82R5969 GCB-D

By: Hinojosa S.B. No. 1658

A BILL TO BE ENTITLED

AN ACT

relating to the membership and duties of, and the investigations conducted by, the Texas Forensic Science Commission, the administrative attachment of the Texas Forensic Science Commission to the Department of Public Safety, and the accreditation of criminal laboratories by the Department of Public Safety.

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 director 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) "Department" means the Department of Public Safety.

(4) "Director" means the public safety director of the Department of Public Safety.

(5) "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed in an accredited field of forensic science on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action.

(6) "Potential accreditation field of forensic science" means a method or methodology of forensic science identified by the commission under Section 8(2), as appropriate for validation or approval by the director 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 [, "forensic analysis" has the meaning assigned by Article 38.35(a)].

SECTION 2. Sections 3(a) and (c), Article 38.01, Code of Criminal Procedure, are amended to read as follows:

(a) The commission is composed of the following seven [nine] members:

(1) three [four] members appointed by the governor:

(A) one [two] of whom must be an expert in a potential accreditation [have expertise in the] field of forensic science, except that if the commission did not identify a potential accreditation field of forensic science in the annual report required under Section 8 for the year preceding the year in which the appointment is made under this subdivision, the member must be an expert in an accredited field of forensic science;

(B) one 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; and

(C) one 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;

(2) two [three] members appointed by the lieutenant governor, each [:

[(A) one] of whom must be an expert in an accredited field of forensic science [a faculty member or staff member of The University of Texas who specializes in clinical laboratory medicine selected from a list of 10 names submitted to the lieutenant governor by the chancellor of The University of Texas System;

[(B) one of whom must be a faculty member or staff member of Texas A&M University who specializes in clinical laboratory medicine selected from a list of 10 names submitted to the lieutenant governor by the chancellor of The Texas A&M University System;

[(C) one of whom must be a faculty member or staff member of Texas Southern University 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]; and

(3) two members appointed by the attorney general, each of whom must be an expert in an accredited field of forensic science [:

[(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

[(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 selected from a list of 10 names submitted to the lieutenant governor by the chancellor of Texas State University System].

(c) The governor shall designate a member of the commission to serve as the presiding officer. The presiding officer may appoint three nonvoting members of the commission who are experts in an accredited field of forensic science. If the presiding officer appoints any nonvoting members, the presiding officer must appoint as a nonvoting member the presiding officer of the Texas Association of Crime Lab Directors.

SECTION 3. Section 4, Article 38.01, Code of Criminal Procedure, is amended by amending Subsections (a) and (b) and adding Subsections (a-1) and (f) to read as follows:

(a) The commission shall:

(1) develop and implement a reporting system through which accredited laboratories, facilities, or entities that are not operated by the department report professional misconduct or professional negligence [or misconduct];

(2) require all laboratories, facilities, or entities that conduct forensic analyses and that are not operated by the department to report professional misconduct or professional negligence [or misconduct] to the commission; and

(3) investigate, in a timely manner, any allegation of professional misconduct or 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.

(a-1) On conclusion of an investigation by the commission under Subsection (a)(3), the commission shall make a finding that:

(1) professional misconduct occurred, if:

(A) a person employed by the laboratory, facility, or entity investigated under Subsection (a)(3), through act or omission, deliberately failed to follow a generally accepted standard of practice that an ordinary forensic professional or entity would have exercised at the time of the forensic analysis; and

(B) that act or omission substantially affected the integrity of the results of a forensic analysis;

(2) professional negligence occurred, if:

(A) a person employed by the laboratory, facility, or entity investigated under Subsection (a)(3), through act or omission, negligently failed to follow a generally accepted standard of practice that an ordinary forensic professional or entity would have exercised at the time of the forensic analysis; and

(B) that act or omission substantially affected the integrity of the results of a forensic analysis; or

(3) based on the facts obtained during the investigation, neither professional misconduct nor professional negligence occurred.

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

(1) must include the preparation of a written report that identifies and [also] describes the methods and procedures used to identify:

(A) the alleged professional misconduct or professional negligence [or misconduct];

(B) whether the commission finds under Subsection (a-1) that professional misconduct or professional 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 professional misconduct or professional 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); and

(C) recommendations of the commission for improving the use of evidence arising from the particular accredited field of forensic science investigated, including recommendations on enhancing the reliability and integrity of that accredited field of forensic science.

(f) The commission may delegate the duty to direct the commission's investigative duties under this article to the general counsel or another staff member of the commission.

SECTION 4. Article 38.01, Code of Criminal Procedure, is amended by adding Sections 4A, 4B, 4C, 8, 9, 10, and 11 to read as follows:

Sec. 4A. MEMORANDUM OF UNDERSTANDING CONCERNING INVESTIGATION OF NON-DEPARTMENT LABORATORY. (a) The commission shall enter into a memorandum of understanding with the director specifying that:

(1) the commission shall direct the conduct of an investigation under Section 4(a)(3) of a laboratory, facility, or entity that is accredited under Section 411.0205, Government Code, and was not operated by the department at the time the professional misconduct or professional negligence is alleged to have occurred;

(2) at the request of the commission, the director shall provide appropriate investigative support to the commission in carrying out the investigative duties of the commission under Section 4(a)(3); and

(3) on the conclusion of investigative activities undertaken by the department at the request of the commission, the director shall report all information obtained from those investigative activities to the commission.

(b) This section and any memorandum of understanding entered into under this section expire on September 1, 2017.

Sec. 4B. MEMORANDUM OF UNDERSTANDING CONCERNING INVESTIGATION OF DEPARTMENT LABORATORY. (a) The commission may enter into a memorandum of understanding with the governing board of a state agency specifying that:

(1) the commission shall direct the conduct of an investigation under Section 4(a)(3) of a laboratory, facility, or entity that is accredited under Section 411.0205, Government Code, and was operated by the department at the time the professional misconduct or professional negligence is alleged to have occurred;

(2) at the request of the commission, the governing board of the state agency shall provide appropriate investigative support to the commission in performing an investigation of an accredited laboratory, facility, or entity that was operated by the department at the time the professional misconduct or professional negligence is alleged to have occurred; and

(3) on the conclusion of investigative activities undertaken by the department at the request of the commission, the governing board of the state agency shall report all information obtained from those investigative activities to the commission.

(b) This section and any memorandum of understanding entered into under this section expire on September 1, 2017.

Sec. 4C. OTHER INVESTIGATIONS. (a) The commission may investigate an allegation of professional misconduct or professional negligence reported by a laboratory, facility, or entity that is not accredited by the department if the laboratory, facility, or entity was accredited by the department under Section 411.0205, Government Code, at the time the professional misconduct or professional negligence is alleged to have occurred.

(b) The commission may investigate an allegation of professional misconduct or professional negligence at a laboratory, facility, or entity that is accredited under Section 411.0205, Government Code, if the allegation arises out of the performance of a method or methodology of forensic science that is not part of an accredited field of forensic science, provided that the method or methodology is part of a potential accreditation field of forensic science.

(c) The commission may not issue a finding of professional misconduct or professional negligence in an investigation conducted under this section.

(d) On conclusion of an investigation conducted under this section, the commission may, based on determinations made by the commission during the investigation, issue a written report about the investigation that contains:

(1) recommendations related to developing best practices and improving the use of forensic science evidence in civil and criminal proceedings; and

(2) an assessment of whether the practice in this state of a particular accredited field of forensic science or potential accreditation field of forensic science meets national standards and practices.

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 director 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:

(A) the definition of "forensic analysis" provided by statute or department rule; or

(B) potential accreditation fields of forensic science;

(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. REPORTS INADMISSIBLE AS EVIDENCE. A written report prepared by the commission under this article is not admissible in a civil or criminal action.

Sec. 10. ADMINISTRATIVE ATTACHMENT TO DEPARTMENT. (a) The commission is administratively attached to the department.

(b) The department shall provide administrative assistance to the commission. The director and the presiding officer of the commission shall coordinate administrative responsibilities in accordance with this section.

(c) Notwithstanding any other law, the department shall:

(1) provide administrative assistance, services, and materials to the commission, including budget planning and purchasing;

(2) accept, deposit, and disburse money made available to the commission from any source;

(3) accept gifts and grants on behalf of the commission from any public or private entity;

(4) pay the salaries and benefits of the staff of the commission;

(5) reimburse expenses of the members of the board incurred in the performance of official duties;

(6) apply for and receive on behalf of the commission any appropriations, gifts, or other money from the state or federal government or any other public or private entity, subject to limitations and conditions prescribed by legislative appropriation;

(7) provide the commission with adequate computer equipment and support; and

(8) provide the commission with adequate office space.

(d) The department, at the request of the commission, shall submit the commission's budget request to the legislature.

(e) The commission is subject to administrative rules and procedures of the department to the extent applicable and consistent with the duties of the commission under this article.

(f) Except as provided by Sections 4A and 4B:

(1) only the commission may exercise the duties of the commission under this article; and

(2) the department does not have any authority or responsibility with respect to the duties of the commission under this article.

(g) This section expires September 1, 2017.

Sec. 11. 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 or 4C.

SECTION 5. 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 6. (a) Notwithstanding any other law, the terms of the current members of the Texas Forensic Science Commission expire on the date that the last appointment to the commission is made under Subsection (b).

(b) Not later than October 1, 2011:

(1) the governor shall appoint three members of the Texas Forensic Science Commission, as required by Section 3(a)(1), Article 38.01, Code of Criminal Procedure, as amended by this Act;

(2) the lieutenant governor shall appoint two members of the Texas Forensic Science Commission, as required by Section 3(a)(2), Article 38.01, Code of Criminal Procedure, as amended by this Act; and

(3) the attorney general shall appoint two members of the Texas Forensic Science Commission, as required by Section 3(a)(3), Article 38.01, Code of Criminal Procedure, as amended by this Act.

SECTION 7. Not later than December 1, 2012, 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 8. 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, 2011.