By: Phillips H.B. No. 3748

A BILL TO BE ENTITLED

AN ACT

relating to creating the division of forensic services; abolishing the Texas Forensic Science Commission and transferring certain duties of the commission and the Department of Public Safety to the division of forensic services.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 1001, Health and Safety Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. Division of Forensic Services

Sec. 1001.101. OFFICE ESTABLISHED. The division of forensic services is a division within the department.

Sec. 1001.102. APPOINTMENT OF THE DIRECTOR OF THE DIVISION OF FORENSIC SERVICES; DUTIES.

(a) The executive commissioner shall appoint a director for the division of forensic services.

(b) The division director shall implement this subchapter and the duties imposed on the director by rule adopted by the executive commissioner.

Sec. 1001.103. GUIDELINES. The division director shall recommend, and the executive commissioner shall adopt, guidelines for medical examiners and coroners in this state.

Sec. 1001.104. QUALIFICATIONS; MINIMUM STANDARDS. The division director shall recommend, and the executive commissioner shall adopt, qualifications for persons to act as a medical examiner or coroner in this state and minimum standards for the performance of the duties of a medical examiner or coroner.

Sec. 1001.105. CERTIFICATION REQUIRED. (a) A person must be certified by the office of forensic services as meeting the qualifications and minimum standards imposed under Section 1001.104 to act as a medical examiner or coroner in this state.

(b) The executive commissioner shall prescribe a form to be used by an applicant for certification under this section.

(c) The executive commissioner may prescribe and the division director may collect a fee for the certification of a medical examiner or coroner under this section.

Sec. 1001.106. AUTOPSY FEE. The executive commissioner by rule may establish a reasonable fee to be assessed against a person who requests the performance of an autopsy in this state, other than a person required to request the performance of an autopsy under state or federal law.

Sec. 1001.107. FORENSIC SCIENCE INTEGRITY. (a) In this section, "law enforcement agency" has the meaning assigned by Article 2.132(a)(1), Code of Criminal Procedure.

(b) The division director shall recommend, and the executive commissioner shall adopt, guidelines for collecting forensic evidence and for preserving the integrity of forensic evidence at all stages of a criminal investigation and for the storage of forensic evidence.

(c) Each law enforcement agency must comply with guidelines adopted under Subsection (b) relating to the collection and preservation of forensic evidence in a criminal investigation.

Sec. 1001.108. FORENSIC SCIENCE DUTIES. (a) The director of the division of forensic services shall:

(1) develop and implement a reporting system through which accredited laboratories, facilities, or entities report professional negligence or misconduct;

(2) require all laboratories, facilities, or entities that conduct forensic analyses to report professional negligence or misconduct to the division director; and

(3) investigate, in a timely manner, any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity.

(b) An investigation under Subsection (a)(3):

(1) must include the preparation of a written report that identifies and 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; 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).

(c) The division director by contract may delegate the duties described by Subsections (a)(1) and (3) to any person the division director determines to be qualified to assume those duties.

(d) The division director may require that a laboratory, facility, or entity investigated under this section pay any costs incurred to ensure compliance with Subsection (b)(1).

(e) The division director shall make all investigation reports completed under Subsection (b)(1) available to the public. A report completed under Subsection (b)(1), in a subsequent civil or criminal proceeding, is not prima facie evidence of the information or findings contained in the report.

Sec. 1001.109. SUBMISSION OF REPORT. The division director shall submit any report received under Section 1001.108(a)(2) and any report prepared under Section 1001.108(b)(1) to the governor, the lieutenant governor, and the speaker of the house of representatives not later than December 1 of each even-numbered year.

Sec. 1001.110. CRIME LABORATORY ACCREDITATION PROCESS. (a) In this section, "crime laboratory," "forensic analysis," and "physical evidence" have the meanings assigned by Article 38.35, Code of Criminal Procedure.

(b) The executive commissioner by rule:

(1) shall establish an accreditation process for crime laboratories and other entities conducting forensic analyses of physical evidence for use in criminal proceedings to be implemented by the division director; and

(2) may modify or remove a crime laboratory exemption under this section if the division director determines that the underlying reason for exemption no longer applies.

(c) As part of the accreditation process established and implemented under Subsection (b), the division director may:

(1) establish minimum standards that relate to the timely production of a forensic analysis to the agency requesting the analysis and that are consistent with this section and code;

(2) validate or approve specific forensic methods or methodologies; and

(3) establish procedures, policies, and practices to improve the quality of forensic analyses conducted in this state.

(d) The division director may require that a laboratory, facility, or entity required to be accredited under this section pay any costs incurred to ensure compliance with the accreditation process.

(e) The executive commissioner by rule may exempt from the accreditation process established and implemented under Subsection (b) a crime laboratory conducting a forensic analysis or a type of analysis, examination, or test if the executive commissioner determines that:

(1) independent accreditation is unavailable or inappropriate for the laboratory or the type of analysis, examination, or test performed by the laboratory;

(2) the type of analysis, examination, or test performed by the laboratory is admissible under a well-established rule of evidence or a statute other than Article 38.35, Code of Criminal Procedure;

(3) the type of analysis, examination, or test performed by the laboratory is routinely conducted outside of a crime laboratory by a person other than an employee of the crime laboratory; or

(4) the laboratory:

(A) is located outside this state or, if located in this state, is operated by a governmental entity other than the state or a political subdivision of the state; and

(B) was accredited at the time of the analysis under an accreditation process with standards that meet or exceed the relevant standards of the process established by the division director under Subsection (c).

(f) The division director may at any reasonable time enter and inspect the premises or audit the records, reports, procedures, or other quality assurance matters of a crime laboratory that is accredited or seeking accreditation under this section.

(g) The division director may collect costs incurred under this section for accrediting, inspecting, or auditing a crime laboratory.

(h) If the division director provides a copy of an audit or other report made under this section, the division director may charge $6 for the copy, in addition to any other cost permitted under Chapter 552, Government Code, or a rule adopted under that chapter.

(i) Funds collected under this section shall be deposited in the state treasury to the credit of the forensic services fund, and money deposited to the forensic services fund under this subsection may be used only to defray the cost of administering this subchapter.

SECTION 2. The following are repealed:

(1) Article 38.01, Code of Criminal Procedure; and

(2) Section 411.0205, Government Code.

SECTION 3. Not later than January 1, 2012, the executive commissioner of the Health and Human Services Commission shall:

(1) appoint a division director, as required by Section 1001.102, Health and Safety Code, as added by this Act; and

(2) adopt all necessary rules to:

(A) implement Subchapter E, Chapter 1001, Health and Safety Code, as added by this Act;

(B) impose duties on the division director, as required by Section 1001.102(b), Health and Safety Code, as added by this Act;

(C) prescribe a form for certification, as required by Section 1001.105, Health and Safety Code, as added by this Act; and

(D) impose a fee to be assessed on the performance of autopsies in this state, as required by Section 1001.106, Health and Safety Code, as added by this Act.

SECTION 4. On the effective date of this Act:

(1) all powers, duties, and activities related to the investigation of professional negligence or misconduct at an accredited crime laboratory under Article 38.01, Code of Criminal Procedure, as repealed by this Act, are transferred from the Texas Forensic Science Commission to the division of forensic services;

(2) all property and records in the custody of the Texas Forensic Science Commission that relate to a transferred power, duty, or activity and all funds appropriated by the legislature for the power, duty, or activity, are transferred to the division of forensic services; and

(3) a rule or form adopted by the director of the Public Safety Commission or the public safety director of the Department of Public Safety that relates to the crime laboratory accreditation process under former Section 411.0205, Government Code, as repealed by this Act, is a rule or form applicable to the division of forensic services and remains in effect until modified by the executive commissioner of the Health and Human Services Commission.

SECTION 5. This Act takes effect September 1, 2011.