87R3511 JSC-D
By: González of El Paso H.B. No. 1838
A BILL TO BE ENTITLED
AN ACT
relating to intelligence databases for combinations and criminal
street gangs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 67.054(b) and (c), Code of Criminal
Procedure, are amended to read as follows:
(b) Criminal information collected under this chapter
relating to a criminal street gang must:
(1) be relevant to the identification of an
organization that is reasonably suspected of involvement in
criminal activity; and
(2) consist of:
(A) a judgment under any law that includes, as a
finding or as an element of a criminal offense, participation in a
criminal street gang;
(B) a self-admission by an individual of criminal
street gang membership that is made during a judicial proceeding;
or
(C) except as provided by Subsection (c), any two
of the following:
(i) a self-admission by the individual of
criminal street gang membership that is not made during a judicial
proceeding, including the use of the Internet or other electronic
format or medium to post photographs or other documentation
identifying the individual as a member of a criminal street gang;
(ii) [an identification of the individual
as a criminal street gang member by a reliable informant or other
individual;
[(iii)] a corroborated identification of
the individual as a criminal street gang member by a reliable [an]
informant or other individual [of unknown reliability];
(iii) [(iv)] evidence that the individual
frequents a documented area of a criminal street gang, [and]
associates with known criminal street gang members, and is not a
resident of the documented area;
(iv) [(v)] evidence that the individual has
[uses, in more than an incidental manner, criminal street gang
dress, hand signals,] tattoos[, or symbols, including expressions
of letters, numbers, words, or marks, regardless of how or the means
by which the symbols are displayed,] that are associated with a
criminal street gang that operates in an area frequented by the
individual and described by Subparagraph (iii) [(iv)];
(v) [(vi)] evidence that the individual has
been arrested or taken into custody with known criminal street gang
members for an offense or conduct consistent with criminal street
gang activity;
(vi) [(vii)] evidence that the individual
has visited a known criminal street gang member, other than a family
member of the individual, while the gang member is confined in or
committed to a penal institution; or
(vii) [(viii)] evidence of the individual's
use of technology, including the Internet, to recruit new criminal
street gang members.
(c) Evidence described by Subsections (b)(2)(C)(iii)
[(b)(2)(C)(iv)] and (vi) [(vii)] is not sufficient to create the
eligibility of a person's information to be included in an
intelligence database described by this chapter unless the evidence
is combined with information described by another subparagraph of
Subsection (b)(2)(C).
SECTION 2. Subchapter B, Chapter 67, Code of Criminal
Procedure, is amended by adding Article 67.055 to read as follows:
Art. 67.055. NOTIFICATION OF PERSON. (a) An agency that
submits information relating to a person to an intelligence
database described by this chapter shall provide to the person by
certified mail to the person's last known address not later than the
60th day after the date the information was submitted:
(1) notification regarding the inclusion of the
person's information in the intelligence database;
(2) a description of the process for disputing the
inclusion of information in the database, including associated
costs or fees, processes and timelines, and any potential evidence
necessary for purposes of a dispute; and
(3) a description of the process for removing
information from the database following renunciation of criminal
street gang membership.
(b) The department shall post on the department's Internet
website information regarding the processes described by
Subsections (a)(2) and (3).
SECTION 3. Article 67.101, Code of Criminal Procedure, is
amended by adding Subsection (d) to read as follows:
(d) A person's inclusion in an intelligence database
described by this chapter may not:
(1) be made available for or used in a determination of
the person's employment eligibility;
(2) limit any rights given to the person by the United
States Constitution or Texas Constitution; or
(3) limit the person's ability to obtain any federal or
state license, permit, or benefit.
SECTION 4. Subchapter C, Chapter 67, Code of Criminal
Procedure, is amended by adding Article 67.104 to read as follows:
Art. 67.104. ANNUAL SUMMARY. (a) The department shall
annually summarize the information that is in the department's
intelligence database maintained under Article 67.052.
(b) In the summary, the department shall disaggregate the
total number of persons with information in the intelligence
database by race, age, gender, ethnicity, and residential zip code.
The department shall also specify the number of persons whose
information has been retained in the intelligence database for more
than five years and for more than 10 years.
(c) The department shall make the summary available on the
department's Internet website.
SECTION 5. The heading to Subchapter D, Chapter 67, Code of
Criminal Procedure, is amended to read as follows:
SUBCHAPTER D. REMOVAL OF INFORMATION AFTER EXPIRATION OF CERTAIN
PERIOD
SECTION 6. Articles 67.202(a), (b), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) On receipt of a written request of a person or the parent
or guardian of a child that includes a showing by the person or the
parent or guardian that a law enforcement agency may have collected
criminal information under this chapter relating to the person or
child that is inaccurate, [or] does not comply with the submission
criteria under Article 67.054(b), or violates 28 C.F.R. Part 23,
the Texas Constitution, or the United States Constitution, the head
of the agency or the designee of the agency head shall review
criminal information collected by the agency under this chapter
relating to the person or child to determine whether [if]:
(1) probable cause [reasonable suspicion] exists to
believe that the information is accurate; [and]
(2) the information complies with the submission
criteria established under Article 67.054(b); and
(3) inclusion of the information in the applicable
intelligence database violates 28 C.F.R. Part 23, the Texas
Constitution, or the United States Constitution.
(b) If, after conducting a review of criminal information
under Subsection (a), the agency head or designee determines that
probable cause [reasonable suspicion] does not exist to believe
that the information is accurate, [or] determines that the
information does not comply with the submission criteria, or
determines that inclusion of the information in the intelligence
database violates 28 C.F.R. Part 23, the Texas Constitution, or the
United States Constitution, the agency shall:
(1) promptly destroy all records containing the
information; and
(2) not later than the 10th business day after the date
of the determination, notify the department and the person who
requested the review of the agency's determination and the
destruction of the records.
(c) If, after conducting a review of criminal information
under Subsection (a), the agency head or designee determines that
probable cause [reasonable suspicion] exists to believe that the
information is accurate, [and] determines that the information
complies with the submission criteria, and determines that
inclusion of the information in the intelligence database does not
violate 28 C.F.R. Part 23, the Texas Constitution, or the United
States Constitution, the agency shall notify the person who
requested the review:
(1) of the agency's determination not later than the
10th business day after the date of the determination; and
(2) that the person is entitled to seek judicial
review of the agency's determination under Article 67.203 not later
than the 60th day after the date the person receives the written
notification by the agency head or designee.
(d) Not later than the 10th business day after the date of
[On] receipt of notice under Subsection (b)(2), the department
[immediately] shall destroy all records containing the information
that is the subject of the notice in the intelligence database
maintained by the department under Article 67.052.
SECTION 7. Article 67.203, Code of Criminal Procedure, is
amended to read as follows:
Art. 67.203. JUDICIAL REVIEW. (a) Not later than the 60th
day after the date the person receives written notice under Article
67.202(c), a [A] person who is entitled to seek judicial review of a
determination made under that subsection [Article 67.202(c)] may
file a petition for review in district court in the county in which
the person resides.
(a-1) A court may grant judicial review of a petition filed
after the date prescribed by Subsection (a) if the petitioner shows
good cause for filing after that date.
(b) On the filing of a petition for review under Subsection
(a), the district court shall conduct a hearing in which the court
shall make available to the person's counsel under Article 39.14
all criminal information that is the subject of the determination.
The hearing shall be conducted [an in camera review of the criminal
information that is the subject of the determination] to determine
whether [if]:
(1) probable cause [reasonable suspicion] exists to
believe that the information is accurate; [and]
(2) the information complies with the submission
criteria under Article 67.054(b); and
(3) the inclusion of the information in the applicable
intelligence database violates 28 C.F.R. Part 23, the Texas
Constitution, or the United States Constitution.
(c) If, after a hearing [conducting an in camera review of
criminal information under Subsection (b)], the court finds that
probable cause [reasonable suspicion] does not exist to believe
that the information is accurate, [or] finds that the information
does not comply with the submission criteria, or finds that
inclusion of the information in the intelligence database violates
28 C.F.R. Part 23, the Texas Constitution, or the United States
Constitution, not later than the 10th business day after the date
the court makes its finding, the court shall:
(1) order the law enforcement agency that collected
the information to promptly destroy all records containing the
information; and
(2) notify the department of the court's finding
[determination] and the destruction of the records.
(c-1) Not later than the 10th business day after the date of
receipt of notice under Subsection (c)(2), the department shall
destroy all records containing the information that is the subject
of the notice in the intelligence database maintained by the
department under Article 67.052.
(d) A petitioner may appeal a final judgment of a district
court [conducting an in camera review] under this article.
(e) Information that is the subject of [an in camera] review
under this article is confidential and may not be disclosed, except
the information is subject to disclosure as required by Article
39.14 or under a subpoena or other legal process.
SECTION 8. Subchapter E, Chapter 67, Code of Criminal
Procedure, is amended by adding Article 67.204 to read as follows:
Art. 67.204. RIGHT TO REMOVAL OF INFORMATION AFTER
RENUNCIATION. (a) A person who is no longer a member of a criminal
street gang may renounce gang membership. The information of a
person who renounces gang membership must be removed from the
applicable intelligence database described by this chapter on the
second anniversary of the renunciation.
(b) The department shall adopt rules and forms for the
process by which a former member of a criminal street gang may
renounce membership, provide evidence that the person is no longer
a member of the gang, and be removed from an intelligence database.
SECTION 9. This Act takes effect September 1, 2021.