Bill Text: TX SB1636 | 2011-2012 | 82nd Legislature | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the collection, analysis, and preservation of sexual assault or DNA evidence.

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB1636 Detail]

Download: Texas-2011-SB1636-Comm_Sub.html
  82R30115 SJM-D
 
  By: Davis, et al. S.B. No. 1636
 
  (McClendon)
 
  Substitute the following for S.B. No. 1636:  No.
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the collection, analysis, and preservation of sexual
  assault or DNA evidence.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 411.151, Government Code, is amended by
  adding Subsection (e) to read as follows:
         (e)  The department's failure to expunge a DNA record as
  required by this section may not serve as the sole grounds for a
  court in a criminal proceeding to exclude evidence based on or
  derived from the contents of that record.
         SECTION 2.  Section 420.003, Government Code, is amended by
  amending Subdivisions (1) and (6) and adding Subdivisions (1-a),
  (1-b), (1-c), and (1-d) to read as follows:
               (1)  "Accredited crime laboratory" means a crime
  laboratory, as that term is defined by Article 38.35, Code of
  Criminal Procedure, that has been accredited under Section
  411.0205.
               (1-a)  "Active criminal case" means a case:
                     (A)  in which:
                           (i)  a sexual assault has been reported to a
  law enforcement agency; and
                           (ii)  physical evidence of the assault has
  been submitted to the agency or an accredited crime laboratory
  under this chapter for analysis; and
                     (B)  for which:
                           (i)  the statute of limitations has not run
  with respect to the prosecution of the sexual assault; or
                           (ii)  a DNA profile was obtained that is
  eligible under Section 420.043 for comparison with DNA profiles in
  the state database or CODIS DNA database.
               (1-b)  "Advocate" means a person who provides advocacy
  services as an employee or volunteer of a sexual assault program.
               (1-c)  "Department" means the Department of Public
  Safety of the State of Texas.
               (1-d)  "Law enforcement agency" means a state or local
  law enforcement agency in this state with jurisdiction over the
  investigation of a sexual assault.
               (6)  "Sexual assault nurse examiner" means a registered
  nurse who has completed a service-approved examiner training course
  described by Section 420.011.
         SECTION 3.  Subsection (e), Section 420.031, Government
  Code, is amended to read as follows:
         (e)  Evidence collected under this section may not be
  released unless a signed, [the survivor of the offense or a legal
  representative of the survivor signs a] written consent to release
  the evidence is obtained as provided by Section 420.0735.
         SECTION 4.  Subchapter B, Chapter 420, Government Code, is
  amended by adding Section 420.033 to read as follows:
         Sec. 420.033.  CHAIN OF CUSTODY. Medical, law enforcement,
  department, and laboratory personnel who handle sexual assault
  evidence under this chapter or other law shall maintain the chain of
  custody of the evidence from the time the evidence is collected
  until the time the evidence is destroyed.
         SECTION 5.  Chapter 420, Government Code, is amended by
  adding Subchapter B-1 to read as follows:
  SUBCHAPTER B-1.  ANALYSIS OF SEXUAL ASSAULT EVIDENCE
         Sec. 420.041.  APPLICABILITY OF SUBCHAPTER.  This subchapter
  applies only to physical evidence of a sexual assault with respect
  to an active criminal case.
         Sec. 420.042.  ANALYSIS OF SEXUAL ASSAULT EVIDENCE. (a)  A
  law enforcement agency that receives sexual assault evidence
  collected under this chapter or other law shall submit that
  evidence to a public accredited crime laboratory for analysis not
  later than the 30th day after the date on which that evidence was
  received.
         (b)  A person who submits sexual assault evidence to a public
  accredited crime laboratory under this chapter or other law shall
  provide the following signed, written certification with each
  submission:  "This evidence is being submitted by (name of person
  making submission) in connection with a criminal investigation."
         (c)  If sufficient personnel and resources are available, a
  public accredited crime laboratory as soon as practicable shall
  complete its analysis of sexual assault evidence submitted under
  this chapter or other law.
         (d)  To ensure the expeditious completion of analyses, the
  department and other applicable public accredited crime
  laboratories may contract with private accredited crime
  laboratories as appropriate to perform those analyses, subject to
  the necessary quality assurance reviews by the public accredited
  crime laboratories.
         (e)  The failure of a law enforcement agency to submit sexual
  assault evidence within the period required by this section does
  not affect the authority of:
               (1)  the agency to submit the evidence to an accredited
  crime laboratory for analysis; or
               (2)  an accredited crime laboratory to analyze the
  evidence or provide the results of that analysis to appropriate
  persons.
         Sec. 420.043.  DATABASE COMPARISON REQUIRED. On the request
  of any appropriate person and after an evidence collection kit
  containing biological evidence has been analyzed by an accredited
  crime laboratory and any necessary quality assurance reviews have
  been performed, the department shall compare the DNA profile
  obtained from the biological evidence with DNA profiles maintained
  in:
               (1)  state databases, including the DNA database
  maintained under Subchapter G, Chapter 411, if the amount and
  quality of the analyzed sample meet the requirements of the state
  database comparison policies; and
               (2)  the CODIS DNA database established by the Federal
  Bureau of Investigation, if the amount and quality of the analyzed
  sample meet the requirements of the bureau's CODIS comparison
  policies.
         SECTION 6.  Section 420.072, Government Code, is amended to
  read as follows:
         Sec. 420.072.  EXCEPTIONS.  (a)  A communication, a [or]
  record, or evidence that is confidential under this subchapter may
  be disclosed in court or in an administrative proceeding if:
               (1)  the proceeding is brought by the survivor against
  an advocate or a sexual assault program or is a criminal proceeding
  or a certification revocation proceeding in which disclosure is
  relevant to the claims or defense of the advocate or sexual assault
  program; or
               (2)  the survivor or other appropriate person [a person
  authorized to act on behalf of the survivor] consents in writing to
  the disclosure [release of the confidential information] as
  provided by Section 420.073 or 420.0735, as applicable.
         (b)  A communication, a [or] record, or evidence that is
  confidential under this subchapter may be disclosed only to:
               (1)  medical or law enforcement personnel if the
  advocate determines that there is a probability of imminent
  physical danger to any person for whom the communication, [or]
  record, or evidence is relevant or if there is a probability of
  immediate mental or emotional injury to the survivor;
               (2)  a governmental agency if the disclosure is
  required or authorized by law;
               (3)  a qualified person to the extent necessary for a
  management audit, financial audit, program evaluation, or
  research, except that a report of the research, audit, or
  evaluation may not directly or indirectly identify a survivor;
               (4)  a person authorized to receive the disclosure as a
  result of [who has the] written consent obtained under [of the
  survivor or of a person authorized to act on the survivor's behalf
  as provided by] Section 420.073 or 420.0735; or
               (5)  an advocate or a person under the supervision of a
  counseling supervisor who is participating in the evaluation or
  counseling of or advocacy for the survivor.
         (c)  A communication, a [or] record, or evidence that is
  confidential under this subchapter may not be disclosed to a parent
  or legal guardian of a survivor who is a minor if an advocate or a
  sexual assault program knows or has reason to believe that the
  parent or legal guardian of the survivor is a suspect in the sexual
  assault of the survivor.
         SECTION 7.  The heading to Section 420.073, Government Code,
  is amended to read as follows:
         Sec. 420.073.  CONSENT FOR RELEASE OF CERTAIN CONFIDENTIAL
  INFORMATION.
         SECTION 8.  Subsection (a), Section 420.073, Government
  Code, is amended to read as follows:
         (a)  Consent for the release of confidential information
  other than evidence contained in an evidence collection kit must be
  in writing and signed by the survivor, a parent or legal guardian if
  the survivor is a minor, a legal guardian if the survivor has been
  adjudicated incompetent to manage the survivor's personal affairs,
  an attorney ad litem appointed for the survivor, or a personal
  representative if the survivor is deceased. The written consent
  must specify:
               (1)  the information or records covered by the release;
               (2)  the reason or purpose for the release; and
               (3)  the person to whom the information is to be
  released.
         SECTION 9.  Subchapter D, Chapter 420, Government Code, is
  amended by adding Section 420.0735 to read as follows:
         Sec. 420.0735.  CONSENT FOR RELEASE OF CERTAIN EVIDENCE.
  (a)  Consent for the release of evidence contained in an evidence
  collection kit must be in writing and signed by:
               (1)  the survivor, if the survivor is 14 years of age or
  older;
               (2)  the survivor's parent or guardian or an employee of
  the Department of Family and Protective Services, if the survivor
  is younger than 14 years of age; or
               (3)  the survivor's personal representative, if the
  survivor is deceased.
         (b)  For purposes of Subsection (a)(1), a written consent
  signed by an incapacitated person, as that term is defined by
  Section 601, Texas Probate Code, is effective regardless of whether
  the incapacitated person's guardian, guardian ad litem, or other
  legal agent signs the release.  If the incapacitated person is
  unable to provide a signature and the guardian, guardian ad litem,
  or other legal agent is unavailable to sign the release, then the
  investigating law enforcement officer may sign the release.
         (c)  Consent for release under Subsection (a) applies only to
  evidence contained in an evidence collection kit and does not
  affect the confidentiality of any other confidential information
  under this chapter.
         (d)  The written consent must specify:
               (1)  the evidence covered by the release;
               (2)  the reason or purpose for the release; and
               (3)  the person to whom the evidence is to be released.
         (e)  A survivor or other person authorized to consent may
  withdraw consent to the release of evidence by submitting a written
  notice of withdrawal to the person or program to which consent was
  provided. Withdrawal of consent does not affect evidence disclosed
  before the date written notice of the withdrawal was received.
         (f)  A person who receives evidence made confidential by this
  chapter may not disclose the evidence except to the extent that
  disclosure is consistent with the authorized purposes for which the
  person obtained the evidence.
         SECTION 10.  Section 420.074, Government Code, is amended to
  read as follows:
         Sec. 420.074.  CRIMINAL SUBPOENA. Notwithstanding any other
  provision of this chapter, a person shall disclose a communication,
  a [or] record, or evidence that is confidential under this chapter
  for use in a criminal investigation or proceeding in response to a
  subpoena issued in accordance with law.
         SECTION 11.  Section 420.075, Government Code, is amended to
  read as follows:
         Sec. 420.075.  OFFENSE. A person commits an offense if the
  person intentionally or knowingly discloses a communication, a [or]
  record, or evidence that is confidential under this chapter, except
  as provided by this chapter. An offense under this section is a
  Class C misdemeanor.
         SECTION 12.  Subsections (f) and (g), Article 56.065, Code
  of Criminal Procedure, are amended to read as follows:
         (f)  The department, consistent with Chapter 420, Government
  Code, may develop procedures regarding the submission or collection
  of additional evidence of the alleged sexual assault other than
  through an examination as described by this article.
         (g)  The department, consistent with Chapter 420, Government
  Code, shall develop procedures for the transfer and preservation of
  evidence collected under this article to a crime laboratory or
  other suitable location designated by the public safety director of
  the department.  The receiving entity shall preserve the evidence
  until the earlier of:
               (1)  the second anniversary of the date the evidence
  was collected; or
               (2)  the date on which [the victim or a legal
  representative of the victim signs a] written consent to release
  the evidence is obtained as provided by Section 420.0735,
  Government Code.
         SECTION 13.  Subsection (e), Article 102.056, Code of
  Criminal Procedure, is amended to read as follows:
         (e)  The legislature shall determine and appropriate the
  necessary amount from the criminal justice planning account to the
  criminal justice division of the governor's office for
  reimbursement in the form of grants to the Department of Public
  Safety of the State of Texas and other [local] law enforcement
  agencies for expenses incurred in performing duties imposed on
  those agencies under Section [Sections] 411.1471 or Subchapter B-1,
  Chapter 420 [and 411.1472], Government Code, as applicable. On the
  first day after the end of a calendar quarter, a law enforcement
  agency incurring expenses described by this subsection in the
  previous calendar quarter shall send a certified statement of the
  costs incurred to the criminal justice division. The criminal
  justice division through a grant shall reimburse the law
  enforcement agency for the costs not later than the 30th day after
  the date the certified statement is received. If the criminal
  justice division does not reimburse the law enforcement agency
  before the 90th day after the date the certified statement is
  received, the agency is not required to perform duties imposed
  under Section [Sections] 411.1471 or Subchapter B-1, Chapter 420 
  [and 411.1472], Government Code, as applicable, until the agency
  has been compensated for all costs for which the [local law
  enforcement] agency has submitted a certified statement under this
  subsection.
         SECTION 14.  On or after the effective date of this Act, the
  Department of Public Safety of the State of Texas shall ensure that
  any unanalyzed sexual assault evidence that is in the possession of
  a law enforcement agency and that is collected:
               (1)  on or after August 1, 2011, is analyzed in
  accordance with Chapter 420, Government Code, as amended by this
  Act; and
               (2)  before August 1, 2011, is analyzed as nearly as
  possible to the time provided by Chapter 420, Government Code, as
  amended by this Act.
         SECTION 15.  (a)  A law enforcement agency in possession of
  sexual assault evidence that has not been submitted for laboratory
  analysis shall:
               (1)  not later than October 15, 2011, submit to the
  Department of Public Safety of the State of Texas a list of the
  agency's active criminal cases for which sexual assault evidence
  has not yet been submitted for laboratory analysis;
               (2)  not later than April 1, 2012, and subject to the
  availability of laboratory storage space, submit, as appropriate,
  to the Department of Public Safety of the State of Texas or a public
  accredited crime laboratory, as defined by Section 420.003,
  Government Code, as amended by this Act, all sexual assault
  evidence pertaining to those active criminal cases that has not yet
  been submitted for laboratory analysis; and
               (3)  if the law enforcement agency submits evidence
  under Subdivision (2) of this subsection to a laboratory other than
  a Department of Public Safety of the State of Texas laboratory,
  notify the department of:
                     (A)  the laboratory to which the evidence was
  sent; and
                     (B)  any analysis completed by the laboratory to
  which the evidence was sent and the date on which the analysis was
  completed.
         (b)  Not later than February 15, 2013, the Department of
  Public Safety of the State of Texas shall submit to the governor and
  the appropriate standing committees of the senate and the house of
  representatives a report containing:
               (1)  a projected timeline for the completion of
  laboratory analyses, in accordance with Chapter 420, Government
  Code, as amended by this Act, of all unanalyzed sexual assault
  evidence submitted under Subdivision (2), Subsection (a) of this
  section;
               (2)  a request for any necessary funding to accomplish
  the analyses under Subdivision (1) of this subsection, including a
  request for a grant of money under Subsection (e), Article 102.056,
  Code of Criminal Procedure, as amended by this Act, if money is
  available under that subsection;
               (3)  as appropriate, application materials for
  requests made as required by Subdivision (2) of this subsection;
  and
               (4)  if the department determines that outsourcing of a
  portion of the submitted evidence is necessary for timely analyses
  of the evidence:
                     (A)  a proposal for determining which evidence
  should be outsourced; and
                     (B)  a list of laboratories the department
  determines are capable of completing the outsourced analyses.
         (c)  Not later than September 1, 2014, and to the extent that
  funding is available, the Department of Public Safety of the State
  of Texas shall, as provided by Sections 420.042 and 420.043,
  Government Code, as added by this Act, analyze or contract for the
  analysis of, and complete the required database comparison
  regarding, all sexual assault evidence submitted to the department
  under Subdivision (2), Subsection (a) of this section.
         (d)  Notwithstanding Subsection (c) of this section, the
  Department of Public Safety of the State of Texas is not required to
  use under this section in a state fiscal year any amount of money
  from the state highway fund that exceeds the amount the department
  has historically used in a state fiscal year to fund laboratory
  analyses of sexual assault evidence under Chapter 420, Government
  Code, as amended by this Act.
         (e)  To supplement funding of laboratory analyses under this
  section, the department may solicit and receive grants, gifts, or
  donations of money from the federal government or private sources
  as described by Chapter 420, Government Code.
         SECTION 16.  Notwithstanding Chapter 420, Government Code,
  as amended by this Act, and Section 14 of this Act, this Act does not
  apply to sexual assault evidence collected before September 1,
  1996.
         SECTION 17.  (a) Except as provided by Article 102.056(e),
  Code of Criminal Procedure, as amended by this Act, Section
  420.007, Government Code, and Section 15(d) of this Act, state
  funds may not be appropriated for the purpose of implementing this
  Act.
         (b)  Notwithstanding any other law, the Department of Public
  Safety of the State of Texas may not use legislative appropriations
  to discharge any additional duties imposed by this Act on the
  department.
         SECTION 18.  This Act takes effect September 1, 2011.
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