Texas 2011 - 82nd Regular

Texas Senate Bill SB1636 Compare Versions

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1	1	82R30115 SJM-D
2	2	By: Davis, et al. S.B. No. 1636
3	3	(McClendon)
4	4	Substitute the following for S.B. No. 1636: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the collection, analysis, and preservation of sexual
10	10	assault or DNA evidence.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 411.151, Government Code, is amended by
13	13	adding Subsection (e) to read as follows:
14	14	(e) The department's failure to expunge a DNA record as
15	15	required by this section may not serve as the sole grounds for a
16	16	court in a criminal proceeding to exclude evidence based on or
17	17	derived from the contents of that record.
18	18	SECTION 2. Section 420.003, Government Code, is amended by
19	19	amending Subdivisions (1) and (6) and adding Subdivisions (1-a),
20	20	(1-b), (1-c), and (1-d) to read as follows:
21	21	(1) "Accredited crime laboratory" means a crime
22	22	laboratory, as that term is defined by Article 38.35, Code of
23	23	Criminal Procedure, that has been accredited under Section
24	24	411.0205.
25	25	(1-a) "Active criminal case" means a case:
26	26	(A) in which:
27	27	(i) a sexual assault has been reported to a
28	28	law enforcement agency; and
29	29	(ii) physical evidence of the assault has
30	30	been submitted to the agency or an accredited crime laboratory
31	31	under this chapter for analysis; and
32	32	(B) for which:
33	33	(i) the statute of limitations has not run
34	34	with respect to the prosecution of the sexual assault; or
35	35	(ii) a DNA profile was obtained that is
36	36	eligible under Section 420.043 for comparison with DNA profiles in
37	37	the state database or CODIS DNA database.
38	38	(1-b) "Advocate" means a person who provides advocacy
39	39	services as an employee or volunteer of a sexual assault program.
40	40	(1-c) "Department" means the Department of Public
41	41	Safety of the State of Texas.
42	42	(1-d) "Law enforcement agency" means a state or local
43	43	law enforcement agency in this state with jurisdiction over the
44	44	investigation of a sexual assault.
45	45	(6) "Sexual assault nurse examiner" means a registered
46	46	nurse who has completed a service-approved examiner training course
47	47	described by Section 420.011.
48	48	SECTION 3. Subsection (e), Section 420.031, Government
49	49	Code, is amended to read as follows:
50	50	(e) Evidence collected under this section may not be
51	51	released unless a signed, [the survivor of the offense or a legal
52	52	representative of the survivor signs a] written consent to release
53	53	the evidence is obtained as provided by Section 420.0735.
54	54	SECTION 4. Subchapter B, Chapter 420, Government Code, is
55	55	amended by adding Section 420.033 to read as follows:
56	56	Sec. 420.033. CHAIN OF CUSTODY. Medical, law enforcement,
57	57	department, and laboratory personnel who handle sexual assault
58	58	evidence under this chapter or other law shall maintain the chain of
59	59	custody of the evidence from the time the evidence is collected
60	60	until the time the evidence is destroyed.
61	61	SECTION 5. Chapter 420, Government Code, is amended by
62	62	adding Subchapter B-1 to read as follows:
63	63	SUBCHAPTER B-1. ANALYSIS OF SEXUAL ASSAULT EVIDENCE
64	64	Sec. 420.041. APPLICABILITY OF SUBCHAPTER. This subchapter
65	65	applies only to physical evidence of a sexual assault with respect
66	66	to an active criminal case.
67	67	Sec. 420.042. ANALYSIS OF SEXUAL ASSAULT EVIDENCE. (a) A
68	68	law enforcement agency that receives sexual assault evidence
69	69	collected under this chapter or other law shall submit that
70	70	evidence to a public accredited crime laboratory for analysis not
71	71	later than the 30th day after the date on which that evidence was
72	72	received.
73	73	(b) A person who submits sexual assault evidence to a public
74	74	accredited crime laboratory under this chapter or other law shall
75	75	provide the following signed, written certification with each
76	76	submission: "This evidence is being submitted by (name of person
77	77	making submission) in connection with a criminal investigation."
78	78	(c) If sufficient personnel and resources are available, a
79	79	public accredited crime laboratory as soon as practicable shall
80	80	complete its analysis of sexual assault evidence submitted under
81	81	this chapter or other law.
82	82	(d) To ensure the expeditious completion of analyses, the
83	83	department and other applicable public accredited crime
84	84	laboratories may contract with private accredited crime
85	85	laboratories as appropriate to perform those analyses, subject to
86	86	the necessary quality assurance reviews by the public accredited
87	87	crime laboratories.
88	88	(e) The failure of a law enforcement agency to submit sexual
89	89	assault evidence within the period required by this section does
90	90	not affect the authority of:
91	91	(1) the agency to submit the evidence to an accredited
92	92	crime laboratory for analysis; or
93	93	(2) an accredited crime laboratory to analyze the
94	94	evidence or provide the results of that analysis to appropriate
95	95	persons.
96	96	Sec. 420.043. DATABASE COMPARISON REQUIRED. On the request
97	97	of any appropriate person and after an evidence collection kit
98	98	containing biological evidence has been analyzed by an accredited
99	99	crime laboratory and any necessary quality assurance reviews have
100	100	been performed, the department shall compare the DNA profile
101	101	obtained from the biological evidence with DNA profiles maintained
102	102	in:
103	103	(1) state databases, including the DNA database
104	104	maintained under Subchapter G, Chapter 411, if the amount and
105	105	quality of the analyzed sample meet the requirements of the state
106	106	database comparison policies; and
107	107	(2) the CODIS DNA database established by the Federal
108	108	Bureau of Investigation, if the amount and quality of the analyzed
109	109	sample meet the requirements of the bureau's CODIS comparison
110	110	policies.
111	111	SECTION 6. Section 420.072, Government Code, is amended to
112	112	read as follows:
113	113	Sec. 420.072. EXCEPTIONS. (a) A communication, a [or]
114	114	record, or evidence that is confidential under this subchapter may
115	115	be disclosed in court or in an administrative proceeding if:
116	116	(1) the proceeding is brought by the survivor against
117	117	an advocate or a sexual assault program or is a criminal proceeding
118	118	or a certification revocation proceeding in which disclosure is
119	119	relevant to the claims or defense of the advocate or sexual assault
120	120	program; or
121	121	(2) the survivor or other appropriate person [a person
122	122	authorized to act on behalf of the survivor] consents in writing to
123	123	the disclosure [release of the confidential information] as
124	124	provided by Section 420.073 or 420.0735, as applicable.
125	125	(b) A communication, a [or] record, or evidence that is
126	126	confidential under this subchapter may be disclosed only to:
127	127	(1) medical or law enforcement personnel if the
128	128	advocate determines that there is a probability of imminent
129	129	physical danger to any person for whom the communication, [or]
130	130	record, or evidence is relevant or if there is a probability of
131	131	immediate mental or emotional injury to the survivor;
132	132	(2) a governmental agency if the disclosure is
133	133	required or authorized by law;
134	134	(3) a qualified person to the extent necessary for a
135	135	management audit, financial audit, program evaluation, or
136	136	research, except that a report of the research, audit, or
137	137	evaluation may not directly or indirectly identify a survivor;
138	138	(4) a person authorized to receive the disclosure as a
139	139	result of [who has the] written consent obtained under [of the
140	140	survivor or of a person authorized to act on the survivor's behalf
141	141	as provided by] Section 420.073 or 420.0735; or
142	142	(5) an advocate or a person under the supervision of a
143	143	counseling supervisor who is participating in the evaluation or
144	144	counseling of or advocacy for the survivor.
145	145	(c) A communication, a [or] record, or evidence that is
146	146	confidential under this subchapter may not be disclosed to a parent
147	147	or legal guardian of a survivor who is a minor if an advocate or a
148	148	sexual assault program knows or has reason to believe that the
149	149	parent or legal guardian of the survivor is a suspect in the sexual
150	150	assault of the survivor.
151	151	SECTION 7. The heading to Section 420.073, Government Code,
152	152	is amended to read as follows:
153	153	Sec. 420.073. CONSENT FOR RELEASE OF CERTAIN CONFIDENTIAL
154	154	INFORMATION.
155	155	SECTION 8. Subsection (a), Section 420.073, Government
156	156	Code, is amended to read as follows:
157	157	(a) Consent for the release of confidential information
158	158	other than evidence contained in an evidence collection kit must be
159	159	in writing and signed by the survivor, a parent or legal guardian if
160	160	the survivor is a minor, a legal guardian if the survivor has been
161	161	adjudicated incompetent to manage the survivor's personal affairs,
162	162	an attorney ad litem appointed for the survivor, or a personal
163	163	representative if the survivor is deceased. The written consent
164	164	must specify:
165	165	(1) the information or records covered by the release;
166	166	(2) the reason or purpose for the release; and
167	167	(3) the person to whom the information is to be
168	168	released.
169	169	SECTION 9. Subchapter D, Chapter 420, Government Code, is
170	170	amended by adding Section 420.0735 to read as follows:
171	171	Sec. 420.0735. CONSENT FOR RELEASE OF CERTAIN EVIDENCE.
172	172	(a) Consent for the release of evidence contained in an evidence
173	173	collection kit must be in writing and signed by:
174	174	(1) the survivor, if the survivor is 14 years of age or
175	175	older;
176	176	(2) the survivor's parent or guardian or an employee of
177	177	the Department of Family and Protective Services, if the survivor
178	178	is younger than 14 years of age; or
179	179	(3) the survivor's personal representative, if the
180	180	survivor is deceased.
181	181	(b) For purposes of Subsection (a)(1), a written consent
182	182	signed by an incapacitated person, as that term is defined by
183	183	Section 601, Texas Probate Code, is effective regardless of whether
184	184	the incapacitated person's guardian, guardian ad litem, or other
185	185	legal agent signs the release. If the incapacitated person is
186	186	unable to provide a signature and the guardian, guardian ad litem,
187	187	or other legal agent is unavailable to sign the release, then the
188	188	investigating law enforcement officer may sign the release.
189	189	(c) Consent for release under Subsection (a) applies only to
190	190	evidence contained in an evidence collection kit and does not
191	191	affect the confidentiality of any other confidential information
192	192	under this chapter.
193	193	(d) The written consent must specify:
194	194	(1) the evidence covered by the release;
195	195	(2) the reason or purpose for the release; and
196	196	(3) the person to whom the evidence is to be released.
197	197	(e) A survivor or other person authorized to consent may
198	198	withdraw consent to the release of evidence by submitting a written
199	199	notice of withdrawal to the person or program to which consent was
200	200	provided. Withdrawal of consent does not affect evidence disclosed
201	201	before the date written notice of the withdrawal was received.
202	202	(f) A person who receives evidence made confidential by this
203	203	chapter may not disclose the evidence except to the extent that
204	204	disclosure is consistent with the authorized purposes for which the
205	205	person obtained the evidence.
206	206	SECTION 10. Section 420.074, Government Code, is amended to
207	207	read as follows:
208	208	Sec. 420.074. CRIMINAL SUBPOENA. Notwithstanding any other
209	209	provision of this chapter, a person shall disclose a communication,
210	210	a [or] record, or evidence that is confidential under this chapter
211	211	for use in a criminal investigation or proceeding in response to a
212	212	subpoena issued in accordance with law.
213	213	SECTION 11. Section 420.075, Government Code, is amended to
214	214	read as follows:
215	215	Sec. 420.075. OFFENSE. A person commits an offense if the
216	216	person intentionally or knowingly discloses a communication, a [or]
217	217	record, or evidence that is confidential under this chapter, except
218	218	as provided by this chapter. An offense under this section is a
219	219	Class C misdemeanor.
220	220	SECTION 12. Subsections (f) and (g), Article 56.065, Code
221	221	of Criminal Procedure, are amended to read as follows:
222	222	(f) The department, consistent with Chapter 420, Government
223	223	Code, may develop procedures regarding the submission or collection
224	224	of additional evidence of the alleged sexual assault other than
225	225	through an examination as described by this article.
226	226	(g) The department, consistent with Chapter 420, Government
227	227	Code, shall develop procedures for the transfer and preservation of
228	228	evidence collected under this article to a crime laboratory or
229	229	other suitable location designated by the public safety director of
230	230	the department. The receiving entity shall preserve the evidence
231	231	until the earlier of:
232	232	(1) the second anniversary of the date the evidence
233	233	was collected; or
234	234	(2) the date on which [the victim or a legal
235	235	representative of the victim signs a] written consent to release
236	236	the evidence is obtained as provided by Section 420.0735,
237	237	Government Code.
238	238	SECTION 13. Subsection (e), Article 102.056, Code of
239	239	Criminal Procedure, is amended to read as follows:
240	240	(e) The legislature shall determine and appropriate the
241	241	necessary amount from the criminal justice planning account to the
242	242	criminal justice division of the governor's office for
243	243	reimbursement in the form of grants to the Department of Public
244	244	Safety of the State of Texas and other [local] law enforcement
245	245	agencies for expenses incurred in performing duties imposed on
246	246	those agencies under Section [Sections] 411.1471 or Subchapter B-1,
247	247	Chapter 420 [and 411.1472], Government Code, as applicable. On the
248	248	first day after the end of a calendar quarter, a law enforcement
249	249	agency incurring expenses described by this subsection in the
250	250	previous calendar quarter shall send a certified statement of the
251	251	costs incurred to the criminal justice division. The criminal
252	252	justice division through a grant shall reimburse the law
253	253	enforcement agency for the costs not later than the 30th day after
254	254	the date the certified statement is received. If the criminal
255	255	justice division does not reimburse the law enforcement agency
256	256	before the 90th day after the date the certified statement is
257	257	received, the agency is not required to perform duties imposed
258	258	under Section [Sections] 411.1471 or Subchapter B-1, Chapter 420
259	259	[and 411.1472], Government Code, as applicable, until the agency
260	260	has been compensated for all costs for which the [local law
261	261	enforcement] agency has submitted a certified statement under this
262	262	subsection.
263	263	SECTION 14. On or after the effective date of this Act, the
264	264	Department of Public Safety of the State of Texas shall ensure that
265	265	any unanalyzed sexual assault evidence that is in the possession of
266	266	a law enforcement agency and that is collected:
267	267	(1) on or after August 1, 2011, is analyzed in
268	268	accordance with Chapter 420, Government Code, as amended by this
269	269	Act; and
270	270	(2) before August 1, 2011, is analyzed as nearly as
271	271	possible to the time provided by Chapter 420, Government Code, as
272	272	amended by this Act.
273	273	SECTION 15. (a) A law enforcement agency in possession of
274	274	sexual assault evidence that has not been submitted for laboratory
275	275	analysis shall:
276	276	(1) not later than October 15, 2011, submit to the
277	277	Department of Public Safety of the State of Texas a list of the
278	278	agency's active criminal cases for which sexual assault evidence
279	279	has not yet been submitted for laboratory analysis;
280	280	(2) not later than April 1, 2012, and subject to the
281	281	availability of laboratory storage space, submit, as appropriate,
282	282	to the Department of Public Safety of the State of Texas or a public
283	283	accredited crime laboratory, as defined by Section 420.003,
284	284	Government Code, as amended by this Act, all sexual assault
285	285	evidence pertaining to those active criminal cases that has not yet
286	286	been submitted for laboratory analysis; and
287	287	(3) if the law enforcement agency submits evidence
288	288	under Subdivision (2) of this subsection to a laboratory other than
289	289	a Department of Public Safety of the State of Texas laboratory,
290	290	notify the department of:
291	291	(A) the laboratory to which the evidence was
292	292	sent; and
293	293	(B) any analysis completed by the laboratory to
294	294	which the evidence was sent and the date on which the analysis was
295	295	completed.
296	296	(b) Not later than February 15, 2013, the Department of
297	297	Public Safety of the State of Texas shall submit to the governor and
298	298	the appropriate standing committees of the senate and the house of
299	299	representatives a report containing:
300	300	(1) a projected timeline for the completion of
301	301	laboratory analyses, in accordance with Chapter 420, Government
302	302	Code, as amended by this Act, of all unanalyzed sexual assault
303	303	evidence submitted under Subdivision (2), Subsection (a) of this
304	304	section;
305	305	(2) a request for any necessary funding to accomplish
306	306	the analyses under Subdivision (1) of this subsection, including a
307	307	request for a grant of money under Subsection (e), Article 102.056,
308	308	Code of Criminal Procedure, as amended by this Act, if money is
309	309	available under that subsection;
310	310	(3) as appropriate, application materials for
311	311	requests made as required by Subdivision (2) of this subsection;
312	312	and
313	313	(4) if the department determines that outsourcing of a
314	314	portion of the submitted evidence is necessary for timely analyses
315	315	of the evidence:
316	316	(A) a proposal for determining which evidence
317	317	should be outsourced; and
318	318	(B) a list of laboratories the department
319	319	determines are capable of completing the outsourced analyses.
320	320	(c) Not later than September 1, 2014, and to the extent that
321	321	funding is available, the Department of Public Safety of the State
322	322	of Texas shall, as provided by Sections 420.042 and 420.043,
323	323	Government Code, as added by this Act, analyze or contract for the
324	324	analysis of, and complete the required database comparison
325	325	regarding, all sexual assault evidence submitted to the department
326	326	under Subdivision (2), Subsection (a) of this section.
327	327	(d) Notwithstanding Subsection (c) of this section, the
328	328	Department of Public Safety of the State of Texas is not required to
329	329	use under this section in a state fiscal year any amount of money
330	330	from the state highway fund that exceeds the amount the department
331	331	has historically used in a state fiscal year to fund laboratory
332	332	analyses of sexual assault evidence under Chapter 420, Government
333	333	Code, as amended by this Act.
334	334	(e) To supplement funding of laboratory analyses under this
335	335	section, the department may solicit and receive grants, gifts, or
336	336	donations of money from the federal government or private sources
337	337	as described by Chapter 420, Government Code.
338	338	SECTION 16. Notwithstanding Chapter 420, Government Code,
339	339	as amended by this Act, and Section 14 of this Act, this Act does not
340	340	apply to sexual assault evidence collected before September 1,
341	341	1996.
342	342	SECTION 17. (a) Except as provided by Article 102.056(e),
343	343	Code of Criminal Procedure, as amended by this Act, Section
344	344	420.007, Government Code, and Section 15(d) of this Act, state
345	345	funds may not be appropriated for the purpose of implementing this
346	346	Act.
347	347	(b) Notwithstanding any other law, the Department of Public
348	348	Safety of the State of Texas may not use legislative appropriations
349	349	to discharge any additional duties imposed by this Act on the
350	350	department.
351	351	SECTION 18. This Act takes effect September 1, 2011.