By Traci Bennett
Assistant District Attorney in Fort Bend County, and
Cynthia Garza
Assistant Criminal District Attorney in Dallas County
Have you ever read Texas Code of Criminal Procedure Art. 38.50? If you do not handle intoxication offenses or deal with evidence dispositions, there is a good chance you have not availed yourself of its content since the TDCAA Legislative Update in 2015 when the statute was added to the code.
I, Traci Bennett, one of this article’s co-authors, must confess that I was not familiar with 38.50 until two years ago when my boss, Fort Bend County District Attorney Brian Middleton, asked me to assist our local Department of Public Safety office in the disposition of hundreds of blood tubes housed at the DPS Crime Lab, the remnants of old DWI investigations. And by hundreds, I mean more than 600. A lot. Disposing of these tubes seemed like it should be fairly simple—simple in that it should require a few hundred destruction orders be prepared and signed by our local county court judges. Uh, no.
I have practiced long enough to know that there’s good stuff in the annotated TDCAA code book, so I reviewed it for the law applicable to destruction of the blood tubes. Enter 38.50. It is the statute that provides for the retention and preservation of toxicological evidence, which is defined as blood or urine collected in the course of a Chapter 49 investigation. Such investigations would thus include driving while intoxicated, intoxication assault, and intoxication manslaughter. The law sets out three applicable retention periods depending on the status of the investigation or case.
1) For investigations that result in no charges filed or for offenses for which the statute of limitations has run, the retention period for toxicological evidence is the greater of two years or the length of the statute of limitations for the applicable offense.[1]
2) If a defendant is convicted, the evidence must be retained for the duration of the defendant’s sentence or community supervision. If a juvenile respondent is adjudicated delinquent, the evidence must be retained for the length of the juvenile’s commitment or term of supervision period.
3) If a defendant is acquitted, the case is dismissed with prejudice, or a court finds that a juvenile is not engaged in delinquent conduct, then retention is no longer required.
As originally enacted, the article tasks the courts with providing notice of the retention period to defendants, parents of juvenile respondents, and the entity assigned to the evidence. The law then allows the storing entity to destroy the evidence upon expiration of the retention period provided by the court.
What seemed simple suddenly became a challenge because courts in Fort Bend County had not been notifying defendants and the parents of juvenile respondents of the applicable retention periods. To complicate matters, the 2015 bill creating Art. 38.50 made the law retroactive. It is impossible for the courts to have notified the relevant parties in many of the older cases. The law was not in effect until the cases had long been disposed and the defendants’/respondents’ contact with the court had ceased. Unfortunately, arrangements for the disposition of the pre-2015 evidence had not been obtained prior to the passage of the law, so the evidence was now subject to the notification requirements of Art. 38.50. So much for an easy solution to the blood tube storage problem.
I met with our judges, who expressed understandable concerns about attempting to notify former defendants and respondents of the retention periods, especially those that were several years old. The most pragmatic solution was for DPS to send out notification letters to the last known addresses of the defendants and wait an appropriate period before seeking judicial approval for destruction. After all, DPS has one of the largest address databases in the state (i.e., driver’s license and state identification records). Local troopers were on board with this idea, but the train came to a screeching halt when DPS’s legal department insisted it was the job of the courts. And so those tubes still sat on their shelves.
Meanwhile, in Dallas County
Further north, prosecutors in Dallas County were simultaneously dealing with the same issue. The creation of Art. 38.50 and the statutory notification requirements went undetected in Dallas until a local law enforcement agency inquired about the retention period for toxicological evidence, which was backlogged to the level of several thousand units for that agency alone. This backlog created a budget and storage issue that would be extremely costly to address.
Like Traci in Fort Bend County, I, Cynthia Garza, the other co-author of this article, began researching retention statutes and discovered Art. 38.50. Much to our surprise, despite the existence of this statute, the courts had not issued the required notices in cases for post-2015 Chapter 49 cases. To stop the backlog from compounding any further and to address the already backlogged cases, we began conversations with the judiciary, local police departments, district and county clerks’ offices, and our local laboratory. Budget concerns were at the top of everyone’s list for how we would tackle the issue. Ultimately, Criminal District Attorney John Cruezot decided that our office would take the initiative and create an Art. 38.50 notice that would be part of our plea paperwork packet, allowing us to stop the backlog pipeline. Prosecutors were instructed how to complete the forms, and the courts were to provide a copy of the notification to the defendant upon the plea.
For cases in which notification was not provided, our office worked with local law enforcement agencies, judges, and clerks’ offices to develop a process to comply with the statute’s notification requirements. This process was new for all parties, so we first tested it with agencies that had the greatest backlog. Doing so allowed us to discover and address logistical issues involved in the process’s implementation while decreasing the number of cases waiting to be reviewed. It goes like this: Each law enforcement agency identifies cases eligible for destruction, fills out the Art. 38.50 notice for backlogged cases, and presents it to the court for signature. The clerk’s office then mails the completed notice to the defendant’s last known address.
As we worked through the issues, it was evident that when the law passed in 2015, no one contemplated the process of retroactive notification and therefore no guidance was provided to that effect. Given that we were several years behind on notifications and that our largest law enforcement agency averages about 1,000 blood draws per year (not to mention all of the other law enforcement agencies that file cases in Dallas County), we were clearly in a bind. The task of identifying cases eligible for destruction and creating individual notifications for backlogged cases, including presentation of each of those notices to the court, proved to be an overwhelming and incredibly time-consuming process. Law enforcement agencies have been working hard to eliminate the compounded backlog, but it was evident that the law needed to change for several reasons, among them:
1) not all courts were willing to change their written plea admonishments to include the statutorily mandated notification (or to include a separate Art. 38.50 notice),
2) occasionally prosecutors and courts forgot to include the Art. 38.50 notice in the plea paperwork or the paperwork was incorrectly filled out,
3) the backlog of toxicological evidence created a budgetary strain on local law enforcement agencies, and
4) mechanisms for notification and/or retention periods for certain types of cases were not provided for in Art. 38.50.
It seemed like there had to be a better way.
The OG 38.50
You may be asking yourself why in the world legislators in 2015 would make Art. 38.50 retroactive and place the duty of notification with the courts, especially regarding cases that were never filed (so suspects never appeared before a court). Before you throw stones (as, admittedly, we mentally did), it is helpful to look at the author’s statement of intent for the original bill that birthed Art. 38.50 into the world (HB 1264, 85th Regular Session[2]). The bill was sponsored by State Representative Gene Wu (D-Houston) and State Senator Joan Huffman (R-Houston) at the request of the Houston Police Department. The statement points out that the law in effect in 2015 provided rules for the retention and storage of biological material but did not differentiate toxicological evidence collected purely for intoxication investigations. Because toxicological evidence is not used for identification purposes in the same manner as biological evidence, it rarely retains evidentiary value following disposition of a case. However, there was no separate code provision for blood and urine evidence in these types of offenses. The statement noted that the Houston Police Department was at 97 percent storage capacity because it had been storing toxicological evidence since 1988 and it was running out of room. HB 1264 addressed this issue, and it was an important step in keeping toxicological evidence separate from biological evidence, which commands a much longer retention period.
Having put Art. 38.50 into use, we could clearly see it needed to be tweaked to provide for more direct notification to those whose blood or urine was collected as part of an intoxication investigation.
The fix is in
In Fort Bend County, I (Traci) reached out to Senator Huffman and Representative Wu as the original authors. Both readily agreed to file a bill addressing these concerns. Unbeknownst to me at the time, Dallas County prosecutors were also working with their own delegation to address the issue. In January, State Representative Jessica González (D-Dallas) filed HB 660 and State Senator Nathan Johnson (D-Dallas) filed SB 335. By the end of the filing period, there were four bills in the mix focused on correcting the problem. The bills were different in some ways based on the need of the jurisdiction that sought their filing.
A match was made in heaven when Senator Huffman’s office asked Fort Bend and Dallas Counties to work together on a bill to end all other bills. Dallas County prosecutors Paige Williams and Doug Gladden and the co-authors of this article collaborated on the final product, and Senator Huffman filed it as SB 529. Ultimately, the language of SB 529 was adopted into Senator Johnson’s SB 335 through a committee substitution, and we went forward with Senator Huffman as co-sponsor of SB 335. The bill moved quickly through the Senate Jurisprudence Committee of which Senator Huffman is chair and Senator Johnson is a member. It passed the full Senate on April 19. Representative Wu picked up SB 335 as the sponsor in the House, and the bill was reported favorably out of the House Criminal Jurisprudence committee on April 29.
Plenty of time, right? Stress-free session, at least in regard to SB 335, right? Wrong! As the end-of-session volume of bills coming out of committees began to take its toll, the bill proceeded at a crawl through the arcane House Calendars Committee process. Paige was working the entire session on behalf of Dallas County and patiently answered our daily frantic texts about the bill’s status. With the help of some great folks behind the scenes, we were able to get the bill out of Calendars with a couple of days to spare. Whew! The bill passed the House on May 25, six days before sine die. It was signed by the governor June 16 and took effect on September 1.
What does it do?
As finally passed, SB 335[3] does not change the retention periods for toxicological evidence, but the responsibility for notice has shifted. No longer do the courts alone bear the burden of notifying defendants and juvenile respondents of the applicable retention periods. The new and improved Art. 38.50 states that agencies that collect toxicological evidence are required to notify the suspect of the retention periods at the time of collection. The bill also amends §724.015 of the Transportation Code, which in practical application has resulted in a new DIC-24 that includes notice. New English and Spanish versions of this form are now available from the Department of Public Safety; take steps to ensure every law enforcement agency uses them. (Why give the defense another ground to object to the State’s evidence?)
The courts are responsible for notifying defendants and respondents of the retention periods only if the collecting agency fails to do so, and they are allowed multiple methods by which to provide the retention periods to defendants and respondents, including email. If notification has been made in accordance with the statute, the evidence can be destroyed by the retaining entity upon expiration of the retention period. If a case is never filed or a filed case is dismissed without prejudice and the statute of limitations has run, notification is no longer a prerequisite to destruction of the evidence.
What about the backlog? The amendment will not make the backlog of blood tubes go away immediately but does make some provision for them. For evidence associated with unfiled cases or those where the statute has run, including cases dismissed without prejudice, notification to those from whom evidence was taken is not required. (Every little bit helps.) For evidence associated with filed cases regardless of their disposition, the updated Art. 38.50 explicitly requires the courts to notify defendants and juvenile respondents of the required retention periods by September 1, 2022.
Bonus round
In addition to revising the retention period notice provisions of Art. 38.50, SB 355 added a little lagniappe to the law books that will be helpful to prosecutors. First, Art. 38.50 now allows a prosecutor’s office to require the entity or individual responsible for storing toxicological evidence to obtain the office’s permission before destroying the evidence. This will give prosecutors more control if they feel local labs or property rooms may be too cavalier in clearing out evidence. The most efficient way to signify such consent would be through a prosecutor’s signature on the destruction orders that are routinely presented to the courts.
More significantly, SB 355 amended §724.015 of the Transportation Code to mandate that officers require a suspect from whom they are requesting a blood or urine specimen to sign a statement acknowledging that the officer requested them to provide a specimen, that they were informed of the consequences of not providing a specimen, and that they voluntarily gave consent for taking the specimen. Currently, the DIC-24 provides a space for a suspect’s signature only if the suspect refuses to consent to taking a specimen. The new law provides unequivocal proof of a defendant’s knowing and voluntary consent to the taking of a sample of blood or urine.
Going forward
The old evidence still must be addressed, and many counties may be unaware of just how extensive their blood tube backlogs might be. Dallas County identified the problem and took early steps to address the issues in the manner described above. In Fort Bend County, we have been communicating with law enforcement agencies about what is required to destroy this evidence so that they are aware of the notice requirement. At least one agency has been sending out notices to former defendants and waiting 90 days before asking us to submit motions and orders for destruction. The 90-day period is outside the statute but signifies a good faith effort to comply with an imperfect law. We will be contacting the agencies to obtain lists of the evidence that is subject to the September 1, 2022, deadline. We are also reaching out to the courts to see how we can assist them in completing the notification process.
In regard to evidence collected on September 1, 2021, and beyond, the law will help tremendously but is not foolproof. There could be a delay in the rollout of an updated DIC-24 or other form prepared by DPS that meets the requirements of the new Art. 38.50. Some agencies may be slow to substitute the old forms with the new ones. For the time being, it may be the best practice to provide the notification wherever possible within the movement of a case through the system. Fort Bend County does a fair number of DWI pretrial interventions (PTIs) and we also have an active DWI Court that utilizes a diversion contract. We have added the retention language of Art. 38.50 to these contracts so that all participants receive notification and the evidence in those cases can be disposed of without further action once the PTI is completed and the case dismissed.
Many counties have standard orders or notices that are included with the plea papers addressing the destruction of evidence for their cases. Based on the wording of Art. 38.50, it would be best to specifically state the retention periods set out in Art. 38.50 and not use a sweeping order or notice of evidence destruction that applies to all evidence in a case. At the very least, it should be noted that toxicological evidence will be retained as set out in Art. 38.50. Be sure the notice is on a form that will be seen by the defendant or be copied to him or her. At least one county we know of has placed a statement on its judgments that evidence retention will be controlled by Art. 38.50, which may be of limited use if the defendant never lays eyes on the judgment. The goal is for the offenders to know what will happen to the blood or urine collected from them, and there is certainly more than one way to address this issue. The most important objective is to be aware of the law and put procedures in place that work best for your county.
Prosecutor power
When this journey started, we were drafting our own bills totally unaware that there was another office out there with the same problem. Fortunately, someone recognized the mutual goal and asked us to work together. Once we harnessed our prosecutor power, we were able to make these important changes. Yes, it sounds completely hokey, but it’s true. TDCAA does not pass laws and does not lobby for prosecutors—we are the lobbyists for what we do and the best ones to explain it to our elected officials. If you see a problem affecting your work that needs to be addressed with legislation, reach out to other offices and see if you can do the same. You’ll improve the criminal justice system and make some new friends along with it.
Endnotes
[1] Note that under the old law there was no applicable retention period for a case that was filed but dismissed without prejudice.
[2] https://capitol.texas.gov/BillLookup/History.aspx? LegSess=84R&Bill=HB1264.
[3] https://capitol.texas.gov/BillLookup/History.aspx? LegSess=87R&Bill=SB335.