By: Davis S.B. No. 1636
A BILL TO BE ENTITLED
AN ACT
relating to the collection, analysis, and preservation of sexual
assault or DNA evidence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 411.151, Government Code, is amended by
adding Subsection (e) to read as follows:
(e) The department's failure to expunge a DNA record as
required by this section may not serve as the sole grounds for a
court in a criminal proceeding to exclude evidence based on or
derived from the contents of that record.
SECTION 2. Section 420.003, Government Code, is amended by
amending Subdivisions (1) and (6) and adding Subdivisions (1-a),
(1-b), and (1-c) to read as follows:
(1) "Accredited crime laboratory" means a crime
laboratory, as that term is defined by Article 38.35, Code of
Criminal Procedure, that has been accredited under Section
411.0205.
(1-a) "Advocate" means a person who provides advocacy
services as an employee or volunteer of a sexual assault program.
(1-b) "Department" means the Department of Public
Safety of the State of Texas.
(1-c) "Law enforcement agency" means a state or local
law enforcement agency in this state with jurisdiction over the
investigation of a sexual assault.
(6) "Sexual assault nurse examiner" means a registered
nurse who has completed a service-approved examiner training course
described by Section 420.011.
SECTION 3. Section 420.031(e), Government Code, is amended
to read as follows:
(e) Evidence collected under this section may not be
released unless a signed, [the survivor of the offense or a legal
representative of the survivor signs a] written consent to release
the evidence is obtained as provided by Section 420.073.
SECTION 4. Subchapter B, Chapter 420, Government Code, is
amended by adding Sections 420.033, 420.034, 420.035, and 420.036
to read as follows:
Sec. 420.033. PRESENCE OF PHYSICIAN NOT REQUIRED FOR
FORENSIC MEDICAL EXAMINATION. A sexual assault nurse examiner may
conduct a forensic medical examination without the presence or
participation of a physician.
Sec. 420.034. COLLECTION AND ANALYSIS OF SEXUAL ASSAULT
EVIDENCE. (a) A law enforcement agency that receives sexual
assault evidence collected under this chapter or other law shall
submit that evidence to an accredited crime laboratory for analysis
not later than the 10th day after the date on which that evidence
was received.
(b) A person who submits sexual assault evidence to an
accredited crime laboratory under this chapter or other law shall
provide the following signed, written certification with each
submission: "This evidence is being submitted by (name of person
making submission) in connection with a criminal investigation."
(c) If sufficient personnel and resources are available, an
accredited crime laboratory shall complete its analysis of sexual
assault evidence submitted under this chapter or other law not
later than the 90th day after the date on which the laboratory
received the evidence.
(d) To ensure the completion of analyses within the period
required by Subsection (c), the department and other applicable
public accredited crime laboratories may contract with private
accredited crime laboratories as appropriate to perform those
analyses, subject to the necessary quality assurance reviews by the
public accredited crime laboratories.
(e) The failure of a law enforcement agency to submit sexual
assault evidence within the period required by this section does
not affect the authority of:
(1) the agency to submit the evidence to an accredited
crime laboratory for analysis; or
(2) an accredited crime laboratory to analyze the
evidence or provide the results of that analysis to appropriate
persons.
Sec. 420.035. DATABASE COMPARISON REQUIRED. On the request
of any appropriate person and after an evidence collection kit
containing biological evidence has been analyzed by an accredited
crime laboratory and any necessary quality assurance reviews have
been performed, the department shall compare the biological
evidence with DNA profiles maintained in:
(1) state databases, including the DNA database
maintained under Subchapter G, Chapter 411, if the amount and
quality of the analyzed sample meet the requirements of the state
database comparison policies; and
(2) the CODIS DNA database established by the Federal
Bureau of Investigation, if the amount and quality of the analyzed
sample meet the requirements of the bureau's CODIS comparison
policies.
Sec. 420.036. CHAIN OF CUSTODY. Medical, law enforcement,
department, and laboratory personnel who handle sexual assault
evidence under this chapter or other law shall maintain the chain of
custody of the evidence from the time the evidence is collected
until the time the evidence is destroyed.
SECTION 5. Sections 420.072(a) and (b), Government Code,
are amended to read as follows:
(a) A communication or record that is confidential under
this subchapter may be disclosed in court or in an administrative
proceeding if:
(1) the proceeding is brought by the survivor against
an advocate or a sexual assault program or is a criminal proceeding
or a certification revocation proceeding in which disclosure is
relevant to the claims or defense of the advocate or sexual assault
program; or
(2) the survivor or other appropriate person [a person
authorized to act on behalf of the survivor] consents in writing to
the release of the confidential information as provided by Section
420.073.
(b) A communication or record that is confidential under
this subchapter may be disclosed only to:
(1) medical or law enforcement personnel if the
advocate determines that there is a probability of imminent
physical danger to any person for whom the communication or record
is relevant or if there is a probability of immediate mental or
emotional injury to the survivor;
(2) a governmental agency if the disclosure is
required or authorized by law;
(3) a qualified person to the extent necessary for a
management audit, financial audit, program evaluation, or
research, except that a report of the research, audit, or
evaluation may not directly or indirectly identify a survivor;
(4) a person authorized to receive the disclosure as a
result of [who has the] written consent obtained under [of the
survivor or of a person authorized to act on the survivor's behalf
as provided by] Section 420.073; or
(5) an advocate or a person under the supervision of a
counseling supervisor who is participating in the evaluation or
counseling of or advocacy for the survivor.
SECTION 6. Section 420.073, Government Code, is amended by
amending Subsection (a) and adding Subsections (a-1) and (a-2) to
read as follows:
(a) Consent for the release of confidential information
must be in writing and signed by:
(1) the survivor, if the survivor is 13 years of age or
older;
(2) the survivor's parent or guardian or an employee of
the Department of Family and Protective Services, if the survivor
is younger than 13 years of age; or
(3) the survivor's [the survivor, a parent or legal
guardian if the survivor is a minor, a legal guardian if the
survivor has been adjudicated incompetent to manage the survivor's
personal affairs, an attorney ad litem appointed for the survivor,
or a] personal representative, if the survivor is deceased.
(a-1) For purposes of Subsection (a)(1), a written consent
signed by an incapacitated person, as that term is defined by
Section 601, Texas Probate Code, is effective regardless of whether
the incapacitated person's guardian, guardian ad litem, or other
legal agent signs the release. If the incapacitated person is
unable to provide a signature and the guardian, guardian ad litem,
or other legal agent is unavailable or unwilling to sign the
release, then the investigating law enforcement officer may sign
the release.
(a-2) The written consent must specify:
(1) the information or records covered by the release;
(2) the reason or purpose for the release; and
(3) the person to whom the information is to be
released.
SECTION 7. Articles 56.065(f) and (g), Code of Criminal
Procedure, are amended to read as follows:
(f) The department, consistent with Chapter 420, Government
Code, may develop procedures regarding the submission or collection
of additional evidence of the alleged sexual assault other than
through an examination as described by this article.
(g) The department, consistent with Chapter 420, Government
Code, shall develop procedures for the transfer and preservation of
evidence collected under this article to a crime laboratory or
other suitable location designated by the public safety director of
the department. The receiving entity shall preserve the evidence
until the earlier of:
(1) the second anniversary of the date the evidence
was collected; or
(2) the date on which [the victim or a legal
representative of the victim signs a] written consent to release
the evidence is obtained as provided by Section 420.073, Government
Code.
SECTION 8. On or after the effective date of this Act, the
Department of Public Safety of the State of Texas shall ensure that
any unanalyzed sexual assault evidence collected:
(1) on or after August 1, 2011, is analyzed in
accordance with Chapter 420, Government Code, as amended by this
Act; and
(2) before August 1, 2011, is analyzed as nearly as
possible to the time provided by Chapter 420, Government Code, as
amended by this Act.
SECTION 9. (a) A law enforcement agency in possession of
sexual assault evidence that has not been submitted for laboratory
analysis shall:
(1) not later than October 15, 2011, submit to the
Department of Public Safety of the State of Texas a list of the
agency's active criminal cases for which sexual assault evidence
has not yet been submitted for laboratory analysis; and
(2) not later than April 1, 2012, submit to the
Department of Public Safety of the State of Texas all sexual assault
evidence pertaining to those active cases that has not yet been
submitted for laboratory analysis.
(b) Not later than February 15, 2013, the Department of
Public Safety of the State of Texas shall submit to the governor and
the appropriate standing committees of the senate and the house of
representatives a report containing:
(1) a projected timeline for the completion of
laboratory analyses, in accordance with Chapter 420, Government
Code, as amended by this Act, of all unanalyzed sexual assault
evidence submitted to the department under Subsection (a)(2);
(2) a request for any necessary funding to accomplish
the analyses under Subdivision (1); and
(3) if the department determines that outsourcing of a
portion of the submitted evidence is necessary for timely analyses
of the evidence:
(A) a proposal for determining which evidence
should be outsourced; and
(B) a list of laboratories the department
determines are capable of completing the outsourced analyses.
(c) Not later than September 1, 2014, and to the extent that
funding is available, the Department of Public Safety of the State
of Texas shall, as provided by Sections 420.034 and 420.035,
Government Code, as added by this Act, analyze or contract for the
analysis of, and complete the required database comparison
regarding, all sexual assault evidence submitted to the department
under Subsection (a)(2) of this section.
SECTION 10. Notwithstanding Chapter 420, Government Code,
as amended by this Act, and Section 8 of this Act, this Act does not
apply to sexual assault evidence collected before September 1,
1996.
SECTION 11. This Act takes effect September 1, 2011.