83R20399 KEL-D
By: Eiland H.B. No. 1038
Substitute the following for H.B. No. 1038:
By: Pickett C.S.H.B. No. 1038
A BILL TO BE ENTITLED
AN ACT
relating to the creation of DNA records for the DNA database system;
authorizing the imposition of a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 102, Code of Criminal
Procedure, is amended by adding Article 102.015 to read as follows:
Art. 102.015. FEE FOR COLLECTION OF DNA AFTER CERTAIN
ARRESTS. (a) This article applies only to a defendant arrested for
an offense other than an offense punishable by fine only.
(b) The court shall order a defendant to whom this article
applies to pay a fee of $27 to the arresting law enforcement agency
to reimburse the agency for the cost of the evidence collection kit
used to collect a DNA sample from the defendant under Section
411.148(a)(1)(C), Government Code.
SECTION 2. Section 103.024, Government Code, is amended to
read as follows:
Sec. 103.024. MISCELLANEOUS FEES AND COSTS: CODE OF
CRIMINAL PROCEDURE. Fees and costs shall be paid or collected under
the Code of Criminal Procedure as follows:
(1) filing of a restitution lien (Art. 42.22, Code of
Criminal Procedure) . . . $5;
(2) issuance and service of a warrant of arrest for
certain offenses if prescribed by the municipality (Art. 45.203,
Code of Criminal Procedure) . . . not to exceed $25; [and]
(3) a fee for each agency or organization designated
by a registered sex offender for receipt of a copy of an order
making the registration nonpublic (Art. [Sec.] 62.353, Code of
Criminal Procedure) . . . $20; and
(4) a fee to reimburse a law enforcement agency for the
cost of an evidence collection kit (Art. 102.015, Code of Criminal
Procedure) . . . $27.
SECTION 3. The heading to Section 411.1471, Government
Code, is amended to read as follows:
Sec. 411.1471. DNA RECORDS OF PERSONS CHARGED WITH OR
CONVICTED OF CERTAIN OFFENSES [FELONIES].
SECTION 4. Section 411.1471(a), Government Code, is amended
to read as follows:
(a) This section applies to a defendant who has not already
provided a sample to an arresting agency as required by Section
411.148(a)(1)(C) and who [is]:
(1) is indicted or waives indictment for a felony
prohibited or punishable under any of the following Penal Code
sections:
(A) Section 20.04(a)(4);
(B) Section 21.11;
(C) Section 22.011;
(D) Section 22.021;
(E) Section 25.02;
(F) Section 30.02(d);
(G) Section 43.05;
(H) Section 43.25;
(I) Section 43.26;
(J) Section 21.02; or
(K) Section 20A.03;
(2) is arrested for a felony described by Subdivision
(1) after having been previously convicted of or placed on deferred
adjudication for an offense described by Subdivision (1) or an
offense punishable under Section 30.02(c)(2), Penal Code; or
(3) is convicted of an offense under Section 21.07 or
21.08, Penal Code.
SECTION 5. Section 411.148, Government Code, is amended by
amending Subsections (a), (d), (f), and (h) and adding Subsection
(d-1) to read as follows:
(a) This section applies to:
(1) an individual, other than a juvenile, who is:
(A) ordered by a magistrate or court to provide a
DNA sample under Section 411.154 or other law, including as part of
an order granting community supervision to the individual; [or]
(B) confined in a penal institution operated by
or under contract with the Texas Department of Criminal Justice; or
(C) arrested for any offense punishable as a
Class B misdemeanor or higher; or
(2) a juvenile who, following an adjudication for
conduct constituting a felony, is:
(A) confined in a facility operated by or under
contract with the Texas Juvenile Justice Department [Youth
Commission]; or
(B) placed on probation, if the conduct
constitutes a felony described by Section 54.0409, Family Code.
(d) If an individual described by Subsection (a)(1)(B) is
received into custody by the Texas Department of Criminal Justice,
that department shall collect the sample from the individual during
the diagnostic process or at another time determined by the Texas
Department of Criminal Justice. If an individual described by
Subsection (a)(2)(A) is received into custody by the Texas Juvenile
Justice Department [Youth Commission], the Texas Juvenile Justice
Department [youth commission] shall collect the sample from the
individual during the initial examination or at another time
determined by the Texas Juvenile Justice Department [youth
commission]. If an individual who is required under this section or
other law to provide a DNA sample is in the custody or under the
supervision of another criminal justice agency, such as a community
supervision and corrections department, a parole office, or a local
juvenile probation department or parole office, that agency shall
collect the sample from the individual at a time determined by the
agency. The duties imposed by this subsection do not apply if a
sample has already been collected under Subsection (d-1).
(d-1) If an individual described by Subsection (a)(1)(C) is
lawfully arrested, the arresting agency shall collect the sample
from the individual during the fingerprinting and booking process.
(f) The Texas Department of Criminal Justice shall notify
the director that an individual described by Subsection (a)(1)(B)
is to be released from custody not earlier than the 120th day before
the individual's statutory release date and not later than the 90th
day before the individual's statutory release date. The [An]
individual [described by Subsection (a)(1)(B)] may not be held past
the individual's statutory release date if the individual fails or
refuses to provide a DNA sample under this section. The Texas
Department of Criminal Justice may take lawful administrative
action, including disciplinary action resulting in the loss of good
conduct time, against an individual [described by Subsection
(a)(1)(B)] who refuses to provide a sample as required by
Subsection (d) [under this section]. In this subsection,
"statutory release date" means the date on which an individual is
discharged from the individual's controlling sentence.
(h) An employee of a criminal justice agency or of an
arresting agency may use force against an individual required to
provide a DNA sample under this section when and to the degree the
employee reasonably believes the force is immediately necessary to
collect the sample.
SECTION 6. Section 411.148(i)(1), Government Code, is
amended to read as follows:
(1) The Texas Department of Criminal Justice as soon
as practicable shall cause a sample to be collected from an
individual, other than an individual who has already provided a
sample to an arresting agency as required by Subsection (a)(1)(C),
[described by Subsection (a)(1)(B)] if:
(A) the individual is confined in another penal
institution after sentencing and before admission to the
department; and
(B) the department determines that the
individual is likely to be released before being admitted to the
department.
SECTION 7. Section 411.151, Government Code, is amended by
amending Subsection (a) and adding Subsection (f) to read as
follows:
(a) The director shall expunge a DNA record of an individual
from a DNA database, including the destruction of the associated
DNA sample, if the person:
(1) notifies the director in writing that the DNA
record has been ordered to be expunged under this section or Chapter
55, Code of Criminal Procedure, and provides the director with a
certified copy of the court order that expunges the DNA record; or
(2) provides the director with:
(A) a certified copy of a court order issued
under Section 58.003, Family Code, that seals the juvenile record
of the adjudication that resulted in the DNA record;
(B) a certified copy of the judgment in the case
showing an acquittal, an entry of nolle prosequi, or a discharge and
dismissal after the successful completion of a pretrial diversion
program or the successful completion of a period of deferred
adjudication community supervision; or
(C) if the DNA sample was collected in relation
to the arrest of the person, a sworn affidavit stating that no
charges arising from the arrest have been filed before the first
anniversary of the date of the person's arrest.
(f) When a person's DNA sample and DNA record are expunged
from the DNA database under this subchapter, the director or the
director's designee shall ensure that the person's DNA sample and
DNA record are also expunged from the CODIS database.
SECTION 8. (a) Except as provided by Subsection (b) of this
section, the change in law made by this Act applies only to a person
arrested for an offense committed on or after the effective date of
this Act. A person arrested for an offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this subsection, an
offense was committed before the effective date of this Act if any
element of the offense occurred before that date.
(b) The change in law made by Section 7 of this Act in
amending Section 411.151, Government Code, applies to the
expunction of a DNA record from a DNA database regardless of whether
the record was created before, on, or after the effective date of
this Act.
SECTION 9. (a) Except as provided by Subsections (b) and
(c) of this section, this Act takes effect September 1, 2013.
(b) Sections 1 through 6 of this Act take effect 30 days
after the date on which the comptroller of public accounts
certifies that the Department of Public Safety of the State of Texas
has received sufficient gifts or grants or funds from sources other
than the General Appropriations Act to improve its crime laboratory
equipment and services to enable the analysis of DNA samples
collected from arrested persons as required by Section
411.148(a)(1)(C), Government Code. The department shall provide to
the comptroller timely notice of the receipt of sufficient gifts,
grants, or funds.
(c) If the comptroller by September 1, 2015, does not make
the certification described by Subsection (b) of this section,
Sections 1 through 6 of this Act have no effect.