82R5969 GCB-D
By: Hinojosa S.B. No. 1658
A BILL TO BE ENTITLED
AN ACT
relating to the membership and duties of, and the investigations
conducted by, the Texas Forensic Science Commission, the
administrative attachment of the Texas Forensic Science Commission
to the Department of Public Safety, and the accreditation of
criminal laboratories by the Department of Public Safety.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2, Article 38.01, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. DEFINITIONS [DEFINITION]. In this article:
(1) "Accredited field of forensic science" means a
specific forensic method or methodology validated or approved by
the director under Section 411.0205(b-1)(2), Government Code, as
part of the accreditation process for crime laboratories
established by rule under Section 411.0205(b) of that code.
(2) "Commission" means the Texas Forensic Science
Commission.
(3) "Department" means the Department of Public
Safety.
(4) "Director" means the public safety director of the
Department of Public Safety.
(5) "Forensic analysis" means a medical, chemical,
toxicologic, ballistic, or other expert examination or test
performed in an accredited field of forensic science on physical
evidence, including DNA evidence, for the purpose of determining
the connection of the evidence to a criminal action.
(6) "Potential accreditation field of forensic
science" means a method or methodology of forensic science
identified by the commission under Section 8(2), as appropriate for
validation or approval by the director under Section
411.0205(b-1)(2), Government Code, as part of the accreditation
process for crime laboratories established by rule under Section
411.0205(b) of that code [, "forensic analysis" has the meaning
assigned by Article 38.35(a)].
SECTION 2. Sections 3(a) and (c), Article 38.01, Code of
Criminal Procedure, are amended to read as follows:
(a) The commission is composed of the following seven [nine]
members:
(1) three [four] members appointed by the governor:
(A) one [two] of whom must be an expert in a
potential accreditation [have expertise in the] field of forensic
science, except that if the commission did not identify a potential
accreditation field of forensic science in the annual report
required under Section 8 for the year preceding the year in which
the appointment is made under this subdivision, the member must be
an expert in an accredited field of forensic science;
(B) one of whom must be a prosecuting attorney
that the governor selects from a list of 10 names submitted by the
Texas District and County Attorneys Association; and
(C) one of whom must be a defense attorney that
the governor selects from a list of 10 names submitted by the Texas
Criminal Defense Lawyers Association;
(2) two [three] members appointed by the lieutenant
governor, each [:
[(A) one] of whom must be an expert in an
accredited field of forensic science [a faculty member or staff
member of The University of Texas who specializes in clinical
laboratory medicine selected from a list of 10 names submitted to
the lieutenant governor by the chancellor of The University of
Texas System;
[(B) one of whom must be a faculty member or staff
member of Texas A&M University who specializes in clinical
laboratory medicine selected from a list of 10 names submitted to
the lieutenant governor by the chancellor of The Texas A&M
University System;
[(C) one of whom must be a faculty member or staff
member of Texas Southern University who has expertise in
pharmaceutical laboratory research selected from a list of 10 names
submitted to the lieutenant governor by the chancellor of Texas
Southern University]; and
(3) two members appointed by the attorney general,
each of whom must be an expert in an accredited field of forensic
science [:
[(A) one of whom must be a director or division
head of the University of North Texas Health Science Center at Fort
Worth Missing Persons DNA Database; and
[(B) one of whom must be a faculty or staff member
of the Sam Houston State University College of Criminal Justice and
have expertise in the field of forensic science or statistical
analyses selected from a list of 10 names submitted to the
lieutenant governor by the chancellor of Texas State University
System].
(c) The governor shall designate a member of the commission
to serve as the presiding officer. The presiding officer may
appoint three nonvoting members of the commission who are experts
in an accredited field of forensic science. If the presiding
officer appoints any nonvoting members, the presiding officer must
appoint as a nonvoting member the presiding officer of the Texas
Association of Crime Lab Directors.
SECTION 3. Section 4, Article 38.01, Code of Criminal
Procedure, is amended by amending Subsections (a) and (b) and
adding Subsections (a-1) and (f) to read as follows:
(a) The commission shall:
(1) develop and implement a reporting system through
which accredited laboratories, facilities, or entities that are not
operated by the department report professional misconduct or
professional negligence [or misconduct];
(2) require all laboratories, facilities, or entities
that conduct forensic analyses and that are not operated by the
department to report professional misconduct or professional
negligence [or misconduct] to the commission; and
(3) investigate, in a timely manner, any allegation of
professional misconduct or 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.
(a-1) On conclusion of an investigation by the commission
under Subsection (a)(3), the commission shall make a finding that:
(1) professional misconduct occurred, if:
(A) a person employed by the laboratory,
facility, or entity investigated under Subsection (a)(3), through
act or omission, deliberately failed to follow a generally accepted
standard of practice that an ordinary forensic professional or
entity would have exercised at the time of the forensic analysis;
and
(B) that act or omission substantially affected
the integrity of the results of a forensic analysis;
(2) professional negligence occurred, if:
(A) a person employed by the laboratory,
facility, or entity investigated under Subsection (a)(3), through
act or omission, negligently failed to follow a generally accepted
standard of practice that an ordinary forensic professional or
entity would have exercised at the time of the forensic analysis;
and
(B) that act or omission substantially affected
the integrity of the results of a forensic analysis; or
(3) based on the facts obtained during the
investigation, neither professional misconduct nor professional
negligence occurred.
(b) An investigation under Subsection (a)(3):
(1) must include the preparation of a written report
that identifies and [also] describes the methods and procedures
used to identify:
(A) the alleged professional misconduct or
professional negligence [or misconduct];
(B) whether the commission finds under
Subsection (a-1) that professional misconduct or professional
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 professional misconduct or
professional 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); and
(C) recommendations of the commission for
improving the use of evidence arising from the particular
accredited field of forensic science investigated, including
recommendations on enhancing the reliability and integrity of that
accredited field of forensic science.
(f) The commission may delegate the duty to direct the
commission's investigative duties under this article to the general
counsel or another staff member of the commission.
SECTION 4. Article 38.01, Code of Criminal Procedure, is
amended by adding Sections 4A, 4B, 4C, 8, 9, 10, and 11 to read as
follows:
Sec. 4A. MEMORANDUM OF UNDERSTANDING CONCERNING
INVESTIGATION OF NON-DEPARTMENT LABORATORY. (a) The commission
shall enter into a memorandum of understanding with the director
specifying that:
(1) the commission shall direct the conduct of an
investigation under Section 4(a)(3) of a laboratory, facility, or
entity that is accredited under Section 411.0205, Government Code,
and was not operated by the department at the time the professional
misconduct or professional negligence is alleged to have occurred;
(2) at the request of the commission, the director
shall provide appropriate investigative support to the commission
in carrying out the investigative duties of the commission under
Section 4(a)(3); and
(3) on the conclusion of investigative activities
undertaken by the department at the request of the commission, the
director shall report all information obtained from those
investigative activities to the commission.
(b) This section and any memorandum of understanding
entered into under this section expire on September 1, 2017.
Sec. 4B. MEMORANDUM OF UNDERSTANDING CONCERNING
INVESTIGATION OF DEPARTMENT LABORATORY. (a) The commission may
enter into a memorandum of understanding with the governing board
of a state agency specifying that:
(1) the commission shall direct the conduct of an
investigation under Section 4(a)(3) of a laboratory, facility, or
entity that is accredited under Section 411.0205, Government Code,
and was operated by the department at the time the professional
misconduct or professional negligence is alleged to have occurred;
(2) at the request of the commission, the governing
board of the state agency shall provide appropriate investigative
support to the commission in performing an investigation of an
accredited laboratory, facility, or entity that was operated by the
department at the time the professional misconduct or professional
negligence is alleged to have occurred; and
(3) on the conclusion of investigative activities
undertaken by the department at the request of the commission, the
governing board of the state agency shall report all information
obtained from those investigative activities to the commission.
(b) This section and any memorandum of understanding
entered into under this section expire on September 1, 2017.
Sec. 4C. OTHER INVESTIGATIONS. (a) The commission may
investigate an allegation of professional misconduct or
professional negligence reported by a laboratory, facility, or
entity that is not accredited by the department if the laboratory,
facility, or entity was accredited by the department under Section
411.0205, Government Code, at the time the professional misconduct
or professional negligence is alleged to have occurred.
(b) The commission may investigate an allegation of
professional misconduct or professional negligence at a
laboratory, facility, or entity that is accredited under Section
411.0205, Government Code, if the allegation arises out of the
performance of a method or methodology of forensic science that is
not part of an accredited field of forensic science, provided that
the method or methodology is part of a potential accreditation
field of forensic science.
(c) The commission may not issue a finding of professional
misconduct or professional negligence in an investigation
conducted under this section.
(d) On conclusion of an investigation conducted under this
section, the commission may, based on determinations made by the
commission during the investigation, issue a written report about
the investigation that contains:
(1) recommendations related to developing best
practices and improving the use of forensic science evidence in
civil and criminal proceedings; and
(2) an assessment of whether the practice in this
state of a particular accredited field of forensic science or
potential accreditation field of forensic science meets national
standards and practices.
Sec. 8. ANNUAL REPORT. Not later than December 1 of each
year, the commission shall prepare and publish a report that
includes:
(1) a description of each complaint filed with the
commission during the preceding 12-month period, the disposition of
each complaint, and the status of any complaint still pending on
December 31;
(2) a description of any specific forensic method or
methodology the commission recommends to the director for
validation or approval under Section 411.0205(b-1)(2), Government
Code, as part of the accreditation process for crime laboratories
established by rule under Section 411.0205(b) of that code;
(3) recommendations for best practices concerning:
(A) the definition of "forensic analysis"
provided by statute or department rule; or
(B) potential accreditation fields of forensic
science;
(4) developments in forensic science made or used in
other state or federal investigations and the activities of the
commission, if any, with respect to those developments; and
(5) other information that is relevant to
investigations involving forensic science, as determined by the
presiding officer of the commission.
Sec. 9. REPORTS INADMISSIBLE AS EVIDENCE. A written report
prepared by the commission under this article is not admissible in a
civil or criminal action.
Sec. 10. ADMINISTRATIVE ATTACHMENT TO DEPARTMENT. (a) The
commission is administratively attached to the department.
(b) The department shall provide administrative assistance
to the commission. The director and the presiding officer of the
commission shall coordinate administrative responsibilities in
accordance with this section.
(c) Notwithstanding any other law, the department shall:
(1) provide administrative assistance, services, and
materials to the commission, including budget planning and
purchasing;
(2) accept, deposit, and disburse money made available
to the commission from any source;
(3) accept gifts and grants on behalf of the
commission from any public or private entity;
(4) pay the salaries and benefits of the staff of the
commission;
(5) reimburse expenses of the members of the board
incurred in the performance of official duties;
(6) apply for and receive on behalf of the commission
any appropriations, gifts, or other money from the state or federal
government or any other public or private entity, subject to
limitations and conditions prescribed by legislative
appropriation;
(7) provide the commission with adequate computer
equipment and support; and
(8) provide the commission with adequate office space.
(d) The department, at the request of the commission, shall
submit the commission's budget request to the legislature.
(e) The commission is subject to administrative rules and
procedures of the department to the extent applicable and
consistent with the duties of the commission under this article.
(f) Except as provided by Sections 4A and 4B:
(1) only the commission may exercise the duties of the
commission under this article; and
(2) the department does not have any authority or
responsibility with respect to the duties of the commission under
this article.
(g) This section expires September 1, 2017.
Sec. 11. OPEN RECORDS LIMITATION. Information that is
filed as part of an allegation of professional misconduct or
professional negligence or that is obtained during an investigation
of an allegation of professional misconduct or professional
negligence is not subject to release under Chapter 552, Government
Code, until the conclusion of an investigation by the commission
under Section 4 or 4C.
SECTION 5. Section 411.0205, Government Code, is amended by
adding Subsection (b-3) to read as follows:
(b-3) The director shall require that a laboratory,
facility, or entity that must be accredited under this section, as
part of the accreditation process, agree to consent to any request
for cooperation by the Texas Forensic Science Commission that is
made as part of the exercise of the commission's duties under
Article 38.01, Code of Criminal Procedure.
SECTION 6. (a) Notwithstanding any other law, the terms of
the current members of the Texas Forensic Science Commission expire
on the date that the last appointment to the commission is made
under Subsection (b).
(b) Not later than October 1, 2011:
(1) the governor shall appoint three members of the
Texas Forensic Science Commission, as required by Section 3(a)(1),
Article 38.01, Code of Criminal Procedure, as amended by this Act;
(2) the lieutenant governor shall appoint two members
of the Texas Forensic Science Commission, as required by Section
3(a)(2), Article 38.01, Code of Criminal Procedure, as amended by
this Act; and
(3) the attorney general shall appoint two members of
the Texas Forensic Science Commission, as required by Section
3(a)(3), Article 38.01, Code of Criminal Procedure, as amended by
this Act.
SECTION 7. Not later than December 1, 2012, the Texas
Forensic Science Commission shall submit the first annual report
required by Section 8, Article 38.01, Code of Criminal Procedure,
as added by this Act.
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.