By: Hinojosa S.B. No. 1658
(Hunter)
A BILL TO BE ENTITLED
AN ACT
relating to the duties of and investigations conducted by the Texas
Forensic Science Commission, the administrative attachment of the
Texas Forensic Science Commission to Sam Houston State University,
and the accreditation of criminal laboratories by the Department of
Public Safety of the State of Texas.
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 public safety director of the Department of Public Safety 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) "Crime laboratory" has the meaning assigned by
Article 38.35.
(4) "Forensic analysis" means a medical, chemical,
toxicologic, ballistic, or other expert examination or test
performed on physical evidence, including DNA evidence, for the
purpose of determining the connection of the evidence to a criminal
action[, "forensic analysis" has the meaning assigned by Article
38.35(a)].
SECTION 2. Subsections (a) and (b), Section 3, 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) four members] appointed by the governor:
(1) five who [(A) two of whom] must have expertise in
the field of forensic science;
(2) [(B)] one who [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
(3) [(C)] one who [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) three members appointed by the lieutenant
governor:
[(A) one of whom must be 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:
[(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].
(b) Each member of the commission serves a two-year term.
The terms [term] of the members appointed under Subsection
[Subsections] (a)(1) expire [and (2) expires] on September 1 of
each even-numbered [odd-numbered] year. The terms [term] of the
members appointed under Subsections (a)(2) and [Subsection] (a)(3)
expire [expires] on September 1 of each odd-numbered
[even-numbered] year.
SECTION 3. Section 4, Article 38.01, Code of Criminal
Procedure, is amended by amending Subsections (a), (b), (d), and
(e) and adding Subsections (a-1), (b-1), (b-2), (f), and (g) to read
as follows:
(a) The commission shall:
(1) develop and implement a reporting system through
which a crime laboratory may [accredited laboratories, facilities,
or entities] report professional negligence or misconduct;
(2) require a crime laboratory [all laboratories,
facilities, or entities] that conducts [conduct] forensic analyses
to report professional negligence or misconduct to the commission;
and
(3) investigate, in a timely manner, any allegation of
professional negligence or professional misconduct that would
substantially affect the integrity of the results of a forensic
analysis conducted by a crime laboratory [an accredited laboratory,
facility, or entity].
(a-1) The commission may initiate for educational purposes
an investigation of a forensic analysis without a report containing
an allegation of professional negligence or professional
misconduct involving the forensic analysis conducted if the
commission determines by a majority vote of the members of the
commission that an investigation of the forensic analysis would
advance the integrity and reliability of forensic science in this
state.
(b) If the commission conducts an [An] investigation under
Subsection (a)(3) of a crime laboratory that is accredited by the
Department of Public Safety under Section 411.0205, Government
Code, pursuant to an allegation of professional negligence or
professional misconduct involving an accredited field of forensic
science, the investigation:
(1) must include the preparation of a written report
that identifies and also 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;
(D) observations of the commission regarding the
integrity and reliability of the forensic analysis conducted;
(E) best practices identified by the commission
during the course of the investigation; and
(F) other recommendations that are relevant, as
determined by the commission; 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).
(b-1) If the commission conducts an investigation under
Subsection (a)(3) of a crime laboratory that is not accredited by
the Department of Public Safety under Section 411.0205, Government
Code, or the investigation is conducted pursuant to an allegation
involving a forensic method or methodology that is not an
accredited field of forensic science, the investigation may include
the preparation of a written report that contains:
(1) observations of the commission regarding the
integrity and reliability of the forensic analysis conducted;
(2) best practices identified by the commission during
the course of the investigation; and
(3) other recommendations that are relevant, as
determined by the commission.
(b-2) If the commission conducts an investigation of a
forensic analysis under Subsection (a-1), the investigation must
include the preparation of a written report that contains:
(1) observations of the commission regarding the
integrity and reliability of the forensic analysis conducted;
(2) best practices identified by the commission during
the course of the investigation; and
(3) other recommendations that are relevant, as
determined by the commission.
(d) The commission may require that a crime laboratory[,
facility, or entity] investigated under this section pay any costs
incurred to ensure compliance with Subsection (b), (b-1), or (b-2)
[Subsection (b)(1)].
(e) The commission shall make all investigation reports
completed under Subsection (b), (b-1), or (b-2) [(b)(1)] available
to the public. A report completed under Subsection (b), (b-1), or
(b-2) [(b)(1)], in a subsequent civil or criminal proceeding, is
not prima facie evidence of the information or findings contained
in the report.
(f) The commission may not make a determination of whether
professional negligence or professional misconduct occurred or
issue a finding on that question in an investigation initiated
under Subsection (a-1) or for which an investigation report may be
prepared under Subsection (b-1).
(g) The commission may not issue a finding related to the
guilt or innocence of a party in an underlying civil or criminal
trial involving conduct investigated by the commission under this
article.
SECTION 4. Article 38.01, Code of Criminal Procedure, is
amended by adding Sections 8, 9, 10, and 11 to read as follows:
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 public safety director
of the Department of Public Safety 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 the
definition of "forensic analysis" provided by statute or by rule of
the Department of Public Safety;
(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. ADMINISTRATIVE ATTACHMENT TO SAM HOUSTON STATE
UNIVERSITY. (a) The commission is administratively attached to
Sam Houston State University.
(b) The Board of Regents, Texas State University System,
shall provide administrative support to the commission as necessary
to carry out the purposes of this article.
(c) Only the commission may exercise the duties of the
commission under this article. Except as provided by Subsection
(b), neither the Board of Regents, Texas State University System,
nor Sam Houston State University has any authority or
responsibility with respect to the duties of the commission under
this article.
Sec. 10. 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.
Sec. 11. REPORT INADMISSIBLE AS EVIDENCE. A written report
prepared by the commission under this article is not admissible in a
civil or criminal action.
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 members of the Texas Forensic Science Commission appointed
under Subsections (a)(1)(A), (a)(2), and (a)(3), Section 3, Article
38.01, Code of Criminal Procedure, and serving on the effective
date of this Act expire on the date the last appointment to the
commission is made under Subsection (b) of this section.
(b) Not later than January 1, 2012, the governor shall
appoint five members of the Texas Forensic Science Commission, as
required by Subsection (a)(1), Section 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.