TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 28. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER A. DEFINITIONS AND GENERAL CODIS PROVISIONS

37 TAC §§28.1, 28.2, 28.6

The Texas Department of Public Safety (the department) proposes amendments to §§28.1, 28.2 and 28.6, concerning Definitions and General CODIS Provisions. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to these rules were necessary to improve clarity and update the rules in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.144(a), 411.146(c)(1), 411.147(a), 411.149, and 411.152(a) and (d), and §2001.039, which requires state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.144(a), 411.146(c)(1), 411.147(a), and 411.152(a) and (d), and §2001.039, are affected by this proposal.

§28.1.Chapter Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context shall clearly indicate otherwise.

(1) Accredited laboratory--A laboratory accredited in accordance with 37 TAC §§651.1 - 651.11 [by the director under Subchapter I of this chapter].

(2) CODIS--The FBI's Combined DNA Index System. The term includes the national DNA index system (NDIS) and the state DNA index system (SDIS) sponsored by the FBI [Combined DNA Index System sponsored by the Federal Bureau of Investigation (FBI)].

(3) CODIS user laboratory--A DNA laboratory subject to Subchapter G of this chapter.

(4) Crime laboratory--

(A) An [an] accredited laboratory;

(B) A [a] CODIS user laboratory; or

(C) A [a] forensic DNA laboratory.

(5) Criminal justice or law enforcement agency or agency--A [The Texas Department of Criminal Justice, the Texas Juvenile Justice Department, a community supervision or probation department of this state, a] criminal justice agency described by Government Code, §411.082 or §411.141, a city police or [department of this state, a] county sheriff's department of this state, the department, another agency or subdivision of this state which is authorized to employ or commission peace officers, or the University of North Texas Health Science Center at Fort Worth.

(6) Department (DPS)--The Texas Department of Public Safety.

(7) Director--The director of the department.

(8) DNA--Deoxyribonucleic acid.

(9) DNA database--One or more databases [The database] that contain [contains] forensic DNA records maintained by the director.

(10) DNA laboratory--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 CODIS user laboratory or a forensic DNA laboratory.

(11) DNA record--The results of a forensic DNA analysis performed by a DNA laboratory. The term includes[, including] a DNA profile and related records which may include a code or other identifying number referenced to a separate database and, if known, the name and other personally identifying information of the individual [person] who is the subject of the analysis.

(12) DNA sample--A blood sample or other biological sample or specimen submitted to the director for DNA analysis or storage [DPS accreditation--Accreditation of a laboratory or other entity by the director under Subchapter I of this chapter].

(13) FBI--The Federal Bureau of Investigation.

(14) Forensic analysis--Has [has] the meaning assigned by Code of Criminal Procedure, Article 38.35 [§28.142 of this title (relating to Definitions)].

(15) Forensic DNA laboratory--A laboratory subject to Subchapter F of this chapter.

(16) Forensic DNA testing--Forensic DNA analysis conducted for use in a criminal proceeding under Code of Criminal Procedure, Article 38.35.

(17) Institution of higher education--Has [has] the meaning assigned by Education Code, §61.003.

(18) Integrity or trustworthiness--Includes [includes]:

(A) attention to confidentiality, accuracy, and documentation; and

(B) prevention of bias or misrepresentation of qualifications, evidence, conclusions, or testimony.

(19) Penal institution--Has [has] the meaning assigned by Penal Code, §1.07.

(20) Profile--The [complete 13 locus CODIS STR] DNA profile used for law enforcement identification.

(21) Recognized accreditation--Accreditation of a laboratory or other entity by an accrediting body recognized by the Texas Forensic Science Commission under 37 TAC §651.4 [director under Subchapter I of this chapter].

(22) Recognized accrediting body--An entity [outside DPS] that:

[(A) is recognized by the director under Subchapter I of this chapter;]

(A) [(B)] issues an accreditation accepted throughout the relevant scientific community; and

(B) [(C)] accredits a laboratory or other entity, including its personnel, procedures, and facilities, whether the body uses 'accreditation,' 'certification,' or a similar term. The term accreditation does not include the certification of an individual unless that certification is relevant to an accreditation review of personnel employed by a laboratory or entity.

(23) Substantial deficiency--A failure to comply with an accreditation or operational standard that is reasonably likely to impair:

(A) the integrity or trustworthiness of a test result; and

(B) the admissibility of that result. The term does not include a minor deficiency.

(24) TDCJ--The Texas Department of Criminal Justice.

(25) TJJD--The Texas Juvenile Justice Department.

§28.2.Voluntary Sample.

Any person may voluntarily submit a sample using a DPS approved kit to the director for the purpose of creating a DNA record under Subchapter B of this chapter.

§28.6.Confidentiality of DNA Records.

A DNA record [stored in the DNA database] is confidential and is not subject to disclosure under Government Code, Chapter 552.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704011

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER B. CODIS RESPONSIBILITIES OF THE DIRECTOR

37 TAC §§28.24, 28.26, 28.29

The Texas Department of Public Safety (the department) proposes amendments to §§28.24, 28.26, and 28.29, concerning CODIS Responsibilities of the Director. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to these rules were necessary to improve clarity and update the rules in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.147 and §2001.039, which requires state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.147 and §2001.039 are affected by this proposal.

§28.24.DNA Records Access.

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

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

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

(3) to a criminal defendant for defense purposes, if related to the case in which the defendant is charged; or

(4) if personally identifiable information is removed, for:

(A) a population statistics database;

(B) forensic identification research and forensic protocol development; or

(C) quality control.

(b) The director may only release a DNA sample to a criminal justice or law enforcement agency for criminal justice or law enforcement purposes through:

(1) the agency's laboratory;

(2) a laboratory used by the agency; or

(3) a laboratory directed by a valid court order.

(c) The director shall maintain a record of requests made under this section. The director may release a record of the number of requests made for a defendant's DNA record and the name of the requesting person.

[(d) A file, fingerprint, or other identifying record submitted to the director by Texas Juvenile Justice Department or a local juvenile probation department under this chapter and relating to or identifying a juvenile shall be maintained separately from adult records. This subsection does not apply to storage or use of a DNA record in the DNA database.]

§28.26.DNA Database.

(a) Capabilities. The DNA database must be capable of classifying, matching, and storing the profiles or other results of analyses of DNA.

(b) National standards. Standards for DNA analysis shall 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, including profiles, performed according to the standards required by this chapter.

(c) Compatibility. The DNA database must be compatible with the national DNA index system (NDIS) procedures sponsored by the FBI to the extent required by the FBI to permit the useful exchange and storage of DNA records or information derived from those records, including profiles.

(d) FBI liaison. The director or a designee is the liaison for DNA data, records, profiles, evidence, and other related matters between the FBI and a DNA laboratory or a criminal justice or law enforcement agency.

§28.29.Existence of Satisfactory Sample.

(a) Information may [shall] be released to a criminal justice or law enforcement agency about whether or not a satisfactory DNA sample has been received.

(b) A formal request shall be provided and should contain: the offender's full name, date of birth, and Texas State Identification (SID) number.

(c) The information that may be released includes: if a sample has been received, the date of receipt, the submitting agency, and the verification status.

(d) The department shall maintain a record of requests made under this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704012

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER C. CODIS RESPONSIBILITIES OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE

37 TAC §28.46, §28.47

The Texas Department of Public Safety (the department) proposes amendments to §28.46 and §28.47, concerning CODIS Responsibilities of the Texas Department of Criminal Justice. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to these rules were necessary to improve clarity and update the rules in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.146, 411.148, 411.152(a), and §2001.039, which requires state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.146, 411.148, 411.152(a), and §2001.039 are affected by this proposal.

§28.46.Advance Notice of Release.

If requested by the director, TDCJ shall notify the director that an individual subject to this subchapter is to be released from custody not earlier than the 120th day before the individual's release date and not later than the 90th day before the individual's release date.

§28.47.Release without Sample.

If an individual is released without first having submitted a required sample, TDCJ shall file an appropriate report with the director. The director may then seek post-release compliance with this subchapter. If the individual remains under the supervision of TDCJ (such as with the Parole division), TDCJ shall cause a sample to be collected from the individual. The administrator of the other division shall cooperate under this section as required by law.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704013

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER D. CODIS RESPONSIBILITIES OF THE TEXAS JUVENILE JUSTICE DEPARTMENT

37 TAC §28.66

The Texas Department of Public Safety (the department) proposes amendments to §28.66, concerning Advance Notice of Release. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to this rule was necessary to improve clarity and update the rule in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with this rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.148(f-1), 411.152(a), and 2001.039, which requires state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.148(f-1), 411.152(a), and §2001.039 are affected by this proposal.

§28.66.Advance Notice of Release.

If requested by the director, TJJD shall notify the director that a juvenile subject to this subchapter is to be released from custody not earlier than the 120th day before the juvenile's release date.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704014

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER F. FORENSIC DNA LABORATORIES

37 TAC §28.92

The Texas Department of Public Safety (the department) proposes amendments to §28.92, concerning Minimum Standards. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to this rule was necessary to improve clarity and update the rule in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with this rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This amendment is proposed pursuant to the director's rule-making authority in Texas Government Code, §411.144 and §2001.039, which requires state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §411.144 and §2001.039 are affected by this proposal.

§28.92.Minimum Standards.

(a) A forensic DNA laboratory shall comply with the rules in this subchapter.

(b) Before conducting a DNA test, a forensic DNA laboratory shall:

(1) obtain [DPS] accreditation in accordance with 37 TAC §§651.1 - 651.11 [under Subchapter I of this chapter (relating to Accreditation)]; and [or]

(2) comply with the audit standards required by the laboratory's recognized accrediting body.

(c) A forensic DNA laboratory shall establish and maintain a procedure that requires prompt reporting of each substantial deficiency by the laboratory. Laboratory personnel shall promptly report an incident of substantial deficiency by the laboratory to appropriate authorities, including the laboratory's director, the director of the department, the laboratory's recognized accrediting body, and the appropriate prosecutor or other criminal justice or law enforcement agency. This section does not apply to a deficiency that laboratory personnel reasonably believe to be minor and not substantial.

(d) If a forensic DNA laboratory agrees or is required to report the results of an analysis, comparison, or other match to a criminal justice or law enforcement agency, the laboratory shall make reasonable efforts to submit the report to the agency no later than 30 days after completing its report of the comparison or match.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704015

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER G. CODIS USER LABORATORIES

37 TAC §§28.103, 28.107, 28.109

The Texas Department of Public Safety (the department) proposes amendments to §§28.103, 28.107, and 28.109, concerning CODIS User Laboratories. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to these rules were necessary to improve clarity and update the rules in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.144, 411.146(c), and 2001.039, which require state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.144, 411.146(c), and 2001.039 are affected by this proposal.

§28.103.Policy, Procedure, and Rule Compliance.

A CODIS user laboratory shall:

(1) comply with CODIS policy and with this chapter, including the collection, preservation, shipment, and analysis of a sample or specimen and access and use of the DNA database;

(2) follow the procedures established by the director under this chapter and specified by the FBI, including the use of comparable test procedures, profiles, laboratory equipment, supplies and computer software;

(3) maintain accreditation in accordance with 37 TAC §§651.1 - 651.11 [under Subchapter I of this chapter]; and

(4) be subject to the provision of the annual audit described by the FBI DNA Quality Assurance Audit Document. The laboratory shall inform the director within 30 days of the completion of such annual audit, and shall provide the director with a copy of the notification, by the FBI, of the determination on all external audits within 30 days of receipt.

§28.107.Second Sample for Trial.

Because the convicted offender CODIS sample and its analysis are intended only [to point] to be used as an investigative lead [a suspect], if possible a second DNA sample must be obtained from a suspect in a criminal investigation if forensic DNA evidence is necessary for use as substantive evidence in the prosecution of a case.

§28.109.CODIS Communications.

(a) Information about this subchapter is available at the following website: http://www.dps.texas.gov/CrimeLaboratory/CODIS/index.htm [http://www.dps.texas.gov/codis].

(b) To inquire about information and administrative matters with, transmit to, or otherwise contact the department, director, or Crime Laboratory Service with respect to this subchapter:

(1) the telephone number is: (512) 424-2790;

(2) the fax number is: (512) 424-2386;

(3) the e-mail address is: codislab@dps.texas.gov;

(4) the Post Office Box mailing address is: Crime Laboratory Service, Attention CODIS, MSC 0461, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-0461; and

(5) the physical mailing address is: Crime Laboratory Service, Attention CODIS, Texas Department of Public Safety, 5800 Guadalupe, Austin, Texas 78752.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704016

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER H. DATABASE RECORDS

37 TAC §§28.121 - 28.124, 28.130

The Texas Department of Public Safety (the department) proposes amendments to §§28.121 - 28.124, and 28.130, concerning Database Records. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to these rules were necessary to improve clarity and update the rules in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules is in effect, the public benefit anticipated as a result of enforcing the rules will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.144, 411.146, 411.1471, 411.152 and 2001.039, which requires state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.144, 411.146, 411.1471, 411.152 and 2001.039 are affected by this proposal.

§28.121.Subchapter Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Approved laboratory or lab--A public or private forensic laboratory that is approved by the director under this subchapter. The term does not include the department's crime laboratory service.

(2) Defendant--A suspect or arrestee.

(3) DNA Database Card--A form [(LAB-13)] available from the director to be used by an agency to make a record under this subchapter.

(4) DNA Procedural Guidelines--The latest draft of the director's publication by that name and any cross-referenced material, including a procedure or specimen collection method approved by the director.

(5) Standard DNA sample--A DNA sample provided by an individual under Subchapters A through E of this chapter[, normally a blood sample, taken under Subchapters A through F of this chapter, including a standard sex offender DNA sample].

§28.122.Purpose and Applicability.

(a) Purpose. This subchapter contains the director's rules governing the taking of a biological sample from certain eligible individuals by an agency in order to populate the DPS DNA database.

(b) Applicability. The general law and rules governing CODIS apply to this subchapter except as otherwise provided by this subchapter.

(1) This subchapter applies to a standard DNA sample taken from an eligible individual for an offense covered by this subchapter.

(2) This subchapter does not apply to:

(A) a [standard] DNA sample or record maintained by the director under Subchapter F [Subchapters A through G] of this chapter; or

(B) a suspect reference sample that is not a voluntary sample described by §28.123(6) [§28.123(7)] of this title (relating to Eligible Individual).

§28.123.Eligible Individual.

This subchapter applies to an eligible individual described in this section, including an individual who is:

(1) indicted or waives indictment for a felony prohibited or punishable under Penal Code:

(A) §20.04(a)(4) (aggravated kidnapping with intent to cause bodily injury or violate or abuse sexually);

(B) §21.11 (indecency with child);

(C) §22.011 (sexual assault);

(D) §22.021 (aggravated sexual assault);

(E) §25.02 (prohibited sexual conduct or 'incest');

(F) §30.02(d) (burglary of a habitation committing, attempting, or with intent to commit a non-theft felony);

(G) §43.05 (compelling prostitution);

(H) §43.25 (sexual performance by child); [or]

(I) §43.26 (possession or promotion of child pornography);

(J) §21.02 (continuous sexual abuse of young child or children); or

(K) §20A.03 (continuous trafficking of persons);

[(2) charged by information after waiving indictment for a felony described by paragraph (1) of this section;]

(2) [(3)] arrested for a felony described by paragraph (1) of this section after having been previously convicted of or placed on deferred adjudication for a felony:

(A) described by paragraph (1) of this section; or

(B) punishable under Penal Code, §30.02(c)(2) (burglary of a habitation);

(3) [(4)] convicted of a misdemeanor or any higher category of offense under a Penal Code:

(A) described by paragraph (1) of this section, except for an offense punishable as a Class A misdemeanor under Penal Code: [§21.07 (public lewdness); or]

(i) §20.02 (unlawful restraint);

(ii) §22.01 (assault); or

(iii) §22.05 (deadly conduct).

(B) §21.08 (indecent exposure);

(C) §25.04 (enticing a child);

(D) §43.02(b) (prostitution-based on the payment of a fee by the actor or another person on behalf of the actor);

(E) §43.03 (promotion of prostitution); or

(F) §43.24 (sale, distribution, or display of harmful material to minor);

(4) [(5)] released on bail or bond under Code of Criminal Procedure, Article 17.47;

(5) [(6)] required to register under Chapter 62, Code of Criminal Procedure, who is not otherwise required to provide a standard sample; or

(6) [(7)] described by paragraph (1)[, (2),] or (3) [(4)] of this section and who voluntarily provides a sample to create a DNA record under this subchapter.

§28.124.Approval of Outside Laboratory.

(a) Date of approval. A laboratory outside the department must:

(1) be approved on the date a DNA sample is analyzed by the lab; and

(2) remain approved at least until the date the analysis report is submitted by the lab to the director.

(b) Manner. An agency or other entity seeking approval for a lab under this section must submit to the director a written justification for the approval as described in the DNA Procedural Guidelines. The laboratory must be accredited in accordance with 37 TAC §§651.1 - 651.11 [under Subchapter I of this chapter].

§28.130.DNA Communications.

(a) Information about this subchapter is available at the following website: http://www.dps.texas.gov/CrimeLaboratory/CODIS/index.htm [http://www.dps.texas.gov/codis].

(b) To inquire about information and administrative matters with, transmit to, or otherwise contact the department, director, or Crime Laboratory Service with respect to this subchapter:

(1) the telephone number is: (512) 424-2790;

(2) the fax number is: (512) 424-2386;

(3) the e-mail address is: codislab@dps.texas.gov;

(4) the Post Office Box mailing address is: Crime Laboratory Service, Attention CODIS, MSC 0461, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-0461; and

(5) the physical mailing address is: Crime Laboratory Service, Attention CODIS, Texas Department of Public Safety, 5800 Guadalupe, Austin, Texas 78752.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704017

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848


SUBCHAPTER L. CATALOGING, DELIVERY, AND DISPOSITION OF BIOLOGICAL EVIDENCE--COUNTY WITH POPULATION LESS THAN 100,000

37 TAC §28.193, §28.194

The Texas Department of Public Safety (the department) proposes amendments to §28.193 and §28.194, concerning Cataloging, Delivery, and Disposition of Biological Evidence--County with Population Less Than 100,000. Pursuant to Government Code, §2001.039, the department reviewed this chapter and determined an update to these rules were necessary to improve clarity and update the rules in accordance with current statutes.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these rules as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules is in effect, the public benefit anticipated as a result of enforcing the rules will be an increase in public safety by assisting the criminal justice and law enforcement communities in the investigation or prosecution of offenses in which biological evidence is recovered.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Alice Amilhat, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to the director's rule-making authority in Texas Government Code, §§411.144, 411.146(c)(1), 411.152 and 2001.039, which require state agencies to review their rules and readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section.

Texas Government Code, §§411.144, 411.146(c)(1), 411.152 and 2001.039 are affected by this proposal.

§28.193.Delivery.

(a) The items of biological evidence must be packaged in a manner to avoid contamination.

(b) Each item shall be in a separate paper package completely sealed.

(c) Each package shall be labeled for identification.

(d) Multiple packages related to a single offense may be placed into one outer container (box).

(e) The sealed and labeled box may be delivered to the department warehouse site in person, by U.S. Postal Service, or by private carrier. The Department of Public Safety Crime Laboratory Bio-Evidence Storage warehouse address is DPS Crime Laboratory, Building C, 12230 West Road, Houston, Texas 77065-4523 [will be posted on the department's website at www.dps.texas.gov].

(f) The items must include a packing slip containing the cataloging information as specified in §28.192(a) of this title (relating to Cataloging).

§28.194.Disposition of Evidence.

(a) The submitting agency, prosecutor's office, or clerk's office shall notify the department at the Bio-Evidence Storage warehouse address, DPS Crime Laboratory, Building C, 12230 West Road, Houston, Texas 77065-4523, [posted on the department's website] within 30 days of the date the inmate either completes his/her sentence, is released on parole or mandatory supervision, or dies.

(b) Upon receiving such notification, the department shall return the evidence to the submitting agency, prosecutor's office, or clerk's office.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 5, 2017.

TRD-201704018

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 19, 2017

For further information, please call: (512) 424-5848