S.B. No. 1238
AN ACT
relating to the composition and 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, the accreditation of criminal
laboratories by the Department of Public Safety of the State of
Texas, and the status of certain local government corporations as
criminal justice agencies for the purpose of engaging in criminal
identification activities, including forensic analysis.
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, except that the term does not include the portion of an
autopsy conducted by a medical examiner or other forensic
pathologist who is a licensed physician[, "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] nine
members[:
[(1) four members] appointed by the governor as
follows:
(1) two members who [(A) two of whom] must have
expertise in the field of forensic science;
(2) [(B)] one member 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;
(3) [and
[(C)] one member 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;
(4) one member who [(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 that the governor selects [selected] from a
list of 10 names submitted [to the lieutenant governor] by the
chancellor of The University of Texas System;
(5) one member who [(B) one of whom] must be a faculty
member or staff member of Texas A&M University who specializes in
clinical laboratory medicine that the governor selects [selected]
from a list of 10 names submitted [to the lieutenant governor] by
the chancellor of The Texas A&M University System;
(6) one member who [(C) one of whom] must be a faculty
member or staff member of Texas Southern University that the
governor selects [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;
(7) one member who [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
(8) one member who [(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 that the governor selects
[selected] from a list of 10 names submitted [to the lieutenant
governor] by the chancellor of the Texas State University System.
(b) Each member of the commission serves a two-year term.
The terms expire [term of the members appointed under Subsections
(a)(1) and (2) expires] on September 1 of:
(1) each odd-numbered year, for a member appointed
under Subsection (a)(1), (2), (3), or (4); and
(2) [. The term of the members appointed under
Subsection (a)(3) expires on September 1 of] each even-numbered
year, for a member appointed under Subsection (a)(5), (6), (7), or
(8).
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 professional
misconduct;
(2) require a crime laboratory [all laboratories,
facilities, or entities] that conducts [conduct] forensic analyses
to report professional negligence or professional 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 receiving a
complaint, submitted through the reporting system implemented
under Subsection (a)(1), that contains 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 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; or
(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)
[(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 of the 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 of the 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. Subchapter A, Chapter 411, Government Code, is
amended by adding Section 411.0011 to read as follows:
Sec. 411.0011. CERTAIN LOCAL GOVERNMENT CORPORATIONS
ENGAGED IN CRIMINAL IDENTIFICATION ACTIVITIES. For purposes of
this chapter, a reference to "criminal justice agency" includes a
local government corporation created under Subchapter D, Chapter
431, Transportation Code, for governmental purposes relating to
criminal identification activities, including forensic analysis,
that allocates a substantial part of its annual budget to those
criminal identification activities.
SECTION 6. 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 7. The term of a person appointed under former
Subdivision (3), Subsection (a), Section 3, Article 38.01, Code of
Criminal Procedure, as that law existed immediately before the
effective date of this Act, expires September 1, 2014, and the
governor shall appoint a person to fill each vacancy on that date in
accordance with Subdivisions (7) and (8), Subsection (a), Section
3, Article 38.01, Code of Criminal Procedure, as amended by this
Act. On the expiration of a term under former Subdivision (1) or
(2), Subsection (a), Section 3, Article 38.01, Code of Criminal
Procedure, as that law existed immediately before the effective
date of this Act, the governor shall appoint a person to fill each
vacancy in accordance with Subdivision (1), (2), (3), (4), (5), or
(6), Subsection (a), Section 3, Article 38.01, Code of Criminal
Procedure, as amended by this Act, as applicable.
SECTION 8. Not later than December 1, 2014, 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 9. 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, 2013.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1238 passed the Senate on
April 4, 2013, by the following vote: Yeas 30, Nays 0; and that
the Senate concurred in House amendment on May 20, 2013, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1238 passed the House, with
amendment, on May 17, 2013, by the following vote: Yeas 141,
Nays 0, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor