By: Hinojosa S.B. No. 1658 (In the Senate - Filed March 11, 2011; March 23, 2011, read first time and referred to Committee on Criminal Justice; May 10, 2011, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 1; May 10, 2011, sent to printer.) COMMITTEE SUBSTITUTE FOR S.B. No. 1658 By: Hinojosa 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. 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), and (b-2) 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 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 a quorum 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: (1) must include the preparation of a written report that contains: (A) observations of the commission regarding the integrity and reliability of the forensic analysis conducted; (B) best practices identified by the commission during the course of the investigation; and (C) other recommendations that are relevant, as determined by the commission; and (2) may include one or more: (A) analyses, if any, of the alleged negligence or misconduct; (B) analyses of whether negligence or misconduct occurred; (C) recommendations as to any corrective action required of the laboratory; (D) retrospective reexaminations of other forensic analyses conducted by the laboratory that may involve the same kind of negligence or misconduct; and (E) follow-up evaluations of the laboratory to review: (i) the implementation of any corrective action required under Paragraph (C); or (ii) the conclusion of any retrospective reexamination under Paragraph (D). (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. SECTION 3. Article 38.01, Code of Criminal Procedure, is amended by adding Sections 8, 9, and 10 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. SECTION 4. 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 5. 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 6. 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. * * * * *