Profile Removal/Expunction Procedures Scope

The Houston Police Department Crime Laboratory recognizes the need to remove from CODIS all DNA profiles which may have been improperly included in the database, or the DNA profile of an individual who has obtained a court-ordered expunction. The following procedures are designed to ensure the rights of individuals are protected by allowing for the destruction of any specimen, and the removal of any DNA profile, which does not meet the Texas statutory requirements for inclusion in CODIS as provided in TEXAS GOVERNMENT CODE ANN. § 411.1471(e).

Federal law requires that the laboratory, as a participant in NDIS, expunge the DNA records of persons whose qualifying convictions had been overturned. An amendment to the Federal DNA Identification Act in 2001 requires that the laboratory “shall promptly expunge from that index the DNA analysis (DNA profile) of a person included in the index by that state if the responsible agency or official of that state receives, for each conviction of the person of an offense on the basis of which that analysis (profile) was or could have been included in the index, a certified copy of a final court order establishing that such conviction has been overturned.” A court order

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Amendments made by the DNA Fingerprint Act of 2005 (P. L. 109-162) require expungements of DNA data of arrestees, indicted persons or similar legal specimens in the event the charge is dismissed or results in an acquittal or no charge was filed within the applicable time period. The laboratory is required to expunge from NDIS the DNA analysis of a person included in NDIS by that State if “the person has not been convicted of an offense on the basis of which that analysis was or could have been included in the index, and the responsible agency or official of that State receives, for each charge against the person on the basis of which the analysis was or could have been included in the index, a certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period.” See 42 U.S.C. § 14132(d)(2)(A)(ii).

Administrative Removal

Administrative removal can be requested by letter from the collecting agency and signed by the appropriate Corrections or Probation and Parole official stating a blood or buccal sample was erroneously collected from the individual in question. The letter should further certify that a criminal history check was performed and no qualifying offense exists to justify inclusion in the database. If the letter does not contain this certification, the CODIS Administrator, or designee, will ensure a criminal history check is performed and no qualifying offenses exist. The

inadvertently taken sample may be retained if it is determined that there is a different offense that does qualify the individual for CODIS inclusion and no satisfactory sample otherwise exists. The Houston Police Department Crime Laboratory Director, or designee, can order removal of a DNA profile from the database if it is determined no qualifying offense exists to justify inclusion in CODIS. An individual wishing to petition the Houston Police Department Crime Laboratory for removal of his/her DNA profile from CODIS must provide such a request in writing to the Houston Police Department Crime Laboratory. If needed, Houston Police Department Legal Counsel may be contacted to provide a recommended course of action to assure that the Houston Police Department Crime Laboratory and CODIS are in compliance with applicable statutes.

Court Ordered Expunction

In the event of acquittal or the qualifying offense of an individual whose DNA profile is included in CODIS is overturned or dismissed by the courts; or the adjudication of a juvenile record is sealed, the DNA profile may be expunged from CODIS. The Houston Police Department Crime Laboratory must be notified, in writing, of the need to expunge. This may be accomplished by: The District Attorney prosecuting the case stating that the qualifying offense has been removed. A certified copy of the court order must be provided to the Houston Police Department Crime Laboratory. The CODIS Administrator or designee will also certify no other qualifying offense exists justifying inclusion in CODIS.

An individual whose conviction has been overturned, or legal counsel thereof, may request the DNA profile be expunged. Such a request must be in writing. A certified copy of the court order overturning the qualifying offense must accompany the request. The CODIS Administrator or

designee will verify through a criminal history check no other qualifying offense exists which would justify retention of the individual's profile in CODIS.

Expunction Operations

Upon order from the Houston Police Department Crime Laboratory Director, or designee, court order, or receipt of a proper request from the collecting agency or District Attorney’s Office as described above, the CODIS Administrator or designee will ensure the expunction or

administrative removal of all information related to the DNA profile in question. This will include: Removal, if applicable, of all DNA profile information from all levels of the CODIS DNA

database, including the Houston Police Department Crime Laboratory sample number assigned to the individual in question.

Notification and Records

Notification of removal or expunction will be in writing from the CODIS Administrator or designee to the requestor on Official City of Houston letterhead. The Houston Police Department Crime Laboratory may retain documents relating to the administrative removal but shall destroy any records relating to court ordered expunction of a sample.

References:

1. National DNA Index System (NDIS) Operational Procedures Manual, FBI Laboratory, Version 1, Effective January 31, 2013.

2. FBI Laboratory Division 2013 Annual Review of DNA Data Accepted at NDIS. 3. CODIS Bulletin #: BT010813, Distributed January 8, 2013

4. Memo from Ron Urbanovsky, Director, Texas Department of Public Safety, dated February 9, 2000.

5. Memo from Dennis Loockerman, Ph.D., Supervisor, CODIS Section, DPS Headquarters Crime Lab, dated February 14, 2000.