2011 Texas Statutes
CODE OF CRIMINAL PROCEDURE
TITLE 1 - CODE OF CRIMINAL PROCEDURE
CHAPTER 61 - COMPILATION OF INFORMATION PERTAINING TO CRIMINAL COMBINATIONS AND CRIMINAL STREET GANGS

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 61. COMPILATION OF INFORMATION PERTAINING TO CRIMINAL COMBINATIONS AND CRIMINAL STREET GANGS

Art. 61.01. DEFINITIONS. In this chapter:

(1) "Combination" and "criminal street gang" have the meanings assigned by Section 71.01, Penal Code.

(2) "Child" has the meaning assigned by Section 51.02, Family Code.

(3) "Criminal information" means facts, material, photograph, or data reasonably related to the investigation or prosecution of criminal activity.

(4) "Criminal activity" means conduct that is subject to prosecution.

(5) "Criminal justice agency" has the meaning assigned by Article 60.01 and also means a municipal or county agency, or school district law enforcement agency, that is engaged in the administration of criminal justice under a statute or executive order.

(6) "Administration of criminal justice" has the meaning assigned by Article 60.01.

(7) "Department" means the Department of Public Safety of the State of Texas.

(8) "Intelligence database" means a collection or compilation of data organized for search and retrieval to evaluate, analyze, disseminate, or use intelligence information relating to a criminal combination or a criminal street gang for the purpose of investigating or prosecuting criminal offenses.

(9)  "Law enforcement agency" does not include the Texas Department of Criminal Justice, the Texas Juvenile Probation Commission, a local juvenile probation department, or the Texas Youth Commission.

(10)  "Juvenile justice agency" has the meaning assigned by Section 58.101, Family Code.

Added by Acts 1995, 74th Leg., ch. 671, Sec. 1, eff. Aug. 28, 1995. Subd. (1) amended by and Subds. (7), (8), (9) added by Acts 1999, 76th Leg., ch. 1154, Sec. 2, eff. Sept. 1, 1999.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 380, Sec. 1, eff. June 17, 2011.

Art. 61.02. CRIMINAL COMBINATION AND CRIMINAL STREET GANG INTELLIGENCE DATABASE; SUBMISSION CRITERIA. (a)  Subject to Subsection (b), a criminal justice agency or a juvenile justice agency shall compile criminal information into an intelligence database for the purpose of investigating or prosecuting the criminal activities of criminal combinations or criminal street gangs.

(b)  A law enforcement agency in a municipality with a population of 50,000 or more or in a county with a population of 100,000 or more shall compile and maintain in a local or regional intelligence database criminal information relating to a criminal street gang as provided by Subsection (a).  The information must be compiled and maintained in accordance with the criminal intelligence systems operating policies established under 28 C.F.R. Section 23.1 et seq. and the submission criteria established under Subsection (c).

(b-1)  Information described by this article may be compiled on paper, by computer, or in any other useful manner by a criminal justice agency, juvenile justice agency, or law enforcement agency.

(c)  Criminal information collected under this chapter relating to a criminal street gang must:

(1)  be relevant to the identification of an organization that is reasonably suspected of involvement in criminal activity; and

(2)  consist of:

(A)  a judgment under any law that includes, as a finding or as an element of a criminal offense, participation in a criminal street gang;

(B)  a self-admission by the individual of criminal street gang membership that is made during a judicial proceeding; or

(C)  except as provided by Subsection (d), any two of the following:

(i)  a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

(ii)  an identification of the individual as a criminal street gang member by a reliable informant or other individual;

(iii)  a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

(iv)  evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

(v)  evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual and described by Subparagraph (iv);

(vi)  evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity;

(vii)  evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

(viii)  evidence of the individual's use of technology, including the Internet, to recruit new criminal street gang members.

(d)  Evidence described by Subsections (c)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person's information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (c)(2)(C).

(e)  In this article:

(1)  "Family member" means a person related to another person within the third degree by consanguinity or affinity, as described by Subchapter B, Chapter 573, Government Code, except that the term does not include a person who is considered to be related to another person by affinity only as described by Section 573.024(b), Government Code.

(2)  "Penal institution" means a confinement facility operated by or under a contract with any division of the Texas Department of Criminal Justice, a confinement facility operated by or under contract with the Texas Youth Commission, or a juvenile secure pre-adjudication or post-adjudication facility operated by or under a local juvenile probation department, or a county jail.

Added by Acts 1995, 74th Leg., ch. 671, Sec. 1, eff. Aug. 28, 1995. Amended by Acts 1999, 76th Leg., ch. 1154, Sec. 3, eff. Sept. 1, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 258, Sec. 18.05, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 736, Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 36, eff. September 1, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 380, Sec. 2, eff. June 17, 2011.

Art. 61.03. RELEASE OF INFORMATION. (a) A criminal justice agency may release on request information maintained under this chapter to:

(1)  another criminal justice agency;

(2)  a court; or

(3)  a defendant in a criminal proceeding who is entitled to the discovery of the information under Chapter 39.

(b) A criminal justice agency or court may use information received under this article only for the administration of criminal justice. A defendant may use information received under this article only for a defense in a criminal proceeding.

(c)  A local law enforcement agency described by Article 61.02(b) shall send to the department information compiled and maintained under this chapter.

(d) The department shall establish an intelligence database and shall maintain information received from an agency under Subsection (c) in the database in accordance with the policies established under 28 C.F.R. Section 23.1 et seq. and the submission criteria under Article 61.02(c).

(e) The department shall designate a code to distinguish criminal information contained in the intelligence database relating to a child from criminal information contained in the database relating to an adult offender.

Added by Acts 1995, 74th Leg., ch. 671, Sec. 1, eff. Aug. 28, 1995. Subsec. (d) added by Acts 1997, 75th Leg., ch. 898, Sec. 1, eff. Sept. 1, 1997; Subsecs. (c), (d) amended by and Subsec. (e) added by Acts 1999, 76th Leg., ch. 1154, Sec. 4, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 736, Sec. 2, eff. September 1, 2009.

Art. 61.04. CRIMINAL INFORMATION RELATING TO CHILD. (a) Notwithstanding Chapter 58, Family Code, criminal information relating to a child associated with a combination or a criminal street gang may be compiled and released under this chapter regardless of the age of the child.

(b)  A criminal justice agency or a juvenile justice agency may release information maintained under this chapter to an attorney representing a child who is a party to a proceeding under Title 3, Family Code, if the juvenile court determines the information:

(1)  is material to the proceeding; and

(2)  is not privileged under law.

(c) An attorney may use information received under this article only for a child's defense in a proceeding under Title 3, Family Code.

(d)  The governing body of a county or municipality served by a law enforcement agency described by Article 61.02(b) may adopt a policy to notify the parent or guardian of a child of the agency's observations relating to the child's association with a criminal street gang.

Added by Acts 1995, 74th Leg., ch. 671, Sec. 1, eff. Aug. 28, 1995. Subsec. (a) amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.05, eff. Sept. 1, 1997; amended by Acts 1997, 75th Leg., ch. 898, Sec. 2, eff. Sept. 1, 1997; Subsec. (a) amended by and Subsec. (d) added by Acts 1999, 76th Leg., ch. 1154, Sec. 5, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 736, Sec. 3, eff. September 1, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 380, Sec. 3, eff. June 17, 2011.

Art. 61.05. UNAUTHORIZED USE OR RELEASE OF CRIMINAL INFORMATION. (a) A person commits an offense if the person knowingly:

(1) uses criminal information obtained under this chapter for an unauthorized purpose; or

(2) releases the information to a person who is not entitled to the information.

(b) An offense under this article is a Class A misdemeanor.

Added by Acts 1995, 74th Leg., ch. 671, Sec. 1, eff. Aug. 28, 1995.

Art. 61.06. REMOVAL OF RECORDS RELATING TO AN INDIVIDUAL OTHER THAN A CHILD. (a) This article does not apply to information collected under this chapter by the Texas Department of Criminal Justice or the Texas Youth Commission.

(b)  Subject to Subsection (c), information collected under this chapter relating to a criminal street gang must be removed from an intelligence database established under Article 61.02 and the intelligence database maintained by the department under Article 61.03 after five years if:

(1)  the information relates to the investigation or prosecution of criminal activity engaged in by an individual other than a child; and

(2)  the individual who is the subject of the information has not been arrested for criminal activity reported to the department under Chapter 60.

(c)  In determining whether information is required to be removed from an intelligence database under Subsection (b), the five-year period does not include any period during which the individual who is the subject of the information is:

(1)  confined in a correctional facility operated by or under contract with the Texas Department of Criminal Justice;

(2)  committed to a secure correctional facility operated by or under contract with the Texas Youth Commission, as defined by Section 51.02, Family Code; or

(3)  confined in a county jail or confined in or committed to a facility operated by a juvenile board in lieu of being confined in a correctional facility operated by or under contract with the Texas Department of Criminal Justice or being committed to a secure correctional facility operated by or under contract with the Texas Youth Commission.

Added by Acts 1995, 74th Leg., ch. 671, Sec. 1, eff. Aug. 28, 1995. Amended by Acts 1997, 75th Leg., ch. 898, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1154, Sec. 6, eff. Sept. 1, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 258, Sec. 18.06, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 263, Sec. 2, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 10, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 6.007, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 37, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 38, eff. September 1, 2009.

Art. 61.07. REMOVAL OF RECORDS RELATING TO A CHILD. (a) This article does not apply to information collected under this chapter by the Texas Department of Criminal Justice or the Texas Youth Commission.

(b) Subject to Subsection (c), information collected under this chapter relating to a criminal street gang must be removed from an intelligence database established under Article 61.02 and the intelligence database maintained by the department under Article 61.03 after two years if:

(1) the information relates to the investigation or prosecution of criminal activity engaged in by a child; and

(2) the child who is the subject of the information has not been:

(A) arrested for criminal activity reported to the department under Chapter 60; or

(B) taken into custody for delinquent conduct reported to the department under Chapter 58, Family Code.

(c)  In determining whether information is required to be removed from an intelligence database under Subsection (b), the two-year period does not include any period during which the child who is the subject of the information is:

(1)  committed to the Texas Youth Commission for conduct that violates a penal law of the grade of felony; or

(2)  confined in the Texas Department of Criminal Justice.

Added by Acts 1999, 76th Leg., ch. 1154, Sec. 7, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.046, eff. September 1, 2009.

Art. 61.075.  RIGHT TO REQUEST EXISTENCE OF CRIMINAL INFORMATION. (a) A person or the parent or guardian of a child may request a law enforcement agency to determine whether the agency has collected or is maintaining, under criteria established under Article 61.02(c), criminal information relating solely to the person or child.  The law enforcement agency shall respond to the request not later than the 10th business day after the date the agency receives the request.

(b)  Before responding to a request under Subsection (a), a law enforcement agency may require reasonable written verification of the identity of the person making the request and the relationship between the parent or guardian and the child, if applicable, including written verification of an address, date of birth, driver's license number, state identification card number, or social security number.

Added by Acts 2007, 80th Leg., R.S., Ch. 258, Sec. 18.07, eff. September 1, 2007.

Art. 61.08. RIGHT TO REQUEST REVIEW OF CRIMINAL INFORMATION. (a) On receipt of a written request of a person or the parent or guardian of a child that includes a showing by the person or the parent or guardian that a law enforcement agency may have collected criminal information under this chapter relating to the person or child that is inaccurate or that does not comply with the submission criteria under Article 61.02(c), the head of the agency or the designee of the agency head shall review criminal information collected by the agency under this chapter relating to the person or child to determine if:

(1) reasonable suspicion exists to believe that the information is accurate; and

(2) the information complies with the submission criteria established under Article 61.02(c).

(b) If, after conducting a review of criminal information under Subsection (a), the agency head or designee determines that:

(1) reasonable suspicion does not exist to believe that the information is accurate or the information does not comply with the submission criteria, the agency shall:

(A) destroy all records containing the information; and

(B) notify the department and the person who requested the review of the agency's determination and the destruction of the records; or

(2) reasonable suspicion does exist to believe that the information is accurate and the information complies with the submission criteria, the agency shall notify the person who requested the review of the agency's determination and that the person is entitled to seek judicial review of the agency's determination under Article 61.09.

(c) On receipt of notice under Subsection (b), the department shall immediately destroy all records containing the information that is the subject of the notice in the intelligence database maintained by the department under Article 61.03.

(d)  A person who is committed to the Texas Youth Commission or confined in the Texas Department of Criminal Justice does not while committed or confined have the right to request review of criminal information under this article.

Added by Acts 1999, 76th Leg., ch. 1154, Sec. 7, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.047, eff. September 1, 2009.

Art. 61.09. JUDICIAL REVIEW. (a) A person who is entitled to seek judicial review of a determination made under Article 61.08(b)(2) may file a petition for review in district court in the county in which the person resides.

(b) On the filing of a petition for review under Subsection (a), the district court shall conduct an in camera review of the criminal information that is the subject of the determination to determine if:

(1) reasonable suspicion exists to believe that the information is accurate; and

(2) the information complies with the submission criteria under Article 61.02(c).

(c) If, after conducting an in camera review of criminal information under Subsection (b), the court finds that reasonable suspicion does not exist to believe that the information is accurate or that the information does not comply with the submission criteria, the court shall:

(1) order the law enforcement agency that collected the information to destroy all records containing the information; and

(2) notify the department of the court's determination and the destruction of the records.

(d) A petitioner may appeal a final judgment of a district court conducting an in camera review under this article.

(e) Information that is the subject of an in camera review under this article is confidential and may not be disclosed.

Added by Acts 1999, 76th Leg., ch. 1154, Sec. 7, eff. Sept. 1, 1999.

Art. 61.10. TEXAS VIOLENT GANG TASK FORCE. (a) In this article, "task force" means the Texas Violent Gang Task Force.

(b)  The purpose of the task force is to form a strategic partnership among local, state, and federal criminal justice, juvenile justice, and correctional agencies to better enable those agencies to take a proactive stance towards tracking gang activity and the growth and spread of gangs statewide.

(c)  The task force shall focus its efforts on:

(1)  developing, through regional task force meetings, a statewide networking system that will provide timely access to gang information;

(2)  establishing communication between different criminal justice, juvenile justice, and correctional agencies, combining independent agency resources, and joining agencies together in a cooperative effort to focus on gang membership, gang activity, and gang migration trends; and

(3)  forming a working group of criminal justice, juvenile justice, and correctional representatives from throughout the state to discuss specific cases and investigations involving gangs and other related gang activities.

(d) The task force may take any other actions as necessary to accomplish the purposes of this article.

(e) The Department of Public Safety shall support the task force to assist in coordinating statewide antigang initiatives.

(f)  The task force shall consist of:

(1)  a representative of the Department of Public Safety designated by the director of that agency;

(2)  two representatives of the Texas Department of Criminal Justice, including a representative of the parole division, designated by the executive director of that agency;

(3)  a representative of the office of the inspector general of the Texas Department of Criminal Justice designated by the inspector general;

(4)  a representative of the Texas Youth Commission designated by the executive director of that agency;

(5)  a representative of the Texas Juvenile Probation Commission designated by the executive director of that agency;

(6)  a representative of the office of the attorney general designated by the attorney general;

(7)  six representatives who are local law enforcement officers or local community supervision personnel, including juvenile probation personnel, designated by the governor; and

(8)  two representatives who are local prosecutors designated by the governor.

(g)  If practicable, the task force shall consult with representatives from one or more United States Attorneys' Offices in this state and with representatives from the following federal agencies who are available and assigned to a duty station in this state:

(1)  the Federal Bureau of Investigation;

(2)  the Federal Bureau of Prisons;

(3)  the United States Drug Enforcement Administration;

(4)  United States Immigration and Customs Enforcement;

(5)  United States Customs and Border Protection;

(6)  the Bureau of Alcohol, Tobacco, Firearms and Explosives;

(7)  the United States Marshals Service; and

(8)  the United States Probation and Pretrial Services System.

Added by Acts 1999, 76th Leg., ch. 492, Sec. 1, eff. June 18, 1999. Renumbered from Vernon's Ann. C.C.P. art. 61.07 by Acts 2001, 77th Leg., ch. 1420, Sec. 21.001(14), eff. Sept. 1, 2001.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 380, Sec. 4, eff. June 17, 2011.

Art. 61.11. GANG RESOURCE SYSTEM. (a) The office of the attorney general shall establish an electronic gang resource system to provide criminal justice agencies and juvenile justice agencies with information about criminal street gangs in the state. The system may include the following information with regard to any gang:

(1) gang name;

(2) gang identifiers, such as colors used, tattoos, and clothing preferences;

(3) criminal activities;

(4) migration trends;

(5) recruitment activities; and

(6) a local law enforcement contact.

(b) Upon request by the office of the attorney general, criminal justice agencies and juvenile justice agencies shall make a reasonable attempt to provide gang information to the office of the attorney general for the purpose of maintaining an updated, comprehensive gang resource system.

(c) The office of the attorney general shall cooperate with criminal justice agencies and juvenile justice agencies in collecting and maintaining the accuracy of the information included in the gang resource system.

(d) Information relating to the identity of a specific offender or alleged offender may not be maintained in the gang resource system.

(e) Information in the gang resource system may be used in investigating gang-related crimes but may be included in affidavits or subpoenas or used in connection with any other legal or judicial proceeding only if the information from the system is corroborated by information not provided or maintained in the system.

(f) Access to the gang resource system shall be limited to criminal justice agency personnel and juvenile justice agency personnel.

(g) Information in the gang resource system shall be accessible by:

(1) municipality or county; and

(2) gang name.

(h) The office of the attorney general may coordinate with the Texas Department of Criminal Justice to include information in the gang resource system regarding groups which have been identified by the Security Threat Group Management Office of the Texas Department of Criminal Justice.

Added by Acts 1999, 76th Leg., ch. 491, Sec. 1, eff. Aug. 30, 1999. Renumbered from Vernon's Ann. C.C.P. art. 61.08 by Acts 2001, 77th Leg., ch. 1420, Sec. 21.001(15), eff. Sept. 1, 2001.

Art. 61.12.  DATABASE USER TRAINING. (a) The department shall enter into a memorandum of understanding with the United States Department of Justice or other appropriate federal department or agency to provide any person in this state who enters information into or retrieves information from an intelligence database described by this chapter with training regarding the operating principles described by 28 C.F.R. Part 23, as those principles relate to an intelligence database established or maintained under this chapter.

(b)  A person in this state who enters information into or retrieves information from an intelligence database described by this chapter shall complete continuing education training on the material described by Subsection (a) at least once for each continuous two-year period the person has primary responsibility for performing a function described by this subsection.

(c)  The department shall adopt the rules necessary to implement this article.

Added by Acts 2009, 81st Leg., R.S., Ch. 736, Sec. 4, eff. September 1, 2009.