1. (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. (1) was never taken;
   2. (2) was lost or rejected; or
   3. (3) did not otherwise produce a valid DNA profile under this subchapter.

2. (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. (1) TDCJ under Government Code, §411.148 (DNA Records of Certain Inmates);
   2. (2) TYC under Government Code, §411.150 (DNA Records of Certain Juveniles);
   3. (3) a court convicting a defendant of a misdemeanor under Government Code, § 411.1471(a)(3); or
   4. (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).

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

   1. (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. (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).
4. (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.

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

   1. (1) shall not solicit an additional DNA specimen to be taken by TDCJ or TYC without a written request from a felony prosecutor;
   2. (2) may contact the appropriate felony prosecutor to submit a written request under this section; and
   3. (3) may store an unsolicited specimen for future testing.

Source Note:The provisions of this §28.108 adopted to be effective March 25, 2002, 27 TexReg 2241.