87R9275 JSC-F
By: Wu H.B. No. 2852
A BILL TO BE ENTITLED
AN ACT
relating to the taking of a specimen to test for intoxication and
retention and preservation of toxicological evidence of certain
intoxication offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.50, Code of Criminal Procedure, is
amended by amending Subsections (c), (d), and (e) and adding
Subsections (g) and (h) to read as follows:
(c) An entity or individual described by Subsection (b)
shall ensure that toxicological evidence collected pursuant to an
investigation or prosecution of an offense under Chapter 49, Penal
Code, is retained and preserved, as applicable:
(1) for the greater of two years or the period of the
statute of limitations for the offense, if the indictment or
information charging the defendant, or the petition in a juvenile
proceeding, has not been presented or has been dismissed without
prejudice;
(2) for the duration of a defendant's sentence or term
of community supervision, as applicable, if the defendant is
convicted or placed on community supervision, or for the duration
of the commitment or supervision period applicable to the
disposition of a juvenile adjudicated as having engaged in
delinquent conduct or conduct indicating a need for supervision; or
(3) until the defendant is acquitted or the indictment
or information is dismissed with prejudice, or, in a juvenile
proceeding, until a hearing is held and the court does not find the
child engaged in delinquent conduct or conduct indicating a need
for supervision.
(d) A person from whom toxicology evidence was collected
shall be notified [For each offense subject to this article, the
court shall determine as soon as practicable the appropriate
retention and preservation period for the toxicological evidence
under Subsection (c) and notify the defendant or the child or
child's guardian and the entity or individual charged with storage
of the toxicological evidence] of the periods [period] for which
[the] evidence may [is to] be retained and preserved under this
article. The notice must be given by:
(1) an entity or individual described by Subsection
(b) that collects the evidence, if the entity or individual
collected the evidence directly from the person or collected it
from a third party; or
(2) the court, if the records of the court do not show
that the person was not given the notice described by Subdivision
(1) and the toxicological evidence is subject to the retention
period under Subsection (c)(2) or (3) [If an action of the
prosecutor or the court changes the applicable period under
Subsection (c), the court shall notify the persons described by
this subsection about the change].
(e) Subject to Subsection (h), if notice is given in
accordance with this article, the [The] entity or individual
charged with storing toxicological evidence may destroy the
evidence on expiration of the applicable retention period provided
by Subsection (c) [the notice most recently issued by the court
under Subsection (d)].
(g) Notice given under this article must be given:
(1) in writing, as soon as practicable, by hand
delivery, electronic mail, or first class mail to the person's last
known e-mail or mailing address; or
(2) if applicable, orally and in writing on requesting
the specimen under Section 724.015, Transportation Code.
(h) If the toxicological evidence is subject to the
retention period under Subsection (c)(2) or (3), the entity or
individual charged with storing toxicological evidence may not
destroy the evidence without written approval of the prosecutor's
office that presented the indictment, information, or petition.
SECTION 2. Section 724.015, Transportation Code, is amended
to read as follows:
Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE
REQUESTING SPECIMEN; STATEMENT OF CONSENT. (a) Before requesting
a person to submit to the taking of a specimen, the officer shall
inform the person orally and in writing that:
(1) if the person refuses to submit to the taking of
the specimen, that refusal may be admissible in a subsequent
prosecution;
(2) if the person refuses to submit to the taking of
the specimen, the person's license to operate a motor vehicle will
be automatically suspended, whether or not the person is
subsequently prosecuted as a result of the arrest, for not less than
180 days;
(3) if the person refuses to submit to the taking of a
specimen, the officer may apply for a warrant authorizing a
specimen to be taken from the person;
(4) if the person is 21 years of age or older and
submits to the taking of a specimen designated by the officer and an
analysis of the specimen shows the person had an alcohol
concentration of a level specified by Chapter 49, Penal Code, the
person's license to operate a motor vehicle will be automatically
suspended for not less than 90 days, whether or not the person is
subsequently prosecuted as a result of the arrest;
(5) if the person is younger than 21 years of age and
has any detectable amount of alcohol in the person's system, the
person's license to operate a motor vehicle will be automatically
suspended for not less than 60 days even if the person submits to
the taking of the specimen, but that if the person submits to the
taking of the specimen and an analysis of the specimen shows that
the person had an alcohol concentration less than the level
specified by Chapter 49, Penal Code, the person may be subject to
criminal penalties less severe than those provided under that
chapter;
(6) if the officer determines that the person is a
resident without a license to operate a motor vehicle in this state,
the department will deny to the person the issuance of a license,
whether or not the person is subsequently prosecuted as a result of
the arrest, under the same conditions and for the same periods that
would have applied to a revocation of the person's driver's license
if the person had held a driver's license issued by this state;
[and]
(7) the person has a right to a hearing on the
suspension or denial if, not later than the 15th day after the date
on which the person receives the notice of suspension or denial or
on which the person is considered to have received the notice by
mail as provided by law, the department receives, at its
headquarters in Austin, a written demand, including a facsimile
transmission, or a request in another form prescribed by the
department for the hearing; and
(8) if the person submits to the taking of a blood
specimen, the specimen will be retained and preserved in accordance
with Article 38.50, Code of Criminal Procedure.
(b) If a person consents to the request of an officer to
submit to the taking of a specimen, the officer shall request the
person to sign a statement that:
(1) the officer requested that the person submit to
the taking of a specimen;
(2) the person was informed of the consequences of not
submitting to the taking of a specimen; and
(3) the person voluntarily consented to the taking of
a specimen.
SECTION 3. (a) Except as provided by Subsection (b) of this
section, the changes in law made by this Act to Article 38.50, Code
of Criminal Procedure, apply only to evidence for which the
appropriate retention and preservation period under that article
expires on or after the effective date of this Act. Evidence for
which the appropriate retention and preservation period expired
before the effective date of this Act is governed by the law in
effect on the date of expiration of that period, and the former law
is continued in effect for that purpose.
(b) If the appropriate retention and preservation period
under Article 38.50(c)(2) or (3), Code of Criminal Procedure, as
applicable, has expired with respect to evidence held in storage on
the effective date of this Act, and notice regarding that evidence
has not yet been given under Article 38.50(d), Code of Criminal
Procedure, as that subsection existed immediately before the
effective date of this Act, the court shall provide the notice
required by Article 38.50(d), Code of Criminal Procedure, as
amended by this Act, not later than December 1, 2021.
(c) The change in law made by this Act to Section 724.015,
Transportation Code, applies only to a request for the taking of a
breath or blood specimen to test for intoxication that occurs on or
after the effective date of this Act. A request for the taking of a
specimen that occurs before the effective date of this Act is
governed by the law in effect on the date the specimen was
requested, and the former law is continued in effect for that
purpose.
SECTION 4. This Act takes effect September 1, 2021.