1. (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. (1) only use a specimen collection kit purchased from or approved by the department; and
   2. (2) not collect the specimen using a trusty, probationer, volunteer, or other individual who is not officially associated with the agency.
2. (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.
3. (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.
4. (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.
5. (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.

6. (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. (1) a booking clerk or another individual performing a similar function at a county jail; or
   2. (2) a member of a sex offender registration unit or another individual performing a similar function for the agency.
7. (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.

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

   1. (1) an individual asserts or proves that a standard specimen has already been collected; or
   2. (2) a standard profile appears to already exist for the individual.

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

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

   2. (2) is not affected by the fact that:

      1. (A) an individual asserts or proves that a standard specimen has already been collected; or
      2. (B) a standard profile appears to already exist for the individual.

Source Note:The provisions of this §28.105 adopted to be effective March 25, 2002, 27 TexReg 2241.