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SENATE ENGROSSED
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HOUSE COMMITTEE
SUBSTITUTE
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No
equivalent provision.
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SECTION 1. Section 2,
Article 38.01, Code of Criminal Procedure, is amended by amending
Subdivision (1) and adding Subdivision (5) to read as follows:
(1) "Accredited field
of forensic science" means a specific forensic method or methodology
validated or approved by the commission under this article [public
safety director of the Department of Public Safety 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].
(5) "Physical
evidence" has the meaning assigned by Article 38.35.
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SECTION 1. Section 3(a),
Article 38.01, Code of Criminal Procedure, is amended.
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SECTION 2. Same as engrossed
version.
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No
equivalent provision.
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SECTION 3. Sections 4(b) and
(b-1), Article 38.01, Code of Criminal Procedure, are amended to read as
follows:
(b) If the commission
conducts an investigation under Subsection (a)(3) of a crime laboratory
that is accredited [by the Department of Public Safety] under this
article [Section 411.0205, Government Code,] pursuant to an
allegation of professional negligence or professional misconduct involving
an accredited field of forensic science, the investigation:
(1) must include the
preparation of a written report that identifies and also describes the
methods and procedures used to identify:
(A) the alleged negligence
or misconduct;
(B) whether negligence or
misconduct occurred;
(C) any corrective action
required of the laboratory, facility, or entity;
(D) observations of the
commission regarding the integrity and reliability of the forensic analysis
conducted;
(E) best practices
identified by the commission during the course of the investigation; and
(F) other recommendations
that are relevant, as determined by the commission; 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).
(b-1) If the commission
conducts an investigation under Subsection (a)(3) of a crime laboratory
that is not accredited [by the Department of Public Safety] under this
article [Section 411.0205, Government Code,] or the
investigation is conducted pursuant to an allegation involving a forensic
method or methodology that is not an accredited field of forensic science,
the investigation may include the preparation of a written report that
contains:
(1) observations of the
commission regarding the integrity and reliability of the forensic analysis
conducted;
(2) best practices
identified by the commission during the course of the investigation; or
(3) other recommendations
that are relevant, as determined by the commission.
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SECTION 2. Article 38.01,
Code of Criminal Procedure, is amended by adding Sections 3-a, 4-a, 4-b,
and 4-c to read as follows:
Sec. 3-a. RULES. The
commission shall adopt rules necessary to implement this article.
Sec. 4-a. FORENSIC
ANALYST LICENSING. (a) Notwithstanding Section 2, in this section:
(1) "Forensic
analysis" has the meaning assigned by Article 38.35.
(2) "Forensic
analyst" means a person who on behalf of a crime laboratory accredited
by the Department of Public Safety under
Section 411.0205, Government Code, technically reviews or performs a
forensic analysis or draws conclusions from or interprets a forensic
analysis for a court or crime laboratory. The term does not include a
medical examiner or other forensic pathologist who is a licensed physician.
(b) A person may not act
or offer to act as a forensic analyst unless the person holds a forensic
analyst license. The commission by rule may establish classifications of
forensic analyst licenses if the commission determines that it is necessary
to ensure the availability of properly trained and qualified forensic analysts
to perform activities regulated by the commission.
(c) The commission by
rule may establish voluntary licensing programs for forensic disciplines
that are not subject to accreditation by
the Department of Public Safety under Section 411.0205, Government Code.
(d) The commission by
rule shall:
(1) establish the
qualifications for a license that include:
(A) successful completion
of the education requirements established by the commission;
(B) specific course work
and experience, including instruction in courtroom testimony and ethics in
a crime laboratory;
(C) successful completion
of an examination required or recognized by the commission; and
(D) successful completion
of proficiency testing to the extent required for crime laboratory accreditation;
(2) set fees for the
issuance and renewal of a license; and
(3) establish the term of
a forensic analyst license.
(e) The commission by
rule may recognize a certification issued by a national organization in an
accredited field of forensic science as satisfying the requirements
established under Subsection (d)(1)(C) to the extent the commission
determines the content required to receive the certification is
substantially equivalent to the content of the requirements under that
subsection.
(f) The commission shall
issue a license to an applicant who:
(1) submits an
application on a form prescribed by the commission;
(2) meets the
qualifications established by commission rule; and
(3) pays the required
fee.
Sec. 4-b. ADVISORY
COMMITTEE. (a) The commission shall establish an advisory committee to
advise the commission and make recommendations on matters related to the
licensing of forensic analysts under Section 4-a.
(b) The advisory
committee consists of nine members as follows:
(1) one prosecuting
attorney recommended by the Texas District and County Attorneys
Association;
(2) one defense attorney
recommended by the Texas Criminal Defense Lawyers Association; and
(3) seven members who are
forensic scientists, crime laboratory directors, or crime laboratory
quality managers, selected by the commission from a list of 20 names
submitted by the Texas Association of Crime Laboratory Directors.
(c) The commission shall
ensure that appointments under Subsection (b)(3) include representation
from municipal, county, state, and private crime laboratories that are
accredited by the Department of Public
Safety under Section 411.0205, Government Code.
(d) The advisory
committee members serve staggered two-year terms, with the terms of four or
five members, as appropriate, expiring on August 31 of each year. An
advisory committee member may not serve more than two consecutive terms. A
vacancy on the advisory committee is filled by appointing a member in the
same manner as the original appointment to serve for the unexpired portion
of the term.
(e) The advisory
committee shall elect a presiding officer from among its members to serve a
one-year term. A member may serve more than one term as presiding officer.
(f) The advisory
committee shall meet annually and at the call of the presiding officer or
the commission.
(g) An advisory committee
member is not entitled to compensation. A member is entitled to
reimbursement for actual and necessary expenses incurred in performing
duties as a member of the advisory committee subject to the General
Appropriations Act.
(h) Chapter 2110,
Government Code, does not apply to the advisory committee.
Sec. 4-c. DISCIPLINARY
ACTION. (a) On a determination by the commission that a license holder
has committed professional misconduct under this article or violated this
article or a rule or order of the commission under this article, the
commission may:
(1) revoke or suspend the
person's license;
(2) refuse to renew the
person's license; or
(3) reprimand the license
holder.
(b) The commission may
place on probation a person whose license is suspended. If a license
suspension is probated, the commission may require the license holder to:
(1) report regularly to
the commission on matters that are the basis of the probation; or
(2) continue or review
continuing professional education until the license holder attains a degree
of skill satisfactory to the commission in those areas that are the basis
of the probation.
(c) Disciplinary
proceedings of the commission are governed by Chapter 2001, Government
Code.
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SECTION 4. Article 38.01,
Code of Criminal Procedure, is amended by adding Sections 3-a, 4-a, 4-b,
and 4-c to read as follows:
Sec. 3-a. RULES. The
commission shall adopt rules necessary to implement this article.
Sec. 4-a. FORENSIC
ANALYST LICENSING. (a) Notwithstanding Section 2, in this section:
(1) "Forensic
analysis" has the meaning assigned by Article 38.35.
(2) "Forensic
analyst" means a person who on behalf of a crime laboratory accredited
under this article technically
reviews or performs a forensic analysis or draws conclusions from or
interprets a forensic analysis for a court or crime laboratory. The term
does not include a medical examiner or other forensic pathologist who is a
licensed physician.
(b) A person may not act
or offer to act as a forensic analyst unless the person holds a forensic
analyst license. The commission by rule may establish classifications of
forensic analyst licenses if the commission determines that it is necessary
to ensure the availability of properly trained and qualified forensic
analysts to perform activities regulated by the commission.
(c) The commission by
rule may establish voluntary licensing programs for forensic disciplines
that are not subject to accreditation under
this article.
(d) The commission by
rule shall:
(1) establish the
qualifications for a license that include:
(A) successful completion
of the education requirements established by the commission;
(B) specific course work
and experience, including instruction in courtroom testimony and ethics in
a crime laboratory;
(C) successful completion
of an examination required or recognized by the commission; and
(D) successful completion
of proficiency testing to the extent required for crime laboratory
accreditation;
(2) set fees for the
issuance and renewal of a license; and
(3) establish the term of
a forensic analyst license.
(e) The commission by
rule may recognize a certification issued by a national organization in an
accredited field of forensic science as satisfying the requirements
established under Subsection (d)(1)(C) to the extent the commission
determines the content required to receive the certification is
substantially equivalent to the content of the requirements under that subsection.
(f) The commission shall
issue a license to an applicant who:
(1) submits an
application on a form prescribed by the commission;
(2) meets the
qualifications established by commission rule; and
(3) pays the required
fee.
Sec. 4-b. ADVISORY COMMITTEE.
(a) The commission shall establish an advisory committee to advise the
commission and make recommendations on matters related to the licensing of
forensic analysts under Section 4-a.
(b) The advisory
committee consists of nine members as follows:
(1) one prosecuting
attorney recommended by the Texas District and County Attorneys
Association;
(2) one defense attorney
recommended by the Texas Criminal Defense Lawyers Association; and
(3) seven members who are
forensic scientists, crime laboratory directors, or crime laboratory
quality managers, selected by the commission from a list of 20 names
submitted by the Texas Association of Crime Laboratory Directors.
(c) The commission shall
ensure that appointments under Subsection (b)(3) include representation
from municipal, county, state, and private crime laboratories that are
accredited under this article.
(d) The advisory
committee members serve staggered two-year terms, with the terms of four or
five members, as appropriate, expiring on August 31 of each year. An
advisory committee member may not serve more than two consecutive terms. A
vacancy on the advisory committee is filled by appointing a member in the
same manner as the original appointment to serve for the unexpired portion
of the term.
(e) The advisory
committee shall elect a presiding officer from among its members to serve a
one-year term. A member may serve more than one term as presiding officer.
(f) The advisory
committee shall meet annually and at the call of the presiding officer or
the commission.
(g) An advisory committee
member is not entitled to compensation. A member is entitled to
reimbursement for actual and necessary expenses incurred in performing
duties as a member of the advisory committee subject to the General Appropriations
Act.
(h) Chapter 2110,
Government Code, does not apply to the advisory committee.
Sec. 4-c. DISCIPLINARY
ACTION. (a) On a determination by the commission that a license holder
has committed professional misconduct under this article or violated this
article or a rule or order of the commission under this article, the
commission may:
(1) revoke or suspend the
person's license;
(2) refuse to renew the
person's license; or
(3) reprimand the license
holder.
(b) The commission may
place on probation a person whose license is suspended. If a license
suspension is probated, the commission may require the license holder to:
(1) report regularly to
the commission on matters that are the basis of the probation; or
(2) continue or review
continuing professional education until the license holder attains a degree
of skill satisfactory to the commission in those areas that are the basis
of the probation.
(c) Disciplinary
proceedings of the commission are governed by Chapter 2001, Government
Code. A hearing under this section shall
be conducted by an administrative law judge of the State Office of
Administrative Hearings.
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SECTION 3. Section 9,
Article 38.01, Code of Criminal Procedure, is amended to read as follows:
Sec. 9. ADMINISTRATIVE
ATTACHMENT TO DEPARTMENT OF PUBLIC SAFETY [SAM HOUSTON STATE
UNIVERSITY]. (a) The commission is administratively attached to the
Department of Public Safety [Sam Houston State University].
(b) The Department of
Public Safety [Board of Regents of the Texas State University System]
shall provide administrative support to the commission as necessary to
carry out the purposes of this article.
(c) Only the commission may
exercise the duties of the commission under this article. Except as
provided by Subsection (b), the Department of Public Safety [neither
the Board of Regents of the Texas State University System nor Sam Houston
State University] has no [any] authority or
responsibility with respect to the duties of the commission under this
article.
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No
equivalent provision.
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No
equivalent provision.
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SECTION 5. Section 411.0205,
Government Code, is transferred to Chapter 38, Code of Criminal Procedure,
redesignated as Section 4-d, Article 38.01, Code of Criminal Procedure, and
amended to read as follows:
Sec. 4-d [411.0205].
CRIME LABORATORY ACCREDITATION PROCESS. (a) Notwithstanding Section 2,
in this section [In this section, "crime laboratory,"]
"forensic analysis" has the meaning [analysis,"
and "physical evidence" have the meanings] assigned by
Article 38.35 [, Code of Criminal Procedure].
(b) The commission [director]
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; and
(2) may modify or remove a
crime laboratory exemption under this section if the commission [director]
determines that the underlying reason for the exemption no longer
applies.
(b-1) As part of the
accreditation process established and implemented under Subsection (b), the
commission [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
article and applicable laws [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.
(b-2) The commission
[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.
(b-3) A [The
director shall require that a] laboratory, facility, or entity that
must be accredited under this section shall, as part of the
accreditation process, agree to consent to any request for cooperation by
the commission [Texas Forensic Science Commission] that is
made as part of the exercise of the commission's duties under this
article [Article 38.01, Code of Criminal Procedure].
(c) The commission [director]
by rule may exempt from the accreditation process established under
Subsection (b) a crime laboratory conducting a forensic analysis or a type
of analysis, examination, or test if the commission [director]
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
director] under Subsection (b).
(d) The commission [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.
(e) The commission [director]
may collect costs incurred under this section for accrediting, inspecting,
or auditing a crime laboratory.
(f) If the commission
[director] provides a copy of an audit or other report made under
this section, the commission [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.
[(g) Funds collected
under this section shall be deposited in the state treasury to the credit
of the state highway fund, and money deposited to the state highway fund
under this section may be used only to defray the cost of administering
this section or Subchapter G.]
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No
equivalent provision.
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SECTION 6. Section 8,
Article 38.01, Code of Criminal Procedure, is amended to read as follows:
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 designates [recommends
to the public safety director of the Department of Public Safety 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 this article [Section 411.0205(b) of that code];
(3) recommendations for best
practices concerning the definition of "forensic analysis" provided
by statute or by rule [of the Department of Public Safety];
(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.
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No
equivalent provision.
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SECTION 7. Articles
38.35(a)(3) and (4), Code of Criminal Procedure, are amended to read as
follows:
(3) "Commission"
["Director"] means the Texas Forensic Science
Commission established under Article 38.01 [public safety director
of the Department of Public Safety].
(4) "Forensic
analysis" means a medical, chemical, toxicologic, ballistic, or other expert
examination or test performed on physical evidence, including DNA evidence,
for the purpose of determining the connection of the evidence to a criminal
action. The term includes an examination or test requested by a law
enforcement agency, prosecutor, criminal suspect or defendant, or court.
The term does not include:
(A) latent print
examination;
(B) a test of a specimen of
breath under Chapter 724, Transportation Code;
(C) digital evidence;
(D) an examination or test
excluded by rule under Article 38.01 [Section 411.0205(c),
Government Code];
(E) a presumptive test
performed for the purpose of determining compliance with a term or
condition of community supervision or parole and conducted by or under
contract with a community supervision and corrections department, the
parole division of the Texas Department of Criminal Justice, or the Board
of Pardons and Paroles; or
(F) an expert examination or
test conducted principally for the purpose of scientific research, medical
practice, civil or administrative litigation, or other purpose unrelated to
determining the connection of physical evidence to a criminal action.
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No
equivalent provision.
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SECTION 8. Articles 38.35(d)
and (e), Code of Criminal Procedure, are amended to read as follows:
(d)(1) Except as provided by
Subsection (e), a forensic analysis of physical evidence under this article
and expert testimony relating to the evidence are not admissible in a
criminal action if, at the time of the analysis, the crime laboratory
conducting the analysis was not accredited by the commission [director]
under Article 38.01 [Section 411.0205, Government Code].
(2) If before the date of
the analysis the commission [director] issues a certificate
of accreditation under Article 38.01 [Section 411.0205, Government
Code,] to a crime laboratory conducting the analysis, the certificate
is prima facie evidence that the laboratory was accredited by the commission
[director] at the time of the analysis.
(e) A forensic analysis of
physical evidence under this article and expert testimony relating to the
evidence are not inadmissible in a criminal action based solely on the
accreditation status of the crime laboratory conducting the analysis if the
laboratory:
(A) except for making proper
application, was eligible for accreditation by the commission [director]
at the time of the examination or test; and
(B) obtains accreditation
from the commission [director] before the time of testimony
about the examination or test.
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No
equivalent provision.
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SECTION 9. Articles 38.43(i)
and (m), Code of Criminal Procedure, are amended to read as follows:
(i) Before a defendant is
tried for a capital offense in which the state is seeking the death
penalty, subject to Subsection (j), the state shall require either the
Department of Public Safety through one of its laboratories or a laboratory
accredited under Article 38.01 [Section 411.0205, Government
Code,] to perform DNA testing, in accordance with the laboratory's
capabilities at the time the testing is performed, on any biological
evidence that was collected as part of an investigation of the offense and
is in the possession of the state. The laboratory that performs the DNA
testing shall pay for all DNA testing performed in accordance with this
subsection.
(m) A defendant may have
another laboratory accredited under Article 38.01 [Section
411.0205, Government Code,] perform additional testing of any
biological evidence required to be tested under Subsection (i). On an ex
parte showing of good cause to the court, a defendant may have a laboratory
accredited under Article 38.01 [Section 411.0205, Government
Code,] perform testing of any biological material that is not required
to be tested under Subsection (i). The defendant is responsible for the
cost of any testing performed under this subsection.
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No
equivalent provision.
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SECTION 10. Article
64.03(c), Code of Criminal Procedure, is amended to read as follows:
(c) If the convicting court
finds in the affirmative the issues listed in Subsection (a)(1) and the
convicted person meets the requirements of Subsection (a)(2), the court
shall order that the requested forensic DNA testing be conducted. The
court may order the test to be conducted by:
(1) the Department of Public
Safety;
(2) a laboratory operating
under a contract with the department; or
(3) on the request of the
convicted person, another laboratory if that laboratory is accredited under
Article 38.01 [Section 411.0205, Government Code].
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No
equivalent provision.
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SECTION 11. Section
411.145(c), Government Code, is amended to read as follows:
(c) A fee collected under
this section shall be deposited in the state treasury to the credit of the
state highway fund, and money deposited to the state highway fund under
this section and under Articles 42.12 and 102.020(h), Code of Criminal
Procedure, may be used only to defray the cost of administering this
subchapter [and Section 411.0205].
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No
equivalent provision.
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SECTION 12. Section
420.003(1), Government Code, is amended to read as follows:
(1) "Accredited crime
laboratory" means a crime laboratory, as that term is defined by
Article 38.35, Code of Criminal Procedure, that has been accredited under Article
38.01 of that code [Section 411.0205].
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No
equivalent provision.
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SECTION 13. On the effective
date of this Act:
(1) a certificate of
accreditation issued by the Department of Public Safety under former
Section 411.0205, Government Code, is continued in effect as a certificate
of accreditation of the Texas Forensic Science Commission; and
(2) an application or
proceeding before the Department of Public Safety under former Section
411.0205, Government Code, that is pending on the effective date of this
Act is transferred without change in status to the Texas Forensic Science
Commission.
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SECTION 4. Not later than
January 1, 2016, the Texas Forensic Science Commission shall appoint the
members of the advisory committee in accordance with Section 4-b, Article
38.01, Code of Criminal Procedure, as added by this Act. In making the
appointments, the commission shall designate:
(1) four members to serve
terms expiring August 31, 2016; and
(2) five members to serve
terms expiring August 31, 2017.
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SECTION 14. Same as engrossed
version.
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SECTION 5. Not later than
January 1, 2017, the Texas Forensic Science Commission shall make
recommendations to the legislature regarding suggested changes to the
licensing of forensic analysts as established by this Act, including
recommendations regarding the issuance of licenses to individuals
practicing as forensic analysts on the effective date of this Act.
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SECTION 15. Same as engrossed
version.
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SECTION 6. (a) Except as
provided by Subsection (b) of this section, this Act takes effect September
1, 2015.
(b) Section 4-a(b), Article
38.01, Code of Criminal Procedure, as added by this Act, takes effect
January 1, 2019.
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SECTION 16. Same as engrossed
version.
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