87R19983 JSC-D
By: González of El Paso, Schaefer, et al. 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. Subchapter B, Chapter 67, Code of Criminal
Procedure, is amended by adding Article 67.055 to read as follows:
Art. 67.055. NOTIFICATION REGARDING INCLUSION OF
INFORMATION IN DEPARTMENT'S INTELLIGENCE DATABASE. (a) Not later
than the 60th day after the date the department includes
information relating to a person in the department's intelligence
database maintained under Article 67.052, the department shall
provide to the person by certified mail to the person's last known
address:
(1) notification regarding the inclusion of the
person's information in the department's 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 2. Subchapter C, Chapter 67, Code of Criminal
Procedure, is amended by adding Article 67.1015 to read as follows:
Art. 67.1015. PROHIBITED RELEASE AND USE OF INFORMATION IN
DEPARTMENT'S INTELLIGENCE DATABASE. A person's inclusion in the
intelligence database maintained by the department under Article
67.052 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 3. 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 4. Subchapter D, Chapter 67, Code of Criminal
Procedure, is amended by adding Article 67.153 to read as follows:
Art. 67.153. AUDIT; SUMMARY; REMOVAL. (a) The state
auditor annually shall conduct an audit of information that is held
in the department's intelligence database maintained under Article
67.052.
(b) If the state auditor finds that information has remained
in the intelligence database for more than 10 years, the state
auditor shall request that the department reestablish sufficient
evidence for inclusion of the information in the database. If the
department is unable to establish sufficient evidence, the
department promptly shall remove the information.
(c) The state auditor shall create a summary of the audit
performed under this article, disaggregating the total number of
persons with information in the intelligence database by race, age,
gender, ethnicity, and residential zip code. The summary must
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.
(d) The department shall make the summary available on the
department's Internet website.
SECTION 5. 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 6. 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 7. 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 FROM
DEPARTMENT'S INTELLIGENCE DATABASE AFTER RENUNCIATION. (a) A
person who is no longer a member of a criminal street gang may
renounce gang membership. On the second anniversary of the
person's renunciation, the information of a person who renounces
gang membership must be removed from the department's intelligence
database maintained under Article 67.052.
(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 the department's
intelligence database.
SECTION 8. This Act takes effect September 1, 2021.