(a) Prosecutor determines no profile. The director encourages but does not require the appropriate felony prosecutor to file a motion for a DNA sample to be taken under this subchapter, if an original, DNA sample:
  (1) was never taken;
  (2) was lost or rejected; or
  (3) did not otherwise produce a valid DNA profile under this subchapter.
(b) Request from a felony prosecutor. If the defendant has already submitted a DNA sample, 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 sample. 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 sample.
(c) DPS determines no profile. If the director determines that no valid 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 sample. The director 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 sample, does provide at least one profiled DNA sample.
(d) Profile does exist. If the director determines that a valid DNA record does exist for a defendant, the director:
  (1) shall not solicit an additional DNA sample to be taken by TDCJ or TJJD without a written request from a felony prosecutor;
  (2) may contact the appropriate felony prosecutor to submit a written request under this section; and
  (3) may store an unsolicited sample for future testing.

Source Note: The provisions of this §28.128 adopted to be effective June 1, 2010, 35 TexReg 4437; amended to be effective September 8, 2013, 38 TexReg 5742