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From the 2005 Regular Session of the Texas Legislature

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	H.B. No. 1068



AN ACT



relating to the collection and analysis
of evidence and testimony based on forensic analysis,
crime laboratory accreditation, DNA testing, and the
creation and maintenance of DNA records; providing
a penalty.


BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF TEXAS:


SECTION 1.  Chapter 38, Code of Criminal
Procedure, is amended by adding Article 38.01 to read
as follows:


Art. 38.01.  TEXAS FORENSIC SCIENCE
COMMISSION


Sec. 1.  CREATION.  The Texas Forensic
Science Commission is created.


Sec. 2.  DEFINITION.  In this article,
"forensic analysis" has the meaning assigned by Article
38.35(a).


Sec. 3.  COMPOSITION.  (a)  The commission
is composed of the following nine members:


(1)  four members appointed by the governor:


(A)  two of whom must have expertise
in the field of forensic science;


(B)  one of whom must be a prosecuting
attorney that the governor selects from a list of 10
names submitted by the Texas District and County Attorneys
Association; and


(C)  one of whom must be a defense attorney
that the governor selects from a list of 10 names submitted
by the Texas Criminal Defense Lawyers Association;


(2)  three members appointed by the
lieutenant governor:


(A)  one of whom must be a faculty member
or staff member of The University of Texas who specializes
in clinical laboratory medicine selected from a list
of 10 names submitted to the lieutenant governor by
the chancellor of The University of Texas System;


(B)  one of whom must be a faculty member
or staff member of Texas A&M University who specializes
in clinical laboratory medicine selected from a list
of 10 names submitted to the lieutenant governor by
the chancellor of The Texas A&M University System;


(C)  one of whom must be a faculty member
or staff member of Texas Southern University who has
expertise in pharmaceutical laboratory research selected
from a list of 10 names submitted to the lieutenant
governor by the chancellor of Texas Southern University;
and


(3)  two members appointed by the attorney
general:


(A)  one of whom must be a director
or division head of the University of North Texas Health
Science Center at Fort Worth Missing Persons DNA Database;
and


(B)  one of whom must be a faculty or
staff member of the Sam Houston State University College
of Criminal Justice and have expertise in the field
of forensic science or statistical analyses selected
from a list of 10 names submitted to the lieutenant
governor by the chancellor of Texas State University
System.


(b)  Each member of the commission serves
a two-year term.  The term of the members appointed
under Subsections (a)(1) and (2) expires on September
1 of each odd-numbered year.  The term of the members
appointed under Subsection (a)(3) expires on September
1 of each even-numbered year.


(c)  The governor shall designate a
member of the commission to serve as the presiding
officer.


Sec. 4.  DUTIES.  (a)  The commission
shall:


(1)  develop and implement a reporting
system through which accredited laboratories, facilities,
or entities report professional negligence or misconduct;


(2)  require all laboratories, facilities,
or entities that conduct forensic analyses to report
professional negligence or misconduct to the commission;
and


(3)  investigate, in a timely manner,
any allegation of professional negligence or misconduct
that would substantially affect the integrity of the
results of a forensic analysis conducted by an accredited
laboratory, facility, or entity.


(b)  An investigation under Subsection
(a)(3):


(1)  must include the preparation of
a written report that identifies and also describes
the methods and procedures used to identify:


(A)  the alleged negligence or misconduct;


(B)  whether negligence or misconduct
occurred; and


(C)  any corrective action required
of the laboratory, facility, or entity; and


(2)  may include one or more:


(A)  retrospective reexaminations of
other forensic analyses conducted by the laboratory,
facility, or entity that may involve the same kind
of negligence or misconduct; and


(B)  follow-up evaluations of the laboratory,
facility, or entity to review:


(i)  the implementation of any corrective
action required under Subdivision (1)(C); or


(ii)  the conclusion of any retrospective
reexamination under Paragraph (A).


(c)  The commission by contract may
delegate the duties described by Subsections (a)(1)
and (3) to any person the commission determines to
be qualified to assume those duties.


(d)  The commission may require that
a laboratory, facility, or entity investigated under
this section pay any costs incurred to ensure compliance
with Subsection (b)(1).


(e)  The commission shall make all investigation
reports completed under Subsection (b)(1) available
to the public.  A report completed under Subsection
(b)(1), in a subsequent civil or criminal proceeding,
is not prima facie evidence of the information or findings
contained in the report.


Sec. 5.  REIMBURSEMENT.  A member of
the commission may not receive compensation but is
entitled to reimbursement for the member's travel expenses
as provided by Chapter 660, Government Code, and the
General Appropriations Act.


Sec. 6.  ASSISTANCE.  The Texas Legislative
Council, the Legislative Budget Board, and The University
of Texas at Austin shall assist the commission in performing
the commission's duties.


Sec. 7.  SUBMISSION.  The commission
shall submit any report received under Section 4(a)(2)
and any report prepared under Section 4(b)(1) to the
governor, the lieutenant governor, and the speaker
of the house of representatives not later than December
1 of each even-numbered year.


SECTION 2.  Article 38.35, Code of Criminal
Procedure, is amended to read as follows:


Art. 38.35.  FORENSIC ANALYSIS OF EVIDENCE;
 ADMISSIBILITY.  (a)  In this article:


(1)  "Crime laboratory" includes a public
or private laboratory or other entity that conducts
a forensic analysis subject to this article.


(2)  "Criminal action" includes an investigation,
complaint, arrest, bail, bond, trial, appeal, punishment,
or other matter related to conduct proscribed by a
criminal offense.


(3)  "Director" means the public safety
director of the Department of Public Safety.


(4)  "Forensic analysis" means a
medical, chemical, toxicologic, ballistic, or other
expert examination or test performed on physical evidence,
including DNA evidence, for the purpose of determining
the connection of the evidence to a criminal action.
 The term includes an examination or test requested
by a law enforcement agency, prosecutor, criminal suspect
or defendant, or court.  The term does not include:


(A)  latent print examination;


(B)  a test of a specimen of breath under
Chapter 724, Transportation Code; or


(C)  digital evidence;


(D)  an examination or test excluded
by rule under Section 411.0205(c), Government Code;


(E)  a presumptive test performed for
the purpose of determining compliance with a term or
condition of community supervision or parole and conducted
by or under contract with a community supervision and
corrections department, the parole division of the
Texas Department of Criminal Justice, or the Board
of Pardons and Paroles; or


(F)  an expert examination or test conducted
principally for the purpose of scientific research,
medical practice, civil or administrative litigation,
or other purpose unrelated to determining the connection
of physical evidence to a criminal action.


(5) (2)  "Physical
evidence" means any tangible object, thing, or substance
relating to a criminal action offense.


(b)  A law enforcement agency, prosecutor,
or court may request procure
a forensic analysis by a crime laboratory of
physical evidence if the evidence was obtained
in connection with the requesting entity's agency's
investigation or disposition of a criminal action
and the requesting entity:


(1)  controls the evidence;


(2)  submits the evidence to the laboratory;
or


(3)  consents to the analysis offense.


(c)  A law enforcement agency, other governmental
agency, or private entity performing a forensic analysis
of physical evidence may require the requesting law
enforcement agency to pay a fee for such analysis.


(d)(1)  Except as provided by Subsection
(e), a forensic analysis of physical Physical
evidence under this article subjected
to a forensic analysis, and expert
testimony relating to regarding
the evidence are, under this article
is not admissible in a criminal action
case if, at the time of the analysis
or the time the evidence is submitted to the
court, the crime laboratory or other
entity conducting the analysis was not accredited
by the director Department of Public
Safety under Section 411.0205, Government
Code.


(2)  If before the date of the analysis
the director issues a certificate of accreditation
under Section 411.0205, Government Code, to a crime
laboratory conducting the analysis, the certificate
is prima facie evidence that the laboratory was accredited
by the director at the time of the analysis.


(e)  A forensic analysis of physical
evidence under this article and expert testimony relating
to the evidence are not inadmissible in a criminal
action based solely on the accreditation status of
the crime laboratory conducting the analysis if the
laboratory:


(A)  except for making proper application,
was eligible for accreditation by the director at the
time of the examination or test; and


(B)  obtains accreditation from the
director before the time of testimony about the examination
or test.


(f)  This article does not apply to
the portion of an autopsy conducted by a medical examiner
or other forensic pathologist who is a licensed physician.
Notwithstanding Subsection (d), physical evidence
subjected to a forensic analysis under this article
is not inadmissible in a criminal case based solely
on the accreditation status of the crime laboratory
or other entity conducting the analysis if the laboratory
or entity:


(1)  has preserved one or more
separate samples of the physical evidence for use by
the defense attorney or use under order of the convicting
court; and


(2)  has agreed to preserve those
samples until all appeals in the case are final.  This
subsection expires September 1, 2005.


SECTION 3.  Section 411.0205, Government
Code, is amended to read as follows:


Sec. 411.0205.  CRIME LABORATORY ACCREDITATION
PROCESS.  (a)  In this section, "crime laboratory,"
"forensic analysis," and "physical evidence"
have the meanings assigned by Article 38.35, Code of
Criminal Procedure, and "DNA laboratory" has
the meaning assigned by Section 411.141.


(b)  The director by rule:


(1)  shall establish an accreditation
process for crime laboratories, including
DNA laboratories, and other entities conducting
forensic analyses of physical evidence for use in criminal
proceedings; and


(2)  may modify or remove a crime laboratory
exemption under this section if the director determines
that the underlying reason for exemption no longer
applies.


(b-1)  As part of the accreditation
process established and implemented under Subsection
(b), the director may:


(1)  establish minimum standards that
relate to the timely production of a forensic analysis
to the agency requesting the analysis and that are
consistent with this article and code;


(2)  validate or approve specific forensic
methods or methodologies; and


(3)  establish procedures, policies,
and practices to improve the quality of forensic analyses
conducted in this state.


(b-2)  The director may require that
a laboratory, facility, or entity required to be accredited
under this section pay any costs incurred to ensure
compliance with the accreditation process.


(c)  The director by rule may exempt from
the accreditation process established under Subsection
(b) a crime laboratory or other entity
conducting a forensic analysis or a type of analysis,
examination, or test of physical evidence
for use in criminal proceedings if the director
determines that:


(1)  independent accreditation is unavailable
or inappropriate for the laboratory or entity
or the type of analysis, examination,
or test performed by the laboratory or entity;


(2)  the type of analysis, examination,
or test performed by the laboratory or entity
is admissible under a well-established rule of evidence
or a statute other than Article 38.35, Code of Criminal
Procedure; and


(3)  the type of analysis, examination,
or test performed by the laboratory or entity
is routinely conducted outside of a crime laboratory
or other applicable entity by a
person other than an employee of the crime laboratory;
or


(4)  the laboratory:


(A)  is located outside this state or,
if located in this state, is operated by a governmental
entity other than the state or a political subdivision
of the state; and


(B)  was accredited at the time of the
analysis under an accreditation process with standards
that meet or exceed the relevant standards of the process
established by the director under Subsection (b)
or other applicable entity.


(d)  The director may at any reasonable
time enter and inspect the premises or audit the records,
reports, procedures, or other quality assurance matters
of a crime laboratory that is accredited or seeking
accreditation under this section.


(e)  The director may collect costs
incurred under this section for accrediting, inspecting,
or auditing a crime laboratory.


(f)  If the director provides a copy
of an audit or other report made under this section,
the director may charge $6 for the copy, in addition
to any other cost permitted under Chapter 552 or a
rule adopted under that chapter.


(g)  Funds collected under this section
shall be deposited in the state treasury to the credit
of the state highway fund, and money deposited to the
state highway fund under this section may be used only
to defray the cost of administering this section or
Subchapter G.


SECTION 4.  Section 411.141, Government
Code, is amended to read as follows:


Sec. 411.141.  DEFINITIONS.  In this subchapter:


(1)  "CODIS" means the FBI's Combined
DNA Index System.  The term includes the national DNA
index system sponsored by the FBI.


(2)  "Conviction" includes conviction
by a jury or a court, a guilty plea, a plea of nolo
contendere, or a finding of not guilty by reason of
insanity.


(3)  "Criminal justice agency" has the
meaning assigned by Article 60.01, Code of Criminal
Procedure.


(4)  "DNA" means deoxyribonucleic
acid.


(5) (2)  "DNA
database" means one or more databases that contain
the database that contains forensic
DNA records maintained by the director.


(6) (3)  "DNA
laboratory" means a laboratory that performs forensic
DNA analysis on samples or specimens derived from a
human body, physical evidence, or a crime
scene.  The term includes a department crime laboratory
facility that conducts forensic DNA analysis.


(7) (4)  "DNA
record" means the results of a forensic DNA analysis
performed by a DNA laboratory. The term includes
a DNA profile and related records, which may include
a code or other identifying number referenced to a
separate database to locate:


(A)  the originating entity; and


(B),  if known,
the name and other personally identifying information
concerning the individual of the person
who is the subject of the analysis.


(8)  "DNA sample" means a blood sample
or other biological sample or specimen provided by
an individual under this subchapter or submitted to
the director under this subchapter for DNA analysis
or storage.


(9) (5)  "FBI"
means the Federal Bureau of Investigation.


(10)  "Forensic analysis" has the meaning
assigned by Article 38.35, Code of Criminal Procedure.


(11) (6)  "Institution
of higher education" has the meaning assigned by Section
61.003, Education Code.


(12) (7)  "Institutional
division" means the institutional division of the Texas
Department of Criminal Justice.


(8)  "Penal institution"
has the meaning assigned by Section 1.07, Penal Code.


SECTION 5.  Sections 411.142(c), (d), (g),
and (h), Government Code, are amended to read as follows:


 (c)  The director may receive, analyze,
store, and destroy a record or DNA sample ,
blood sample, or other specimen for the purposes
described by Section 411.143.


(d)  The DNA database must be capable of
classifying, matching, and storing the results of analyses
of DNA and other biological molecules.


(g)  The DNA database may contain DNA records
for the following:


(1)  an individual a person
described by this subchapter, including Section
411.1471, 411.148, or 411.150;


(2)  a biological specimen of a deceased
victim of a crime;


(3)  a biological specimen that is legally
obtained in the investigation of a crime, regardless
of origin;


(4)  results of testing ordered by a
court under this subchapter, Article 64.03,
Code of Criminal Procedure, or other law permitting
or requiring the creation of a DNA record;


(5)  an unidentified missing person, or
unidentified skeletal remains or body parts;


(6)  a close biological relative of a person
who has been reported missing to a law enforcement
agency;


(7)  a person at risk of becoming lost,
such as a child or a person declared by a court to
be mentally incapacitated, if the record is required
by court order or a parent, conservator, or guardian
of the person consents to the record; or


(8)  an unidentified person, if the record
does not contain personal identifying information.


(h)  The director department
shall establish standards for DNA analysis by the DNA
laboratory that meet or exceed the current standards
for quality assurance and proficiency testing for forensic
DNA analysis issued by the FBI. The DNA database may
contain only DNA records of DNA analyses performed
according to the standards adopted by the director
department.


SECTION 6.  Section 411.143, Government
Code, is amended by amending Subsections (a), (b),
and (c) and adding Subsection (g) to read as follows:


(a)  The principal purpose of the DNA database
is to assist a federal, state, or local criminal
justice agency or law enforcement agencies
in the investigation or prosecution of sex-related
offenses or other offenses in which biological evidence
is recovered.


(b)  In criminal cases, the purposes of
the DNA database are only for use in the investigation
of an offense, the exclusion or identification of suspects
or offenders, and the prosecution or defense
of the case.


(c)  Other purposes of the database include:


(1)  assisting in the recovery or identification
of human remains from a disaster or for humanitarian
purposes;


(2)  assisting in the identification of
living or deceased missing persons; and


(3)  if personal identifying information
is removed:


(A)  establishing a population statistics
database; and


(B)  assisting in identification research,
forensic validation studies, or forensic and
protocol development; and


(4)  retesting to validate or update
the original analysis or (C)
assisting in database or DNA laboratory quality control.


(g)  A party contracting to carry out
a function of another entity under this subchapter
shall comply with:


(1)  a requirement imposed by this subchapter
on the other entity, unless the party or other entity
is exempted by the director; and


(2)  any additional requirement imposed
by the director on the party.


SECTION 7.  Section 411.144, Government
Code, is amended to read as follows:


Sec. 411.144.  REGULATION OF DNA LABORATORIES;
PENALTIES.  (a)  The director by rule shall establish
procedures for a DNA laboratory or criminal justice
or law enforcement agency in the
collection, preservation, shipment, analysis, and use
of a DNA sample blood sample or other
specimen for forensic DNA analysis in a manner
that permits the exchange of DNA evidence between DNA
laboratories and the use of the evidence in a criminal
case.


(b)  A DNA laboratory or criminal justice
or law enforcement agency shall
follow the procedures:


(1)  established by the director under
this section; and


(2)  specified by the FBI, including use
of comparable test procedures, laboratory equipment,
supplies, and computer software.


(c)  The director may at any reasonable
time enter and inspect the premises or audit the records,
reports, procedures, or other quality assurance
matters of any DNA laboratory that:


(1)  provides DNA records or
DNA forensic analyses to the director
department under this subchapter;
or


(2)  conducts forensic analysis.


(d)  A DNA laboratory conducting a forensic
DNA analysis under this subchapter shall:


(1)  forward the DNA record of the analysis
to the director at the department's crime laboratory
or another location as required by the director
department; and


(2)  comply with this subchapter and rules
adopted under this subchapter.


(e)  If a DNA laboratory violates
this subchapter or a rule adopted under this subchapter,
the director may prohibit the laboratory from exchanging
DNA records with another DNA laboratory or criminal
justice or law enforcement agency.  A DNA laboratory
prohibited from exchanging DNA records under this subsection
may petition the director for a hearing to show cause
why the laboratory's authority to exchange DNA records
should be reinstated.


(f)  The director is
the Texas liaison for DNA data, records, evidence,
and other related matters between:


(1)  the FBI; and


(2)  a DNA laboratory or a criminal
justice or law enforcement agency.


(f) (g)  The
director may:


(1)  conduct DNA analyses; or


(2)  contract with a laboratory, state
agency, private entity, or institution of higher education
for services to perform DNA analyses for the director
department.


(h)  The institutional division
may:


(1)  collect a blood sample or
other specimen for forensic DNA analysis; or


(2)  contract with a laboratory,
state agency, private entity, or institution of higher
education for services to collect a sample or other
specimen under this subchapter.


SECTION 8.  Section 411.145, Government
Code, is amended to read as follows:


Sec. 411.145.  FEES.  (a)  The director
may collect a reasonable fee under this subchapter
for:


(1)  for the DNA analysis
of a DNA sample blood sample or other
specimen submitted voluntarily to the director
department; or


(2)  for providing population
statistics data or other appropriate research data.


(b)  If the director provides a copy
of an audit or other report made under this subchapter,
the director may charge $6 for the copy, in addition
to any other cost permitted under Chapter 552 or a
rule adopted under that chapter.


(c)  A fee collected under this
section shall be deposited in the state treasury to
the credit of the state highway fund, and money deposited
to the state highway fund under this section
and under Articles 42.12 and Article
102.020(h), Code of Criminal Procedure, may be used
only to defray the cost of administering this subchapter
and Section 411.0205.


SECTION 9.  Section 411.146, Government
Code, is amended to read as follows:


Sec. 411.146.  DNA SAMPLES BLOOD
SAMPLES OR OTHER SPECIMENS.  (a)  The director
may not accept a DNA record or DNA sample collected
blood sample or other specimen taken
from an individual a person
who at the time of collection is alive, unless the
director reasonably believes the sample was is
not deceased that is submitted voluntarily
or as required by this subchapter and is:


(1)  a blood sample Section
411.148 or 411.150 unless the sample or specimen is
collected in a medically approved manner by:


(A) (1)  a physician,
registered nurse, licensed vocational nurse, licensed
clinical laboratory technologist; or


(B)  an individual (2)
 another person who is trained to properly
collect blood samples under this subchapter; or


(2)  a specimen other than a blood sample
collected:


(A)  in a manner approved by the director
by rule adopted under this section; and


(B)  by an individual who is trained
to properly collect the specimen under this subchapter
or other specimens and supervised by a licensed
physician.


(b)  A person collecting a blood
sample or other specimen under this section may not
be held liable in any civil or criminal action if the
person collects the sample or specimen in a reasonable
manner according to generally accepted medical or other
professional practices.


(c)  The director shall
provide at no cost to a person collecting a DNA
sample as described by Subsection (a) the collection
kits, specimen vials, mailing tubes and
labels, report forms, and instructions,
and training for collection of DNA blood
samples or other specimens under
this section.


(c)(1)  The director shall adopt rules
regarding the collection, preservation, shipment, and
analysis of a DNA database sample under this subchapter,
including the type of sample or specimen taken.


(2)  A criminal justice agency permitted
or required to collect a DNA sample for forensic DNA
analysis under this subchapter:


(A)  may collect the sample or contract
with a phlebotomist, laboratory, state agency, private
entity, or institution of higher education for services
to collect the sample at the time determined by the
agency; and


(B)  shall:


(i)  preserve each sample collected
until it is forwarded to the director under Subsection
(d); and


(ii)  maintain a record of the collection
of the sample.


(d)  A criminal justice agency that
person who collects a DNA
blood sample or other specimen
under this section shall send the sample or
specimen to:


(1)  the director at the department's crime
laboratory; or


(2)  another location as required by the
director by rule.


(e)  A DNA laboratory may analyze a DNA
blood sample collected under this
section or other DNA specimen only:


(1)  to type the genetic markers contained
in the sample or specimen;


(2)  for criminal justice or and
law enforcement purposes; or


(3)  for other purposes described by this
subchapter.


(f)  If possible, a second DNA sample
specimen must be collected
obtained from an individual
a suspect in a criminal investigation
if forensic DNA evidence is necessary for use as substantive
evidence in the investigation, prosecution,
or defense of a case.


SECTION 10.  Section 411.147, Government
Code, is amended to read as follows:


Sec. 411.147.  ACCESS TO DNA DATABASE INFORMATION.
 (a)  The director by rule shall establish procedures:


(1)  to prevent unauthorized access to
the DNA database; and


(2)  to release from the DNA database
a DNA sample, analysis, record, or other information
maintained under this subchapter DNA records,
specimens, or analyses from the DNA database.


(b)  The director may adopt rules relating
to the internal disclosure, access, or use of a sample,
specimen, or DNA record in the department
or a DNA laboratory.


(c)  The director department
may release a DNA sample, analysis, or record only:


(1)  to a criminal justice agency for criminal
justice or law enforcement identification purposes;


(2)  for a judicial proceeding, if otherwise
admissible under law;


(3)  for criminal defense purposes to a
defendant, if related to the case in which the defendant
is charged or released from custody under Article
17.47, Code of Criminal Procedure, or other court order;
or


(4)  for another purpose:


(A)  described in Section 411.143; or


(B)  required under federal law as a
condition for obtaining federal funding if
personally identifiable information is removed, for:


(A)  a population statistics database;


(B)  identification research and
protocol development; or


(C)  quality control.


(d)  The director may release a record
of the number of requests made for a defendant's individual
DNA record and the name of the requesting person.


(e)  A criminal justice law
enforcement agency may have access to a
DNA sample for a law enforcement purpose specimens
through:


(1)  the agency's laboratory;
or


(2)  a laboratory used by the agency
for law enforcement purposes.


(f)  The director shall maintain a record
of requests made under this section.


SECTION 11.  Section 411.148, Government
Code, as amended by Chapters 211 and 1509, Acts of
the 77th Legislature, Regular Session, 2001, is reenacted
and amended to read as follows:


Sec. 411.148.  MANDATORY DNA RECORD
RECORDS OF CERTAIN INMATES.  (a)
 This section applies to:


(1)  an individual who is:


(A)  ordered by a magistrate or court
to provide a sample under Section 411.150 or 411.154
or other law; or


(B)  confined in a penal institution
operated by or under contract with the Texas Department
of Criminal Justice; or


(2)  a juvenile who is, after an adjudication
for conduct constituting a felony, confined in a facility
operated by or under contract with the Texas Youth
Commission.


(b)  An individual described
by Subsection (a) inmate serving a sentence
for a felony in the institutional division
shall provide one or more DNA blood
samples or other specimens for the
purpose of creating a DNA record.


(c)  A criminal justice agency shall
collect a sample ordered by a magistrate or court in
compliance with the order.


(d)  If an individual described by Subsection
(a)(1)(B) is received into custody by the Texas Department
of Criminal Justice, that department (b)
 The institutional division shall collect
obtain the sample or specimen
from the individual an inmate of the
division during the diagnostic process or
at another time determined by the Texas Department
of Criminal Justice.


(e)  If an individual described by Subsection
(a)(2) is received into custody by the Texas Youth
Commission, the youth commission shall collect the
sample from the individual during the initial examination
or at another time determined by the youth commission.


(f)  The institutional
division shall obtain the sample or specimen from an
inmate confined in another penal institution as soon
as practicable if the Board of Pardons and Paroles
informs the division that the inmate is likely to be
paroled before being admitted to the division.  The
administrator of the other penal institution shall
cooperate with the institutional division as necessary
to allow the institutional division to perform its
duties under this section.


(c)  The institutional division
shall:


(1)  preserve each blood sample
or other specimen collected;


(2)  maintain a record of the
collection of the sample or specimen; and


(3)  send the sample or specimen
to the director for scientific analysis under this
subchapter.


(d)  An inmate may not be held
past a statutory release date if the inmate fails or
refuses to provide a blood sample or other specimen
under this section.  A penal institution may take other
lawful administrative action against the inmate.


(e)  The Texas Department
of Criminal Justice institutional division
shall notify the director that an individual
inmate described by Subsection (a)
is to be released from custody the
institutional division not earlier than the
120th day before the individual's inmate's
release date and not later than the 90th day before
the individual's inmate's
release date. The Texas Youth Commission shall notify
the director that an individual described by Subsection
(a) is to be released from custody not earlier than
the 10th day before the individual's release date.
 The Texas Department of Criminal Justice and the Texas
Youth Commission, in consultation with the director,
shall determine the form of the notification described
by this subsection.


(g) (f)  A medical
staff employee of a criminal justice agency
the institutional division may collect
obtain a voluntary sample or
specimen from an individual at any
time inmate.


(h) (g)  An employee
of a criminal justice agency the institutional
division may use force against an individual
inmate required to provide a DNA
sample under this section when and to the degree the
employee reasonably believes the force is immediately
necessary to collect obtain
the sample or specimen.


(i)(1) (h)  The
Texas Department of Criminal Justice as soon as
practicable shall cause a sample to be collected from
an individual described by Subsection (a)(1)(B) if:


(A)  the individual is confined in another
penal institution after sentencing and before admission
to the department; and


(B)  the department determines that
the individual is likely to be released before being
admitted to the department.


(2)  The administrator of the other
penal institution shall cooperate with the Texas Department
of Criminal Justice as necessary to allow the Texas
Department of Criminal Justice to perform its duties
under this subsection.


(j)(1)  The Texas Youth Commission as
soon as practicable shall cause a sample to be collected
from an individual described by Subsection (a)(2) if:


(A)  the individual is detained in another
juvenile detention facility after adjudication and
before admission to the youth commission; and


(B)  the youth commission determines
the individual is likely to be released before being
admitted to the youth commission.


(2)  The administrator of the other
juvenile detention facility shall cooperate with the
Texas Youth Commission as necessary to allow the youth
commission to perform its duties under this subsection
may contract with an individual or entity
for the provision of phlebotomy services under this
section.


(k)  When a criminal justice agency
of this state agrees to accept custody of an individual
from another state or jurisdiction under an interstate
compact or a reciprocal agreement with a local, county,
state, or federal agency, the acceptance is conditional
on the individual providing a DNA sample under this
subchapter if the individual was convicted of a felony.


(l)  If, in consultation with the director,
it is determined that an acceptable sample has already
been received from an individual, additional samples
are not required unless requested by the director.


(i)  Notwithstanding Subsection
(a), if at the beginning of a fiscal year the executive
director of the Texas Department of Criminal Justice
determines that sufficient funds have not been appropriated
to the department to obtain a sample from each inmate
otherwise required to provide a sample under Subsection
(a), the executive director shall direct the institutional
division to give priority to obtaining samples from
inmates ordered by a court to give the sample or specimen
or serving sentences for:


(1)  an offense:


(A)  under Section 19.02, Penal
Code (murder), or Section 22.02, Penal Code (aggravated
assault);


(B)  under Section 30.02, Penal
Code (burglary), if the offense is punishable under
Subsection (c)(2) or (d) of that section; or


(C)  for which the inmate is required
to register as a sex offender under Chapter 62, Code
of Criminal Procedure; or


(2)  any offense if the inmate
has previously been convicted of or adjudicated as
having engaged in:


(A)  an offense described in Subdivision
(1); or


(B)  an offense under federal
law or laws of another state that involves the same
conduct as an offense described by Subdivision (1).


SECTION 12.  Section 411.149, Government
Code, is amended to read as follows:


Sec. 411.149.  VOLUNTARY DNA RECORD
SUBMISSION OF BLOOD SAMPLES.  An
individual, including an individual required to provide
a DNA sample under this subchapter, A
person may at any time voluntarily
provide or cause to be provided to a criminal justice
agency a sample to be forwarded submit
a blood sample or other specimen to the director
department for the purpose of creating
a DNA record under this subchapter.


SECTION 13.  Section 411.151, Government
Code, is amended to read as follows:


Sec. 411.151.  EXPUNCTION OR REMOVAL
OF DNA RECORDS.  (a)  The director shall expunge a
DNA record of an individual from a person
from the DNA database if the person:


(1)  notifies the director in writing that
the DNA record has been ordered to be expunged under
this section or Chapter 55, Code of Criminal Procedure,
and provides the director with a certified copy of
the court order that expunges the DNA record; or


(2)  provides the director with a certified
copy of a court order issued under Section 58.003,
Family Code, that seals the juvenile record of the
adjudication that resulted in the DNA record.


(b)  A person may petition for the expunction
of a DNA record under the procedures established under
Article 55.02, Code of Criminal Procedure, if the person
is entitled to the expunction of records relating to
the offense to which the DNA record is related under
Article 55.01, Code of Criminal Procedure.


(c)  This section does not require the
director to expunge a record or destroy a sample if
the director determines that the individual is otherwise
required to submit a DNA sample under this subchapter.


(d)  The director by rule may permit
administrative removal of a record, sample, or other
information erroneously included in a database.


SECTION 14.  Section 411.152, Government
Code, is amended to read as follows:


Sec. 411.152.  RULES.  (a)  The
director may adopt rules permitted by this subchapter
that are necessary to administer or enforce this
subchapter but shall adopt a rule expressly required
by this subchapter.


(b)  The director by rule may release
or permit access to information to confirm or deny
whether an individual has a preexisting record under
this subchapter.  After receiving a request regarding
an individual whose DNA record has been expunged or
removed under Section 411.151, the director shall deny
the preexisting record.


(c)  The director by rule may exempt:


(1)  a laboratory conducting non-human
forensic DNA analysis from a rule adopted under this
subchapter; and


(2)  certain categories of individuals
from a requirement to provide an additional sample
after an acceptable DNA record exists for the individual.


(d)  The director by rule may determine
whether a DNA sample complies with a collection provision
of this subchapter.


SECTION 15.  Section 411.153, Government
Code, as amended by Chapters 1490 and 1509, Acts of
the 77th Legislature, Regular Session, 2001, is reenacted
and amended to read as follows:


Sec. 411.153.  CONFIDENTIALITY OF POSTCONFINEMENT
DNA RECORDS.  (a)  A DNA record stored in the DNA database
is confidential and is not subject to disclosure under
the public information open records
law, Chapter 552.


(b)  A person commits an offense if the
person knowingly discloses information in a DNA record
or information related to a DNA analysis of a sample
collected blood specimen taken
under this subchapter Section 411.148
or 411.150 except as authorized by this chapter.


(c)  An offense under this section
subsection is a state jail felony.


(d) (c)  A violation
under this section constitutes official misconduct.


SECTION 16.  Section 411.154(b), Government
Code, is amended to read as follows:


(b)  The court may issue an order requiring
a person:


(1)  to act in compliance with this subchapter
or a rule adopted under this subchapter;


(2)  to refrain from acting in violation
of this subchapter or a rule adopted under this subchapter;


(3)  to provide a DNA sample give
a blood sample or other specimen; or


(4)  if the person has already provided
a DNA sample given a blood sample or other
specimen, to provide give
another sample if good cause is shown.


SECTION 17.  Article 17.47, Code of Criminal
Procedure, is amended to read as follows:


Art. 17.47.  CONDITIONS REQUIRING SUBMISSION
OF SPECIMEN. (a)  A magistrate may shall
require as a condition of release on bail or bond
of a defendant described by Section 411.1471(a),
Government Code, that the defendant provide
to a local law enforcement agency one or more
specimens for the purpose of creating a DNA record
under Subchapter G, Chapter 411, Government Code.


(b)  A magistrate shall require as a
condition of release on bail or bond of a defendant
described by Section 411.1471(a), Government Code,
that the defendant provide to a local law enforcement
agency one or more specimens for the purpose of creating
a DNA record under Subchapter G, Chapter 411, Government
Code.


SECTION 18.  Sections 11(a) and (e), Article
42.12, Code of Criminal Procedure, are amended to read
as follows:


(a)  The judge of the court having jurisdiction
of the case shall determine the conditions of community
supervision and may, at any time, during the period
of community supervision alter or modify the conditions.
 The judge may impose any reasonable condition that
is designed to protect or restore the community, protect
or restore the victim, or punish, rehabilitate, or
reform the defendant.  Conditions of community supervision
may include, but shall not be limited to, the conditions
that the defendant shall:


(1)  Commit no offense against the laws
of this State or of any other State or of the United
States;


(2)  Avoid injurious or vicious habits;


(3)  Avoid persons or places of disreputable
or harmful character;


(4)  Report to the supervision officer
as directed by the judge or supervision officer and
obey all rules and regulations of the community supervision
and corrections department;


(5)  Permit the supervision officer to
visit him at his home or elsewhere;


(6)  Work faithfully at suitable employment
as far as possible;


(7)  Remain within a specified place;


(8)  Pay his fine, if one be assessed,
and all court costs whether a fine be assessed or not,
in one or several sums;


(9)  Support his dependents;


(10)  Participate, for a time specified
by the judge in any community-based program, including
a community-service work program under Section 16 of
this article;


(11)  Reimburse the county in which the
prosecution was instituted for compensation paid to
appointed counsel for defending him in the case, if
counsel was appointed, or if he was represented by
a county-paid public defender, in an amount that would
have been paid to an appointed attorney had the county
not had a public defender;


(12)  Remain under custodial supervision
in a community corrections facility, obey all rules
and regulations of such facility, and pay a percentage
of his income to the facility for room and board;


(13)  Pay a percentage of his income to
his dependents for their support while under custodial
supervision in a community corrections facility;


(14)  Submit to testing for alcohol or
controlled substances;


(15)  Attend counseling sessions for substance
abusers or participate in substance abuse treatment
services in a program or facility approved or licensed
by the Texas Commission on Alcohol and Drug Abuse;


(16)  With the consent of the victim of
a misdemeanor offense or of any offense under Title
7, Penal Code, participate in victim-defendant mediation;


(17)  Submit to electronic monitoring;


(18)  Reimburse the general revenue fund
for any amounts paid from that fund to a victim, as
defined by Article 56.01 of this code, of the defendant's
offense or if no reimbursement is required, make one
payment to the fund in an amount not to exceed $50
if the offense is a misdemeanor or not to exceed $100
if the offense is a felony;


(19)  Reimburse a law enforcement agency
for the analysis, storage, or disposal of raw materials,
controlled substances, chemical precursors, drug paraphernalia,
or other materials seized in connection with the offense;


(20)  Pay all or part of the reasonable
and necessary costs incurred by the victim for psychological
counseling made necessary by the offense or for counseling
and education relating to acquired immune deficiency
syndrome or human immunodeficiency virus made necessary
by the offense;


(21)  Make one payment in an amount not
to exceed $50 to a crime stoppers organization as defined
by Section 414.001, Government Code, and as certified
by the Crime Stoppers Advisory Council;


(22)  Submit a DNA blood
sample or other specimen to the
Department of Public Safety under Subchapter G, Chapter
411, Government Code, for the purpose of creating a
DNA record of the defendant; and


(23)  In any manner required by the judge,
provide public notice of the offense for which the
defendant was placed on community supervision in the
county in which the offense was committed.


 (e)  A judge granting community supervision
to a defendant required to register as a sex offender
under Chapter 62 shall require that the defendant,
as a condition of community supervision:


(1)  register under that chapter; and


(2)  submit a DNA blood
sample or other specimen to the
Department of Public Safety under Subchapter G, Chapter
411, Government Code, for the purpose of creating a
DNA record of the defendant, unless the defendant has
already submitted the required sample specimen
under other state law.


SECTION 19.  The following are repealed:


(1)  Sections 411.0206, 411.1472, 411.1481,
411.1531, and 411.1532, Government Code; and


(2)  Section 481.160(f), Health and Safety
Code.


SECTION 20.  (a)  Initial appointments
to the Texas Forensic Science Commission must be made
not later than the 60th day after the effective date
of this Act.


(b)  Of the initial members of the Texas
Forensic Science Commission:


(1)  the members appointed under Subdivision
(1) and (2), Subsection (a), Section 3, Article 38.01,
Code of Criminal Procedure, as added by this Act, serve
terms expiring September 1, 2007; and


(2)  the other members serve terms expiring
September 1, 2006.


(c)  A member whose term expires on September
1, 2006, is eligible to be reappointed for a two-year
term as provided by Subsection (b), Section 3, Article
38.01, Code of Criminal Procedure, as added by this
Act.


SECTION 21.  Article 38.35, Code of Criminal
Procedure, as amended by this Act, applies only to
the admissibility of physical evidence in a criminal
proceeding that commences on or after the effective
date of this Act.  The admissibility of physical evidence
in a criminal proceeding that commenced before the
effective date of this Act is governed by the law in
effect at the time the proceeding commenced, and that
law is continued in effect for that purpose.


SECTION 22.  (a)  The change in law made
by this Act applies to:


(1)  evidence tested or offered into evidence
on or after the effective date of this Act; and


(2)  an individual who, on or after the
effective date of this Act:


(A)  is confined in a penal institution
operated by or under contract with the Texas Department
of Criminal Justice as described in Section 411.148(a)(1)(B),
Government Code, as amended by this Act;


(B)  is confined in a facility operated
by or under contract with the Texas Youth Commission
after adjudication for conduct constituting a felony
as described in Section 411.148(a)(2), Government Code,
as amended by this Act;


(C)  voluntarily submits or causes to be
submitted a DNA sample as described in Section 411.149,
Government Code, as amended by this Act; or


(D)  is ordered by a magistrate or court
to provide a DNA sample under Subsection G, Chapter
411, Government Code.


(b)  As required by Section 411.148, Government
Code, as amended by this Act, the Texas Department
of Criminal Justice shall collect a DNA sample from
an inmate serving a sentence for a felony from whom
a DNA sample was not required before the effective
date of this Act.  The department shall collect the
sample during the diagnostic process or at any other
reasonable time determined by the department.


(c)  As required by Section 411.148, Government
Code, as amended by this Act, the Texas Youth Commission
shall collect a DNA sample from a juvenile committed
to the Texas Youth Commission for a felony from whom
a DNA sample was not required before the effective
date of this Act or from a juvenile previously committed
to the Texas Youth Commission for a felony.  The commission
shall collect the sample during the initial examination
or at any other reasonable time determined by the commission.


SECTION 23.  This Act takes effect September
1, 2005.




______________________________	______________________________


   President of the Senate	Speaker of the
House      


I certify that H.B. No. 1068 was passed
by the House on May 10, 2005, by a non-record vote;
that the House refused to concur in Senate amendments
to H.B. No. 1068 on May 27, 2005, and requested the
appointment of a conference committee to consider the
differences between the two houses; and that the House
adopted the conference committee report on H.B. No.
1068 on May 29, 2005, by a non-record vote; and that
the House adopted H.C.R. No. 241 authorizing certain
corrections in H.B. No. 1068 on May 30, 2005, by a
non-record vote.



______________________________




Chief Clerk of the
House   





I certify that H.B. No. 1068 was passed
by the Senate, with amendments, on May 24, 2005, by
the following vote:  Yeas 31, Nays 0; at the request
of the House, the Senate appointed a conference committee
to consider the differences between the two houses;
and that the Senate adopted the conference committee
report on H.B. No. 1068 on May 29, 2005, by the following
vote:  Yeas 31, Nays 0; and that the Senate adopted
H.C.R. No. 241 authorizing certain corrections in H.B.
No. 1068 on May 30, 2005, by a viva-voce vote.



______________________________




Secretary of the Senate
  



APPROVED: __________________


                 Date       


          __________________


               Governor