By: Huffman S.B. No. 529
A BILL TO BE ENTITLED
AN ACT
relating to 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) and (d), amending and
renumbering Subsection (e), renumbering Subsection (f), and adding
Subsections (e) and (g) 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) [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] A person from whom toxicological evidence
was collected must be notified of the periods for which the evidence
[is to] may be retained and preserved under this article. [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.] 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 notice by (d)(1) and the toxicological
evidence is subject to the retention period under Subsection (c)(2)
or (c)(3).
(e) Notice given under this article must be given in
writing, as soon as practicable, by hand delivery, by electronic
mail or first class mail to the person's last know email or mailing
address, or by provision of the information required by section
724.015, Transportation Code.
[(e)](f) Subject to subsection (g), if notice was 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 [the notice most recently issued by the court under Subsection
(d)] Subsection (c).
(g) If the toxicological evidence is subject to the
retention period under Subsection (c)(2) or (c)(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.
[(f)] (h) To the extent of any conflict between this article
and Article 2.21 or 38.43, this article controls.
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 submits to the taking of a blood
specimen, the specimen will be retained and preserved in accordance
with preservation requirements set out in article 38.50, Code of
Criminal Procedure;
[(4)](5) 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)](6) 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)](7) 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)](8) 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.
(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 change in law made by Section 1 of this Act applies
only to evidence for which the appropriate retention and
preservation period under Article 38.50, Code of Criminal
Procedure, as amended by this Act, 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-1), Code of Criminal Procedure, as
added by this Act, not later than December 1, 2021.
(c) The change in law made by Section 2 of this Act applies
only to the 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. The 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.