Section 28.125 - Collection of Sample(a) Generally. An agency may collect a DNA sample from an eligible individual. The agency collecting the sample shall use a collection method approved by the director and described in the DNA Procedural Guidelines and may: (1) only use a sample collection kit obtained from the director; and(2) not collect the sample using a trusty, probationer, volunteer, or other individual who is not officially associated with the agency.(b) Evidentiary sample discouraged. The director does not intend for a DNA sample to be used in court as the evidentiary sample establishing identity. An agency should use information about matching the database sample's profile to an unknown profile to obtain a separate evidentiary sample.(c) Collection kit. For the purpose of collecting a DNA sample under this subchapter the director shall make reasonable efforts to provide an adequate supply of sample kits to each sheriff's department operating a county jail and, upon request, to any other agency with appropriately trained personnel.(d) Training. The director may provide or approve training under this subchapter as described in the DNA Procedural Guidelines. If an agency frequently submits unusable samples, the director may require additional training before accepting further samples.(e) Statutory prohibition. Under Government Code, § 411.1471(d), no agency may take a blood sample for the purpose of creating a DNA record under this subchapter.(f) Court-ordered sample. If a court, including a magistrate, orders the taking of a DNA sample under this subchapter, the director encourages but does not require the court to order that the sample be taken by an agency that has the personnel, training, and other resources necessary to efficiently and properly take the sample. The director 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 director encourages but does not require the agency to take reasonable steps to determine if the individual has the criminal history sufficient to take a DNA sample under this subchapter. These steps should include inquiry into each appropriate information system available to law enforcement.(h) Duty--standard sample. The duty to require or take a standard sample: (1) is affected by the fact that an individual proves that a DNA sample has already been collected under this subchapter; 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.37 Tex. Admin. Code § 28.125
The provisions of this §28.125 adopted to be effective June 1, 2010, 35 TexReg 4437