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

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 or the Texas Youth Commission.

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.

Art. 61.02. CRIMINAL COMBINATION AND CRIMINAL STREET GANG

INTELLIGENCE DATABASE; SUBMISSION CRITERIA. (a) Subject to

Subsection (b), a criminal 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 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.

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 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.

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 between state, federal, and local law enforcement

agencies to better enable law enforcement and correctional

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 a statewide networking system that will provide

timely access to gang information;

(2) establishing communication between different law enforcement

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 law enforcement 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) a representative of the Texas Department of Criminal Justice

designated by the executive director of that agency;

(3) a representative of the Texas Youth Commission designated by

the executive director of that agency;

(4) a representative of the Texas Juvenile Probation Commission

designated by the executive director of that agency;

(5) a representative of the Criminal Justice Policy Council

designated by the executive director of that agency;

(6) a representative of the office of the attorney general

designated by the attorney general; and

(7) three local law enforcement or adult or juvenile community

supervision personnel and a prosecuting attorney designated by

the governor.

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.

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.