By: Phillips H.B. No. 3748
A BILL TO BE ENTITLED
AN ACT
relating to creating the division of forensic services; abolishing
the Texas Forensic Science Commission and transferring certain
duties of the commission and the Department of Public Safety to the
division of forensic services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1001, Health and Safety Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. Division of Forensic Services
Sec. 1001.101. OFFICE ESTABLISHED. The division of
forensic services is a division within the department.
Sec. 1001.102. APPOINTMENT OF THE DIRECTOR OF THE DIVISION
OF FORENSIC SERVICES; DUTIES.
(a) The executive commissioner shall appoint a director for
the division of forensic services.
(b) The division director shall implement this subchapter
and the duties imposed on the director by rule adopted by the
executive commissioner.
Sec. 1001.103. GUIDELINES. The division director shall
recommend, and the executive commissioner shall adopt, guidelines
for medical examiners and coroners in this state.
Sec. 1001.104. QUALIFICATIONS; MINIMUM STANDARDS. The
division director shall recommend, and the executive commissioner
shall adopt, qualifications for persons to act as a medical
examiner or coroner in this state and minimum standards for the
performance of the duties of a medical examiner or coroner.
Sec. 1001.105. CERTIFICATION REQUIRED. (a) A person must
be certified by the office of forensic services as meeting the
qualifications and minimum standards imposed under Section
1001.104 to act as a medical examiner or coroner in this state.
(b) The executive commissioner shall prescribe a form to be
used by an applicant for certification under this section.
(c) The executive commissioner may prescribe and the
division director may collect a fee for the certification of a
medical examiner or coroner under this section.
Sec. 1001.106. AUTOPSY FEE. The executive commissioner by
rule may establish a reasonable fee to be assessed against a person
who requests the performance of an autopsy in this state, other than
a person required to request the performance of an autopsy under
state or federal law.
Sec. 1001.107. FORENSIC SCIENCE INTEGRITY. (a) In this
section, "law enforcement agency" has the meaning assigned by
Article 2.132(a)(1), Code of Criminal Procedure.
(b) The division director shall recommend, and the
executive commissioner shall adopt, guidelines for collecting
forensic evidence and for preserving the integrity of forensic
evidence at all stages of a criminal investigation and for the
storage of forensic evidence.
(c) Each law enforcement agency must comply with guidelines
adopted under Subsection (b) relating to the collection and
preservation of forensic evidence in a criminal investigation.
Sec. 1001.108. FORENSIC SCIENCE DUTIES. (a) The director
of the division of forensic services shall:
(1) develop and implement a reporting system through
which accredited laboratories, facilities, or entities report
professional negligence or misconduct;
(2) require all laboratories, facilities, or entities
that conduct forensic analyses to report professional negligence or
misconduct to the division director; and
(3) investigate, in a timely manner, any allegation of
professional negligence or misconduct that would substantially
affect the integrity of the results of a forensic analysis
conducted by an accredited laboratory, facility, or entity.
(b) An investigation under Subsection (a)(3):
(1) must include the preparation of a written report
that identifies and describes the methods and procedures used to
identify:
(A) the alleged negligence or misconduct;
(B) whether negligence or misconduct occurred;
and
(C) any corrective action required of the
laboratory, facility, or entity; and
(2) may include one or more:
(A) retrospective reexaminations of other
forensic analyses conducted by the laboratory, facility, or entity
that may involve the same kind of negligence or misconduct; and
(B) follow-up evaluations of the laboratory,
facility, or entity to review:
(i) the implementation of any corrective
action required under Subdivision (1)(C); or
(ii) the conclusion of any retrospective
reexamination under Paragraph (A).
(c) The division director by contract may delegate the
duties described by Subsections (a)(1) and (3) to any person the
division director determines to be qualified to assume those
duties.
(d) The division director may require that a laboratory,
facility, or entity investigated under this section pay any costs
incurred to ensure compliance with Subsection (b)(1).
(e) The division director shall make all investigation
reports completed under Subsection (b)(1) available to the public.
A report completed under Subsection (b)(1), in a subsequent civil
or criminal proceeding, is not prima facie evidence of the
information or findings contained in the report.
Sec. 1001.109. SUBMISSION OF REPORT. The division director
shall submit any report received under Section 1001.108(a)(2) and
any report prepared under Section 1001.108(b)(1) to the governor,
the lieutenant governor, and the speaker of the house of
representatives not later than December 1 of each even-numbered
year.
Sec. 1001.110. CRIME LABORATORY ACCREDITATION PROCESS. (a)
In this section, "crime laboratory," "forensic analysis," and
"physical evidence" have the meanings assigned by Article 38.35,
Code of Criminal Procedure.
(b) The executive commissioner by rule:
(1) shall establish an accreditation process for crime
laboratories and other entities conducting forensic analyses of
physical evidence for use in criminal proceedings to be implemented
by the division director; and
(2) may modify or remove a crime laboratory exemption
under this section if the division director determines that the
underlying reason for exemption no longer applies.
(c) As part of the accreditation process established and
implemented under Subsection (b), the division director may:
(1) establish minimum standards that relate to the
timely production of a forensic analysis to the agency requesting
the analysis and that are consistent with this section and code;
(2) validate or approve specific forensic methods or
methodologies; and
(3) establish procedures, policies, and practices to
improve the quality of forensic analyses conducted in this state.
(d) The division director may require that a laboratory,
facility, or entity required to be accredited under this section
pay any costs incurred to ensure compliance with the accreditation
process.
(e) The executive commissioner by rule may exempt from the
accreditation process established and implemented under Subsection
(b) a crime laboratory conducting a forensic analysis or a type of
analysis, examination, or test if the executive commissioner
determines that:
(1) independent accreditation is unavailable or
inappropriate for the laboratory or the type of analysis,
examination, or test performed by the laboratory;
(2) the type of analysis, examination, or test
performed by the laboratory is admissible under a well-established
rule of evidence or a statute other than Article 38.35, Code of
Criminal Procedure;
(3) the type of analysis, examination, or test
performed by the laboratory is routinely conducted outside of a
crime laboratory by a person other than an employee of the crime
laboratory; or
(4) the laboratory:
(A) is located outside this state or, if located
in this state, is operated by a governmental entity other than the
state or a political subdivision of the state; and
(B) was accredited at the time of the analysis
under an accreditation process with standards that meet or exceed
the relevant standards of the process established by the division
director under Subsection (c).
(f) The division director may at any reasonable time enter
and inspect the premises or audit the records, reports, procedures,
or other quality assurance matters of a crime laboratory that is
accredited or seeking accreditation under this section.
(g) The division director may collect costs incurred under
this section for accrediting, inspecting, or auditing a crime
laboratory.
(h) If the division director provides a copy of an audit or
other report made under this section, the division director may
charge $6 for the copy, in addition to any other cost permitted
under Chapter 552, Government Code, or a rule adopted under that
chapter.
(i) Funds collected under this section shall be deposited in
the state treasury to the credit of the forensic services fund, and
money deposited to the forensic services fund under this subsection
may be used only to defray the cost of administering this
subchapter.
SECTION 2. The following are repealed:
(1) Article 38.01, Code of Criminal Procedure; and
(2) Section 411.0205, Government Code.
SECTION 3. Not later than January 1, 2012, the executive
commissioner of the Health and Human Services Commission shall:
(1) appoint a division director, as required by
Section 1001.102, Health and Safety Code, as added by this Act; and
(2) adopt all necessary rules to:
(A) implement Subchapter E, Chapter 1001, Health
and Safety Code, as added by this Act;
(B) impose duties on the division director, as
required by Section 1001.102(b), Health and Safety Code, as added
by this Act;
(C) prescribe a form for certification, as
required by Section 1001.105, Health and Safety Code, as added by
this Act; and
(D) impose a fee to be assessed on the
performance of autopsies in this state, as required by Section
1001.106, Health and Safety Code, as added by this Act.
SECTION 4. On the effective date of this Act:
(1) all powers, duties, and activities related to the
investigation of professional negligence or misconduct at an
accredited crime laboratory under Article 38.01, Code of Criminal
Procedure, as repealed by this Act, are transferred from the Texas
Forensic Science Commission to the division of forensic services;
(2) all property and records in the custody of the
Texas Forensic Science Commission that relate to a transferred
power, duty, or activity and all funds appropriated by the
legislature for the power, duty, or activity, are transferred to
the division of forensic services; and
(3) a rule or form adopted by the director of the
Public Safety Commission or the public safety director of the
Department of Public Safety that relates to the crime laboratory
accreditation process under former Section 411.0205, Government
Code, as repealed by this Act, is a rule or form applicable to the
division of forensic services and remains in effect until modified
by the executive commissioner of the Health and Human Services
Commission.
SECTION 5. This Act takes effect September 1, 2011.