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A BILL TO BE ENTITLED
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AN ACT
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relating to the membership and duties of, and the investigations |
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conducted by, the Texas Forensic Science Commission, the |
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administrative attachment of the Texas Forensic Science Commission |
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to the Department of Public Safety, and the accreditation of |
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criminal laboratories by the Department of Public Safety. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2, Article 38.01, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 2. DEFINITIONS [DEFINITION]. In this article: |
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(1) "Accredited field of forensic science" means a |
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specific forensic method or methodology validated or approved by |
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the director under Section 411.0205(b-1)(2), Government Code, as |
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part of the accreditation process for crime laboratories |
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established by rule under Section 411.0205(b) of that code. |
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(2) "Commission" means the Texas Forensic Science |
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Commission. |
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(3) "Department" means the Department of Public |
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Safety. |
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(4) "Director" means the public safety director of the |
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Department of Public Safety. |
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(5) "Forensic analysis" means a medical, chemical, |
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toxicologic, ballistic, or other expert examination or test |
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performed in an accredited field of forensic science on physical |
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evidence, including DNA evidence, for the purpose of determining |
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the connection of the evidence to a criminal action. |
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(6) "Potential accreditation field of forensic |
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science" means a method or methodology of forensic science |
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identified by the commission under Section 8(2), as appropriate for |
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validation or approval by the director under Section |
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411.0205(b-1)(2), Government Code, as part of the accreditation |
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process for crime laboratories established by rule under Section |
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411.0205(b) of that code [, "forensic analysis" has the meaning
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assigned by Article 38.35(a)]. |
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SECTION 2. Sections 3(a) and (c), Article 38.01, Code of |
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Criminal Procedure, are amended to read as follows: |
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(a) The commission is composed of the following seven [nine] |
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members: |
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(1) three [four] members appointed by the governor: |
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(A) one [two] of whom must be an expert in a |
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potential accreditation [have expertise in the] field of forensic |
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science, except that if the commission did not identify a potential |
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accreditation field of forensic science in the annual report |
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required under Section 8 for the year preceding the year in which |
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the appointment is made under this subdivision, the member must be |
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an expert in an accredited field of forensic science; |
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(B) one of whom must be a prosecuting attorney |
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that the governor selects from a list of 10 names submitted by the |
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Texas District and County Attorneys Association; and |
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(C) one of whom must be a defense attorney that |
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the governor selects from a list of 10 names submitted by the Texas |
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Criminal Defense Lawyers Association; |
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(2) two [three] members appointed by the lieutenant |
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governor, each [:
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[(A) one] of whom must be an expert in an |
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accredited field of forensic science [a faculty member or staff
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member of The University of Texas who specializes in clinical
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laboratory medicine selected from a list of 10 names submitted to
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the lieutenant governor by the chancellor of The University of
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Texas System;
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[(B)
one of whom must be a faculty member or staff
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member of Texas A&M University who specializes in clinical
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laboratory medicine selected from a list of 10 names submitted to
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the lieutenant governor by the chancellor of The Texas A&M
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University System;
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[(C)
one of whom must be a faculty member or staff
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member of Texas Southern University who has expertise in
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pharmaceutical laboratory research selected from a list of 10 names
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submitted to the lieutenant governor by the chancellor of Texas
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Southern University]; and |
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(3) two members appointed by the attorney general, |
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each of whom must be an expert in an accredited field of forensic |
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science [:
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[(A)
one of whom must be a director or division
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head of the University of North Texas Health Science Center at Fort
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Worth Missing Persons DNA Database; and
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[(B)
one of whom must be a faculty or staff member
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of the Sam Houston State University College of Criminal Justice and
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have expertise in the field of forensic science or statistical
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analyses selected from a list of 10 names submitted to the
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lieutenant governor by the chancellor of Texas State University
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System]. |
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(c) The governor shall designate a member of the commission |
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to serve as the presiding officer. The presiding officer may |
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appoint three nonvoting members of the commission who are experts |
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in an accredited field of forensic science. If the presiding |
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officer appoints any nonvoting members, the presiding officer must |
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appoint as a nonvoting member the presiding officer of the Texas |
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Association of Crime Lab Directors. |
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SECTION 3. Section 4, Article 38.01, Code of Criminal |
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Procedure, is amended by amending Subsections (a) and (b) and |
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adding Subsections (a-1) and (f) to read as follows: |
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(a) The commission shall: |
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(1) develop and implement a reporting system through |
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which accredited laboratories, facilities, or entities that are not |
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operated by the department report professional misconduct or |
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professional negligence [or misconduct]; |
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(2) require all laboratories, facilities, or entities |
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that conduct forensic analyses and that are not operated by the |
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department to report professional misconduct or professional |
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negligence [or misconduct] to the commission; and |
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(3) investigate, in a timely manner, any allegation of |
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professional misconduct or professional negligence [or misconduct] |
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that would substantially affect the integrity of the results of a |
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forensic analysis conducted by an accredited laboratory, facility, |
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or entity. |
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(a-1) On conclusion of an investigation by the commission |
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under Subsection (a)(3), the commission shall make a finding that: |
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(1) professional misconduct occurred, if: |
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(A) a person employed by the laboratory, |
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facility, or entity investigated under Subsection (a)(3), through |
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act or omission, deliberately failed to follow a generally accepted |
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standard of practice that an ordinary forensic professional or |
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entity would have exercised at the time of the forensic analysis; |
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and |
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(B) that act or omission substantially affected |
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the integrity of the results of a forensic analysis; |
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(2) professional negligence occurred, if: |
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(A) a person employed by the laboratory, |
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facility, or entity investigated under Subsection (a)(3), through |
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act or omission, negligently failed to follow a generally accepted |
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standard of practice that an ordinary forensic professional or |
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entity would have exercised at the time of the forensic analysis; |
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and |
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(B) that act or omission substantially affected |
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the integrity of the results of a forensic analysis; or |
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(3) based on the facts obtained during the |
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investigation, neither professional misconduct nor professional |
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negligence occurred. |
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(b) An investigation under Subsection (a)(3): |
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(1) must include the preparation of a written report |
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that identifies and [also] describes the methods and procedures |
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used to identify: |
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(A) the alleged professional misconduct or |
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professional negligence [or misconduct]; |
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(B) whether the commission finds under |
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Subsection (a-1) that professional misconduct or professional |
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negligence [or misconduct] occurred; and |
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(C) any corrective action required of the |
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laboratory, facility, or entity; and |
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(2) may include one or more: |
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(A) retrospective reexaminations of other |
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forensic analyses conducted by the laboratory, facility, or entity |
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that may involve the same kind of professional misconduct or |
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professional negligence [or misconduct]; [and] |
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(B) follow-up evaluations of the laboratory, |
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facility, or entity to review: |
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(i) the implementation of any corrective |
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action required under Subdivision (1)(C); or |
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(ii) the conclusion of any retrospective |
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reexamination under Paragraph (A); and |
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(C) recommendations of the commission for |
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improving the use of evidence arising from the particular |
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accredited field of forensic science investigated, including |
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recommendations on enhancing the reliability and integrity of that |
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accredited field of forensic science. |
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(f) The commission may delegate the duty to direct the |
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commission's investigative duties under this article to the general |
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counsel or another staff member of the commission. |
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SECTION 4. Article 38.01, Code of Criminal Procedure, is |
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amended by adding Sections 4A, 4B, 4C, 8, 9, 10, and 11 to read as |
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follows: |
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Sec. 4A. MEMORANDUM OF UNDERSTANDING CONCERNING |
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INVESTIGATION OF NON-DEPARTMENT LABORATORY. (a) The commission |
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shall enter into a memorandum of understanding with the director |
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specifying that: |
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(1) the commission shall direct the conduct of an |
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investigation under Section 4(a)(3) of a laboratory, facility, or |
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entity that is accredited under Section 411.0205, Government Code, |
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and was not operated by the department at the time the professional |
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misconduct or professional negligence is alleged to have occurred; |
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(2) at the request of the commission, the director |
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shall provide appropriate investigative support to the commission |
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in carrying out the investigative duties of the commission under |
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Section 4(a)(3); and |
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(3) on the conclusion of investigative activities |
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undertaken by the department at the request of the commission, the |
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director shall report all information obtained from those |
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investigative activities to the commission. |
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(b) This section and any memorandum of understanding |
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entered into under this section expire on September 1, 2017. |
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Sec. 4B. MEMORANDUM OF UNDERSTANDING CONCERNING |
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INVESTIGATION OF DEPARTMENT LABORATORY. (a) The commission may |
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enter into a memorandum of understanding with the governing board |
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of a state agency specifying that: |
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(1) the commission shall direct the conduct of an |
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investigation under Section 4(a)(3) of a laboratory, facility, or |
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entity that is accredited under Section 411.0205, Government Code, |
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and was operated by the department at the time the professional |
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misconduct or professional negligence is alleged to have occurred; |
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(2) at the request of the commission, the governing |
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board of the state agency shall provide appropriate investigative |
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support to the commission in performing an investigation of an |
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accredited laboratory, facility, or entity that was operated by the |
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department at the time the professional misconduct or professional |
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negligence is alleged to have occurred; and |
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(3) on the conclusion of investigative activities |
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undertaken by the department at the request of the commission, the |
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governing board of the state agency shall report all information |
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obtained from those investigative activities to the commission. |
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(b) This section and any memorandum of understanding |
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entered into under this section expire on September 1, 2017. |
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Sec. 4C. OTHER INVESTIGATIONS. (a) The commission may |
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investigate an allegation of professional misconduct or |
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professional negligence reported by a laboratory, facility, or |
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entity that is not accredited by the department if the laboratory, |
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facility, or entity was accredited by the department under Section |
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411.0205, Government Code, at the time the professional misconduct |
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or professional negligence is alleged to have occurred. |
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(b) The commission may investigate an allegation of |
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professional misconduct or professional negligence at a |
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laboratory, facility, or entity that is accredited under Section |
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411.0205, Government Code, if the allegation arises out of the |
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performance of a method or methodology of forensic science that is |
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not part of an accredited field of forensic science, provided that |
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the method or methodology is part of a potential accreditation |
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field of forensic science. |
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(c) The commission may not issue a finding of professional |
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misconduct or professional negligence in an investigation |
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conducted under this section. |
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(d) On conclusion of an investigation conducted under this |
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section, the commission may, based on determinations made by the |
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commission during the investigation, issue a written report about |
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the investigation that contains: |
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(1) recommendations related to developing best |
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practices and improving the use of forensic science evidence in |
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civil and criminal proceedings; and |
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(2) an assessment of whether the practice in this |
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state of a particular accredited field of forensic science or |
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potential accreditation field of forensic science meets national |
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standards and practices. |
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Sec. 8. ANNUAL REPORT. Not later than December 1 of each |
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year, the commission shall prepare and publish a report that |
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includes: |
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(1) a description of each complaint filed with the |
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commission during the preceding 12-month period, the disposition of |
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each complaint, and the status of any complaint still pending on |
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December 31; |
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(2) a description of any specific forensic method or |
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methodology the commission recommends to the director for |
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validation or approval under Section 411.0205(b-1)(2), Government |
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Code, as part of the accreditation process for crime laboratories |
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established by rule under Section 411.0205(b) of that code; |
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(3) recommendations for best practices concerning: |
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(A) the definition of "forensic analysis" |
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provided by statute or department rule; or |
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(B) potential accreditation fields of forensic |
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science; |
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(4) developments in forensic science made or used in |
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other state or federal investigations and the activities of the |
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commission, if any, with respect to those developments; and |
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(5) other information that is relevant to |
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investigations involving forensic science, as determined by the |
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presiding officer of the commission. |
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Sec. 9. REPORTS INADMISSIBLE AS EVIDENCE. A written report |
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prepared by the commission under this article is not admissible in a |
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civil or criminal action. |
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Sec. 10. ADMINISTRATIVE ATTACHMENT TO DEPARTMENT. (a) The |
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commission is administratively attached to the department. |
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(b) The department shall provide administrative assistance |
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to the commission. The director and the presiding officer of the |
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commission shall coordinate administrative responsibilities in |
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accordance with this section. |
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(c) Notwithstanding any other law, the department shall: |
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(1) provide administrative assistance, services, and |
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materials to the commission, including budget planning and |
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purchasing; |
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(2) accept, deposit, and disburse money made available |
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to the commission from any source; |
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(3) accept gifts and grants on behalf of the |
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commission from any public or private entity; |
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(4) pay the salaries and benefits of the staff of the |
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commission; |
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(5) reimburse expenses of the members of the board |
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incurred in the performance of official duties; |
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(6) apply for and receive on behalf of the commission |
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any appropriations, gifts, or other money from the state or federal |
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government or any other public or private entity, subject to |
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limitations and conditions prescribed by legislative |
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appropriation; |
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(7) provide the commission with adequate computer |
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equipment and support; and |
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(8) provide the commission with adequate office space. |
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(d) The department, at the request of the commission, shall |
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submit the commission's budget request to the legislature. |
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(e) The commission is subject to administrative rules and |
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procedures of the department to the extent applicable and |
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consistent with the duties of the commission under this article. |
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(f) Except as provided by Sections 4A and 4B: |
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(1) only the commission may exercise the duties of the |
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commission under this article; and |
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(2) the department does not have any authority or |
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responsibility with respect to the duties of the commission under |
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this article. |
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(g) This section expires September 1, 2017. |
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Sec. 11. OPEN RECORDS LIMITATION. Information that is |
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filed as part of an allegation of professional misconduct or |
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professional negligence or that is obtained during an investigation |
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of an allegation of professional misconduct or professional |
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negligence is not subject to release under Chapter 552, Government |
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Code, until the conclusion of an investigation by the commission |
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under Section 4 or 4C. |
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SECTION 5. Section 411.0205, Government Code, is amended by |
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adding Subsection (b-3) to read as follows: |
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(b-3) The director shall require that a laboratory, |
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facility, or entity that must be accredited under this section, as |
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part of the accreditation process, agree to consent to any request |
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for cooperation by the Texas Forensic Science Commission that is |
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made as part of the exercise of the commission's duties under |
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Article 38.01, Code of Criminal Procedure. |
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SECTION 6. (a) Notwithstanding any other law, the terms of |
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the current members of the Texas Forensic Science Commission expire |
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on the date that the last appointment to the commission is made |
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under Subsection (b). |
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(b) Not later than October 1, 2011: |
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(1) the governor shall appoint three members of the |
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Texas Forensic Science Commission, as required by Section 3(a)(1), |
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Article 38.01, Code of Criminal Procedure, as amended by this Act; |
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(2) the lieutenant governor shall appoint two members |
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of the Texas Forensic Science Commission, as required by Section |
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3(a)(2), Article 38.01, Code of Criminal Procedure, as amended by |
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this Act; and |
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(3) the attorney general shall appoint two members of |
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the Texas Forensic Science Commission, as required by Section |
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3(a)(3), Article 38.01, Code of Criminal Procedure, as amended by |
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this Act. |
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SECTION 7. Not later than December 1, 2012, the Texas |
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Forensic Science Commission shall submit the first annual report |
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required by Section 8, Article 38.01, Code of Criminal Procedure, |
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as added by this Act. |
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SECTION 8. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2011. |