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HomeMy WebLinkAboutContract 49480 .� 345F , 1 a RECE1v En o CITY SECRETARY ,� C1N OF FORj WARN H CONTRACT NO. �l G� C�SECR� d qqM AGREEMENT BETWEEN THE STATE OF TEXAS AND The City of Fort Worth (Participating Laboratory) FOR PARTICIPATION IN THE STATE DNA INDEX SYSTEM AND THE NATIONAL DNA INDEX SYSTEM WHEREAS,the Federal Bureau of Investigation(hereinafter referred to as "FBI") sponsors the Combined DNA index System (hereinafter referred to as"CODIS") as part of a technical assistance program to state and local crime laboratories which allows crime laboratories to store, compare and match DNA records from offenders, crime scene evidence, missing persons and unidentified human remains; and WHEREAS,the Federal DNA Identification Act of 1994 (42 U.S.C. Section 14132) and amendments authorize the Director of the FBI to establish a national index of DNA identification records of persons convicted of crimes,persons charged in an indictment or information with a crime, other persons whose DNA samples are collected under applicable legal authorities (except for DNA samples that are voluntarily submitted solely for elimination purposes), analyses of DNA samples recovered from crime scenes and analyses of DNA samples recovered from unidentified human remains; analyses of DNA samples voluntarily contributed from relatives of missing persons; analyses of DNA samples from missing persons (hereinafter referred to collectively as "DNA records"). WHEREAS,Texas Government Code § 411.142. DNA Database authorizes the establishment of an identification index within the State of Texas (hereinafter referred to as "State DNA Index System" or"State DNA Database"),to include DNA records of arrestees/offenders, casework evidence and missing persons submitted by authorized State and local laboratories; and WHEREAS,the Texas Department of Public Safety administers the State DNA Database or State DNA Index System (hereinafter referred to as"SDIS"); WHEREAS, analyses of DNA samples recovered from crime scenes, analyses of DNA samples received from unidentified human remains, analyses of samples from missing persons and analyses of DNA samples from relatives of missing persons and analyses of DNA samples from suspects may be maintained at accredited forensic DNA laboratories located throughout the State of Texas; and OFFICIAL RECORD CITY SECRETARY FT.wORTH,TX i 2 WHEREAS, the functioning of a statewide DNA identification index is contingent on the ability of participating local accredited forensic DNA laboratories to share and exchange information with the State DNA Database and with other accredited forensic DNA laboratories within the State; and WHEREAS,the State DNA Database, also known as SDIS, will have the ability to transmit DNA records from Texas to the FBI and that the State DNA Index System will also be able to receive from the FBI DNA records made available to the FBI from other participating laboratories in other states; and WHEREAS, it is in the interest of justice that the State of Texas and the FBI cooperate in the lawful sharing of the above-referenced DNA records and the State DNA database authorizes such participation in a National DNA Index; NOW, THEREFORE,this AGREEMENT (hereinafter referred to as "Agreement"), dated is entered into by and between the Department of Public Safety (hereinafter referred to as "DPS") and the following Participating Laboratory, known as the City of Fort Worth, by and through its forensic laboratory, within the State of Texas, which will hereinafter be referred to by proper-name, or as "Participating Laboratory". In consideration of the mutual obligations contained herein, it is agreed by and between the parties as follows: 1. GENERAL TERMS & CONDITIONS A. The State DNA Index System ("SDIS") will be administered by the DPS. The State DNA Index System ("SDIS") shall serve as the central point of contact for access to the National DNA Index System ("NDIS") administered and operated by the FBI. B. The DPS and the Participating Laboratory identified in this Agreement agree to abide by the terms and conditions specified in the following documents: 1. The Quality Assurance Standards for Forensic DNA Testing Laboratories (QAS), available at http://www.fbi.gov/about-us/lab/biometric- analysis/codis, which are incorporated in and made a part of this Agreement. 2. The "NDIS Operational Procedures Manual", available at http://www.fbi.gov/about-us/lab/biometric-analysis/codis, which is incorporated in and made a part of this Agreement. 3. The State of Texas DNA Database Law, attached hereto as Appendix A, which is incorporated in and made a part of this Agreement. 3 C. For purposes of gaining access to the data contained in the National DNA Index System or NDIS, an individual will be selected by the DPS to be in charge of SDIS in the State of Texas. This individual will be the designated State CODIS Administrator and will be responsible for ensuring all Participating Laboratories in the State of Texas adhere to and comply with the terms and conditions of this Agreement. D. All inquiries and sharing of information with NDIS shall be through SDIS subject to the approval of the State CODIS Administrator. II. SUBLICENSE TO USE COMBINED DNA INDEX SYSTEM(CODIS) SOFTWARE A. The FBI has granted the Participating Laboratories a sublicense to use the CODIS software and modifications/enhancements thereto (hereinafter referred to as "CODIS software"). B. By signing this Agreement,the Participating Laboratory expressly agrees: 1. The CODIS software, for which the FBI has or will obtain an unrestricted license to use, shall remain the exclusive property of the FBI. 2. The Participating Laboratory personnel shall not use the CODIS software in any manner until specifically authorized to do so by the FBI. 3. The Participating Laboratory shall maintain the FBI's recommended configurations for the CODIS application server and the minimum system requirements as documented in the CODIS Hardware and Software Recommendation Guide. 4. The Participating Laboratory shall not use the CODIS software in any manner until specifically authorized to do so by the FBI and shall not use the CODIS software in any manner not authorized by the FBI. Generally, participation in NDIS and maintenance of a local DNA database in accordance with applicable State law shall be considered an authorized use of the CODIS software. The generation of DNA data and/or a DNA database for dissemination beyond the purposes authorized by the Federal DNA Identification Act [42 U.S.C. §14132(b)(3); "Federal DNA Act"] shall be considered an unauthorized use of the CODIS software. Similarly, the generation of DNA data and/or a DNA database consisting of such DNA data for dissemination to individuals, entities, agencies or laboratories other than NDIS Participating Laboratories shall be 4 considered an unauthorized use of the CODIS software. Any questions concerning the authorized use of the CODIS software shall be directed to the FBI. 5. The Participating Laboratory has no right to distribute or sublicense the CODIS software, and shall not copy the CODIS software for purposes of distribution or distribute the CODIS software to any person or agency outside the Participating Laboratory without the express written permission of the FBI. 6. The Participating Laboratory shall not publish or publicly disclose information obtained from or included in the CODIS software and/or NDIS, including, but not limited to, CODIS Bulletins, screen shots of CODIS software, or CODIS meeting, instructional and/or training materials without the prior written approval of the FBI. 7. The FBI may terminate the sublicense to use the CODIS software immediately if the Participating Laboratory is found in violation of any of the provisions of the software sublicense. In the event the sublicense to use the CODIS software is terminated,the Participating Laboratory shall remove the CODIS software from its system(s), including all on-line and backup storage media, within ten (10) business days of receipt of the termination notice, and shall immediately return the CODIS software and all accompanying materials provided by the FBI. 8. The Participating Laboratory will take reasonable precautions to prevent unauthorized persons from accessing the CODIS software. For purposes of the software license, unauthorized persons shall mean persons who are not CODIS users. In the event that the FBI determines that such reasonable precautions have not been taken, the sublicense to use the CODIS software will be canceled immediately and will not be restored unless and until the Participating Laboratory has established that sufficient security procedures have been implemented to protect the CODIS software from unauthorized access. The determination whether sufficient security procedures to protect the CODIS software have been implemented by the Participating Laboratory shall be in the sole discretion of the FBI. If sufficient security procedures have not been implemented to the satisfaction of the FBI within thirty(30) business days of receipt of the cancellation notice, the FBI may terminate the license to use the CODIS software and the Participating Laboratory shall return the CODIS software to the FBI as provided above. 5 III. PARTICIPATING LABORATORY TO COMPLY WITH STATE LAW ESTABLISHING A STATE DNA INDEX SYSTEM A. The Participating Laboratory acknowledges that under Texas Government Code § 411.142. DNA Database, the DPS is authorized to establish a computerized State DNA identification index for the State of Texas. The Participating Laboratory expressly agrees that access to the State DNA Index System shall be authorized in accordance with the provisions of State law and this Agreement. B. DNA records contained in the State DNA Index System shall only be released in accordance with Texas Government Code § 411.147 Access to DNA Database Information. The CODIS State Administrator shall determine issues of access in accordance with Texas Government Code § 411.147 Access to DNA Database Information. If access is authorized, SDIS and NDIS, if applicable, will be searched and the following information will be returned to the Participating Laboratory: 1. Related forensic casework DNA records; 2. Offender and arrestee DNA records and related identifying information from SDIS as permitted by State law and regulations; 3. Offender, arrestee and legal DNA records from NDIS as permitted by Federal law; 4. Unidentified person DNA records from SDIS and NDIS as permitted by State and Federal law; and 5. Missing person DNA records from SDIS and NDIS as permitted by State and Federal law. The State of Texas shall provide such information only to the extent that public funds are made available for that purpose. C. In order to be a Participating Laboratory pursuant to Texas Government Code §411.142. DNA Database, the Participating Laboratory expressly agrees in this Agreement that: 1. As a Participating Laboratory, it will collect, receive, store, use and exchange all information covered by this Agreement, in compliance with all applicable Federal and State laws and regulations and restrict inquiries to only those authorized by Texas Government Code 411.147 Access to 6 DNA Database Information; and 2. As a Participating Laboratory, it will maintain accurate and quality records sufficient to support the ability of DPS to make the periodic audits required by law, specifically with respect to inquiries for access to DNA records. D. In order to be a Participating Laboratory pursuant to Texas Code of Criminal Procedure Article 38,the Participating Laboratory further expressly agrees in this Agreement that: 1. The laboratory is accredited. IV. PARTICIPATING LABORATORY TO COMPLY WITH THE FEDERAL DNA IDENTIFICATION ACT OF 1994 A. As required by 42 U.S.C. Section 14132, the Federal DNA Identification Act of 1994, as amended, (hereinafter referred to as the"DNA Act"), the Participating Laboratory shall only contribute DNA identification records and DNA analyses to NDIS which are: 1. Based on analyses performed by or on behalf of a criminal justice agency in accordance with publicly available standards that satisfy or exceed the guidelines for a quality assurance program for DNA analysis issued by the Director of the FBI under the Federal DNA Act. 2. Prepared by laboratories that— a. Not later than 2 years after the date of enactment of the DNA Sexual Assault Justice Act of 2004, October 31,2004, have been accredited by a nonprofit professional association of persons actively involved in forensic science that is nationally recognized within the forensic science community; and b. Undergo external audits, not less than once every two years, that demonstrate compliance with standards established by the Director of the Federal Bureau of Investigation. 3. Maintained by Federal, State, and local criminal justice agencies (or the Secretary of Defense in accordance with 10 U.S.C. §1565)pursuant to rules that allow disclosure of stored DNA samples and DNA analyses only--- a. To criminal justice agencies for law enforcement identification purposes; b. In judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules; C. For criminal defense purposes,to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or d. If personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes. 4. Access to NDIS shall be canceled immediately in the event the Participating Laboratory does not comply with any of the above- referenced requirements. In addition, the Federal DNA Act provides for imposition of a fine of up to $250,000 or imprisonment for not more than one year or both such fine and imprisonment, in the event that: a. Any person who, by virtue of employment or official position, has possession of, or access to, individually identifiable DNA information indexed in a database created or maintained by any Federal law enforcement agency, and knowingly discloses such information in any manner to any person or agency not authorized to receive it; or b. Any person, without authorization, knowingly obtains DNA samples or individually identifiable DNA information indexed in a database created or maintained by any Federal law enforcement agency. B. The Participating Laboratory expressly agrees to comply with subparagraphs 1 through 4 above. C. The Participating Laboratory further agrees to comply with the limited access and disclosure provisions of the Federal DNA Act. If the Participating Laboratory is in a state that has an expansive provision in its State law relating to access and 8 disclosure of DNA analysis and/or records,the Participating Laboratory agrees to abide by the more restrictive provisions in Federal law in order to participate in NDIS. NDIS will not accept DNA analyses from any Participating Laboratory that fails to comply with these restrictions. For example, whether or not a State disclosure provision allows such release, a request by a defendant(including defense counsel or third party) to access all of the DNA records contained in the State database or samples and analysis performed in relation to a case other than that of the requesting arrestee/convicted offender is not authorized or encompassed in the Federal DNA Act's provision that authorizes release of "samples and analyses performed in connection with the case in which such defendant is charged." (42 U.S.C. 14132(b)(3)(c). Similarly,the release of CODIS candidate match information that has not been confirmed (e.g. any data other than the confirmation match) is not authorized under the Federal DNA Act. Additionally, the Participating Laboratory shall not provide access to or disclosure of DNA records that have been uploaded to NDIS to an entity or agency that is not a criminal justice agency nor authorized to access such DNA records under the Federal DNA Act. If the Participating Laboratory disseminates, provides, or releases DNA records that have been uploaded to NDIS for purposes not authorized under the Federal DNA Act or to an entity or agency other than another NDIS Participating Laboratory or criminal justice agency, the Participating Laboratory shall notify its CODIS State Administrator in order to have those DNA records removed from NDIS. D. The Participating Laboratory will immediately report to the CODIS State Administrator any instance in which data derived from the use of the CODIS software is used, disclosed, or accessed in an unauthorized manner (including any data losses or breaches). E. The Participating Laboratory expressly acknowledges that participation and searches in NDIS will be governed by the "NDIS Operational Procedures Manual" available at http://www.fbi.gov/about-us/lab/biometric-analysis/codis, which are incorporated in and made a part of this Agreement. E. The Participating Laboratory shall ensure secure transmission of SDIS and NDIS data. The Participating Laboratory, SDIS and NDIS agree to abide by the decision of the FBI, and grant it exclusive right to determine the most appropriate method to ensure secure communications from and to NDIS, and to alter that method if necessary. As of the date of this Agreement, the CHS WAN is the mechanism designated by the FBI for transmittal of DNA data between NDIS and the Participating Laboratories. 9 V. OBLIGATIONS OF THE PARTICIPATING LABORATORY IN LEGAL ACTIONS A. The Participating Laboratory,to the extent permitted by Federal and/or State law, agrees to indemnify and save harmless DPS, its officers and employees, from and against any and all claims, demands, actions, suits and proceedings brought by others arising out of the terms of this Agreement. B. The Participating Laboratory shall notify the CODIS State Administrator in writing within seven (7) business days after initial notification to the Participating Laboratory of any legal actions involving CODIS,NDIS or SDIS. Examples of such legal actions which require such notification include, but are not limited to, the following: 1. Discovery requests for CODIS source code; 2. Discovery requests for any aspect of the CODIS database design; 3. Discovery requests for any DNA records maintained in SDIS or NDIS; and C. The Participating Laboratory shall notify the CODIS State Administrator of any criminal actions (such as an arrest and/or conviction for a criminal offense) of a CODIS user in their laboratory. VI. SUSPENSION OF THE AUTHORITY OF THE PARTICIPATING LABORATORY TO PARTICIPATE IN THE STATE OR NATIONAL DNA INDEX SYSTEMS A. DPS may suspend all or part of the rights granted to the Participating Laboratory by virtue of this Agreement for a violation or a series of violations of any Federal or State law or regulation. B. The Participating Laboratory explicitly acknowledges that violation of various provisions of Federal or State law or their associated regulations may give rise to the following sanctions: 1. Termination of status as a Participating Laboratory and denial of access to any DNA records held by NDIS or SDIS; 2. Subject the Participating Laboratory or its employees to fines; 3. Subject employees of the Participating Laboratory to criminal charges. 9 10 C. If the Participating Laboratory has been suspended from participating in SDIS, and by virtue of that suspension, from participating in NDIS, the suspension may be lifted upon demonstration to DPS that all violations have been corrected or eliminated. The decision to lift the suspension of a Participating Laboratory from participation in SDIS shall be in the sole discretion of the CODIS State Administrator. VII. TERMINATION OF THE AGREEMENT A. Either party to this Agreement may terminate this Agreement, for any reason, by providing the other party with thirty(30) days written notice of their intent to terminate. B. In addition to the termination provisions set forth above, upon thirty (30) days written notice to the Participating Laboratory, DPS may terminate this Agreement and require removal of the CODIS software from the computer equipment of a Participating Laboratory and/or return of that software and any accompanying materials if notified by the FBI that funds for the continued support of CODIS and/or NDIS are not appropriated by the United States Congress. VIII. MODIFICATIONS TO THE AGREEMENT A. Modifications to this Agreement may be made necessary by changes in policies, procedures or technology. Therefore,the Participating Laboratory agrees that this Agreement may be modified as follows: 1. Modifications to the text of this Agreement(excluding the Appendices) shall only be effective if in writing and signed by all parties. 2. From time to time, however, it may be necessary to revise the FBI Director's Quality Assurance Standards and/or the NDIS Operational Procedures Manual to reflect changes in law,processes and/or technology with respect to CODIS or NDIS. In the event that a revision to any or all of the FBI Director's Quality Assurance Standards or the NDIS Operational Procedures Manual are made,the Participating Laboratory agrees that the FBI shall provide notice of any such revisions (by notice on the CODIS CJIS WAN web site or e-mail to the assigned point-of-contact) and that thereafter such revision shall be incorporated in and made a part of this Agreement without the need for both parties to re-execute this Agreement. 11 IX. EFFECTIVE DATE This Agreement shall become effective when signed by the Assistant Director of Law Enforcement Support for the State of Texas and the Local CODIS Administrator for the Participating Laboratory or the appropriate authority as required by the regulations of the Participating Laboratory. Agreed to by representatives of the parties having the administrative authority to bind the parties to the terms and conditions of this Agreement. FOR THE STATE By: (Signature) Mike Lesko,Assistant Director,Law Enforcement Support (Name and Title) (Date) FOR THE PARTICIPATING LABORATORY CITY OF FORT WORTH: By: Valerie R. Washington Assistant City Manager Date: IJ11 fr— AXJel ECOMMENDED Bzgerald eoPolice Date: 0 p'� 12 APPROVED AS TO FORM ANDLEGA TY: By: o Ann to Assistant City Attorney ATTEST: By. aryse V' City Sea ary Contract Authorization: M&C: None Required 1295 Certification No.:Not required Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of th' contract, including ensuring all performance and reporting requirements. Name of erson do�,4 Title OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX APPENDIX A SUBCHAPTER G. DNA DATABASE SYSTEM 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" means : (A) a federal or state agency that is engaged in the administration of criminal justice under a statute or executive order and that allocates a substantial part of its annual budget to the administration of criminal justice; (B) a secure correctional facility as defined by Section 1 . 07, Penal Code; or (C) a community supervision and corrections department, a parole office, or a local juvenile probation department or parole office. (4) "DNA" means deoxyribonucleic acid. (5) "DNA database" means one or more databases that contain forensic DNA records maintained by the director. (6) "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) "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 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) "FBI" means the Federal Bureau of Investigation. (10) "Forensic analysis" has the meaning assigned by Article 38 . 35, Code of Criminal Procedure. (11) "Institution of higher education" has the meaning assigned by Section 61 . 003, Education Code. (12) "Penal institution" has the meaning assigned by Section 1 . 07, Penal Code. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept . 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 4, eff. September 1, 2005 . Acts 2009, 81st Leg. , R. S . , Ch. 1209 (S.B. 727) , Sec. 9, eff. September 1, 2009 . Sec. 411 . 142 . DNA DATABASE. (a) The director shall record DNA data and establish and maintain a computerized database that serves as the central depository in the state for DNA records . (b) The director may maintain the DNA database in the department' s crime laboratory in Austin or another suitable location. (c) The director may receive, analyze, store, and destroy a DNA record or DNA sample for the purposes described by Section 411 . 143 . If a DNA sample was collected solely for the purpose of creating a DNA record, the director may destroy the sample after any test results associated with the sample are entered into the DNA database and the CODIS database. (d) The DNA database must be capable of classifying, matching, and storing the results of analyses of DNA. (e) The director, with advice from the Department of Information Resources, shall develop biennial plans to: (1) improve the reporting and accuracy of the DNA database; and (2) develop and maintain a monitoring system capable of identifying inaccurate or incomplete information. (f) The DNA database must be compatible with the national DNA identification index system (CODIS) used 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 . (g) The DNA database may contain DNA records for the following: (1) an individual described by this subchapter, including Section 411 . 1471, 411 . 148, or 411 . 154; (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 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. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by Acts 2001, 77th Leg. , ch. 2, Sec. 4, eff. April 5, 2001 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 5, eff. September 1, 2005 . Acts 2007, 80th Leg. , R. S. , Ch. 760 (H.B. 3295) , Sec. 1, eff. June 15, 2007 . Acts 2015, 84th Leg. , R. S . , Ch. 221 (H.B. 941) , Sec. 3, eff. September 1, 2015 . Sec. 411 . 143 . PURPOSES. (a) The principal purpose of the DNA database is to assist a federal, state, or local criminal justice agency 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; (3) if personal identifying information is removed: (A) establishing a population statistics database; and (B) assisting in identification research, forensic validation studies, or forensic protocol development; and (4) retesting to validate or update the original analysis or assisting in database or DNA laboratory quality control . (d) The information contained in the DNA database may not be collected, analyzed, or stored to obtain information about human physical traits or predisposition for disease unless the purpose for obtaining the information is related to a purpose described by this section. (e) The director may not store a name or other personal identifying information in the CODIS database . A file or reference number to another information system may be included in the CODIS database only if the director determines the information is necessary to: (1) generate an investigative lead or exclusion; (2) support the statistical interpretation of a test result; or (3) allow for the successful implementation of the DNA database. (f) Except as provided by this subchapter, the DNA database may not include criminal history record information. (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. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept . 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 6, eff. September 1, 2005 . Sec. 411 . 144 . REGULATION OF DNA LABORATORIES; PENALTIES. (a) The director by rule shall establish procedures for a DNA laboratory or criminal justice agency in the collection, preservation, shipment, analysis, and use of a DNA sample 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 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 to the director 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; and (2) comply with this subchapter and rules adopted under this subchapter. (e) 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 agency. (f) 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. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 7, eff. September 1, 2005 . Sec. 411 . 145 . FEES . (a) The director may collect a reasonable fee under this subchapter for: (1) the DNA analysis of a DNA sample submitted voluntarily to the director; or (2) 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. Text of subsection as amended by Acts 2015, 84th Leg. , R. S . , Ch. 1276 (S .B. 1287) , Sec. 12 Text of subsection effective until January 01, 2017 (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 102 . 020 (h) , Code of Criminal Procedure, may be used only to defray the cost of administering this subchapter. Text of subsection effective on January 01, 2017 (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 Chapter 42A and Article 102 . 020 (h) , Code of Criminal Procedure, may be used only to defray the cost of administering this subchapter. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by Acts 2001, 77th Leg. , ch. 1490, Sec. 1, eff. Sept . 1, 2001 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 8, eff. September 1, 2005 . Acts 2015, 84th Leg. , R. S . , Ch. 770 (H.B. 2299) , Sec. 2 . 41, eff. January 1, 2017 . Acts 2015, 84th Leg. , R. S. , Ch. 1276 (S .B. 1287) , Sec. 12, eff. September 1, 2015 . Sec. 411 . 146 . DNA SAMPLES . (a) The director may not accept a DNA record or DNA sample collected from an individual who at the time of collection is alive, unless the director reasonably believes the sample was submitted voluntarily or as required by this subchapter and is : (1) a blood sample collected in a medically approved manner by: (A) a physician, registered nurse, licensed vocational nurse, licensed clinical laboratory technologist; or (B) an individual 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. (b) The director shall provide at no cost to a person collecting a DNA sample as described by Subsection (a) the collection kits, labels, report forms, instructions, and training for collection of DNA samples 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 collects a DNA sample under this section shall send the sample 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 sample collected under this section only: (1) to type the genetic markers contained in the sample; (2) for criminal justice or law enforcement purposes; or (3) for other purposes described by this subchapter. (f) If possible, a second DNA sample must be collected from an individual in a criminal investigation if forensic DNA evidence is necessary for use as substantive evidence in the investigation, prosecution, or defense of a case . Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 9, eff. September 1, 2005 . 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. (b) The director may adopt rules relating to the internal disclosure, access, or use of a sample or DNA record in a DNA laboratory. (c) The director 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. (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 agency may have access to a DNA sample for a law enforcement purpose through: (1) the agency' s laboratory; or (2) a laboratory used by the agency. (f) The director shall maintain a record of requests made under this section. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 10, eff. September 1, 2005 . Sec. 411 . 1471 . DNA RECORDS OF PERSONS ARRESTED FOR, CHARGED WITH, OR CONVICTED OF CERTAIN OFFENSES . (a) This section applies to a defendant who is : (1) indicted or waives indictment for a felony prohibited or punishable under any of the following Penal Code sections : (A) Section 20 . 04 (a) (4) ; (B) Section 21 . 11; (C) Section 22 . 011; (D) Section 22 . 021; (E) Section 25. 02; (F) Section 30 . 02 (d) ; (G) Section 43 . 05; (H) Section 43 . 25; (I) Section 43 . 26; (J) Section 21 . 02; or (K) Section 20A. 03; (2) arrested for a felony described by Subdivision (1) after having been previously convicted of or placed on deferred adjudication for an offense described by Subdivision (1) or an offense punishable under Section 30 . 02 (c) (2) , Penal Code; or (3) convicted of an offense: (A) under Title 5, Penal Code, other than an offense described by Subdivision (1) , that is punishable as a Class A misdemeanor or any higher category of offense, except for an offense punishable as a Class A misdemeanor under Section 20 . 02, 22 . 01, or 22 . 05, Penal Code; or (B) under Section 21 . 08, 25 . 04, 43 . 03, or 43 . 24, Penal Code. (b) After a defendant described by Subsection (a) (1) is indicted or waives indictment, the court in which the case is pending shall require the defendant to provide to a law enforcement agency one or more specimens for the purpose of creating a DNA record. A law enforcement agency arresting a defendant described by Subsection (a) (2) , immediately after fingerprinting the defendant and at the same location as the fingerprinting occurs, shall require the defendant to provide one or more specimens for the purpose of creating a DNA record. After a defendant described by Subsection (a) (3) is convicted, the court shall require the defendant to provide to a law enforcement agency one or more specimens for the purpose of creating a DNA record. (c) A defendant described by Subsection (a) (1) or (3) may at any time voluntarily provide a specimen for the purposes described by Subsection (b) . (d) The director by rule shall require law enforcement agencies taking a specimen under this section to preserve the specimen and maintain a record of the collection of the specimen. A law enforcement agency taking a specimen under this section may use any method to take the specimen approved by the director in the rule adopted under this subsection. The rule adopted by the director must prohibit a law enforcement agency from taking a blood sample for the purpose of creating a DNA record under this section. The agency may either send the specimen to the director or send to the director an analysis of the sample performed at a laboratory chosen by the agency and approved by the director. (e) Notwithstanding Subsection (d) , on acquittal of a defendant described by Subsection (a) (1) or (2) or dismissal of the case against the defendant, the court shall order the law enforcement agency taking the specimen to immediately destroy the record of the collection of the specimen and require the department to destroy the specimen and the record of its receipt . (f) A defendant who provides a DNA sample under this section is not required to provide a DNA sample under Section 411 . 148 of this code or under Section 11 (j ) , Article 42 . 12, Code of Criminal Procedure, unless the attorney representing the state in the prosecution of the felony offense that makes Section 411 . 148 or 11 (j ) applicable to the defendant establishes to the satisfaction of the director that the interests of justice or public safety require that the defendant provide additional samples . Added by Acts 2001, 77th Leg. , ch. 1490, Sec. 2, eff. Sept . 1, 2001 . Amended by: Acts 2007, 80th Leg. , R. S . , Ch. 760 (H.B. 3295) , Sec. 2, eff. June 15, 2007 . Acts 2011, 82nd Leg. , R. S. , Ch. 122 (H.B. 3000) , Sec. 7, eff. September 1, 2011 . Acts 2015, 84th Leg. , R. S . , Ch. 221 (H.B. 941) , Sec. 4, eff. September 1, 2015 . Acts 2015, 84th Leg. , R. S . , Ch. 221 (H.B. 941) , Sec. 5, eff. September 1, 2015 . Sec. 411 . 1473. DNA RECORDS OF CERTAIN REGISTERED SEX OFFENDERS. (a) This section applies only to a person who is required to register under Chapter 62, Code of Criminal Procedure. (b) The department by rule shall require a law enforcement agency serving as a person' s primary registration authority under Chapter 62, Code of Criminal Procedure, to: (1) take one or more specimens from a person described by Subsection (a) for the purpose of creating a DNA record; and (2) preserve the specimen and maintain a record of the collection of the specimen. (c) A law enforcement agency taking a specimen under this section may either send the specimen to the director or send to the director an analysis of the specimen performed by a laboratory chosen by the agency and approved by the director. (d) A law enforcement agency is not required to take and a person is not required to provide a specimen under this section if the person is required to and has provided a specimen under this chapter or other law. Added by Acts 2005, 79th Leg. , Ch. 1008 (H.B. 867) , Sec. 1 . 05, eff. September 1, 2005 . Sec. 411 . 148 . MANDATORY DNA RECORD. (a) This section applies to: (1) an individual, other than a juvenile, who is : (A) ordered by a magistrate or court to provide a DNA sample under Section 411 . 154 or other law, including as part of an order granting community supervision to the individual; or (B) confined in a penal institution operated by or under contract with the Texas Department of Criminal Justice; or (2) a juvenile who, following an adjudication for conduct constituting a felony, is : (A) confined in a facility operated by or under contract with the Texas Juvenile Justice Department; or (B) placed on probation, if the conduct constitutes a felony described by Section 54 . 0409, Family Code . (b) An individual described by Subsection (a) shall provide one or more DNA samples 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 shall collect the sample from the individual during the diagnostic process or at another time determined by the Texas Department of Criminal Justice. If an individual described by Subsection (a) (2) (A) is received into custody by the Texas Juvenile Justice Department, that department shall collect the sample from the individual during the initial examination or at another time it determines . If an individual who is required under this section or other law to provide a DNA sample is in the custody or under the supervision of another criminal justice agency, such as a community supervision and corrections department, a parole office, or a local juvenile probation department or parole office, that agency shall collect the sample from the individual at a time determined by the agency. (e) Repealed by Acts 2009, 81st Leg. , R. S . , Ch. 1209, Sec. 11, eff. September 1, 2009. (f) The Texas Department of Criminal Justice shall notify the director that an individual described by Subsection (a) (1) (B) is to be released from custody not earlier than the 120th day before the individual ' s statutory release date and not later than the 90th day before the individual ' s statutory release date. An individual described by Subsection (a) (1) (B) may not be held past the individual ' s statutory release date if the individual fails or refuses to provide a DNA sample under this section. The Texas Department of Criminal Justice may take lawful administrative action, including disciplinary action resulting in the loss of good conduct time, against an individual described by Subsection (a) (1) (B) who refuses to provide a sample under this section. In this subsection, "statutory release date" means the date on which an individual is discharged from the individual' s controlling sentence. (f-1) The Texas Juvenile Justice Department shall notify the director that an individual described by Subsection (a) (2) (A) is to be released from custody not earlier than the 120th day before the individual ' s release date . (f-2) The Texas Department of Criminal Justice and the Texas Juvenile Justice Department, in consultation with the director, shall determine the form of the notification described by Subsections (f) and (f-1) . (g) A medical staff employee of a criminal justice agency may collect a voluntary sample from an individual at any time . (h) An employee of a criminal justice agency may use force against an individual 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 the sample . (i) (1) 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 Juvenile Justice Department as soon as practicable shall cause a sample to be collected from an individual described by Subsection (a) (2) (A) if: (A) the individual is detained in another juvenile detention facility after adjudication and before admission to the Texas Juvenile Justice Department; and (B) the Texas Juvenile Justice Department determines the individual is likely to be released before being admitted to that department. (2) The administrator of the other juvenile detention facility shall cooperate with the Texas Juvenile Justice Department as necessary to allow that department to perform its duties under this subsection. (k) When a criminal justice agency of this state agrees to accept custody or supervision 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 criminal justice agency that agrees to accept custody or supervision of the individual shall collect a DNA sample under this subchapter if the individual was convicted of or adjudicated as having engaged in conduct constituting a felony and is otherwise required to provide a DNA sample under this section. (1) 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. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept . 1, 1995 . Amended by Acts 1999, 76th Leg. , ch. 1063, Sec. 1, eff. Sept . 1, 1999; Acts 1999, 76th Leg. , ch. 1368, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg. , ch. 1509, Sec. 1, 2 . Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept . 1, 1995 . Amended by Acts 1999, 76th Leg. , ch. 1063, Sec. 1, eff. Sept . 1, 1999; Acts 1999, 76th Leg. , ch. 1368, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg. , ch. 211, Sec. 14, eff. Sept . 1, 2001 . Reenacted and amended by Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 11, eff. September 1, 2005 . Reenacted and amended by Acts 2005, 79th Leg. , Ch. 1245 (H.B. 1681) , Sec. 1, eff. September 1, 2005. Reenacted and amended by Acts 2007, 80th Leg. , R. S . , Ch. 760 (H.B. 3295) , Sec. 3, eff. June 15, 2007 . Amended by: Acts 2009, 81st Leg. , R. S . , Ch. 1209 (S .B. 727) , Sec. 10, eff. September 1, 2009. Acts 2009, 81st Leg. , R. S. , Ch. 1209 (S .B. 727) , Sec. 11, eff. September 1, 2009. Acts 2015, 84th Leg. , R. S . , Ch. 734 (H.B. 1549) , Sec. 94, eff. September 1, 2015. Sec. 411 . 149 . VOLUNTARY DNA RECORD. An individual, including an individual required to provide a DNA sample under this subchapter, may at any time voluntarily provide or cause to be provided to a criminal justice agency a sample to be forwarded to the director for the purpose of creating a DNA record under this subchapter. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 12, eff. September 1, 2005 . Sec. 411 . 151 . EXPUNCTION OR REMOVAL OF DNA RECORDS . (a) The director shall expunge a DNA record of an individual from a 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. (e) The department' s failure to expunge a DNA record as required by this section may not serve as the sole grounds for a court in a criminal proceeding to exclude evidence based on or derived from the contents of that record. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by Acts 2003, 78th Leg. , ch. 283, Sec. 44, eff. Sept . 1, 2003 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 13, eff. September 1, 2005 . Acts 2011, 82nd Leg. , R. S. , Ch. 1105 (S .B. 1636) , Sec. 1, eff. September 1, 2011 . 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. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 14, eff. September 1, 2005 . Sec. 411 . 153 . CONFIDENTIALITY OF DNA RECORDS . (a) A DNA record stored in the DNA database is confidential and is not subject to disclosure under the public information law, Chapter 552 . (b) A person commits an offense if the person knowingly discloses to an unauthorized recipient information in a DNA record or information related to a DNA analysis of a sample collected under this subchapter. (c) An offense under this section is a state jail felony. (d) A violation under this section constitutes official misconduct. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by Acts 2001, 77th Leg. , ch. 1490, Sec. 3, eff. Sept . 1, 2001 . Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept . 1, 1995 . Amended by Acts 2001, 77th Leg. , ch. 1490, Sec. 3, eff. Sept. 1, 2001; Acts 2001, 77th Leg. , ch. 1509, Sec. 3 . Reenacted and amended by Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 15, eff. September 1, 2005 . Amended by: Acts 2007, 80th Leg. , R. S. , Ch. 760 (H.B. 3295) , Sec. 4, eff. June 15, 2007 . Sec. 411 . 154 . ENFORCEMENT BY COURT ORDER. (a) On the request of the director, a district or county attorney or the attorney general may petition a district court for an order requiring a person to: (1) comply with this subchapter or a rule adopted under this subchapter; or (2) refrain from acting in violation of this subchapter or a rule adopted under this subchapter. (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; or (4) if the person has already provided a DNA sample, to provide another sample if good cause is shown. (c) An order issued under this section is appealable as a criminal matter and if appealed is to be reviewed under an abuse of discretion standard. Added by Acts 1995, 74th Leg. , ch. 595, Sec. 1, eff. Sept. 1, 1995 . Amended by: Acts 2005, 79th Leg. , Ch. 1224 (H.B. 1068) , Sec. 16, eff. September 1, 2005 .