TITLE 37.PUBLIC SAFETY AND CORRECTIONS

Part 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

Chapter 23. VEHICLE INSPECTION

Subchapter F. VEHICLE INSPECTION STATION OPERATION

37 TAC §23.73

The Texas Department of Public Safety proposes amendments to §23.73, concerning Inspection Fees. Amendments to the section are necessary in order to implement changes resulting from the passage of Tex. H.B. 2134, Acts 2001, 77th Leg., R.S., ch. 1075, §1.

The proposed amendment to §23.73 implements provisions of H.B. 2134 directing the Texas Natural Resource Conservation Commission and The Texas Department of Public Safety to adopt procedures to encourage a stable private market for providing emissions testing to the public.

The proposed amendment reflects changes in the emission testing fees adopted by the Texas Natural Resource Conservation Commission (TNRCC) in 30 TAC §114.53 relating to Inspection and Maintenance Fees, published in the November 16, 2001 issue of the Texas Register (26 TexReg 9408). These fee amounts are the maximum allowed to be charged. To promote a stable private market and encourage participation, the department proposes to remove present restrictions on offering vehicle inspections in conjunction with other products and services and advertising the fees both together and separately.

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.

Mr. Haas also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule would be a stable private market in vehicle emission testing provided to the public. There is no anticipated adverse economic effect on individuals, small businesses, or micro-businesses. There is no anticipated cost to individuals.

Comments on the proposal may be submitted to E. Eugene Summerford, Legal Counsel, Vehicle Inspections and Emissions, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0543; or by fax at (512) 424-2774. All comments must be received by 5:00 p.m. on the 21st day after publication and should refer to "Proposed Rule 37 TAC §23.73" in the subject line or at the beginning of the text.

The amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §§548.301, 548.501, and 548.505.

Texas Government Code, §411.004(3) and Texas Transportation Code, §§548.301, 548.501, and 548.505 are affected by this proposal

§23.73.Inspection Fees.

(a) The maximum inspection fees charged for all vehicles are set by statute or administrative rule. All required inspection items shall be examined with the inspection fees in accordance with the following schedule: [ established as follows: safety inspection--$12.50; mopeds--$5.75; new car initial inspection--$21.75; emission only inspection--$13.00; vehicles subject to safety and emissions--$25.50. ]

(1) Safety inspection--$12.50.

(2) Mopeds--$5.75.

(3) New car initial inspection--$21.75.

(4) Emissions only inspection through April 30, 2002--$13.00. On May 1, 2002 and thereafter, the emissions only inspection fee is as follows:

(A) El Paso County--$14.00. Upon the implementation of an approved Low Income Repair Assistance Program (LIRAP--$17.00.

(B) All other counties--$27.00.

(5) Vehicles subject to safety and emissions through April 30, 2002--$25.50. On May 1, 2002 and thereafter, the safety and emissions inspection fee is as follows:

(A) El Paso County--$26.50. Upon the implementation of an approved Low Income Repair Assistance Program (LIRAP)--$29.50.

(B) All other counties--$39.50.

(b) The inspection fee is chargeable only at the time of the original inspection whether the vehicle is approved or disapproved. Every inspection shall be completed before a vehicle is approved or rejected.

(1) The inspection fee may [ cannot ] be included in combination with other services or products.

(2) The inspection fee may [ cannot ] be advertised in conjunction with other products or services.

(3) The inspection fee must be billed on work orders as a separate item.

(4) The fee , or any portion of the fee, may be waived provided advance payment for certificates has been made to the department

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 21, 2001.

TRD-200108212

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: February 3, 2002

For further information, please call: (512) 424-2135

Subchapter G. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE PROGRAM

37 TAC §23.95

The Texas Department of Public Safety proposes new §23.95, concerning Waiver for Low Volume Emissions Inspection Stations. The proposed rule establishes the requirements, limitations and application procedures for certified vehicle inspection stations desiring the waiver to conduct vehicle emission testing using only On-board Diagnostic equipment.

The new section is proposed to implement provisions of Tex. H.B. 2134, Acts 2001, 77th Leg., R.S., ch. 1075, §1, directing the Texas Natural Resource Conservation Commission (TNRCC) and the Texas Department of Public Safety to adopt procedures to encourage a stable private market for providing emissions testing to the public. The proposal also reflects changes in the emission testing program adopted by the TNRCC in 30 TAC §114.50 relating to Vehicle Emissions Inspection Requirements, published in the November 16, 2001 issue of the Texas Register (26 TexReg 9408).

Tom Haas, Chief of Finance, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government, or local economies.

Mr. Haas also has determined that for each year of the first five-year period the rule is in effect the anticipated public benefit resulting from adoption of the section would be an increased number of inspection stations offering emission testing for model year 1996 and newer vehicles. It has also been determined that adoption of this amendment will aid in providing a stable private market in vehicle emission testing provided to the public. There is no anticipated adverse economic effect on individuals, small businesses, or micro-businesses. There is no anticipated cost to individuals.

Comments may be submitted to E. Eugene Summerford, Legal Counsel, Vehicle Inspections and Emissions, Texas Department of Public Safety, Box 4087, Austin, TX 78773-0543; or by fax at (512) 424-2774. All comments must be received by 5:00 p.m. on the 21st day after publication and should refer to "Proposed Rule 37 TAC §23.95" in the subject line or at the beginning of the text.

The new section is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work and Texas Transportation Code, §§548.302, 548.303, and 548.304.

Texas Government Code, §411.004(3) and Texas Transportation Code, §§548.302, 548.303, and 548.304 are affected by this proposal.

§23.95.Waiver for Low Volume Emissions Inspection Stations.

(a) General. 37 TAC §23.93(j)(1)(G) of this title (relating to Vehicle Emissions Inspection and Maintenance Program) requires that all public certified emissions inspection stations offer both Acceleration Simulation Mode 2 (ASM2) and On-Board Diagnostic II (ODBII) vehicle emissions tests. This section provides the requirements, application procedures, and the limitations of the low volume waiver provided by 37 TAC §23.93 (relating to Vehicle Emissions Inspection and Maintenance Program). This waiver allows a public certified inspection station to perform limited state required vehicle emission testing on 1996 and newer model year vehicles using department approved OBDII testing equipment. Government and fleet inspection stations do not require this waiver.

(b) Limitations of low volume waiver.

(1) Notwithstanding subsection (a) of this section, under no circumstance shall an inspection station, public, government or fleet, operating with only OBDII test equipment issue an inspection certificate to a "designated vehicle" as defined in 37 TAC §23.93 of this title (relating to Vehicle Inspection Emissions and Maintenance Program) which is model year 1995 and older.

(2) An inspection station operating under a low volume waiver is limited to performing 1200 emission inspections per year. This limitation is achieved through the OBD analyzer software and the vehicle inspection database contractor. Each month, the inspection station is allocated 100 emission tests. After the monthly test allocation of the station has been used, no more inspections will be allowed until the next month. In the event that the station performs less than 100 emission tests, the remaining number will carry over to the next month. The annual waiver limit number will be automatically reset each January with no carry over from the previous year.

(c) Applications for waiver.

(1) New inspection station applications shall follow the procedures in 37 TAC §23.1 of this title (relating to New Applications) with the addition that the application form be annotated with "LOW VOLUME WAIVER - OBD ONLY" at the top of the form. New applicants will include written acknowledgement of limitation of low volume waiver as indicated in paragraph (2)(G) of this subsection.

(2) Owners or operators of currently certified emission inspection stations shall request this waiver by letter or fax to the local department Regional Supervisor. This written correspondence must include the following:

(A) Station name,

(B) Physical address of the station,

(C) Mailing address of the station,

(D) Station number,

(E) Signature of the station owner or operator,

(F) Copy of purchase order or receipt for state approved OBDII only emission testing equipment, and

(G) Signatory's statement acknowledging the limitations of low volume waiver. This statement shall read as follows: "I understand the conditions and limitations of being granted a low volume, OBD only emissions inspection station waiver. I agree to the limitation of 1200 annual emissions tests per year and agree to the 100 monthly emission test limit. I agree this inspection station shall not issue certificates to other than 1996 and newer model year designated vehicles. I understand and agree that violating the terms of this waiver shall result in the suspension and/or revocation of this station's certification."

(3) The local Regional Supervisor will objectively review each application. After review, the Regional Supervisor shall indicate approval or disapproval by endorsement, with a copy provided to the requesting inspection station and the departmental file on the station. If disapproved, the Regional Supervisor must provide reasons for the department's denial of the waiver.

(d) The department will review the annual low volume waiver and monthly test number limitations on a regular basis and revise the number limits according to the viability of the vehicle emissions inspection program.

(e) This waiver is not available for inspection stations in El Paso County.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 21, 2001.

TRD-200108213

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: February 3, 2002

For further information, please call: (512) 424-2135

Chapter 28. DNA DATABASE

Subchapter G. RESTRICTED DNA RECORD OF A PERSON RELEASED ON BAIL, CHARGED WITH, PLACED ON COMMUNITY SUPERVISION FOR, OR CONVICTED OF CERTAIN OFFENSES

37 TAC §§28.101 - 28.110

The Texas Department of Public Safety (DPS) proposes new Subchapter G, §§28.101-28.110, concerning Restricted DNA Record of a Person Released on Bail, Charged with, Placed on Community Supervision for, or Convicted of Certain Offenses. The new sections promulgate the policies and procedures of DPS governing approval of an outside laboratory, collection and processing of a specimen, records, and additional specimen collection for these restricted DNA records.

In the new subchapter §28.101 lists the subchapter definitions related to the proposed restricted DNA database; §28.102 describes the purpose and applicability of the proposed sections; §28.103 describes eligible individuals from whom a restricted specimen may be taken; §28.104 describes the date and manner of approval for an outside laboratory; §28.105 describes the collection of a restricted specimen, including discouraged use of restricted specimens for evidentiary purposes, collection kits, training, statutory prohibitions, court-ordered specimens, and criminal history checks; §28.106 describes the processing of a restricted specimen, including processing of the specimen, the restricted DNA database card, forwarding the card, acceptance or rejection of the card, testing fee, and profile entry; §28.107 describes the restricted DNA record, including maintenance, certification, retention period, segregation, and access to the record; §28.108 describes the taking of an additional specimen, including a request from a felony prosecutor, the circumstances when no request is required, and whether or not a profile already exists; §28.109 describes required notifications to the DPS Crime Laboratory Service and making information available after contacting the Crime Laboratory Service; and §28.110 describes contact telephone numbers and addresses of the Crime Laboratory Service.

The new sections are necessary as a result of the passage of Tex. S.B. 638, Acts 2001, 77th Leg., R.S., ch. 1490, §2.

Tom Haas, Chief of Finance, has determined that for each year of the first-five year period the rules are in effect there will be an additional estimated cost to the state of $271,466. The additional estimated cost to local government as a result of enforcing or administering the rule is $2.77 per sample. There are no estimated reductions in cost to the state and to local governments as a result of enforcing or administering the rule. The estimated loss in revenue to local governments as a result of enforcing or administering the rule is the cost of the DNA sample kit multiplied by the expected 4,638 samples.

Senate Bill 638 provides that on the first day after the end of a calendar quarter, a law enforcement agency incurring expenses described by these rules in the previous calendar quarter shall send a certified statement of the costs incurred to the criminal justice division of the Governor's Office. The criminal justice division through a grant shall reimburse the law enforcement agency for the costs not later than the 30th day after the date the certified statement is received. If the criminal justice division does not reimburse the law enforcement agency before the 90th day after the date the certified statement is received, the agency is not required to perform duties imposed.

The Department of Public Safety Crime Laboratory Service will supply training kits to local agencies to train local agency personnel on the proper use of the DNA sample kits. These training tapes will be furnished on request and at no cost to the local agency.

Mr. Haas also has 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 the identification and prosecution of additional serious offenders due to the increased size of the DNA database. There is no anticipated adverse economic effect on individuals, small businesses, or micro-businesses.

Comments on the proposal may be submitted to Dennis Loockerman, Supervisor-CODIS Laboratory, Crime Laboratory Service, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-0461, (512) 424-2105 Ext. 3888.

The new sections are adopted pursuant to Texas Government Code, §411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department; Texas Government Code, §411.1471(d), which requires the director to adopt rules requiring a local law enforcement agency that collects a DNA specimen from individuals arrested, indicted, or convicted of certain felonies or misdemeanors under the provisions of that section, to preserve the specimen, maintain a record of its collection, use an approved method of collection, and not collect a blood specimen; Texas Government Code, §411.1472(c), which requires the director to adopt rules requiring a local law enforcement agency that collects a DNA specimen from certain probationers under the provisions of that section, to preserve the specimen, maintain a record of its collection, use an approved method of collection, and not collect blood specimen; and Texas Government Code, §411.1531, which requires the director to adopt rules to segregate records created under §411.1471 or §411.1472 from other DNA records created under Government Code, Chapter 411, subject to certain exceptions.

Texas Government Code, §§411.006(4), 411.1471, 411.1472 and 411.1531 are affected by this proposal.

§28.101.Subchapter Definitions.

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

(1) Agency--means a law enforcement agency.

(2) Approved laboratory or lab--means 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.

(3) DPS--means the department.

(4) Profile--means the complete 13 locus CODIS STR DNA profile used for law enforcement identification.

(5) Restricted DNA database--means the database that contains forensic DNA records maintained by the department of a specimen taken from a suspect, defendant, probationer, or convict under:

(A) Government Code, §411.1471 (DNA Records of Persons Charged With or Convicted of Certain Felonies);

(B) Government Code, §411.1472 (DNA Records of Persons Placed on Community Supervision for Certain Offenses); or

(C) Code of Criminal Procedure, Article 17.47 (Conditions Requiring Submission of a Specimen).

(6) Restricted DNA Database Card--means a form (LAB-13R) available from the department to be used by an agency to make a record under this subchapter.

(7) Restricted DNA Procedural Guidelines--means the latest draft of the department's publication by that name (Form LAB-11) and any cross-referenced material, including a procedure or specimen collection method approved by the director.

(8) Restricted DNA record--means any type of record of a restricted DNA specimen, including its profile.

(9) Restricted DNA specimen or restricted specimen--means a DNA sample or specimen, normally a buccal swab, taken under this subchapter. The term does not include:

(A) a blood sample; or

(B) a standard DNA specimen.

(10) Standard DNA specimen or standard specimen--means a DNA sample or specimen, normally a blood sample, taken under Subchapters A through F of this chapter, including a standard sex offender DNA specimen.

(11) TDCJ--means the Texas Department of Criminal Justice.

(12) TYC--means the Texas Youth Commission.

§28.102.Purpose and Applicability.

(a) Purpose. This subchapter contains the director's rules governing the taking of a biological specimen from certain eligible individuals by an agency in order to populate the department's restricted 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 restricted DNA specimen taken from an eligible individual for an offense covered by this subchapter.

(2) This subchapter does not apply to:

(A) a standard DNA specimen or record maintained by the department under Subchapters A through F of this chapter; or

(B) a standard suspect specimen that is not a restricted specimen described by §28.103(7) of this subchapter (relating to Eligible Individual).

§28.103.Eligible Individual.

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

(1) indicted 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);

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

(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);

(4) convicted of a misdemeanor offense under Penal Code:

(A) §21.07 (public lewdness); or

(B) §21.08 (indecent exposure);

(5) placed on community supervision, including deferred adjudication community supervision, for a felony described by paragraph (1) of this section;

(6) released on bail or bond under Code of Criminal Procedure, Article 17.47 (Conditions Requiring Submission of a Specimen), for an offense described by this section; or

(7) described by paragraph (1), (2), or (4) of this section and who voluntarily provides a specimen to create a restricted DNA record under this subchapter.

§28.104.Approval of Outside Laboratory.

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

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

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

(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 Restricted DNA Procedural Guidelines.

§28.105.Collection of Specimen.

(a) Generally. An agency may collect a restricted DNA specimen from an eligible individual. The agency collecting the specimen shall use a collection method approved by the director and described in the Restricted DNA Procedural Guidelines and may:

(1) only use a specimen collection kit purchased from or approved by the department; and

(2) not collect the specimen using a trusty, probationer, volunteer, or other individual who is not officially associated with the agency.

(b) Evidentiary specimen discouraged. In the same manner as a standard specimen, the department does not intend for a restricted DNA specimen to be used in court as the evidentiary specimen establishing identity. An agency should use information about matching the restricted specimen's profile to an unknown profile to obtain a separate evidentiary specimen.

(c) Collection kit. The department shall make reasonable efforts to provide an adequate supply of specimen kits to each sheriff's department operating a county jail and, upon request, to any other agency with appropriately trained personnel.

(d) Training. The department may provide or approve training under this subchapter as described in the Restricted DNA Procedural Guidelines. If an agency frequently submits unusable specimens, the department may require additional training before accepting further specimens.

(e) Statutory prohibition. Under Government Code, §411.1471(d) and §411.1472(c), no agency may take a blood sample for the purpose of creating a restricted DNA record.

(f) Court-ordered specimen. If a court, including a magistrate, orders the taking of a restricted DNA specimen under this subchapter, the department encourages but does not require the court to order the specimen taken by an agency that has the personnel, training, and other resources necessary to efficiently and properly take the specimen. The department expects these personnel will normally be:

(1) a booking clerk or another individual performing a similar function at a county jail; or

(2) a member of a sex offender registration unit or another individual performing a similar function for the agency.

(g) Criminal history check. If an agency arrests an individual for a felony offense potentially covered by this subchapter, the department encourages but does not require the agency to take reasonable steps to determine if the individual has the criminal history sufficient to take a restricted specimen under this subchapter. These steps should include inquiry into each appropriate information system available to law enforcement.

(h) Duty - restricted specimen. The duty to require or take a restricted specimen is not affected by the fact that:

(1) an individual asserts or proves that a standard specimen has already been collected; or

(2) a standard profile appears to already exist for the individual.

(i) Duty - standard specimen. The duty to require or take a standard specimen:

(1) is affected by the fact that an individual proves that a restricted specimen has already been collected; and

(2) is not affected by the fact that:

(A) an individual asserts or proves that a standard specimen has already been collected; or

(B) a standard profile appears to already exist for the individual.

§28.106.Processing of Specimen.

(a) Preservation. The agency collecting the restricted specimen shall use a preservation method and procedure approved by the director and described in the Restricted DNA Procedural Guidelines.

(b) Restricted DNA Database Card. The individual agency representative who collects the specimen shall complete the card in a manner approved by the director and described in the Restricted DNA Procedural Guidelines.

(c) Forwarding. The collecting agency shall forward the specimen together with the original Restricted DNA Database Card to the department or an approved lab no later than the end of the third business day after the collection.

(d) After forwarding. If the collecting agency forwards the specimen kit and its associated database card to an approved lab, the agency:

(1) may request the lab to return a copy of the profile to the agency; and

(2) must instruct the lab that the lab shall, as soon as is reasonably practicable after creating the profile, forward to the department:

(A) the profile;

(B) all remaining specimen material, including the unprocessed buccal swab and any remaining extracted DNA, and

(C) all other original kit components, including the original database card.

(e) Acceptance or rejection. The department:

(1) may accept a usable specimen that substantially complies with this subchapter;

(2) may reject an unusable specimen that does not comply with this subchapter;

(3) shall notify the submitting agency of any rejection; and

(4) may destroy the rejected specimen, if it is unusable.

(f) Testing fee - DPS lab. The department shall absorb the cost of testing necessary to create a profile for a restricted specimen submitted directly to the DPS Crime Laboratory by the collecting agency.

(g) Testing fee - approved lab. The collecting agency shall initially pay the cost of testing necessary to create a profile for a restricted specimen submitted to an outside lab approved under this subchapter. The agency may then seek reimbursement from the criminal justice division of the governor's office under Code of Criminal Procedure, Article 102.056(e).

(h) Profile entry. The department shall enter the record's profile into its database.

§28.107.Restricted DNA Record.

(a) Maintenance by agency. An agency collecting a restricted DNA specimen from an eligible individual shall maintain a record of the collection under this section, including a copy of the Restricted DNA Database Card and any associated record.

(b) Certification. The individual agency representative who collects the specimen shall certify compliance with the Restricted DNA Procedural Guidelines. The individual shall make the certification on a Restricted DNA Database Card completed at the time of collection. The card (LAB-13R) includes a certification that:

(1) the individual is properly trained; and

(2) the restricted specimen was taken in compliance with this subchapter.

(c) Retention period. Unless a court orders differently, the collecting agency shall retain the copy of the Restricted DNA Database Card and any associated record for a period of three years from the date of collection.

(d) Record segregation by agency. The department encourages but does not require a collecting agency to segregate restricted DNA records from any other type of DNA record that may be maintained by the agency.

(e) Maintenance by DPS. The department shall maintain a restricted DNA specimen and record under this subchapter using standard CODIS laboratory procedures.

(f) Record segregation by DPS. Except as provided by this subsection, the department shall segregate a restricted DNA record collected under this subchapter from other DNA records created and entered into the standard DNA database under other law. If Government Code, §411.148 (DNA Records of Certain Inmates) or §411.150 (DNA Records of Certain Juveniles), require a standard DNA record to be created for inclusion in the standard database, segregation is no longer required and the department may enter the restricted DNA record into the standard DNA database.

(g) Access. An agency or other person may access a restricted DNA record in the same manner as a standard DNA record.

§28.108.Additional Sample or Specimen.

(a) Prosecutor determines no profile. The department encourages but does not require the appropriate felony prosecutor to file a motion for a restricted DNA specimen to be taken under this subchapter, if an original, restricted specimen:

(1) was never taken;

(2) was lost or rejected; or

(3) did not otherwise produce a valid DNA profile under this subchapter.

(b) Request from a felony prosecutor. If the defendant has already submitted a restricted DNA specimen, an attorney representing the state in felony prosecutions may submit a written request to the director to determine that a defendant should provide a standard DNA specimen or a second restricted specimen under Government Code, §411.1472 (DNA Records of Persons Placed on Community Supervision for Certain Offenses). The request must include justification demonstrating to the director that the interests of justice or public safety require that the defendant provide an additional DNA specimen. The department shall make available on its web site a sample letter for a request under this section. If the director concurs with the justification offered by the prosecutor, the director shall forward the request, as appropriate, to:

(1) TDCJ under Government Code, §411.148 (DNA Records of Certain Inmates);

(2) TYC under Government Code, §411.150 (DNA Records of Certain Juveniles);

(3) a court convicting a defendant of a misdemeanor under Government Code, §411.1471(a)(3); or

(4) a court placing a defendant on community supervision, including deferred adjudication community supervision under Government Code, §411.1472 (DNA Records of Persons Placed on Community Supervision for Certain Offenses).

(c) No request required. The department does not require a request from a felony prosecutor for:

(1) a second restricted specimen ordered by a magistrate before release on bail or bond under Code of Criminal Procedure, Article 17.47 (Conditions Requiring Submission of a Specimen); or

(2) a standard DNA specimen, including a sex offender registration specimen, unless the defendant has already given a restricted specimen under Government Code, §411.1471(b) or §411.1472(b).

(d) DPS determines no profile. If the director determines that no valid restricted DNA profile exists for a defendant under this subchapter, the director deems that the interests of justice and public safety require that a defendant provide an additional, standard specimen. The department may contact an appropriate felony prosecutor to submit a written request under this section to ensure that each defendant, who is required to provide a specimen, does provide at least one profiled DNA specimen.

(e) Profile does exist. If the director determines that a valid restricted DNA record does exist for a defendant, the department:

(1) shall not solicit an additional DNA specimen to be taken by TDCJ or TYC without a written request from a felony prosecutor;

(2) may contact the appropriate felony prosecutor to submit a written request under this section; and

(3) may store an unsolicited specimen for future testing.

§28.109.Notification and Information.

(a) Notification. If this subchapter requires or permits an agency to communicate with the department or the director, the agency must communicate with the department or the director through the DPS Crime Laboratory Service.

(b) Information. The director may furnish information and forms relating to this chapter to an agency making a request in any form to the director through the Crime Laboratory Service.

§28.110.Contact Telephone Number and Address.

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

(1) the telephone number is: (512) 424-2105 x3888;

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

(3) the e-mail address is: codislab@txdps.state.tx.us;

(4) the web site is: http://www.txdps.state.tx.us/codis;

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

(6) the physical mailing address is: Crime Laboratory Service MSC 0461, Texas Department of Public Safety, 5805 N. Lamar Blvd., Austin, Texas 78752-4422.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on December 21, 2001.

TRD-200108206

Thomas A. Davis, Jr.

Director

Texas Department of Public Safety

Earliest possible date of adoption: February 3, 2002

For further information, please call: (512) 424-2135