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By: Ellis S.B. No. 1607
(In the Senate - Filed March 14, 2003; March 20, 2003, read
first time and referred to Committee on Criminal Justice;
March 31, 2003, reported favorably by the following vote: Yeas 5,
Nays 1; March 31, 2003, sent to printer.)
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. Subtitle I, Title 4, Government Code, is amended
by adding Chapter 534 to read as follows:
CHAPTER 534. OVERSIGHT OF CRIME LAB FACILITIES
Sec. 534.001. DEFINITIONS. When used in this chapter, the
following words and terms have the meanings ascribed to them in this
section:
(1) For purposes of general forensic analysis, the
term "forensic laboratory" means 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 chapter.
(2) For purposes of forensic DNA analysis, the term
"forensic DNA laboratory" means any forensic laboratory operated by
the state or a 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" means 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 chapter 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 that 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" means the subcommittee on
forensic DNA laboratories and forensic DNA testing established
pursuant to Section 534.003.
(9) "Commission" means the Commission on Forensic
Science established pursuant to Section 534.002.
Sec. 534.002. COMMISSION ON FORENSIC SCIENCE. (a) There
is hereby created in the executive branch the Commission on
Forensic Science, which shall consist of the following 12 members:
(1) the commissioner of public health or the
commissioner's designee, who shall serve as an exofficio member of
the commission and who shall be chair of the commission; and
(2) 11 members appointed by the governor.
(b) Of the members appointed by the governor:
(1) one member shall be the director of the Department
of Public Safety crime laboratory;
(2) one member shall be the director of a forensic
laboratory located in the state of Texas;
(3) two members shall be scientists 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 public health;
(4) 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;
(5) one member shall be a representative of
prosecution services, who shall be appointed upon the
recommendation of a statewide professional association of
prosecuting attorneys;
(6) 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) and whose members regularly represent indigent
defendants in criminal matters;
(7) 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;
(8) two members shall be members at large, one of whom
shall be appointed upon the recommendation of the lieutenant
governor, and one of whom shall be appointed upon the
recommendation of the speaker of the house of representatives; and
(9) one member who shall be an attorney or judge with a
background in privacy issues and biomedical ethics, and shall be
appointed upon the recommendation of the chief judge of the supreme
court.
(c) Of the members appointed by the governor, each shall be
appointed to serve a two-year term. Any member appointed by the
governor may be reappointed for additional two-year terms.
(d) Any member chosen to fill a vacancy created otherwise
than by the expiration of a 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.
(e) 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.
(f) No member of the commission shall be disqualified from
holding any public office or employment, nor shall the member
forfeit any such office or employment, by reason of the member's
appointment under this section, and members of the commission shall
not be required to take and file oaths of office before serving on
the commission.
(g) 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 under this
chapter.
Sec. 534.003. POWERS AND DUTIES OF THE COMMISSION.
(a) 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, including approval of
forensic laboratories for the performance of specific forensic
methodologies. Nothing in this chapter 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 chapter, the commission shall
evaluate other systems of accreditation.
(b) The minimum standards and program of accreditation
shall be designed to accomplish the following objectives:
(1) increasing and maintaining the effectiveness,
efficiency, reliability, and accuracy of forensic laboratories,
including forensic DNA laboratories;
(2) ensuring that forensic analyses, including
forensic DNA testing, are performed in accordance with the highest
scientific standards practicable;
(3) promoting increased cooperation and coordination
among forensic laboratories and other agencies in the criminal
justice system;
(4) ensuring compatibility, to the extent consistent
with the provisions of this chapter 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
(5) setting forth minimum requirements for the quality
and maintenance of equipment.
(c) 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
Subsection (l). The subcommittee shall have the sole authority to
grant, deny, review, or modify a forensic DNA laboratory
accreditation pursuant to this chapter, 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 chapter, 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 therefore, that following such review such subcommittee has
determined that such binding recommendations shall not be revised.
(d) The program of forensic laboratory accreditation shall
include, at a minimum, the following requirements:
(1) an initial laboratory inspection and routine
inspections, as necessary, to ensure compliance with accreditation
requirements;
(2) 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;
(3) quality control and quality assurance protocols, a
method validation procedure, and a corrective action and remedial
program;
(4) 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;
(5) 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:
(A) is guilty of misrepresentation in obtaining a
forensic laboratory accreditation;
(B) rendered a report on laboratory work actually
performed in another forensic laboratory without disclosing the
fact that the examination or procedure was performed by the other
forensic laboratory;
(C) showed a pattern of excessive errors in the
performance of forensic laboratory examination procedures;
(D) failed to file a report required to be
submitted pursuant to this chapter or the rules and regulations
promulgated pursuant to this chapter; or
(E) violated in a material respect any provision
of this chapter or the rules and regulations promulgated pursuant
to this chapter.
(e) 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 21
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.
(f) A laboratory director who knowingly operates a
laboratory without obtaining the accreditation required by this
chapter, or who, with the intent to mislead or deceive,
misrepresents a material fact to the commission or the DNA
subcommittee shall be subject to a civil penalty not to exceed
$7,500 and such other penalties as are prescribed by the law.
(g) The commission and the DNA subcommittee established
pursuant to Subsection (l) 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 chapter. The
commission or DNA subcommittee may enter into such cooperative
arrangements with the Department of Public Safety, the Texas
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.
(h) All of the commission's records, reports, assessments,
and evaluations with respect to accreditation and implementation of
quality assurance standards, including proficiency testing, and
monitoring thereof, shall be archived by the commission.
(i) 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.
(j) The commission or DNA subcommittee shall designate one
or more entities for the performance of proficiency tests required
pursuant to the provisions of this chapter.
(k) Upon the recommendation of the DNA subcommittee
established pursuant to Subsection (l), 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.
(l) 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 public health, one of whom shall represent the
discipline of population genetics and be appointed upon the
recommendation of the commissioner of public 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 public health, one
of whom shall be a forensic scientist and be appointed upon the
recommendation of the commissioner of public 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.
(m) The DNA subcommittee shall assess and evaluate all DNA
methodologies proposed to be used for forensic analysis and shall
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 to
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.
(n) 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.
(o) 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.
Sec. 534.004. CONFIDENTIALITY. (a) 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, or 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 in this subsection 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
at issue.
(b) Notwithstanding the provisions of Subsection (a),
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.
Sec. 534.005. APPLICABILITY. This chapter 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.
Sec. 534.006. PENALTIES. A 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 chapter, 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 chapter, or (c) 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.
* * * * *