contains
1-11 forensic DNA records maintained by the director.
1-12 (3) "DNA laboratory" means a laboratory that performs
1-13 forensic DNA analysis on samples or specimens derived from a human
1-14 body or crime scene.
1-15 (4) "DNA record" means the results of a forensic DNA
1-16 analysis performed by a DNA laboratory and, if known, the name of
1-17 the person who is the subject of the analysis.
1-18 (5) "FBI" means the Federal Bureau of Investigation.
1-19 (6) "Institution of higher education" has the meaning
1-20 assigned by Section 61.003, Education Code.
1-21 (7) "Institutional division" means the institutional
1-22 division of the Texas Department of Criminal Justice.
1-23 (8) "Penal institution" has the meaning assigned by
1-24 Section 1.07, Penal Code.
2-1 Sec. 411.142. DNA DATABASE. (a) The director shall record
2-2 DNA data and establish and maintain a computerized database that
2-3 serves as the central depository in the state for DNA records.
2-4 (b) The director may maintain the DNA database in the
2-5 department's crime laboratory in Austin or another suitable
2-7 (c) The director may receive, analyze, store, and destroy a
2-8 record, blood sample, or other specimen for the purposes described
2-9 by Section 411.143.
2-10 (d) The DNA database must be capable of classifying,
2-11 matching, and storing the results of analyses of DNA and other
2-12 biological molecules.
2-13 (e) The director, with advice from the Department of
2-14 Information Resources, shall develop biennial plans to:
2-15 (1) improve the reporting and accuracy of the DNA
2-16 database; and
2-17 (2) develop and maintain a monitoring system capable
2-18 of identifying inaccurate or incomplete information.
2-19 (f) The DNA database must be compatible with the national
2-20 DNA identification index system (CODIS) used by the FBI to the
2-21 extent required by the FBI to permit the useful exchange and
2-22 storage of DNA records or information derived from those records.
2-23 (g) The DNA database may contain DNA records for the
2-25 (1) a person described by Section 411.148 or 411.150;
2-26 (2) a biological specimen of a deceased victim of a
3-1 (3) a biological specimen that is legally obtained in
3-2 the investigation of a crime, regardless of origin;
3-3 (4) an unidentified missing person, or unidentified
3-4 skeletal remains or body parts;
3-5 (5) a close biological relative of a person who has
3-6 been reported missing to a law enforcement agency;
3-7 (6) a person at risk of becoming lost, such as a child
3-8 or a person declared by a court to be mentally incapacitated, if
3-9 the record is required by court order or a parent, conservator, or
3-10 guardian of the person consents to the record; or
3-11 (7) an unidentified person, if the record does not
3-12 contain personal identifying information.
3-13 (h) The department shall establish standards for DNA
3-14 analysis by the DNA laboratory that meet or exceed the current
3-15 standards for quality assurance and proficiency testing for
3-16 forensic DNA analysis issued by the FBI. The DNA database may
3-17 contain only DNA records of DNA analyses performed according to the
3-18 standards adopted by the department.
3-19 Sec. 411.143. PURPOSES. (a) The principal purpose of the
3-20 DNA database is to assist federal, state, or local criminal justice
3-21 or law enforcement agencies in the investigation or prosecution of
3-22 sex-related offenses or other offenses in which biological evidence
3-23 is recovered.
3-24 (b) In criminal cases, the purposes of the DNA database are
3-25 only for use in the investigation of an offense, the exclusion or
3-26 identification of suspects, and the prosecution of the case.
3-27 (c) Other purposes of the database include:
4-1 (1) assisting in the recovery or identification of
4-2 human remains from a disaster or for humanitarian purposes;
4-3 (2) assisting in the identification of living or
4-4 deceased missing persons; and
4-5 (3) if personal identifying information is removed:
4-6 (A) establishing a population statistics
4-8 (B) assisting in identification research and
4-9 protocol development; and
4-10 (C) assisting in database or DNA laboratory
4-11 quality control.
4-12 (d) The information contained in the DNA database may not be
4-13 collected, analyzed, or stored to obtain information about human
4-14 physical traits or predisposition for disease unless the purpose
4-15 for obtaining the information is related to a purpose described by
4-16 this section.
4-17 (e) The director may not store a name or other personal
4-18 identifying information in the CODIS database. A file or reference
4-19 number to another information system may be included in the CODIS
4-20 database only if the director determines the information is
4-21 necessary to:
4-22 (1) generate an investigative lead or exclusion;
4-23 (2) support the statistical interpretation of a test
4-24 result; or
4-25 (3) allow for the successful implementation of the DNA
4-27 (f) Except as provided by this subchapter, the DNA database
5-1 may not include criminal history record information.
5-2 Sec. 411.144. REGULATION OF DNA LABORATORIES; PENALTIES.
5-3 (a) The director by rule shall establish procedures for a DNA
5-4 laboratory or criminal justice or law enforcement agency in the
5-5 collection, preservation, shipment, analysis, and use of a blood
5-6 sample or other specimen for forensic DNA analysis in a manner that
5-7 permits the exchange of DNA evidence between DNA laboratories and
5-8 the use of the evidence in a criminal case.
5-9 (b) A DNA laboratory or criminal justice or law enforcement
5-10 agency shall follow the procedures:
5-11 (1) established by the director under this section;
5-13 (2) specified by the FBI, including use of comparable
5-14 test procedures, laboratory equipment, supplies, and computer
5-16 (c) The director may at any reasonable time enter and
5-17 inspect the premises or audit the procedures of any DNA laboratory
5-18 that provides DNA records or DNA forensic analyses to the
5-19 department under this subchapter.
5-20 (d) A DNA laboratory conducting a DNA analysis under this
5-21 subchapter shall:
5-22 (1) forward the DNA record of the analysis to the
5-23 director at the department's crime laboratory or another location
5-24 as required by the department; and
5-25 (2) comply with this subchapter and rules adopted
5-26 under this subchapter.
5-27 (e) If a DNA laboratory violates this subchapter or a rule
6-1 adopted under this subchapter, the director may prohibit the
6-2 laboratory from exchanging DNA records with another DNA laboratory
6-3 or criminal justice or law enforcement agency. A DNA laboratory
6-4 prohibited from exchanging DNA records under this subsection may
6-5 petition the director for a hearing to show cause why the
6-6 laboratory's authority to exchange DNA records should be
6-8 (f) The director is the liaison for DNA data, records,
6-9 evidence, and other related matters between the FBI and a DNA
6-10 laboratory or a criminal justice or law enforcement agency.
6-11 (g) The director may:
6-12 (1) conduct DNA analyses; or
6-13 (2) contract with a laboratory, state agency, private
6-14 entity, or institution of higher education for services to perform
6-15 DNA analyses for the department.
6-16 (h) The institutional division may:
6-17 (1) collect a blood sample or other specimen for
6-18 forensic DNA analysis; or
6-19 (2) contract with a laboratory, state agency, private
6-20 entity, or institution of higher education for services to collect
6-21 a sample or other specimen under this subchapter.
6-22 Sec. 411.145. FEES. (a) The director may collect a
6-23 reasonable fee under this subchapter:
6-24 (1) for the DNA analysis of a blood sample or other
6-25 specimen submitted voluntarily to the department; or
6-26 (2) for providing population statistics data or other
6-27 appropriate research data.
7-1 (b) A fee collected under this section shall be deposited in
7-2 the state treasury to the credit of the state highway fund and may
7-3 be used only to defray the cost of administering this subchapter.
7-4 Sec. 411.146. BLOOD SAMPLES OR OTHER SPECIMENS. (a) The
7-5 director may not accept a blood sample or other specimen taken from
7-6 a person who is not deceased that is submitted voluntarily or as
7-7 required by Section 411.148 or 411.150 unless the sample or
7-8 specimen is collected in a medically approved manner by:
7-9 (1) a physician, registered nurse, licensed vocational
7-10 nurse, licensed clinical laboratory technologist; or
7-11 (2) another person who is trained to properly collect
7-12 blood samples or other specimens and supervised by a licensed
7-14 (b) A person collecting a blood sample or other specimen
7-15 under this section may not be held liable in any civil or criminal
7-16 action if the person collects the sample or specimen in a
7-17 reasonable manner according to generally accepted medical or other
7-18 professional practices.
7-19 (c) The director shall provide at no cost to a person
7-20 described by Subsection (a) the specimen vials, mailing tubes and
7-21 labels, report forms, and instructions for collection of blood
7-22 samples or other specimens under this section.
7-23 (d) A person who collects a blood sample or other specimen
7-24 under this section shall send the sample or specimen to:
7-25 (1) the director at the department's crime laboratory;
7-27 (2) another location as required by the director by
8-2 (e) A DNA laboratory may analyze a blood sample collected
8-3 under this section or other DNA specimen only:
8-4 (1) to type the genetic markers contained in the
8-5 sample or specimen;
8-6 (2) for criminal justice and law enforcement purposes;
8-8 (3) for other purposes described by this subchapter.
8-9 (f) If possible, a second DNA specimen must be obtained from
8-10 a suspect in a criminal investigation if forensic DNA evidence is
8-11 necessary for use as substantive evidence in the prosecution of a
8-13 Sec. 411.147. ACCESS TO DNA DATABASE INFORMATION. (a) The
8-14 director by rule shall establish procedures:
8-15 (1) to prevent unauthorized access to the DNA
8-16 database; and
8-17 (2) to release DNA records, specimens, or analyses
8-18 from the DNA database.
8-19 (b) The director may adopt rules relating to the internal
8-20 disclosure, access, or use of a sample, specimen, or DNA record in
8-21 the department or a DNA laboratory.
8-22 (c) The department may release a DNA sample, analysis, or
8-23 record only:
8-24 (1) to a criminal justice agency for law enforcement
8-25 identification purposes;
8-26 (2) for a judicial proceeding, if otherwise admissible
8-27 under law;
9-1 (3) for criminal defense purposes to a defendant, if
9-2 related to the case in which the defendant is charged; or
9-3 (4) if personally identifiable information is removed,
9-5 (A) a population statistics database;
9-6 (B) identification research and protocol
9-7 development; or
9-8 (C) quality control.
9-9 (d) The director may release a record of the number of
9-10 requests made for a defendant's DNA record and the name of the
9-11 requesting person.
9-12 (e) A law enforcement agency may have access to DNA
9-13 specimens through the agency's laboratory for law enforcement
9-15 (f) The director shall maintain a record of requests made
9-16 under this section.
9-17 Sec. 411.148. DNA RECORDS OF CERTAIN INMATES. (a) An
9-18 inmate of the institutional division or other penal institution
9-19 shall provide one or more blood samples or other specimens taken by
9-20 or at the request of the institutional division for the purpose of
9-21 creating a DNA record if the inmate is ordered by a court to give
9-22 the sample or specimen or is serving a sentence for:
9-23 (1) an offense under one or more of the following
9-24 Penal Code provisions:
9-25 (A) Section 21.11 (indecency with a child);
9-26 (B) Section 22.011 (sexual assault);
9-27 (C) Section 22.021 (aggravated sexual assault);
10-1 (D) Section 20.04(a)(4) (aggravated kidnapping),
10-2 if the defendant committed the offense with intent to violate or
10-3 abuse the victim sexually; or
10-4 (E) Section 30.02 (burglary), if the offense is
10-5 punishable under Subsection (d) of that section and the defendant
10-6 committed the offense with intent to commit a felony listed in
10-7 Paragraph (A), (B), (C), or (D) of this subdivision; or
10-8 (2) any offense if the inmate has previously been
10-9 convicted of:
10-10 (A) an offense described in Subsection (a)(1);
10-12 (B) an offense under federal law or laws of
10-13 another state that involves the same conduct as an offense
10-14 described by Subsection (a)(1).
10-15 (b) The institutional division shall obtain the sample or
10-16 specimen from an inmate of the division during the diagnostic
10-17 process. The institutional division shall obtain the sample or
10-18 specimen from an inmate confined in another penal institution as
10-19 soon as practicable if the Board of Pardons and Paroles informs the
10-20 division that the inmate is likely to be paroled before being
10-21 admitted to the division. The administrator of the other penal
10-22 institution shall cooperate with the institutional division as
10-23 necessary to allow the institutional division to perform its duties
10-24 under this section.
10-25 (c) The institutional division shall:
10-26 (1) preserve each blood sample or other specimen
11-1 (2) maintain a record of the collection of the sample
11-2 or specimen; and
11-3 (3) send the sample or specimen to the director for
11-4 scientific analysis under this subchapter.
11-5 (d) An inmate may not be held past a statutory release date
11-6 if the inmate fails or refuses to provide a blood sample or other
11-7 specimen under this section. A penal institution may take other
11-8 lawful administrative action against the inmate.
11-9 (e) The institutional division shall notify the director
11-10 that an inmate described by Subsection (a) is to be released from
11-11 the institutional division not earlier than the 120th day before
11-12 the inmate's release date and not later than the 90th day before
11-13 the inmate's release date.
11-14 Sec. 411.149. VOLUNTARY SUBMISSION OF BLOOD SAMPLES. A
11-15 person may voluntarily submit a blood sample or other specimen to
11-16 the department for the purpose of creating a DNA record under this
11-18 Sec. 411.150. DNA RECORDS OF CERTAIN JUVENILES. (a) A
11-19 juvenile who is committed to the Texas Youth Commission shall
11-20 provide one or more blood samples or other specimens taken by or at
11-21 the request of the commission for the purpose of creating a DNA
11-22 record if the juvenile is ordered by a juvenile court to give the
11-23 sample or specimen or is committed to the commission for an
11-24 adjudication as having engaged in delinquent conduct that violates:
11-25 (1) one or more of the following Penal Code
11-27 (A) Section 21.11 (indecency with a child);
12-1 (B) Section 22.011 (sexual assault);
12-2 (C) Section 22.021 (aggravated sexual assault);
12-3 (D) Section 20.04(a)(4) (aggravated kidnapping),
12-4 if the defendant committed the offense with the intent to violate
12-5 or abuse the victim sexually; or
12-6 (E) Section 30.02 (burglary), if the offense is
12-7 punishable under Subsection (d) and the defendant committed the
12-8 offense with the intent to commit a felony listed in Paragraph (A),
12-9 (B), (C), or (D) of this subdivision; or
12-10 (2) a penal law if the juvenile has previously been
12-11 adjudicated as having engaged in:
12-12 (A) a violation of a penal law described in
12-13 Subsection (a)(1); or
12-14 (B) a violation of a penal law under federal law
12-15 or the laws of another state that involves the same conduct as a
12-16 violation of a penal law described by Subsection (a)(1).
12-17 (b) The department, in conjunction with the Texas Youth
12-18 Commission, shall adopt rules regarding the collection,
12-19 preservation, and shipment of a blood sample or other specimen of a
12-20 juvenile described by this section.
12-21 Sec. 411.151. EXPUNCTION OF DNA RECORDS. (a) The director
12-22 shall expunge a DNA record of a person from the DNA database if the
12-24 (1) notifies the director in writing that the DNA
12-25 record has been ordered to be expunged under this section or
12-26 Chapter 55, Code of Criminal Procedure; and
12-27 (2) provides the director with a certified copy of the
13-1 court order that expunges the DNA record.
13-2 (b) A person may petition for the expunction of a DNA record
13-3 under the procedures established under Article 55.02, Code of
13-4 Criminal Procedure, if the person is entitled to the expunction of
13-5 records relating to the offense to which the DNA record is related
13-6 under Article 55.01, Code of Criminal Procedure.
13-7 Sec. 411.152. RULES. The director may adopt rules necessary
13-8 to administer or enforce this subchapter.
13-9 Sec. 411.153. CONFIDENTIALITY OF DNA RECORDS. (a) A DNA
13-10 record stored in the DNA database is confidential and is not
13-11 subject to disclosure under the open records law, Chapter 552.
13-12 (b) A person commits an offense if the person knowingly
13-13 discloses information in a DNA record or information related to a
13-14 DNA analysis of a blood specimen except as authorized by this
13-15 chapter. An offense under this subsection is a misdemeanor
13-16 punishable by:
13-17 (1) a fine of not more than $1,000;
13-18 (2) confinement in the county jail for not more than
13-19 six months; or
13-20 (3) both the fine and confinement.
13-21 (c) A violation under this section constitutes official
13-23 Sec. 411.154. ENFORCEMENT BY COURT ORDER. (a) On the
13-24 request of the director, a district or county attorney or the
13-25 attorney general may petition a district court for an order
13-26 requiring a person to:
13-27 (1) comply with this subchapter or a rule adopted
14-1 under this subchapter; or
14-2 (2) refrain from acting in violation of this
14-3 subchapter or a rule adopted under this subchapter.
14-4 (b) The court may issue an order requiring a person:
14-5 (1) to act in compliance with this subchapter or a
14-6 rule adopted under this subchapter;
14-7 (2) to refrain from acting in violation of this
14-8 subchapter or a rule adopted under this subchapter;
14-9 (3) to give a blood sample or other specimen; or
14-10 (4) if the person has already given a blood sample or
14-11 other specimen, to give another sample if good cause is shown.
14-12 (c) An order issued under this section is appealable as a
14-13 criminal matter and if appealed is to be reviewed under an abuse of
14-14 discretion standard.
14-15 SECTION 2. Section 11(a), Article 42.12, Code of Criminal
14-16 Procedure, as amended by Chapters 806 and 900, Acts of the 73rd
14-17 Legislature, Regular Session, 1993, is amended to read as follows:
14-18 (a) The judge of the court having jurisdiction of the case
14-19 shall determine the conditions of community supervision and may, at
14-20 any time, during the period of community supervision alter or
14-21 modify the conditions as provided by Sections 10 and 22 of this
14-22 article. The judge may impose any reasonable condition that is
14-23 designed to protect or restore the community, protect or restore
14-24 the victim, or punish, rehabilitate, or reform the defendant.
14-25 Conditions of community supervision may include, but shall not be
14-26 limited to, the conditions that the defendant shall:
14-27 (1) Commit no offense against the laws of this State
15-1 or of any other State or of the United States;
15-2 (2) Avoid injurious or vicious habits;
15-3 (3) Avoid persons or places of disreputable or harmful
15-5 (4) Report to the supervision officer as directed by
15-6 the judge or supervision officer and obey all rules and regulations
15-7 of the community supervision and corrections department;
15-8 (5) Permit the supervision officer to visit him at his
15-9 home or elsewhere;
15-10 (6) Work faithfully at suitable employment as far as
15-12 (7) Remain within a specified place;
15-13 (8) Pay his fine, if one be assessed, and all court
15-14 costs whether a fine be assessed or not, in one or several sums;
15-15 (9) Support his dependents;
15-16 (10) Participate, for a time specified by the judge in
15-17 any community-based program, including a community-service work
15-18 program under Section 16 of this article;
15-19 (11) Reimburse the county in which the prosecution was
15-20 instituted for compensation paid to appointed counsel for defending
15-21 him in the case, if counsel was appointed, or if he was represented
15-22 by a county-paid public defender, in an amount that would have been
15-23 paid to an appointed attorney had the county not had a public
15-25 (12) Remain under custodial supervision in a community
15-26 corrections facility, obey all rules and regulations of such
15-27 facility, and pay a percentage of his income to the facility for
16-1 room and board;
16-2 (13) Pay a percentage of his income to his dependents
16-3 for their support while under custodial supervision in a community
16-4 corrections facility;
16-5 (14) Submit to testing for alcohol or controlled
16-7 (15) Attend counseling sessions for substance abusers
16-8 or participate in substance abuse treatment services in a program
16-9 or facility approved or licensed by the Texas Commission on Alcohol
16-10 and Drug Abuse;
16-11 (16) Register under Article 6252-13c.1, Revised
16-13 (17) With the consent of the victim of a misdemeanor
16-14 offense or of any offense under Title 7, Penal Code, participate
16-15 in victim-defendant mediation;
16-16 (18) <
(19)> Submit to electronic monitoring;
16-17 (19) < (20)> Reimburse the general revenue fund < crime
16-18 victims compensation fund created under the Crime Victims
16-19 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes)>
16-20 for any amounts paid under the Crime Victims' Compensation Act
16-21 (Subchapter B, Chapter 56, of this code) from that fund to a
16-22 victim, as defined by Article 56.01 of this code, of the
16-23 defendant's offense;
16-24 (20) < (21)> Reimburse a law enforcement agency for the
16-25 analysis, storage, or disposal of raw materials, controlled
16-26 substances, chemical precursors, drug paraphernalia, or other
16-27 materials seized in connection with the offense;
17-1 (21) < (22)> Pay all or part of the reasonable and
17-2 necessary costs incurred by the victim for psychological counseling
17-3 made necessary by the offense or for counseling and education
17-4 relating to acquired immune deficiency syndrome or human
17-5 immunodeficiency virus made necessary by the offense; < and>
17-6 (22) < (23)> Make one payment in an amount not to
17-7 exceed $50 to a local crime stoppers program as defined by Section
17-8 414.001, Government Code, and as certified by the Crime Stoppers
17-9 Advisory Council; and
17-10 (23) Submit a blood sample or other specimen to the
17-11 Department of Public Safety under Subchapter G, Chapter 411,
17-12 Government Code, for the purpose of creating a DNA record of the
17-14 SECTION 3. (a) The director of the Department of Public
17-15 Safety shall adopt the rules required by Subchapter G, Chapter 411,
17-16 Government Code, as added by this Act, not later than January 1,
17-18 (b) The requirement that the institutional division of the
17-19 Texas Department of Criminal Justice collect a blood sample or
17-20 other specimen during the diagnostic process from an inmate
17-21 described by Section 411.148(a), Government Code, as added by this
17-22 Act, applies only to an inmate who has not completed the diagnostic
17-23 process before February 1, 1996. The division shall collect a
17-24 blood sample from an inmate confined in the division who has
17-25 completed the diagnostic process before February 1, 1996, not later
17-26 than the 90th day before the inmate's earliest parole eligibility
17-27 date, unless the inmate's earliest parole eligibility date is
18-1 before May 1, 1996, in which event the division shall collect the
18-2 sample as soon as possible after February 1, 1996.
18-3 SECTION 4. (a) The change in law made by this Act to
18-4 Section 11(a), Article 42.12, Code of Criminal Procedure, applies
18-5 only to a person convicted of an offense committed on or after
18-6 January 1, 1996. For the purpose of this section, an offense is
18-7 committed before January 1, 1996, if any element of the offense
18-8 occurs before that date.
18-9 (b) A person convicted of an offense committed before
18-10 January 1, 1996, is covered by the law in effect immediately before
18-11 this Act takes effect, and the former law is continued in effect
18-12 for that purpose.
18-13 SECTION 5. (a) The requirement that the Texas Youth
18-14 Commission collect a blood sample or other specimen from a juvenile
18-15 described by Section 411.150, Government Code, as added by this
18-16 Act, applies only to a juvenile who is adjudicated for conduct
18-17 violating a penal law of the state that occurs on or after January
18-18 1, 1996. For purposes of this section, conduct violating a penal
18-19 law of the state occurs before January 1, 1996, if any element of
18-20 the violation occurs before that date.
18-21 (b) A juvenile adjudicated for conduct violating a penal law
18-22 of the state that occurs before January 1, 1996, is covered by the
18-23 law in effect immediately before this Act takes effect, and the
18-24 former law is continued in effect for that purpose.
18-25 SECTION 6. This Act takes effect September 1, 1995.
18-26 SECTION 7. The importance of this legislation and the
18-27 crowded condition of the calendars in both houses create an
19-1 emergency and an imperative public necessity that the
19-2 constitutional rule requiring bills to be read on three several
19-3 days in each house be suspended, and this rule is hereby suspended.