TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 15. TEXAS FORENSIC SCIENCE COMMISSION

CHAPTER 651. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §§651.201 - 651.218

The Texas Forensic Science Commission ("Commission") proposes new Subchapter C, consisting of §§651.201 - 651.218, in 37 Tex. Admin. Code Chapter 651. The proposed new sections relate to the Commission's newly-created Forensic Analyst Licensing Program and reflect adoptions made by the Commission at its May 26, 2017, August 18, 2017, and November 3, 2017, quarterly meetings in accordance with Article 38.01 §4-a, Code of Criminal Procedure.

Fiscal Note. The Commission has determined that for each year of the first five years the proposed rules will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There will be no anticipated effect on local employment or the local economy as a result of the proposal.

Public Benefit/Cost Note. The Commission has also determined that for each year of the first five years the proposed rules are in effect, the anticipated public benefit will be accurate and updated rules related to the Commission's forensic analyst licensing program.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), the Commission has determined that the proposed rules will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any small or micro business.

Takings Impact Assessment. The Commission has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period the rules are in effect, implementation of the proposal will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or Leigh.savage@fsc.texas.gov. Comments must be received by January 18, 2017, to be considered by the Commission.

Statutory Authority. The new rules are proposed under Article 38.01 §4-a, Code of Criminal Procedure.

Cross reference to statute. The proposal affects 37 Tex. Admin. Code Chapter 651.

§651.201.Purpose.

(a) Generally. This subchapter contains the Texas Forensic Science Commission (Commission) rules adopted under Article 38.01 §4-a, Code of Criminal Procedure, that govern:

(1) the Commission's forensic analyst licensing program; and

(2) the licensing of an individual forensic analyst by the Commission.

(b) Licensing sequence. To be licensed by the Commission under this subchapter, a forensic analyst must first be employed by a crime laboratory accredited by the Commission with the exception of §651.210 or §651.211 of this subchapter.

(c) Source of evidence predicate. Under Article 38.01 §4-a(b), Code of Criminal Procedure, a person may not act or offer to act as a forensic analyst unless the person holds a Forensic Analyst License, effective January 1, 2019.

§651.202.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Forensic analyst--means a person who on behalf of a crime laboratory accredited under Article 38.01 §4-d, Code of Criminal Procedure, 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.

(2) Forensic analysis--has the meaning assigned by Article 38.35, Code of Criminal Procedure. 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, Code of Criminal Procedure;

(E) a presumptive test performed for the purposes 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;

(3) Forensic pathology--includes that portion of an autopsy conducted by a medical examiner or other forensic pathologist who is a licensed physician.

(4) Accredited laboratory--includes a public or private laboratory or other entity that conducts forensic analysis as defined in Article 38.35, Code of Criminal Procedure and is accredited by a national accrediting body recognized by the Commission and listed in §651.4 of this title.

(5) Physical evidence--has the meaning assigned by Article 38.35, Code of Criminal Procedure.

(6) Accredited university--a college or university accredited by a national accrediting body recognized by the United States Department of Education.

(7) Professional Misconduct--professional misconduct means the actor, through a material act or omission, deliberately failed to follow the standard of practice generally accepted at the time of the forensic analysis that an ordinary forensic professional or entity would have exercised, and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was deliberate if the actor was aware of and consciously disregarded an accepted standard of practice required for a forensic analysis.

§651.203.Forensic Disciplines and Procedures Subject to Commission Licensing.

(a) Forensic analysis/recognized accreditation. This section describes a discipline or category of analysis that involves forensic analysis for use in a criminal proceeding and for which accreditation by an accrediting body recognized by the Commission is required by Article 38.01, Code of Criminal Procedure.

(b) By discipline or category of analysis. An individual may apply to the Commission for a Forensic Analyst License for one or more of the following disciplines:

(1) Seized Drugs. Categories of analysis may include one or more of the following categories: qualitative determination, quantitative measurement, weight measurement, and volume measurement;

(2) Toxicology. Categories of analysis may include one or more of the following categories: qualitative determination and quantitative measurement;

(3) Toxicology Technician. An individual who performs basic analytical functions but does not evaluate data, reach conclusions or sign any report for court or investigative purposes shall be considered a toxicology technician and may apply for a Forensic Analyst License limited to the toxicology technician category of analysis. A toxicology technician must comply with the licensing requirements for a Forensic Analyst License limited to the toxicology technician category of analysis set forth in this subchapter.

(4) Forensic Biology. Categories of analysis may include one or more of the following categories: collection, DNA-STR, DNA-YSTR, DNA-Mitochondrial, DNA-SNP, body fluid identification, relationship testing, microbiology, individual characteristic database, and nucleic acids other than human DNA;

(A) An individual whose work is limited to body fluid identification including biology screening/serology may apply for a Forensic Analyst License limited to forensic biology screening and shall comply with the licensing requirements for a Forensic Analyst License limited to forensic biology screening as set forth in this subchapter.

(B) An individual whose work is limited to analysis of nucleic acids other than human DNA may apply for a Forensic Analyst License limited to analysis of nucleic acids other than human DNA and shall comply with the licensing requirements for a Forensic Analyst License limited to nucleic acids other than human DNA as set forth in this subchapter.

(C) An individual who performs work in any of the other forensic biology categories of analysis set forth in this subsection shall be considered a DNA analyst and shall comply with the licensing requirements for a Forensic Analyst License in DNA analysis set forth in this subchapter.

(5) Firearms/Toolmarks. Categories of analysis may include one or more of the following categories: collection, physical comparison, determination of functionality, length measurement, trigger pull force measurement, qualitative chemical determination, distance determination, ejection pattern determination, trajectory determination, product (make/model) determination, and individual characteristic database;

(A) An individual who acts solely in a supporting role to a firearm/toolmark analyst who conducts firearm function testing, evaluates firearm-related evidence for NIBIN suitability, and performs NIBIN entries following standard acquisition protocols established by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives shall be considered a firearm/toolmark technician and may apply for a Forensic Analyst License limited to firearm/toolmark technician. A firearm/toolmark technician must comply with the licensing requirements for a Forensic Analyst License limited to firearm/toolmark technician as set forth in this subchapter.

(B) An individual who performs work in any of the other categories of analysis set forth in this subsection shall be considered a firearm/toolmark analyst and shall comply with the licensing requirements for a Forensic Analyst License for firearm/toolmark analysis set forth in this subchapter.

(6) Document Examination. Categories of analysis may include one or more of the following categories: document authentication, physical comparison, and product determination;

(7) Materials (Trace). Categories of analysis may include one or more of the following categories: collection, physical determination, chemical determination, physical/chemical comparison, product (make/model) determination, gunshot residue (collection and qualitative determination), footwear and tire tread (collection, enhancement, physical comparison and product (make/model) determination), and fire debris and explosives (qualitative determination); or

(8) Other discipline and its related categories of analysis if accredited by a recognized accrediting body and the Commission.

(c) Cross-disciplines and categories of analysis. A laboratory may choose to assign a particular category of analysis to a different administrative section or unit in the laboratory than the administrative section or unit designated in this section.

§651.204.Forensic Disciplines and Procedures to Which the Commission Licensing Requirement Does Not Apply by Statute.

This section describes a discipline, category of analysis, or procedure that is excluded from the definition of forensic analysis or otherwise expressly exempted from accreditation by Article 38.35, Code of Criminal Procedure. No license is currently required for the following disciplines:

(1) latent print examination;

(2) breath specimen testing under Transportation Code, Chapter 724;

(3) digital evidence (including but not limited to computer forensics, audio, or imaging);

(4) an examination or test excluded by rule under Article 38.01 §4-d(c), Code of Criminal Procedure and set forth in Chapter 651, Subchapter A of this title;

(5) a presumptive test performed for the purposes 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;

(6) 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; or

(7) the portion of an autopsy conducted by a medical examiner or other forensic pathologist who is a licensed physician.

§651.205.Forensic Disciplines and Procedures Exempt from the Commission Licensing Requirement by Administrative Rule.

(a) The Commission has exempted the following categories of forensic analysis from the accreditation requirement by administrative rule and thus the licensing requirement does not apply to the following:

(1) sexual assault examination of a person;

(2) forensic anthropology, entomology, or botany;

(3) environmental testing;

(4) facial or traffic accident reconstruction;

(5) serial number restoration;

(6) polygraph examination;

(7) voice stress, voiceprint, or similar voice analysis;

(8) statement analysis;

(9) forensic odontology for purposes of human identification or age assessment;

(10) testing and/or screening conducted for sexually transmitted diseases;

(11) fire scene investigation, including but not limited to cause and origin determinations; or

(12) other discipline or category of analysis as determined by the Commission.

(b) This subsection describes a discipline, category of analysis, or procedure that does not normally involve forensic analysis of physical evidence for use in a criminal proceeding and for which recognized accreditation is inappropriate or unavailable. Accordingly, a Forensic Analyst License is not required for the following:

(1) forensic photography;

(2) non-criminal paternity testing;

(3) non-criminal testing of human or nonhuman blood, urine, or tissue;

(4) a crime scene investigation team (whether or not associated with an accredited laboratory) if the team does not engage in forensic analysis because it only engages in the location, identification, collection or preservation of physical evidence and the activity is not integral to an expert examination or test;

(5) forensic psychology, including profiling, memory analysis and other forms of forensic psychology;

(6) other evidence processing or handling that is excluded under §651.2(2) of this title (relating to Definitions); or

(7) other discipline or category of analysis as so determined by the Commission.

§651.206.Exemptions from Commission Licensing Requirement for Support Personnel.

(a) Non-proficiency tested laboratory personnel exemption.

(1) An individual who performs only support functions that do not require participation in proficiency testing in accordance with the laboratory's accrediting body requirements is not required to obtain a Forensic Analyst License.

(b) Limited Exemption from Licensing Requirement for Laboratory Personnel who are proficiency tested but perform only support functions.

(1) A laboratory may apply to the Commission for an exemption from the licensing requirement on behalf of its personnel who may be subject to accrediting body proficiency testing requirements, but perform only support functions so limited in nature (e.g., aliquoting) as to render the licensing requirement overly burdensome and impractical for those employees.

(2) The Commission's Presiding Officer or Designee shall make a determination as to the applicability of the exemption under this section on a case-by-case basis and based on the description in paragraph (1) of this subsection.

(c) An individual who technically reviews or draws conclusions from or interprets forensic analysis must obtain a Forensic Analyst License regardless of whether the individual is required to be proficiency tested by the laboratory's accrediting body.

§651.207.Forensic Analyst License Requirements Including License Term, Fee, and Procedure for Denial of Initial Application or Renewal Application and Reconsideration.

(a) Issuance. The Commission may issue an individual's Forensic Analyst License under this section.

(b) Application. Before being issued a Forensic Analyst License, an applicant shall:

(1) demonstrate that he or she meets the definition of Forensic Analyst set forth in §651.202(1) of this subchapter;

(2) complete and submit to the Commission a current Forensic Analyst License Application form;

(3) pay the required fee(s) as applicable:

(A) Initial Application fee of $120 ($75 for Firearms Technicians and Toxicology Technicians);

(B) Annual fee of $100 due in June of each year after the initial application fee is paid ($50 for Firearms Technicians and Toxicology Technicians);

(C) Temporary License fee of $75;

(D) Provisional License fee of $100; or

(E) License Reinstatement Fee of $120; and

(4) provide documentation that he or she has satisfied all applicable requirements set forth under this section.

(c) Minimum Education Requirements.

(1) Seized Drugs. An applicant for a Forensic Analyst License in seized drugs must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(2) Toxicology. An applicant for a Forensic Analyst License in toxicology must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(3) Toxicology Technician. An applicant for a Forensic Analyst License limited to the toxicology technician category of analysis must have a minimum of an associate's degree or equivalent.

(4) Forensic Biology (DNA Analyst, Forensic Biology Screener, or Analysis of Nucleic Acids other than Human DNA). An applicant for a Forensic Analyst License in DNA analysis, forensic biology screening or non-human DNA analysis must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(5) Firearm/Toolmark Analyst. An applicant for a Forensic Analyst License in firearm/toolmark analysis must have a high school diploma or equivalent degree or higher (i.e., baccalaureate or advanced degree) if the application is submitted before January 1, 2019. If the application is submitted after January 1, 2019, an applicant for a Forensic Analyst License in firearm/toolmark analysis must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university

(6) Firearm/Toolmark Technician. An applicant for a Forensic Analyst License limited to firearm/toolmark technician must have a minimum of a high school diploma or equivalent degree.

(7) Document Examination. An applicant for a Forensic Analyst License in document examination must have a high school diploma or equivalent degree or higher (i.e., baccalaureate or advanced degree) if the application is submitted before January 1, 2019. If the application is submitted after January 1, 2019, an applicant for a Forensic Analyst License in document examination must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(8) Materials (Trace). An applicant for a Forensic Analyst License in materials (trace) must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(9) If an applicant does not meet the minimum education qualifications outlined in this section, the procedure in subsection (j) of this section applies.

(d) Specific Coursework Requirements.

(1) Seized Drugs. An applicant for a Forensic Analyst License in seized drugs must satisfy the specific coursework requirements of the laboratory's accrediting body if the application is submitted before January 1, 2019. If the application is submitted after January 1, 2019, an applicant for a Forensic Analyst License in seized drugs must have a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university. In addition to the chemistry coursework, an applicant who submits his or her application after January 1, 2019 must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(2) Toxicology or Toxicology Technician. An applicant for a Forensic Analyst License in toxicology or the toxicology technician category of analysis must satisfy the specific coursework requirements of the laboratory's accrediting body if the application is submitted before January 1, 2019. If the application is submitted after January 1, 2019, an applicant for a Forensic Analyst License in toxicology or the toxicology technician category of analysis must fulfill required courses as appropriate to the analyst's role and training program as described in the categories below:

(A) Toxicology Technician. An individual who performs basic analytical functions but does not evaluate data, reach conclusions or sign any report for court or investigative purposes is not required to complete any supplemental specific coursework requirements.

(B) Toxicology Analyst. A toxicology analyst who conducts, directs or reviews the analysis of forensic toxicology samples, evaluates data, reaches conclusions and may sign a report for court or investigative purposes, but does not provide interpretive opinions must complete sixteen-semester credit hours (or equivalent) in college-level general and organic chemistry and two three-semester credit hour (or equivalent) college-level courses in analytical chemistry and/or interpretive science courses that may include Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science, Spectroscopic Analysis, Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology.

(C) Toxicologist (Alcohol). A toxicology analyst who provides interpretive opinions related to the results of the toxicological tests for court or investigative purposes, specific to alcohol testing must complete sixteen-semester credit hours (or equivalent) in college-level general and organic chemistry, one three-semester credit hour (or equivalent) college-level course in analytical chemistry (Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science or Spectroscopic Analysis) and one three-semester credit hour (or equivalent) college-level course in interpretive science (Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology).

(D) Toxicologist (General). A toxicology analyst who provides interpretive opinions related to the results of toxicological tests for court or investigative purposes must complete sixteen-semester credit hours (or equivalent) in college-level general and organic chemistry, one three-semester credit hour course in college-level analytical chemistry (Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science or Spectroscopic Analysis) and two three-semester credit hour (or equivalent) college-level courses in interpretive science (Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology).

(E) An applicant for a toxicology license for any of the categories outlined in subparagraphs (B) - (D) of this paragraph who submits his or her application after January 1, 2019 must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(3) Forensic Biology: DNA Analyst. An applicant for a Forensic Analyst License in DNA analysis must demonstrate he/she has fulfilled the specific requirements of the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing effective September 1, 2011. If the application is submitted after January 1, 2019, the applicant must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(A) Biology screeners and analysts of nucleic acids other than human DNA are not required to fulfill the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing.

(B) An applicant for a Forensic Analyst license limited to biology screening or nucleic acids other than human DNA applying after January 1, 2019 must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or program approved by the Commission in addition to fulfilling the minimum education requirements for a Forensic Analyst License listed in this section.

(4) Firearm/Toolmark Analyst. If the application is submitted after January 1, 2019, the applicant must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. No other specific college-level coursework is required.

(5) Firearm Technician. There are no college-level coursework requirements for an examiner whose application is limited to a firearm technician license.

(6) Document Examination. If the application is submitted after January 1, 2019, the applicant must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. No other specific college-level coursework is required.

(7) Materials (Trace). An applicant for a Forensic Analyst License in materials (trace) must satisfy the specific coursework requirements of the laboratory's accrediting body if the application is submitted before January 1, 2019. If the application is submitted after January 1, 2019, an applicant for a Forensic Analyst License in materials (trace) for one or more of the chemical analysis categories of analysis (chemical determination, physical/chemical comparison, gunshot residue (collection and qualitative determination), and fire debris and explosives (qualitative determination)) must have a minimum of sixteen-semester credit hour (or equivalent) in college-level chemistry coursework above general coursework from an accredited university. In addition to chemistry coursework, an applicant who submits his or her application after January 1, 2019 must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(e) Requirements Specific to Forensic Science Degree Programs. For a forensic science degree to meet the Minimum Education Requirements set forth in this section, the forensic science degree program must be either accredited by the Forensic Science Education Programs Accreditation Commission (FEPAC) or if not accredited by FEPAC, it must meet the minimum curriculum requirements pertaining to natural science core courses and specialized science courses set forth in the FEPAC Accreditation Standards.

(f) General Forensic Analyst Licensing Exam Requirement.

(1) Exam Requirement. An applicant for a Forensic Analyst License must pass the General Forensic Analyst Licensing Exam administered by the Commission.

(A) An applicant is only required to take and pass the General Forensic Analyst Licensing Exam one time.

(B) An applicant may take the General Forensic Analyst Licensing Exam up to three times.

(C) If an applicant fails the General Forensic Analyst Licensing Exam three times, the applicant may apply to the Commission for special dispensation to take the exam again. Upon approval by the Commission, the applicant may sit for the exam more than three times.

(2) Modified General Forensic Analyst Licensing Exam. A firearm/toolmark technician or a toxicology technician may fulfill the General Forensic Analyst Licensing Exam requirement by taking a modified exam administered by the Commission.

(g) Knowledge-based Competency Requirements.

(1) An applicant must obtain written certification from his or her laboratory's authorized representative that the applicant has been sufficiently trained in all applicable knowledge-based competency subject areas set forth by the Commission in the particular forensic discipline for which the applicant is applying for a Forensic Analyst License, as well as successfully passed any applicable competency test(s) prior to performing testing on a test item or performing specific tasks that create items that could be used for testing. The competency test(s) shall, at a minimum, include practical examination(s) that cover the spectrum of anticipated work to be performed and, if applicable, issuing a test report and providing testimony.

(2) A signed certification by the laboratory's authorized representative that the applicant has satisfied the knowledge-based competency requirements must be provided on the Knowledge-based Competency Requirements Certification form provided by the Commission.

(h) Proficiency Testing Requirement.

(1) An applicant must be routinely proficiency-tested in accordance with and on the timeline set forth by the laboratory's accrediting body proficiency testing requirements.

(2) A signed certification by the laboratory's authorized representative that the applicant has satisfied the applicable proficiency testing requirements of the laboratory's accrediting body as of the date of the analyst's application must be provided on the Proficiency Testing Certification form provided by the Commission. For applicants not yet required to be proficiency tested pursuant to the timeline set forth by the accrediting body, the laboratory's authorized representative shall so certify on the form provided by the Commission.

(i) License Term and Fee.

(1) A Forensic Analyst License shall expire on the applicant's birthdate on the second year after the license is issued.

(2) Application Fee. An applicant or licensee shall pay the following fee(s):

(A) Initial Application fee of $120 ($75 for Firearms Technicians and Toxicology Technicians);

(B) Annual fee of $100 due in June of each year after the initial application fee is paid ($50 for Firearms Technicians and Toxicology Technicians);

(C) Temporary License fee of $75;

(D) Provisional License fee of $100; or

(E) License Reinstatement Fee of $120.

(j) Procedure for Denial of Initial Application or Renewal Application and Reconsideration.

(1) Application Review. The Commission Presiding Officer ("CPO") or Designee must review each initial application or renewal application and determine whether the applicant meets the qualifications and requirements set forth in this subchapter. If a person who has applied for a Forensic Analyst License does not meet the qualifications or requirements set forth in this subchapter and has submitted a complete application, the CPO or Designee must consult with members of the Licensing Advisory Committee before denying the application.

(2) Denial of Application. The Commission, through its CPO or Designee, may deny an initial or renewal application if the applicant fails to meet any of the qualifications or requirements set forth in this subchapter.

(3) Notice of Denial. The Commission, through its CPO or Designee, shall provide the applicant a written statement of the reason(s) for denial of the initial or renewal application.

(4) Request for Reconsideration. Within twenty (20) days of the date of the notice that the Commission has denied the application, the applicant may request that the Commission reconsider the denial. The request must be in writing, identify each point or matter about which reconsideration is requested, and set forth the grounds for the request for reconsideration.

(5) Reconsideration Procedure. The Commission must consider a request for reconsideration at its next meeting where the applicant may appear and present testimony.

(6) Commission Action on Request. After reconsidering its decision, the Commission may either affirm or reverse its original decision.

(7) Final Decision. The Commission, through its CPO or Designee, must notify the applicant in writing of its decision on reconsideration within fifteen (15) business days of the date of its meeting where the final decision was rendered.

§651.208.Forensic Analyst License Renewal.

(a) Renewal. The Commission may renew an individual's Forensic Analyst License up to 90 days prior to the expiration of the individual's two-year license term.

(b) Expiration. A Forensic Analyst License or renewed Forensic Analyst License expires two years from the date of the applicant's birthdate after the individual submits his or her first application. If an individual does not apply for a renewal by the date the individual's license expires, the individual's license is deemed expired.

(c) Application. An applicant for a Forensic Analyst License renewal shall complete and submit to the Commission a current Forensic Analyst License Renewal Application form provided on the Commission's website, attach documentation of fulfillment of Continuing Forensic Education requirements set forth in this section, provide an updated copy of the Commission's Proficiency Testing Certification form signed by the licensee's authorized laboratory representative, and complete the mandatory online legal and professional responsibility update described in this section.

(d) Continuing Forensic Education Including Mandatory Legal and Professional Responsibility Update:

(1) Licensees must complete a Commission-sponsored mandatory legal and professional responsibility update by the expiration of each two-year license cycle as provided by the Commission.

(2) Mandatory legal and professional responsibility training topics may include training on current and past criminal forensic legal issues, professional responsibility and human factors, courtroom testimony, disclosure and discovery requirements under state and federal law, and other relevant topics as designated by the Commission.

(3) All forensic analysts shall be required to satisfy the Continuing Forensic Education Requirements published by the Commission. Those requirements shall include:

(A) minimum number of hours;

(B) acceptable type of coursework;

(C) assessment mechanisms; and

(D) documentation required.

(e) If an applicant fails to fulfill any or all of the requirements pertaining to license renewal, continuing forensic education and the mandatory legal and professional responsibility update, the applicant may apply to the Commission for special dispensation on a form to be provided on the Commission's website. Upon approval by the Commission, the applicant may be allowed an extension of time to fulfill remaining continuing forensic education requirements.

§651.209.Forensic Analyst License Reinstatement.

The Commission may reinstate an inactive or expired analyst's Forensic Analyst License upon fulfillment of the following requirements by the licensee:

(1) submission of a signed Did Not Practice form provided by the Commission, stating that the licensee has not represented himself or herself as a forensic analyst in Texas, whether through testimony, interpretation, technical review or forensic analysis during the inactive license period;

(2) payment of a $120 license reinstatement fee; and

(3) updating of current continuing forensic education requirements status with the Commission.

§651.210.Provisional Forensic Analyst License.

(a) Issuance. The Commission may issue a provisional Forensic Analyst License.

(b) Eligibility. An individual may apply to the Commission for a provisional Forensic Analyst License if the individual meets the following qualifications:

(1) applicant is currently employed in an accredited laboratory for which the licensing requirements of this subchapter apply; or

(2) applicant was previously employed in an accredited laboratory for which the licensing requirements of this subchapter did not apply and the applicant was approved for independent casework by the laboratory; and

(3) applicant cannot meet one or more of the forensic analyst license requirements set forth in this subchapter at the time of application but plans to meet all the requirements within the one-year provisional license period and meets all other requirements described in §651.207 of this subchapter.

(c) Application. An applicant for a provisional Forensic Analyst License shall complete and submit to the Commission a current Provisional Forensic Analyst License Application form, pay the required $100 fee and submit a signed statement on a form to be provided by the Commission stating he or she has fulfilled the eligibility requirements of this section.

(d) Provisional License Term. A provisional Forensic Analyst License is granted for a period of one year from the date of issuance.

(e) Scope of Provisional License. A provisionally licensed forensic analyst may technically review or perform forensic analysis or draw conclusions from or interpret a forensic analysis for a court or crime laboratory to the extent a fully licensed forensic analyst may perform these duties.

§651.211.Temporary Forensic Analyst License.

(a) Issuance. The Commission may issue a temporary Forensic Analyst License.

(b) Eligibility. An individual who performs forensic analysis primarily for non-Texas cases may apply to the Commission for a temporary Forensic Analyst License for forensic analysis related to a single criminal action as that term is defined in Article 38.35 of the Texas Code of Criminal Procedure.

(c) Multiple Applications for Temporary License for More than One Criminal Action. An applicant may apply for a temporary Forensic Analyst License for each criminal action for which he or she is retained to perform forensic analysis.

(d) Multiple Defendants for Same Criminal Action. An applicant for a temporary Forensic Analyst License is not required to apply for more than one temporary license for the forensic analysis performed in criminal actions for which multiple defendants may be charged for a criminal offense or offenses related to the same event.

(e) Application. An applicant for a temporary Forensic Analyst License shall complete and submit to the Commission a current temporary Forensic Analyst License Application form, pay the required $75 fee, and submit a signed statement on a form to be provided by the Commission stating the individual is employed by a crime laboratory that is accredited by a national accrediting body recognized by the Commission and regularly performs proficiency testing in accordance with the employing laboratory's accreditation requirements.

(f) Description of Forensic Analysis for Which the temporary Forensic Analyst License is Requested. An applicant for a temporary Forensic Analyst License shall describe the circumstances of the criminal action for which the temporary Forensic Analyst License is being requested.

(g) Affidavit of Good Standing from Laboratory. An applicant for a temporary Forensic Analyst License must submit an affidavit of good standing from the laboratory where the analyst is currently employed.

(h) Temporary License Term. A temporary Forensic Analyst License is granted for a period of three years from the date of issuance.

(i) Temporary License Extension. If the criminal action for which the temporary Forensic Analyst License was originally granted has not yet been resolved upon the expiration of three years from the date the license was granted, the temporary licensee may apply to the Commission to extend the license for a supplemental one-year term or terms.

(j) Temporary License Limitations. A temporary Forensic Analyst License does not apply to any criminal action other than those offenses related to the criminal action for which the temporary license was granted.

(k) Scope of Temporary License. A temporarily licensed forensic analyst may technically review or perform forensic analysis or draw conclusions from or interpret a forensic analysis for a court or crime laboratory to the extent a fully licensed forensic analyst may perform these duties.

§651.212.Licensing of Military Service Members, Military Veterans, and Military Spouses.

(a) Definitions. The terms "active duty," "military service member," "military spouse," and "military veteran" have the meaning assigned by the Texas Occupations Code Title 2, §55.001.

(b) Exemption from Penalty for Failure to Renew License. All active duty, military service members, and military spouses who hold a Forensic Analyst License are exempt from any increased fee or other penalty imposed by the Commission for failing to renew his/her license in a timely manner if the individual establishes to the satisfaction of the Commission that the individual failed to renew the license in a timely manner because the individual was serving as a military service member.

(c) Extension of License Renewal Deadlines for Military Service Members. A military service member who holds a Forensic Analyst License is entitled to two years of additional time to complete:

(1) any continuing education requirements; and

(2) any other requirement related to the renewal of the military service member's license.

(d) Alternative Licensing for Military Service Members, Military Veterans, and Military Spouses. The Commission shall issue a license to an applicant who is a military service member, military veteran, or military spouse who:

(1) holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state; or

(2) within the five years preceding the application date held the license with this state; and

(3) the Commission Presiding Officer or Designee may waive any prerequisite to obtaining a license for an applicant described in this subsection after reviewing the applicant's credentials.

(e) License Eligibility Requirements for Applicants with Military Experience. Notwithstanding any other law, the Commission shall credit verified military service, training or education toward the licensing requirements, other than the general forensic examination requirement, for a Forensic Analyst License.

(f) License Application and Examination. Notwithstanding any other law, the Commission shall waive the license application and any examination fees paid to the Commission for an applicant who is:

(1) a military service member or military veteran whose military service, training, or education substantially meets all of the requirements for the license; or

(2) a military service member or military veteran who holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state.

(g) Notice of Chapter Provisions. The Commission shall prominently post a notice on the home page of the Commission's website describing the provisions of this subchapter that are available to military service members, military veterans, and military spouses.

§651.213.Examination on Religious Holy Day; Other Examination Accommodations.

(a) Reasonable Accommodations. The Commission and laboratories administering the general forensic examination shall administer the examination to all eligible applicants in a reasonable manner, while maintaining the integrity of the examination. In each location where the examination is administered, either the Commission or the laboratory administering the examination must ensure the facilities are reasonably accessible and enable persons having disabilities to take the examination.

(b) Applicants Requiring Special Testing Accommodations. Any applicant who desires special testing accommodations based upon a disability shall submit a written request to the Commission on the Commission's designated Special Accommodations Request Form at the same time the applicant submits his/her application for a Forensic Analyst License.

(1) Requests for special testing accommodations must be accompanied by written proof evidencing the existence of the disability, including a statement from a licensed physician or a professional specialist that specifically sets forth the physical, mental or emotional handicap or disability and the relationship between the disability and the inability to take the examination under standard conditions.

(2) The Commission may require additional information or evidence from the applicant and may, at its option, seek professional evaluation of such data.

(3) The applicant will be responsible for the cost of obtaining documented medical evidence and other required information.

(4) After considering the written request of the applicant and the evidence submitted, the Commission shall determine what reasonable special testing accommodations will be granted.

(5) Commission deliberations and determinations regarding the request of an applicant for testing accommodations on an examination shall be closed to the public and associated records are confidential. However, this does not limit the Commission's option under paragraph (2) of this subsection to seek professional evaluation of documented medical evidence and other required information.

(c) Examination Scheduled on Religious Holy Day. An examinee who wishes to observe a religious holy day on which the person's religious beliefs prevent the person from taking a scheduled general forensic examination shall be permitted to take the examination on a different date.

(d) Examination Accommodations for Persons with Dyslexia. For each general forensic examination, the Commission shall provide reasonable examination accommodations to an examinee diagnosed as having dyslexia. An examinee requesting examination accommodations for dyslexia must follow the same process for special testing accommodations set forth in subsection (b) of this section.

§651.214.Licensing Advisory Committee.

The Commission shall establish an advisory committee to advise the Commission and make recommendations on matters related to the licensing of forensic analysts as set forth in Article 38.01, Code of Criminal Procedure.

§651.215.Disciplinary Action.

(a) The Commission may take disciplinary action against a license holder under certain limited circumstances as set forth in Article 38.01, Code of Criminal Procedure.

(b) Professional Misconduct Finding. On a determination by the Commission that a license holder has committed professional misconduct in accordance with the definition provided in §651.202 of this subchapter and under Article 38.01, Code of Criminal Procedure or violated Article 38.01, Code of Criminal Procedure, or a rule or order of the Commission under Article 38.01, Code of Criminal Procedure, 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.

(c) Probation. 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.

(d) State Office of Administrative Hearings. 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.

(e) State Office of Administrative Hearings procedural rules governed by Chapter 2001, Government Code apply to the extent not inconsistent with Commission rules in this subchapter.

(f) Proposals for decision issued by a State Office of Administrative Hearings judge shall be considered by the Commission to be proposals for final decision and either adopted, changed or reversed by the Commission to the extent permitted by Chapter 2001, Government Code.

(g) Procedure for Opportunity for Hearing and Participation and Notice of Disciplinary Action. If revocation, suspension, reprimand, refusal to renew or probation of a Forensic Analyst License is proposed by the Commission based on subsection (b) of this section, the Commission shall, within ten business (10) days, give written notice of the basis of the proposal and state that the licensee or applicant must request, in writing, a hearing within thirty (30) business days of receipt of the notice, or the right to a hearing shall be waived and the disciplinary action stands.

(h) Notice of Hearing; Contents. The Commission shall provide timely notice of any scheduled hearing related to disciplinary action taken by the Commission to the person or party against which the action is taken. The notice must include:

(1) a statement of the time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular sections of the statutes and rules involved; and

(4) either;

(A) a short, plain statement of the factual matters asserted; or

(B) an attachment that incorporates by references the factual matters asserted in the complaint or petition filed with the Commission.

(i) Limited Statement. If the Commission is unable to state factual matters in detail at the time notice is served, an initial notice may be limited to a statement of the issues involved. On timely written application by a licensee, a more definite and detailed statement of the facts shall be furnished not less than seven (7) days before the date set for the hearing.

(j) Right to Counsel. Each party in a contested case is entitled to the assistance of counsel before the Commission. The Commission is not responsible for any legal fees. A party may expressly waive the right to assistance of counsel.

(k) Appeals. Any appeals shall be resolved in accordance with Chapter 2001, Government Code.

(l) License Status.

(1) If a license holder makes timely and sufficient application for the renewal of a license, the existing license does not expire until the application has been finally determined by the Commission. If the application is denied or the terms of the new license are limited, the existing license does not expire until the last day for seeking review of a Commission decision or a later date fixed by order of the reviewing court.

(2) A revocation, suspension, annulment, or withdrawal of a license is not effective unless, before institution of Commission proceedings:

(A) the Commission gives notice by personal service or by registered or certified mail to the license holder of facts or conduct alleged to warrant the intended action; and

(B) the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license.

(3) A Forensic Analyst License remains valid unless it expires without timely application for renewal, is amended, revoked, suspended, annulled or withdrawn, or the denial of a renewal application becomes final. The term or duration of a license is tolled during the period the license is subjected to judicial review. However, the term or duration of a license is not tolled if, during judicial review, the licensee engages in the activity for which the license was issued.

(m) Interpreters for Deaf or Hearing Impaired Parties and Witnesses.

(1) In contested cases, the Commission shall provide an interpreter whose qualifications are approved by the Texas Department of Assistive and Rehabilitative Services to interpret the proceedings for a party or subpoenaed witness who is deaf or hearing impaired.

(2) In this section, "deaf or hearing impaired" means having a hearing impairment, whether or not accompanied by a speech impairment, that inhibits comprehension of the proceedings or communication with others.

(n) Informal Disposition of Contested Case. Unless precluded by law, an informal disposition may be made of a contested case by:

(1) stipulation;

(2) agreed settlement;

(3) consent order; or

(4) default.

§651.216.Ineligibility for License Based on Criminal Conviction.

(a) A proceeding before the Commission to establish factors required to be considered under this section is governed by Chapter 2001, Government Code.

(b) Guidelines for consideration of criminal convictions. If an applicant has a criminal conviction above a Class C misdemeanor, the applicant may not be qualified to hold a forensic analyst license.

(1) Convictions that may trigger a denial. The Commission may suspend or revoke a forensic analyst license, disqualify a person from receiving a license, refuse to renew a person's license or deny to a person the opportunity to take the general forensic licensing examination on the grounds the person has been convicted of:

(A) an offense that directly relates to the duties and responsibilities associated with an analyst's license;

(B) an offense that does not directly relate to the duties and responsibilities associated with an analyst's license and that was committed less than five years before the date the person applies for a license;

(C) an offense listed in Article 42A.054, Code of Criminal Procedure; or

(D) a sexually violent offense as defined by Article 62.001, Code of Criminal Procedure.

(2) A forensic analyst license holder's license may be revoked on the license holder's imprisonment following a felony conviction, felony community supervision, revocation of parole, or revocation of mandatory supervision.

(3) An offense from another state containing elements substantially similar to the enumerated offenses under the Texas Penal Code shall be considered under this section the same way as the offense would have been considered had it been committed in Texas.

(4) Offenses that fall under the category described by paragraph (1)(A) of this subsection because they directly relate to the duties and responsibilities associated with an analyst's license may include, but are not limited to:

(A) Misrepresentation (e.g., fraud, extortion, bribery, theft by check, and deceptive business practices);

(B) Failure to register as a sex offender (as required by the Texas Code of Criminal Procedure, Chapter 62);

(C) Property Crimes, such as theft or burglary;

(D) Crimes against persons, such as homicide, kidnapping, and assault;

(E) Drug crimes, such as possession;

(F) Multiple DWI and DUI crimes;

(G) All felony convictions; and

(H) Misdemeanors above a Class C misdemeanor and felony convictions considered by Texas courts to be crimes of moral turpitude.

(5) Consequences. In the event of a criminal conviction, the Commission may take one of the following courses of action:

(A) Declare a prospective applicant unsuitable for a license;

(B) Deny a renewal application for an existing license;

(C) Revoke or suspend an existing license; or

(D) Deny a person the opportunity to take the general forensic analyst licensing examination.

(6) Determining whether there are grounds to deny. There are four general factors the Commission considers in determining whether a particular criminal conviction should be grounds to deny, revoke or suspend a license:

(A) the nature and seriousness of the crime;

(B) the relationship of the crime to the purposes for requiring a license to engage in the analyst's occupation;

(C) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(D) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharges the responsibilities of the analyst's work.

(7) Determining an applicant's fitness to perform the duties. In determining an applicant's fitness to perform the duties and discharge the responsibilities of a forensic analyst who has been convicted of a crime, the Commission considers, in addition to the factors listed in paragraph (5) of this subsection:

(A) the extent and nature of the person's past criminal activity;

(B) the age of the person when the crime was committed;

(C) the amount of time that has elapsed since the person's last criminal activity;

(D) the conduct and work activity of the person before and after the criminal activity;

(E) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and

(F) other evidence of the person's fitness, including letters or recommendations from:

(i) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility to the person;

(ii) the sheriff or chief of police in the community where the person resides; and

(iii) any other person in contact with the convicted person.

(8) An applicant has the responsibility, to the extent possible, to obtain and provide to the Commission the recommendations of the prosecution, law enforcement, and correctional authorities as required by paragraph (7)(F)(i) - (iii) of this subsection.

(9) In addition to fulfilling the requirements of paragraph (8) of this subsection, the applicant shall furnish proof in the form required by the Commission that the applicant has:

(A) maintained a record of steady employment;

(B) supported the applicant's dependents;

(C) maintained a record of good conduct; and

(D) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted.

(c) Notice and Review of Suspension, Revocation or Denial of License. If the Commission suspends or revokes a license or denies a person a license or the opportunity to be examined for a license because of the person's prior conviction of a crime and the relationship of the crime to the license, the Commission shall notify the person in writing of:

(1) the reason for the suspension, revocation, denial, or disqualification;

(2) the review procedure provided by §651.217(d) - (g) of this subchapter; and

(3) the earliest date the person may appeal the action of the Commission.

(d) Judicial Review. A person whose license has been suspended or revoked or who has been denied a license or the opportunity to take the general examination as set forth in this subchapter and who has exhausted the person's administrative appeals may file an action in district court in Travis County for review of the evidence presented to the Commission and the decision of the Commission.

(e) A petition for judicial review must be filed not later than the 30th day after the date the Commission's decision is final and appealable.

§651.217.Preliminary Evaluation of License Eligibility Based on Criminal History.

(a) Request for Criminal History Evaluation Letter. A person may request the Commission issue a criminal history evaluation letter regarding the person's eligibility for a license if the person:

(1) is enrolled or planning to enroll in an educational program that prepares a person for initial license or is planning to take the examination for an initial license; and

(2) has reason to believe he or she is ineligible for the license due to a conviction or deferred adjudication for a felony or misdemeanor offense.

(b) The request must state the basis for the person's potential ineligibility.

(c) Authority to Investigate. The Commission has the same powers to investigate a request submitted under this section and the requestor's eligibility that the Commission has to investigate a person applying for a license.

(d) Determination of Eligibility; Letter. If the Commission determines that a ground for ineligibility exists, the Commission shall notify the requestor in writing of the Commission's determination on each ground of potential ineligibility.

(e) If the Commission determines that the requestor is ineligible for a license, the Commission shall issue a letter setting out each basis for potential ineligibility and the Commission's determination as to eligibility. In the absence of new evidence known to but not disclosed by the requestor or not reasonably available to the Commission at the time the letter is issued, the Commission's ruling on the request determines the requestor's eligibility with respect to the grounds for potential ineligibility set out in the letter.

(f) The Commission must provide notice of determination of eligibility or ineligibility not later than the 90th day after the date the Commission receives the request.

(g) The Commission may charge a person requesting an evaluation under this section a $25 fee. Fees adopted by the Commission under this section must be in an amount sufficient to cover the cost of administering this section.

§651.218.Forensic Analyst Code of Professional Responsibility.

(a) Code of Professional Responsibility for Forensic Analysts and Crime Laboratory Management Subject to the Jurisdiction of the Texas Forensic Science Commission. The Code of Professional Responsibility ("Code") for forensic analysts and crime laboratory management defines a framework for promoting integrity and respect for the scientific process and encouraging transparency in forensic analysis in Texas. Because certain components of the Code are best suited to individual forensic analysts while others are best suited to laboratory management, the Code is divided into two sections.

(b) Each forensic analyst shall:

(1) Accurately represent his/her education, training, experience, and areas of expertise.

(2) Commit to continuous learning in the forensic disciplines and stay abreast of new findings, equipment and techniques to maintain professional competency.

(3) Promote validation and incorporation of new technologies, guarding against the use of non-valid methods in casework and the misapplication of validated methods.

(4) Avoid tampering, adulteration, loss, or unnecessary consumption of evidentiary materials.

(5) Avoid participation in any case where there are personal, financial, employment-related or other conflicts of interest.

(6) Conduct thorough, fair and unbiased examinations, leading to independent, impartial, and objective opinions and conclusions.

(7) Make and retain full, contemporaneous, clear and accurate written records of all examinations and tests conducted and conclusions drawn, in sufficient detail to allow meaningful review and assessment by an independent person competent in the field.

(8) Base conclusions on procedures supported by sufficient data, standards and controls, not on political pressure or other outside influence.

(9) Not offer opinions or conclusions that are outside one's expertise.

(10) Prepare reports in clear terms, distinguishing data from interpretations and opinions, and disclosing any relevant limitations to guard against making invalid inferences or misleading the judge or jury.

(11) Not issue reports or other records, or withhold information from reports for strategic or tactical litigation advantage.

(12) Present accurate and complete data in reports, oral and written presentations and testimony based on good scientific practices and valid methods.

(13) Retain any record, item or object related to a case, such as work notes, data, and peer or technical review information due to potential evidentiary value and pursuant to the laboratory's retention policy.

(14) Communicate honestly and fully with all parties (investigators, prosecutors, defense attorneys, and other expert witnesses), unless prohibited by law.

(15) Document and notify management or quality assurance personnel of adverse events, such as an unintended mistake or a breach of ethical, legal, scientific standards, or questionable conduct.

(16) Ensure reporting, through proper management channels, to all impacted scientific and legal parties of any adverse event that affects a previously issued report or testimony.

(c) Members of crime laboratory management shall:

(1) Encourage a quality-focused culture that embraces transparency, accountability and continuing education while resisting individual blame or scapegoating.

(2) Provide opportunities for forensic analysts to stay abreast of new scientific findings, technology and techniques while guarding against the use of non-valid methods in casework, the misapplication of validated methods or improper testimony regarding a particular analytical method or result.

(3) Maintain case retention and management policies and systems based on the presumption that there is potential evidentiary value for any information related to a case, including work notes, data, and peer or technical review.

(4) Provide clear communication and reporting systems through which forensic analysts may report to management non-conformances in the quality system and other adverse events, such as an unintended mistake or a breach of ethical, legal, scientific standards, or questionable conduct.

(5) Make timely and full disclosure to the Texas Forensic Science Commission of any non-conformance that may rise to the level of professional negligence or professional misconduct.

(6) Provide copies of all substantive communications with the laboratory's national accrediting body to the Commission.

(7) For any laboratory that performs forensic analysis on behalf of the State of Texas, develop and follow a written forensic disclosure compliance policy for the purpose of ensuring the laboratory's compliance with article 39.14 of the Texas Code of Criminal Procedure.

(8) Ensure the laboratory's forensic disclosure policy provides clear instructions for identifying and disclosing any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the laboratory. The policy should explicitly address how to inform potentially affected recipients of any non-conformances or breaches of law or ethical standards that may adversely affect either a current case or a previously issued report or testimony.

(9) Inform all forensic analysts working on behalf of the laboratory that they may report allegations of professional negligence or professional misconduct to the Texas Forensic Science Commission without fear of adverse employment consequences.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 28, 2017.

TRD-201704843

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: January 14, 2018

For further information, please call: (512) 936-0661