Texas 2021 - 87th Regular

Texas House Bill HB2852 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R9275 JSC-F
2	2	By: Wu H.B. No. 2852
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the taking of a specimen to test for intoxication and
8	8	retention and preservation of toxicological evidence of certain
9	9	intoxication offenses.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Article 38.50, Code of Criminal Procedure, is
12	12	amended by amending Subsections (c), (d), and (e) and adding
13	13	Subsections (g) and (h) to read as follows:
14	14	(c) An entity or individual described by Subsection (b)
15	15	shall ensure that toxicological evidence collected pursuant to an
16	16	investigation or prosecution of an offense under Chapter 49, Penal
17	17	Code, is retained and preserved, as applicable:
18	18	(1) for the greater of two years or the period of the
19	19	statute of limitations for the offense, if the indictment or
20	20	information charging the defendant, or the petition in a juvenile
21	21	proceeding, has not been presented or has been dismissed without
22	22	prejudice;
23	23	(2) for the duration of a defendant's sentence or term
24	24	of community supervision, as applicable, if the defendant is
25	25	convicted or placed on community supervision, or for the duration
26	26	of the commitment or supervision period applicable to the
27	27	disposition of a juvenile adjudicated as having engaged in
28	28	delinquent conduct or conduct indicating a need for supervision; or
29	29	(3) until the defendant is acquitted or the indictment
30	30	or information is dismissed with prejudice, or, in a juvenile
31	31	proceeding, until a hearing is held and the court does not find the
32	32	child engaged in delinquent conduct or conduct indicating a need
33	33	for supervision.
34	34	(d) A person from whom toxicology evidence was collected
35	35	shall be notified [For each offense subject to this article, the
36	36	court shall determine as soon as practicable the appropriate
37	37	retention and preservation period for the toxicological evidence
38	38	under Subsection (c) and notify the defendant or the child or
39	39	child's guardian and the entity or individual charged with storage
40	40	of the toxicological evidence] of the periods [period] for which
41	41	[the] evidence may [is to] be retained and preserved under this
42	42	article. The notice must be given by:
43	43	(1) an entity or individual described by Subsection
44	44	(b) that collects the evidence, if the entity or individual
45	45	collected the evidence directly from the person or collected it
46	46	from a third party; or
47	47	(2) the court, if the records of the court do not show
48	48	that the person was not given the notice described by Subdivision
49	49	(1) and the toxicological evidence is subject to the retention
50	50	period under Subsection (c)(2) or (3) [If an action of the
51	51	prosecutor or the court changes the applicable period under
52	52	Subsection (c), the court shall notify the persons described by
53	53	this subsection about the change].
54	54	(e) Subject to Subsection (h), if notice is given in
55	55	accordance with this article, the [The] entity or individual
56	56	charged with storing toxicological evidence may destroy the
57	57	evidence on expiration of the applicable retention period provided
58	58	by Subsection (c) [the notice most recently issued by the court
59	59	under Subsection (d)].
60	60	(g) Notice given under this article must be given:
61	61	(1) in writing, as soon as practicable, by hand
62	62	delivery, electronic mail, or first class mail to the person's last
63	63	known e-mail or mailing address; or
64	64	(2) if applicable, orally and in writing on requesting
65	65	the specimen under Section 724.015, Transportation Code.
66	66	(h) If the toxicological evidence is subject to the
67	67	retention period under Subsection (c)(2) or (3), the entity or
68	68	individual charged with storing toxicological evidence may not
69	69	destroy the evidence without written approval of the prosecutor's
70	70	office that presented the indictment, information, or petition.
71	71	SECTION 2. Section 724.015, Transportation Code, is amended
72	72	to read as follows:
73	73	Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE
74	74	REQUESTING SPECIMEN; STATEMENT OF CONSENT. (a) Before requesting
75	75	a person to submit to the taking of a specimen, the officer shall
76	76	inform the person orally and in writing that:
77	77	(1) if the person refuses to submit to the taking of
78	78	the specimen, that refusal may be admissible in a subsequent
79	79	prosecution;
80	80	(2) if the person refuses to submit to the taking of
81	81	the specimen, the person's license to operate a motor vehicle will
82	82	be automatically suspended, whether or not the person is
83	83	subsequently prosecuted as a result of the arrest, for not less than
84	84	180 days;
85	85	(3) if the person refuses to submit to the taking of a
86	86	specimen, the officer may apply for a warrant authorizing a
87	87	specimen to be taken from the person;
88	88	(4) if the person is 21 years of age or older and
89	89	submits to the taking of a specimen designated by the officer and an
90	90	analysis of the specimen shows the person had an alcohol
91	91	concentration of a level specified by Chapter 49, Penal Code, the
92	92	person's license to operate a motor vehicle will be automatically
93	93	suspended for not less than 90 days, whether or not the person is
94	94	subsequently prosecuted as a result of the arrest;
95	95	(5) if the person is younger than 21 years of age and
96	96	has any detectable amount of alcohol in the person's system, the
97	97	person's license to operate a motor vehicle will be automatically
98	98	suspended for not less than 60 days even if the person submits to
99	99	the taking of the specimen, but that if the person submits to the
100	100	taking of the specimen and an analysis of the specimen shows that
101	101	the person had an alcohol concentration less than the level
102	102	specified by Chapter 49, Penal Code, the person may be subject to
103	103	criminal penalties less severe than those provided under that
104	104	chapter;
105	105	(6) if the officer determines that the person is a
106	106	resident without a license to operate a motor vehicle in this state,
107	107	the department will deny to the person the issuance of a license,
108	108	whether or not the person is subsequently prosecuted as a result of
109	109	the arrest, under the same conditions and for the same periods that
110	110	would have applied to a revocation of the person's driver's license
111	111	if the person had held a driver's license issued by this state;
112	112	[and]
113	113	(7) the person has a right to a hearing on the
114	114	suspension or denial if, not later than the 15th day after the date
115	115	on which the person receives the notice of suspension or denial or
116	116	on which the person is considered to have received the notice by
117	117	mail as provided by law, the department receives, at its
118	118	headquarters in Austin, a written demand, including a facsimile
119	119	transmission, or a request in another form prescribed by the
120	120	department for the hearing; and
121	121	(8) if the person submits to the taking of a blood
122	122	specimen, the specimen will be retained and preserved in accordance
123	123	with Article 38.50, Code of Criminal Procedure.
124	124	(b) If a person consents to the request of an officer to
125	125	submit to the taking of a specimen, the officer shall request the
126	126	person to sign a statement that:
127	127	(1) the officer requested that the person submit to
128	128	the taking of a specimen;
129	129	(2) the person was informed of the consequences of not
130	130	submitting to the taking of a specimen; and
131	131	(3) the person voluntarily consented to the taking of
132	132	a specimen.
133	133	SECTION 3. (a) Except as provided by Subsection (b) of this
134	134	section, the changes in law made by this Act to Article 38.50, Code
135	135	of Criminal Procedure, apply only to evidence for which the
136	136	appropriate retention and preservation period under that article
137	137	expires on or after the effective date of this Act. Evidence for
138	138	which the appropriate retention and preservation period expired
139	139	before the effective date of this Act is governed by the law in
140	140	effect on the date of expiration of that period, and the former law
141	141	is continued in effect for that purpose.
142	142	(b) If the appropriate retention and preservation period
143	143	under Article 38.50(c)(2) or (3), Code of Criminal Procedure, as
144	144	applicable, has expired with respect to evidence held in storage on
145	145	the effective date of this Act, and notice regarding that evidence
146	146	has not yet been given under Article 38.50(d), Code of Criminal
147	147	Procedure, as that subsection existed immediately before the
148	148	effective date of this Act, the court shall provide the notice
149	149	required by Article 38.50(d), Code of Criminal Procedure, as
150	150	amended by this Act, not later than December 1, 2021.
151	151	(c) The change in law made by this Act to Section 724.015,
152	152	Transportation Code, applies only to a request for the taking of a
153	153	breath or blood specimen to test for intoxication that occurs on or
154	154	after the effective date of this Act. A request for the taking of a
155	155	specimen that occurs before the effective date of this Act is
156	156	governed by the law in effect on the date the specimen was
157	157	requested, and the former law is continued in effect for that
158	158	purpose.
159	159	SECTION 4. This Act takes effect September 1, 2021.