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.