82R30115 SJM-D
By: Davis, et al. S.B. No. 1636
(McClendon)
Substitute the following for S.B. No. 1636: No.
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), (1-c), and (1-d) 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) "Active criminal case" means a case:
(A) in which:
(i) a sexual assault has been reported to a
law enforcement agency; and
(ii) physical evidence of the assault has
been submitted to the agency or an accredited crime laboratory
under this chapter for analysis; and
(B) for which:
(i) the statute of limitations has not run
with respect to the prosecution of the sexual assault; or
(ii) a DNA profile was obtained that is
eligible under Section 420.043 for comparison with DNA profiles in
the state database or CODIS DNA database.
(1-b) "Advocate" means a person who provides advocacy
services as an employee or volunteer of a sexual assault program.
(1-c) "Department" means the Department of Public
Safety of the State of Texas.
(1-d) "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. Subsection (e), Section 420.031, 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 420.0735.
SECTION 4. Subchapter B, Chapter 420, Government Code, is
amended by adding Section 420.033 to read as follows:
Sec. 420.033. 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. Chapter 420, Government Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. ANALYSIS OF SEXUAL ASSAULT EVIDENCE
Sec. 420.041. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to physical evidence of a sexual assault with respect
to an active criminal case.
Sec. 420.042. 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 a public accredited crime laboratory for analysis not
later than the 30th day after the date on which that evidence was
received.
(b) A person who submits sexual assault evidence to a public
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, a
public accredited crime laboratory as soon as practicable shall
complete its analysis of sexual assault evidence submitted under
this chapter or other law.
(d) To ensure the expeditious completion of analyses, 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. 420.043. 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 DNA profile
obtained from 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.
SECTION 6. Section 420.072, Government Code, is amended to
read as follows:
Sec. 420.072. EXCEPTIONS. (a) A communication, a [or]
record, or evidence 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 disclosure [release of the confidential information] as
provided by Section 420.073 or 420.0735, as applicable.
(b) A communication, a [or] record, or evidence 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, or evidence 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 420.0735; 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.
(c) A communication, a [or] record, or evidence that is
confidential under this subchapter may not be disclosed to a parent
or legal guardian of a survivor who is a minor if an advocate or a
sexual assault program knows or has reason to believe that the
parent or legal guardian of the survivor is a suspect in the sexual
assault of the survivor.
SECTION 7. The heading to Section 420.073, Government Code,
is amended to read as follows:
Sec. 420.073. CONSENT FOR RELEASE OF CERTAIN CONFIDENTIAL
INFORMATION.
SECTION 8. Subsection (a), Section 420.073, Government
Code, is amended to read as follows:
(a) Consent for the release of confidential information
other than evidence contained in an evidence collection kit must be
in writing and signed by 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. 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 9. Subchapter D, Chapter 420, Government Code, is
amended by adding Section 420.0735 to read as follows:
Sec. 420.0735. CONSENT FOR RELEASE OF CERTAIN EVIDENCE.
(a) Consent for the release of evidence contained in an evidence
collection kit must be in writing and signed by:
(1) the survivor, if the survivor is 14 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 14 years of age; or
(3) the survivor's personal representative, if the
survivor is deceased.
(b) 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 to sign the release, then the
investigating law enforcement officer may sign the release.
(c) Consent for release under Subsection (a) applies only to
evidence contained in an evidence collection kit and does not
affect the confidentiality of any other confidential information
under this chapter.
(d) The written consent must specify:
(1) the evidence covered by the release;
(2) the reason or purpose for the release; and
(3) the person to whom the evidence is to be released.
(e) A survivor or other person authorized to consent may
withdraw consent to the release of evidence by submitting a written
notice of withdrawal to the person or program to which consent was
provided. Withdrawal of consent does not affect evidence disclosed
before the date written notice of the withdrawal was received.
(f) A person who receives evidence made confidential by this
chapter may not disclose the evidence except to the extent that
disclosure is consistent with the authorized purposes for which the
person obtained the evidence.
SECTION 10. Section 420.074, Government Code, is amended to
read as follows:
Sec. 420.074. CRIMINAL SUBPOENA. Notwithstanding any other
provision of this chapter, a person shall disclose a communication,
a [or] record, or evidence that is confidential under this chapter
for use in a criminal investigation or proceeding in response to a
subpoena issued in accordance with law.
SECTION 11. Section 420.075, Government Code, is amended to
read as follows:
Sec. 420.075. OFFENSE. A person commits an offense if the
person intentionally or knowingly discloses a communication, a [or]
record, or evidence that is confidential under this chapter, except
as provided by this chapter. An offense under this section is a
Class C misdemeanor.
SECTION 12. Subsections (f) and (g), Article 56.065, 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 420.0735,
Government Code.
SECTION 13. Subsection (e), Article 102.056, Code of
Criminal Procedure, is amended to read as follows:
(e) The legislature shall determine and appropriate the
necessary amount from the criminal justice planning account to the
criminal justice division of the governor's office for
reimbursement in the form of grants to the Department of Public
Safety of the State of Texas and other [local] law enforcement
agencies for expenses incurred in performing duties imposed on
those agencies under Section [Sections] 411.1471 or Subchapter B-1,
Chapter 420 [and 411.1472], Government Code, as applicable. On the
first day after the end of a calendar quarter, a law enforcement
agency incurring expenses described by this subsection in the
previous calendar quarter shall send a certified statement of the
costs incurred to the criminal justice division. The criminal
justice division through a grant shall reimburse the law
enforcement agency for the costs not later than the 30th day after
the date the certified statement is received. If the criminal
justice division does not reimburse the law enforcement agency
before the 90th day after the date the certified statement is
received, the agency is not required to perform duties imposed
under Section [Sections] 411.1471 or Subchapter B-1, Chapter 420
[and 411.1472], Government Code, as applicable, until the agency
has been compensated for all costs for which the [local law
enforcement] agency has submitted a certified statement under this
subsection.
SECTION 14. 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 that is in the possession of
a law enforcement agency and that is 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 15. (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;
(2) not later than April 1, 2012, and subject to the
availability of laboratory storage space, submit, as appropriate,
to the Department of Public Safety of the State of Texas or a public
accredited crime laboratory, as defined by Section 420.003,
Government Code, as amended by this Act, all sexual assault
evidence pertaining to those active criminal cases that has not yet
been submitted for laboratory analysis; and
(3) if the law enforcement agency submits evidence
under Subdivision (2) of this subsection to a laboratory other than
a Department of Public Safety of the State of Texas laboratory,
notify the department of:
(A) the laboratory to which the evidence was
sent; and
(B) any analysis completed by the laboratory to
which the evidence was sent and the date on which the analysis was
completed.
(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 under Subdivision (2), Subsection (a) of this
section;
(2) a request for any necessary funding to accomplish
the analyses under Subdivision (1) of this subsection, including a
request for a grant of money under Subsection (e), Article 102.056,
Code of Criminal Procedure, as amended by this Act, if money is
available under that subsection;
(3) as appropriate, application materials for
requests made as required by Subdivision (2) of this subsection;
and
(4) 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 420.042 and 420.043,
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 Subdivision (2), Subsection (a) of this section.
(d) Notwithstanding Subsection (c) of this section, the
Department of Public Safety of the State of Texas is not required to
use under this section in a state fiscal year any amount of money
from the state highway fund that exceeds the amount the department
has historically used in a state fiscal year to fund laboratory
analyses of sexual assault evidence under Chapter 420, Government
Code, as amended by this Act.
(e) To supplement funding of laboratory analyses under this
section, the department may solicit and receive grants, gifts, or
donations of money from the federal government or private sources
as described by Chapter 420, Government Code.
SECTION 16. Notwithstanding Chapter 420, Government Code,
as amended by this Act, and Section 14 of this Act, this Act does not
apply to sexual assault evidence collected before September 1,
1996.
SECTION 17. (a) Except as provided by Article 102.056(e),
Code of Criminal Procedure, as amended by this Act, Section
420.007, Government Code, and Section 15(d) of this Act, state
funds may not be appropriated for the purpose of implementing this
Act.
(b) Notwithstanding any other law, the Department of Public
Safety of the State of Texas may not use legislative appropriations
to discharge any additional duties imposed by this Act on the
department.
SECTION 18. This Act takes effect September 1, 2011.