86R18667 AJZ/MEW-D
By: Neave, Howard, Minjarez, Button, Lang, H.B. No. 8
et al.
Substitute the following for H.B. No. 8:
By: Burns C.S.H.B. No. 8
A BILL TO BE ENTITLED
AN ACT
relating to the criminal statute of limitations for certain sexual
offenses and the collection, analysis, and preservation of evidence
of sexual assault and other sex offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Lavinia Masters
Act.
SECTION 2. Article 12.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2),
Penal Code, or aggravated sexual assault under Section
22.021(a)(1)(B), Penal Code;
(C) sexual assault, if:
(i) during the investigation of the offense
biological matter is collected and the matter:
(a) has not yet been subjected to
forensic DNA testing; or
(b) has been subjected to forensic DNA
testing and the testing results show that the matter does not match
the victim or any other person whose identity is readily
ascertained; or
(ii) probable cause exists to believe that
the defendant has committed the same or a similar sexual offense
against five or more victims;
(D) continuous sexual abuse of young child or
children under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11,
Penal Code;
(F) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(G) trafficking of persons under Section
20A.02(a)(7) or (8), Penal Code;
(H) continuous trafficking of persons under
Section 20A.03, Penal Code; or
(I) compelling prostitution under Section
43.05(a)(2), Penal Code;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which he exercises control in his official capacity;
(C) forgery or the uttering, using or passing of
forged instruments;
(D) injury to an elderly or disabled individual
punishable as a felony of the first degree under Section 22.04,
Penal Code;
(E) sexual assault, except as provided by
Subdivision (1);
(F) arson;
(G) trafficking of persons under Section
20A.02(a)(1), (2), (3), or (4), Penal Code; or
(H) compelling prostitution under Section
43.05(a)(1), Penal Code;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) securing execution of document by deception;
(C) a felony violation under Chapter 162, Tax
Code;
(D) false statement to obtain property or credit
under Section 32.32, Penal Code;
(E) money laundering;
(F) credit card or debit card abuse under Section
32.31, Penal Code;
(G) fraudulent use or possession of identifying
information under Section 32.51, Penal Code;
(H) exploitation of a child, elderly individual,
or disabled individual under Section 32.53, Penal Code;
(I) Medicaid fraud under Section 35A.02, Penal
Code; or
(J) bigamy under Section 25.01, Penal Code,
except as provided by Subdivision (6);
(4) five years from the date of the commission of the
offense:
(A) theft or robbery;
(B) except as provided by Subdivision (5),
kidnapping or burglary;
(C) injury to an elderly or disabled individual
that is not punishable as a felony of the first degree under Section
22.04, Penal Code;
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) if the investigation of the offense shows that the
victim is younger than 17 years of age at the time the offense is
committed, 20 years from the 18th birthday of the victim of one of
the following offenses:
(A) sexual performance by a child under Section
43.25, Penal Code;
(B) aggravated kidnapping under Section
20.04(a)(4), Penal Code, if the defendant committed the offense
with the intent to violate or abuse the victim sexually; or
(C) burglary under Section 30.02, Penal Code, if
the offense is punishable under Subsection (d) of that section and
the defendant committed the offense with the intent to commit an
offense described by Subdivision (1)(B) or (D) of this article or
Paragraph (B) of this subdivision;
(6) ten years from the 18th birthday of the victim of
the offense:
(A) trafficking of persons under Section
20A.02(a)(5) or (6), Penal Code;
(B) injury to a child under Section 22.04, Penal
Code; or
(C) bigamy under Section 25.01, Penal Code, if
the investigation of the offense shows that the person, other than
the legal spouse of the defendant, whom the defendant marries or
purports to marry or with whom the defendant lives under the
appearance of being married is younger than 18 years of age at the
time the offense is committed; or
(7) three years from the date of the commission of the
offense: all other felonies.
SECTION 3. Article 38.43, Code of Criminal Procedure, is
amended by amending Subsection (c) and adding Subsection (c-1) to
read as follows:
(c) An entity or individual described by Subsection (b)
shall ensure that biological evidence, other than the contents of a
sexual assault examination kit subject to Subsection (c-1),
collected pursuant to an investigation or prosecution of a felony
offense or conduct constituting a felony offense is retained and
preserved:
(1) for not less than 40 years, or until any [the]
applicable statute of limitations has expired, if there is an
unapprehended actor associated with the offense; or
(2) in a case in which a defendant has been convicted,
placed on deferred adjudication community supervision, or
adjudicated as having engaged in delinquent conduct and there are
no additional unapprehended actors associated with the offense:
(A) until the inmate is executed, dies, or is
released on parole, if the defendant is convicted of a capital
felony;
(B) until the defendant dies, completes the
defendant's sentence, or is released on parole or mandatory
supervision, if the defendant is sentenced to a term of confinement
or imprisonment in the Texas Department of Criminal Justice;
(C) until the defendant completes the
defendant's term of community supervision, including deferred
adjudication community supervision, if the defendant is placed on
community supervision;
(D) until the defendant dies, completes the
defendant's sentence, or is released on parole, mandatory
supervision, or juvenile probation, if the defendant is committed
to the Texas Juvenile Justice Department; or
(E) until the defendant completes the
defendant's term of juvenile probation, including a term of
community supervision upon transfer of supervision to a criminal
court, if the defendant is placed on juvenile probation.
(c-1) An entity or individual described by Subsection (b)
shall ensure that the contents of a sexual assault examination kit
collected pursuant to an investigation or prosecution of a felony
offense or conduct constituting a felony offense is retained and
preserved for not less than 40 years, or until any applicable
statute of limitations has expired, whichever period is longer.
This subsection applies regardless of whether a person has been
apprehended for or charged with committing the offense.
SECTION 4. Article 56.065, Code of Criminal Procedure, is
amended by amending Subsection (g) and adding Subsections (g-1),
(g-2), and (g-3) to read as follows:
(g) The department, consistent with Chapter 420, Government
Code, shall develop procedures for:
(1) 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;
(2) the preservation of the evidence by the receiving
entity; and
(3) the notification of the victim of the offense
before a planned destruction of evidence under this article.
(g-1) Subject to Subsection (g-2), an [The receiving]
entity receiving evidence described by Subsection (g) shall
preserve the evidence until the earlier of:
(1) the fifth [second] anniversary of the date on
which [the] evidence was collected; or
(2) the date on which written consent to release the
evidence is obtained as provided by Section 420.0735, Government
Code.
(g-2) An entity receiving evidence described by Subsection
(g) may destroy the evidence on the expiration of the entity's duty
to preserve the evidence under Subsection (g-1)(1) only if:
(1) the entity notifies the victim of the offense, in a
trauma-informed manner, of the decision to destroy the evidence;
and
(2) a written objection is not received by the entity
from the victim before the 91st day after the date on which the
entity notifies the victim of the planned destruction of the
evidence.
(g-3) The entity shall document the entity's attempt to
notify the victim under Subsection (g-2).
SECTION 5. Section 420.003, Government Code, is amended by
amending Subdivisions (1-a), (1-d), and (8) and adding Subdivision
(3) to read as follows:
(1-a) "Active criminal case" means a case:
(A) in which:
(i) a sexual assault or other sex offense
has been reported to a law enforcement agency; and
(ii) physical evidence of the offense
[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 offense [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-d) "Law enforcement agency" means a state or local
law enforcement agency in this state with jurisdiction over the
investigation of a sexual assault or other sex offense.
(3) "Sex offense" means an offense under Chapter 21,
Penal Code, for which biological evidence is collected in an
evidence collection kit.
(8) "Survivor" means an individual who is a victim of a
sexual assault or other sex offense, regardless of whether a report
or conviction is made in the incident.
SECTION 6. Section 420.033, Government Code, is amended to
read as follows:
Sec. 420.033. CHAIN OF CUSTODY. Medical, law enforcement,
department, and laboratory personnel who handle [sexual assault]
evidence of a sexual assault or other sex offense 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 7. Subchapter B, Chapter 420, Government Code, is
amended by adding Section 420.035 to read as follows:
Sec. 420.035. EVIDENCE RELEASE. (a) If a health care
facility or other entity that performs a medical examination to
collect evidence of a sexual assault or other sex offense receives
signed, written consent to release the evidence as provided by
Section 420.0735, the facility or entity shall promptly notify any
law enforcement agency investigating the alleged offense.
(b) Except as provided by Subsection (c), a law enforcement
agency that receives notice from a health care facility or other
entity under Subsection (a) shall take possession of the evidence
not later than the seventh day after the date the law enforcement
agency receives notice.
(c) A law enforcement agency that receives notice from a
health care facility or other entity that is located more than 100
miles from the law enforcement agency shall take possession of the
evidence not later than the 14th day after the date the law
enforcement agency receives notice.
(d) A health care facility or other entity that performs a
medical examination to collect evidence of a sexual assault or
other sex offense that has not obtained signed, written consent to
release the evidence as provided by Section 420.0735 shall, before
the survivor is released from the facility, provide a written
notice to the survivor with the following information:
(1) the department's policy regarding storage of
evidence of a sexual assault or other sex offense that is collected
under Article 56.065, Code of Criminal Procedure, including:
(A) a statement that the evidence will be stored
until the fifth anniversary of the date on which the evidence was
collected before the evidence becomes eligible for destruction; and
(B) the department's policy for notifying the
survivor before a planned destruction of the evidence;
(2) a statement that the survivor may request the
release of the evidence to a law enforcement agency and report a
sexual assault or other sex offense to the agency at any time;
(3) the name, phone number, and e-mail address of the
law enforcement agency with jurisdiction over the offense; and
(4) the name and phone number of a local rape crisis
center.
(e) Failure to comply with evidence collection procedures
or requirements under this section does not affect the
admissibility of the evidence in a trial of the offense.
SECTION 8. Subchapter B-1, Chapter 420, Government Code, is
amended to read as follows:
SUBCHAPTER B-1. ANALYSIS OF [SEXUAL ASSAULT] EVIDENCE OF SEXUAL
ASSAULT OR OTHER SEX OFFENSE
Sec. 420.041. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to physical evidence of a sexual assault or other sex
offense that is collected 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 of a
sexual assault or other sex offense that is 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 of a
sexual assault or other sex offense 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 but not
later than the 90th day after the date on which the laboratory
received the evidence, shall complete its analysis of any [sexual
assault] evidence of a sexual assault or other sex offense that is
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 take
possession of evidence of a sexual assault or other sex offense
within the period required by Section 420.035 or to submit that
[sexual assault] evidence within the period required by this
section does not affect the authority of:
(1) the agency to take possession of the evidence;
(2) the agency to submit the evidence to an accredited
crime laboratory for analysis; [or]
(3) [(2)] an accredited crime laboratory to analyze
the evidence or provide the results of that analysis to appropriate
persons; or
(4) the department or a public accredited crime
laboratory authorized under Section 420.043(b) to compare the DNA
profile obtained from the biological evidence with DNA profiles in
the databases described by Section 420.043(a).
(f) Failure to comply with the requirements under this
section does not affect the admissibility of the evidence in a trial
of the offense.
Sec. 420.043. DATABASE COMPARISON REQUIRED. (a) Not later
than the 30th day after the date [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, except
as provided by Subsection (b), 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.
(b) If the evidence kit containing biological evidence is
analyzed by a public accredited crime laboratory, the laboratory,
instead of the department, may perform the comparison of DNA
profiles required under Subsection (a) provided that:
(1) the laboratory performs the comparison not later
than the 30th day after the date the analysis is complete and any
necessary quality assurance reviews have been performed;
(2) the law enforcement agency that submitted the
evidence collection kit containing biological evidence gives
permission; and
(3) the laboratory meets applicable federal and state
requirements to access the databases described by Subsection (a).
(c) The department may use appropriated funds to employ
personnel and purchase equipment and technology necessary to comply
with the requirements of this section.
Sec. 420.044. GRANT FUNDS. The department shall apply for
any available federal grant funds applicable to the analysis of
evidence collection kits containing biological evidence, including
grant money available under the National Institute of Justice's DNA
Capacity Enhancement and Backlog Reduction Program.
Sec. 420.045. REPORT OF UNANALYZED EVIDENCE OF SEXUAL
ASSAULT OR OTHER SEX OFFENSE. Each law enforcement agency and
public accredited crime laboratory shall submit a quarterly report
to the department identifying the number of evidence collection
kits that the law enforcement agency has not yet submitted for
laboratory analysis or for which the crime laboratory has not yet
completed an analysis, as applicable.
Sec. 420.046. NONCOMPLIANCE. Failure to comply with the
requirements of this subchapter may be used to determine
eligibility for receiving grant funds from the department, the
office of the governor, or another state agency.
Sec. 420.047. AUDIT OF UNANALYZED EVIDENCE OF SEXUAL
ASSAULT OR OTHER SEX OFFENSE. (a) A law enforcement agency in
possession of an evidence collection kit that has not been
submitted for laboratory analysis shall:
(1) not later than December 15, 2019, submit to the
department a list of the agency's active criminal cases for which an
evidence collection kit collected on or before September 1, 2019,
has not yet been submitted for laboratory analysis;
(2) not later than January 15, 2020, and subject to the
availability of laboratory storage space, submit to the department
or a public accredited crime laboratory, as appropriate, all
evidence collection kits pertaining to those active criminal cases
that have not yet been submitted for laboratory analysis; and
(3) if the law enforcement agency submits an evidence
collection kit under Subdivision (2) to a laboratory other than a
department laboratory, notify the department of:
(A) the laboratory to which the evidence
collection kit was sent; and
(B) any analysis completed by the laboratory to
which the evidence collection kit was sent and the date on which the
analysis was completed.
(b) Not later than September 1, 2020, the department 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 this chapter, of all
unanalyzed evidence collection kits submitted under Subsection
(a)(2);
(2) a request for any necessary funding to accomplish
the analyses under Subdivision (1), including a request for a grant
of money under Article 102.056(e), Code of Criminal Procedure, if
money is available under that subsection;
(3) as appropriate, application materials for
requests made as required by Subdivision (2); and
(4) if the department determines that outsourcing
certain evidence collection kits is necessary for timely analyses
of the kits:
(A) a proposal for determining which evidence
collection kits 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, 2022, and to the extent that
funding is available, the department shall, as provided by Sections
420.042 and 420.043, analyze or contract for the analysis of, and
complete the required database comparison, or ensure that a public
accredited laboratory completed the comparison, regarding all
evidence collection kits submitted to the department under
Subsection (a)(2).
(d) Notwithstanding Subsection (c), the department 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 evidence collection kits under this chapter.
(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 this chapter.
(f) This section expires September 1, 2023.
SECTION 9. The change in law made by this Act to Article
12.01, Code of Criminal Procedure, does not apply to an offense if
the prosecution of that offense becomes barred by limitation before
the effective date of this Act. The prosecution of that offense
remains barred as if this Act had not taken effect.
SECTION 10. The change in law made by this Act to Article
38.43, Code of Criminal Procedure, applies only to biological
evidence destroyed on or after the effective date of this Act.
Biological evidence destroyed before the effective date of this Act
is governed by the law that was in effect immediately before the
effective date of this Act, and the former law is continued in
effect for that purpose.
SECTION 11. (a) Except as provided by this section, the
changes in law made by this Act to Article 56.065, Code of Criminal
Procedure, and Chapter 420, Government Code, apply only to sexual
assault evidence and evidence of other sex offenses collected on or
after the effective date of this Act. Evidence collected before the
effective date of this Act is governed by the law in effect on the
date the evidence was collected, and the former law is continued in
effect for that purpose.
(b) The change in law made by this Act to Section
420.042(c), Government Code, applies only to sexual assault
evidence and evidence of other sex offenses received by a public
accredited crime laboratory on or after January 1, 2021. Evidence
received by a public accredited crime laboratory before January 1,
2021, is governed by the law in effect immediately before the
effective date of this Act, and the former law is continued in
effect for that purpose.
(c) Notwithstanding Section 420.046, Government Code, as
added by this Act, a law enforcement agency's or public accredited
crime laboratory's failure to comply with the requirements of
Subchapter B-1, Chapter 420, Government Code, as amended by this
Act, before January 15, 2020, does not affect the agency's or
laboratory's eligibility for grants if the agency or laboratory is
in compliance with Subchapter B-1, Chapter 420, Government Code, as
amended by this Act, beginning on that date.
(d) Section 420.047, Government Code, as added by this Act,
applies to an evidence collection kit in possession of a law
enforcement agency on September 1, 2019.
SECTION 12. This Act takes effect September 1, 2019.