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By: Ellis S.B. No. 1607
A BILL TO BE ENTITLED
AN ACT
relating to regulation of state crime laboratories.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Government Code is amended to add the
following Chapter 534, to read as follows:
CHAPTER 534. OVERSIGHT OF CRIME LAB FACILITIES.
SUBCHAPTER A. GENERAL PROVISIONS
Section 534.001. Definitions
When used in this chapter, the following words and terms
shall have the meanings ascribed to them in this section:
1. For purposes of general forensic analysis the term "
forensic laboratory" shall mean any laboratory operated by the
state or unit of local government that performs forensic testing on
evidence in a criminal investigation or proceeding or for purposes
of identification provided, however, that the examination of latent
fingerprints by a police agency shall not be subject to the
provisions of this article.
2. For purposes of forensic DNA analysis, the term "forensic
DNA laboratory" shall mean any forensic laboratory operated by the
state or unit of local government, that performs forensic DNA
testing on crime scenes or materials derived from the human body for
use as evidence in a criminal proceeding or for purposes of
identification and the term "forensic DNA testing" shall mean any
test that employs techniques to examine deoxyribonucleic acid (DNA)
derived from the human body for the purpose of providing
information to resolve issues of identification. Regulation
pursuant to this article shall not include DNA testing on materials
derived from the human body for the purpose of determining a
person's genetic disease or medical condition and shall not include
a laboratory operated by the federal government.
3. "DNA testing methodology" means methods and procedures
used to extract and analyze DNA material, as well as the methods,
procedures, assumptions, and studies used to draw statistical
inferences from the test results.
4. "Blind external proficiency testing" means a test sample
that is presented to a forensic laboratory for forensic DNA testing
through a second agency, and which appears to the analysts to
involve routine evidence submitted for forensic DNA testing.
5. "DNA" means deoxyribonucleic acid.
6. "Designated offender" means a person convicted of and
sentenced for any one or more of the following felonies as defined
in the penal law (a): aggravated assault, murder, sex offenses,
incest, violent felony offenses, attempted murder, kidnapping,
attempted kidnapping, burglary, attempted burglary degree, or (b)
criminal possession of a controlled substance, criminal sale and
delivery of a controlled substance, or felony theft.
7. "DNA record" means DNA identification information
prepared by a forensic DNA laboratory for purposes of establishing
identification in connection with law enforcement investigations
or supporting statistical interpretation of the results of DNA
analysis. A DNA record is the objective form of the results of a DNA
analysis sample.
8. "DNA subcommittee" shall mean the subcommittee on
forensic DNA laboratories and forensic DNA testing established
pursuant to Section 534.003 of this article.
9. "Commission" shall mean the commission on forensic
science established pursuant to Section 534.002 of this article.
Section 534.002. Commission on forensic science.
1. There is hereby created in the executive branch, the
commission on forensic science, which shall consist of the
following twelve members:
(a) the commissioner of the department of health or his or
her designee, who shall serve as an ex-officio member of the
commission and who shall be chair of the commission;
(b) twelve members appointed by the governor.
2. Of the members appointed by the governor,
(a) one member shall be the director of the department of
public safety crime laboratory;
(b) one member shall be the director of a forensic
laboratory located in the state of Texas;
(c) two members shall be a scientist having experience in
the areas of laboratory standards or quality assurance regulation
and monitoring and shall be appointed upon the recommendation of
the commissioner of health;
(d) one member shall be a representative of a law
enforcement agency and shall be appointed upon the recommendation
of the director of the department of public safety;
(e) one member shall be a representative of prosecution
services who shall be appointed upon the recommendation of a
statewide professional association of prosecuting attorneys;
(f) one member shall be a representative of the public
criminal defense bar who shall be appointed upon the recommendation
of a statewide professional association of criminal defense
attorneys that is authorized to receive grants under Section
56.003(f), Government Code, and whose members regularly represent
indigent defendants in criminal matters;
(g) one member shall be a representative of the private
criminal defense bar who shall be appointed upon the recommendation
of a statewide professional association of criminal defense
attorneys;
(h) two members shall be members-at-large, one of whom shall
be appointed upon the recommendation of the lieutenant governor of
the senate, and one of whom shall be appointed upon the
recommendation of the speaker of the house of representatives; and
(i) one member, who shall be an attorney or judge with a
background in privacy issues and biomedical ethics, shall be
appointed upon the recommendation of the chief judge of the supreme
court.
3. Of the members appointed by the governor, each member
shall be appointed to serve a two year term. Any member appointed
by the governor may be reappointed for additional two year terms.
4. Any member chosen to fill a vacancy created otherwise
than by expiration of term shall be appointed by the governor for
the unexpired term of the member he or she is to succeed. Any such
vacancy shall be filled in the same manner as the original
appointment.
5. The commission shall meet at least four times each year
and may establish its own rules and procedures concerning the
conduct of its meetings and other affairs not inconsistent with
law.
6. No member of the commission on forensic science shall be
disqualified from holding any public office or employment, nor
shall he or she forfeit any such office or employment, by reason of
his or her appointment hereunder, and members of the commission
shall not be required to take and file oaths of office before
serving on the commission.
7. Members of the commission shall receive no compensation
for their services but shall be allowed their actual and necessary
expenses incurred in the performance of their functions hereunder.
Section 534.003. Powers and duties of the commission
1. The commission shall develop minimum standards and a
program of accreditation for all forensic laboratories in the state
of Texas, including establishing minimum qualifications for
forensic laboratory directors and such other personnel as the
commission may determine to be necessary and appropriate, and
approval of forensic laboratories for the performance of specific
forensic methodologies. Nothing in this article shall be deemed to
preclude forensic laboratories from performing research and
validation studies on new methodologies and technologies which may
not yet be approved by the commission at that time. In designing a
system of accreditation pursuant to this article, the commission
shall evaluate other systems of accreditation.
2. The minimum standards and program of accreditation shall
be designed to accomplish the following objectives:
(a) increase and maintain the effectiveness, efficiency,
reliability, and accuracy of forensic laboratories, including
forensic DNA laboratories;
(b) ensure that forensic analyses, including forensic DNA
testing, are performed in accordance with the highest scientific
standards practicable;
(c) promote increased cooperation and coordination among
forensic laboratories and other agencies in the criminal justice
system;
(d) ensure compatibility, to the extent consistent with the
provisions of this article and any other applicable provision of
law pertaining to privacy or restricting disclosure or redisclosure
of information, with other state and federal forensic laboratories
to the extent necessary to share and exchange information, data and
results of forensic analyses and tests; and
(e) set forth minimum requirements for the quality and
maintenance of equipment.
2-a. Any program of forensic laboratory accreditation with
respect to a DNA laboratory pursuant to this section shall be under
the direction of the DNA subcommittee established pursuant to
subdivision ten of this section. Such subcommittee shall have the
sole authority to grant, deny, review or modify a DNA forensic
laboratory accreditation pursuant to this article, provided that
such authority shall be effectuated through binding
recommendations made by the DNA subcommittee to the commission. In
the event the commission disagrees with any of the binding
recommendations of the DNA subcommittee made pursuant to this
article, the commission may so notify such subcommittee and request
such subcommittee to reasonably review such binding
recommendations. The DNA subcommittee shall conduct such review
and either forward revised binding recommendations to the
commission or indicate, with the reasons therefor, that following
such review such subcommittee has determined that such binding
recommendations shall not be revised.
3. The program of forensic laboratory accreditation shall
include, at a minimum, the following requirements:
(a) an initial laboratory inspection, and routine
inspections, as necessary, to ensure compliance with accreditation
requirements;
(b) routine internal and external proficiency testing of
all laboratory personnel involved in forensic analysis, including
blind external proficiency testing if the commission, or the DNA
subcommittee as the case may be, determines such a blind
proficiency testing program to be practicable and appropriate. In
determining whether a blind proficiency testing program is
practicable and appropriate, the commission, or the DNA
subcommittee as the case may be, shall consider such factors as
accuracy and reliability of laboratory results,
cost-effectiveness, time, allocation of resources, and
availability;
(c) quality control and quality assurance protocols, a
method validation procedure and a corrective action and remedial
program;
(d) annual certification to the commission by the forensic
laboratories of their continued compliance with the requirements of
the accreditation program which certification, in the case of a
forensic DNA laboratory, shall be forwarded to the DNA
subcommittee;
(e) the accreditation of a forensic laboratory may be
revoked, suspended or otherwise limited, upon a determination by
the commission or, in the case of a forensic DNA laboratory, upon
the binding recommendation of the DNA subcommittee, that the
laboratory or one or more persons in its employ:
(i) is guilty of misrepresentation in obtaining a forensic
laboratory accreditation;
(ii) rendered a report on laboratory work actually
performed in another forensic laboratory without disclosing the
fact that the examination or procedure was performed by such other
forensic laboratory;
(iii) showed a pattern of excessive errors in the
performance of forensic laboratory examination procedures;
(iv) failed to file any report required to be submitted
pursuant to this article or the rules and regulations promulgated
pursuant thereto; or
(v) violated in a material respect any provision of this
article or the rules and regulations promulgated pursuant thereto;
and
(f) no forensic laboratory accreditation shall be revoked,
suspended, or otherwise limited without a hearing. The commission
shall serve written notice of the alleged violation, together with
written notice of the time and place of the hearing, which notice
shall be mailed by certified mail to the holder of the forensic
laboratory accreditation at the address of such holder at least
twenty-one days prior to the date fixed for such hearing. An
accredited laboratory may file a written answer to the charges with
the commission, not less than five days prior to the hearing.
4. A laboratory director who knowingly operates a
laboratory without obtaining the accreditation required by this
article, or who, with the intent to mislead or deceive,
misrepresents a material fact to the commission or DNA
subcommittee, shall be subject to a civil penalty not to exceed
seventy-five hundred dollars and such other penalties as are
prescribed by the law.
5. The commission and the DNA subcommittee established
pursuant to subdivision ten of this section may require and receive
from any agency of the state or any political subdivision thereof
such assistance and data as may be necessary to enable the
commission or DNA subcommittee to administer the provisions of this
article. The commission or DNA subcommittee may enter into such
cooperative arrangements with the department of public safety, the
department of health, and any other state agency, each of which is
authorized to enter into such cooperative arrangements as shall be
necessary or appropriate. Upon request of the commission or DNA
subcommittee, any state agency may transfer to the commission such
officers and employees as the commission or DNA subcommittee may
deem necessary from time to time to assist the commission or DNA
subcommittee in carrying out its functions and duties. Officers
and employees so transferred shall not lose their civil service
status or rights, and shall remain in the negotiating unit, if any,
established prior to such transfer.
6. All of the commission's records, reports, assessments,
and evaluation with respect to accreditation, implementation of
quality assurance standards (including proficiency testing) and
monitoring thereof, shall be archived by the commission.
7. The commission and DNA subcommittee may establish,
appoint, and set terms of members to as many advisory councils as it
deems necessary to provide specialized expertise to the commission
with respect to new forensic technologies including DNA testing
methodologies.
8. The commission or DNA subcommittee shall designate one or
more entities for the performance of proficiency tests required
pursuant to the provisions of this article.
9. Upon the recommendation of the DNA subcommittee
established pursuant to subdivision ten of this section, the
commission shall designate one or more approved methodologies for
the performance of forensic DNA testing, and shall review and act
upon applications by forensic DNA laboratories for approval to
perform forensic DNA testing.
10. (a) The commission shall establish a subcommittee on
forensic DNA laboratories and forensic DNA testing. The chair of
the subcommittee shall be appointed by the chair of the commission.
The chair of the subcommittee shall appoint six other members to the
subcommittee, one of whom shall represent the discipline of
molecular biology and be appointed upon the recommendation of the
commissioner of the department of health, one of whom shall
represent the discipline of population genetics and be appointed
upon the recommendation of the commissioner of the department of
health, one of whom shall be representative of the discipline of
laboratory standards and quality assurance regulation and
monitoring and be appointed upon the recommendation of the
commissioner of the department of health, one of whom shall be a
forensic scientist and be appointed upon the recommendation of the
commissioner of the department of health, one of whom shall be
representative of the discipline of population genetics and be
appointed upon the recommendation of the director of the department
of public safety, and one of whom shall be representative of the
discipline of forensic science and be appointed upon the
recommendation of the director of the department of public safety.
Members of the DNA subcommittee shall serve for two year terms and
be subject to the conditions of service specified in section
534.002 of this article.
(b) The DNA subcommittee shall assess and evaluate all DNA
methodologies proposed to be used for forensic analysis, and make
reports and recommendations to the commission as it deems
necessary. The DNA subcommittee shall make binding recommendations
for adoption by the commission addressing minimum scientific
standards to be utilized in conducting forensic DNA analysis
including, but not limited to, examination of specimens, population
studies and methods employed to determine probabilities and
interpret test results. The DNA subcommittee may require a
demonstration by an independent laboratory of any proposed forensic
DNA testing methodology proposed to be used by a forensic
laboratory.
(c) The DNA subcommittee shall make binding recommendations
for adoption by the commission with regard to an accreditation
program for laboratories performing forensic DNA testing. Such
recommendations shall include the adoption and implementation of
internal and external proficiency testing programs, including, if
possible, a blind external proficiency testing program for forensic
laboratories performing forensic DNA testing. The DNA subcommittee
shall also provide the commission with a list of accepted
proficiency testers.
(d) The DNA subcommittee shall be authorized to advise the
commission on any other matters regarding the implementation of
scientific controls and quality assurance procedures for the
performance of forensic DNA testing, or on any other matters
referred to it by the commission.
Section 534.004. Confidentiality
1. All records, findings, reports, and results of DNA
testing performed on any person shall be confidential and may not be
disclosed or redisclosed without the consent of the subject of such
DNA testing. Such records, findings, reports and results shall not
be released to insurance companies, employers or potential
employers, health providers, employment screening or personnel
companies, agencies, or services, private investigation services,
and may not be disclosed in response to a subpoena or other
compulsory legal process or warrant, or upon request or order of any
agency, authority, division, office, corporation, partnership, or
any other private or public entity or person, except that nothing
contained herein shall prohibit disclosure in response to a
subpoena issued on behalf of the subject of such DNA record or on
behalf of a party in a civil proceeding where the subject of such
DNA record has put such record in issue.
2. Notwithstanding the provisions of subdivision one of
this section, records, findings, reports, and results of DNA
testing may be disclosed in a criminal proceeding to the court, the
prosecution, and the defense pursuant to a written request on a form
prescribed by the commissioner of the division of criminal justice
services.
Section 534.005. Applicability
This article shall not apply to a forensic DNA laboratory
operated by any agency of the federal government, or to any forensic
DNA test performed by any such federal laboratory.
Section 534.006. Penalties
Any person who (a) intentionally discloses a DNA record, or
the results of a forensic DNA test or analysis, to an individual or
agency other than one authorized to have access to such records
pursuant to this article or (b) intentionally uses or receives DNA
records, or the results of a forensic DNA test or analysis, for
purposes other than those authorized pursuant to this article or
(c) any person who knowingly tampers or attempts to tamper with any
DNA sample or the collection container without lawful authority
shall be guilty of a state jail felony.
SECTION 2. The change in law made by this Act applies only
to forensic DNA testing performed on or after the effective date of
this Act. Forensic DNA testing performed before the effective date
of this Act is governed by the law in effect when such testing
occurred, and the former law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2003.