TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 15. TEXAS FORENSIC SCIENCE COMMISSION

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

SUBCHAPTER A. ACCREDITATION

37 TAC §§651.1 - 651.10

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 TAC §§651.1 - 651.10 to edit and correct internal rule citations, statutory citations and heading titles and to add fire scene investigation including but not limited to cause and origin determinations to its list of forensic disciplines exempt from Commission accreditation requirements. The amendments are necessary to correct references to rules and statutes, to modify headings so they are accurate, and to add fire scene investigation to the Commission's list of forensic disciplines exempt from accreditation requirements. All changes reflect rule adoptions made by the Commission at its May 26, 2017, quarterly meeting.

Fiscal Note. The Commission has determined that for each year of the first five years the proposed amendments 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 amendments are in effect, the anticipated public benefit will be accurate and updated rules.

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 amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person who is required to comply with the rules as proposed.

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.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Lynn Garcia, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or lynn.garcia@fsc.texas.gov. Comments must be received by July 16, 2017, to be considered by the Commission.

Statutory Authority. The amendments are proposed under Article 38.01 §4-d, Code of Criminal Procedure.

Cross reference to statute. The proposal affects 37 Tex. Admin. Code §§651.1 - 651.10.

§651.1.Purpose.

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

(1) the recognition of an accrediting body by the Commission; and

(2) the accreditation of a crime [an individual] laboratory or other entity conducting forensic analyses of physical evidence for use in criminal proceedings by the Commission.

(b) Accreditation sequence. To be accredited by the Commission under this subchapter, a crime laboratory or other entity must first be accredited by a recognized accrediting body.

(c) Source of evidence predicate. The Code of Criminal Procedure, Article 38.35, requires Commission accreditation of a crime [an individual] laboratory or other entity for admission of evidence or testimony if the crime laboratory or other entity conducts a forensic analysis of physical evidence for use in a criminal proceeding.

(d) Statutory Commission accreditation. A crime laboratory or other entity may apply to the Commission for accreditation if accreditation is required for evidence admissibility under Code of Criminal Procedure, Article 38.35.

§651.2.Definitions.

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

(1) Environmental testing--An analysis by a laboratory conducted for the purpose of determining the chemical, molecular, carcinogenic, radioactive, or pathogenic components of air, water, soil, or other environmental media for use in an administrative, civil, or criminal matter.

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

(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.

[(A) an expert examination or test excluded under Code of Criminal Procedure, Article 38.35, subsection (a)(1);]

[(B) 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;]

[(C) the location, identification, collection, or preservation of physical evidence by laboratory or investigative personnel unless the activity is integral to an expert examination or test; or]

[(D) field, spot, screening, or other presumptive testing unless the activity is integral to an expert examination or test for which an expert opinion is rendered.]

(3) Forensic pathology--Includes that portion of an autopsy conducted by a medical examiner or other forensic pathologist who is a licensed physician. [The term does not include a toxicology or other laboratory associated with the office of a medical examiner.]

(4) Crime Laboratory--Includes a public or private laboratory or other entity that conducts forensic analysis as set forth in Code of Criminal Procedure Article 38.35. [An entity that conducts a forensic analysis of physical evidence for use in a criminal proceeding.] The term includes a forensic DNA laboratory and a CODIS user laboratory.

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

§651.3.Recognition Process.

The Commission shall recognize an accrediting body under this section if the Commission determines that the accrediting body:

(1) issues an accreditation that is accepted throughout the relevant scientific community and appropriate or available to a crime laboratory or other entity that conduct forensic analyses of physical evidence for use in criminal proceedings;

(2) has established adequate accreditation criteria reasonably likely to ensure trustworthy forensic analysis;

(3) requires a periodic competency audit or review of the personnel, facilities, and procedures employed by a crime laboratory or other entity to conduct a forensic analysis; and

(4) withholds, grants, or withdraws its accreditation of a crime laboratory or other entity based on its own determination of a reasonable likelihood of meaningful corrective action for each deficiency noted during the periodic audit or review.

§651.4.List of Recognized Accrediting Bodies.

(a) The Commission recognizes the accrediting bodies in this subsection, subject to the stated discipline or subdiscipline limitations:

(1) American Board of Forensic Toxicology (ABFT)--recognized for accreditation of toxicology discipline only.

(2) American Society of Crime Laboratory Directors, Laboratory Accreditation Board (ASCLD/LAB) d/b/a ANSI-ASQ National Accreditation Board (ANAB)--recognized for accreditation of all disciplines which are eligible for accreditation under this subchapter.

[(3) ANSI-ASQ National Accreditation Board (ANAB) formerly known as Forensic Quality Services (FQS and FQS-I) or National Forensic Science Technology Center (NFSTC)--recognized for accreditation of all disciplines which are eligible for accreditation under this subchapter.]

(3) [(4)] Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services (HHS/SAMSHA), formerly known as the National Institute on Drug Abuse of the Department of Health and Human Services (HHS/NIDA)-recognized for accreditation of toxicology discipline in the subdiscipline of Urine Drug Testing for all classes of drugs approved by the accrediting body.

(4) [(5)] College of American Pathologists (CAP)-recognized for accreditation of toxicology discipline.

(5) [(6)] American Association for Laboratory Accreditation (A2LA)-recognized for accreditation of all disciplines which are eligible for accreditation under this chapter.

(b) If an accrediting body is recognized under subsection (a) of this section and the recognized body approves a new discipline, subdiscipline, or procedure, the Commission may temporarily recognize the new discipline, subdiscipline, or procedure. A temporary approval shall be effective for 120 days.

§651.5.Forensic Disciplines and Subdisciplines Subject to Commission Accreditation

(a) 'Forensic analysis'/recognized accreditation. This section describes a discipline or subdiscipline that involves forensic analysis for use in a criminal proceeding and for which accreditation is available from a recognized accrediting body.

(b) By [entire] discipline or subdiscipline . A crime laboratory may apply for Commission accreditation for one or more of the following disciplines:

(1) Seized Drugs. Subdisciplines may include one or more of the following categories: qualitative determination, quantitative measurement, weight measurement, and volume measurement; [controlled substances;]

(2) Toxicology. Subdisciplines may include one or more of the following categories: qualitative determination and quantitative measurement; [toxicology;]

(3) Forensic Biology. Subdisciplines may include one or more of the following categories: collection, DNA-STR, DNA-YSTR, DNA-Mitochondrial, DNA-SNP, body fluid identification, relationship testing, microbiology, and individual characteristic database; [biology;]

(4) Firearms/Toolmarks. Subdisciplines may include one or more of the following categories: collection, physical comparison, determination of functionality, length measurement, serial number restoration, trigger pull force measurement, qualitative chemical determination, distance determination, ejection pattern determination, trajectory determination, product (make/model) determination, and individual characteristic database; [firearms/toolmarks;]

(5) Document Examination. Subdisciplines may include one or more of the following categories: document authentication, physical comparison, and product determination; [questioned documents;]

(6) Materials (Trace). Subdisciplines 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), and fire debris and explosives (qualitative determination); or [trace evidence; or]

(7) other discipline and its related subdisciplines if accredited [approved] by a recognized accrediting body and approved by the Commission.

[(c) Limited to subdiscipline. A laboratory may apply for Commission accreditation limited to one or more of the following subdisciplines:]

[(1) under the controlled substances discipline, subdiscipline may include controlled substances marihuana, precursor analysis, and clandestine laboratory analysis;]

[(2) under the toxicology discipline, subdiscipline may include forensic toxicology, urine drug testing, and blood alcohol analysis;]

[(3) under the biology discipline, subdiscipline may include biology, serology, and DNA;]

[(4) under the firearms/toolmark discipline, subdiscipline may include: firearms, ballistics, and toolmarks;]

[(5) under the questioned documents discipline, subdiscipline may include questioned documents, handwriting, and ink analysis (including forensic handwriting comparison);]

[(6) under the trace evidence discipline, subdiscipline may include: fire debris, explosives, fibers, gun shot residue, glass, hairs, paint, filaments, and unknown substances; and]

[(7) other discipline and its related subdiscipline if accredited by a recognized accrediting body and the Commission.]

(c) [(d)] Cross-subdisciplines. A laboratory may choose to assign a particular accredited subdiscipline to a different administrative section or unit in the laboratory than the sections indicated herein. [For example, the subdiscipline of impression evidence, including footwear, tiretrack, and similar impression evidence, may be administratively assigned by the laboratory to its trace evidence section, firearms section, or questioned documents section. The Commission deems impression evidence to be a subdiscipline of several disciplines under this subchapter, including trace evidence, firearms/toolmark, or questioned documents.]

(d) [(e)] If an accreditation for a subdiscipline is accompanied by the term 'only' or a similar notation, the Commission will deem the accreditation to exclude other subdisciplines in that discipline.

(e) [(f)] Accreditation of a confirmation test procedure does not carry automatic accreditation of an associated field, spot, screening, or other presumptive test.

§651.6.Forensic Disciplines, Subdisciplines, and Procedures to Which [Statutory] Commission Accreditation Does Not Apply by Statute.

[This section describes disciplines, subdisciplines, or procedures excluded from the definition of forensic analysis or otherwise exempted by the Code of Criminal Procedure, Article 38.35, or by this subchapter based on their nature.]

[(1)] This section [paragraph] describes a discipline, subdiscipline, or procedure that is excluded from the definition of forensic analysis or otherwise exempted by the Code of Criminal Procedure, Article 38.35. No crime laboratory accreditation is currently required for the following disciplines: [, and for which no recognized accreditation is appropriate or available. A laboratory may not apply for Commission accreditation for:]

(1) latent print examination;

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

[(A) breath specimen testing under Transportation Code, Chapter 724;]

[(B) latent print examination;]

(3) [(C)] digital evidence (including computer forensics, audio, or imaging); or

(4) [(D)] an examination or test excluded by rule under Code of Criminal Procedure, Article 38.01 §4-d(c) and set forth in this subchapter.

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

[(2) This paragraph describes a discipline, subdiscipline, 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. A laboratory may not apply for Commission accreditation for:]

[(A) forensic photography;]

[(B) non-criminal paternity testing;]

[(C) non-criminal testing of human or nonhuman blood, urine, or tissue;]

[(D) a crime scene search 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;]

[(E) other evidence processing or handling that is excluded under §651.002 of this title (relating to Definitions); or]

[(F) other discipline or subdiscipline so determined by the Commission.]

§651.7.Forensic Disciplines, Subdisciplines, and Procedures Exempt from [Statutory] Commission Accreditation Requirements by Administrative Rule.

(a) The Commission has exempted the following categories of forensic analysis from the accreditation requirement by administrative rule:

[(a) This section describes a discipline, subdiscipline, or procedure that is 'forensic analysis' but is not subject to accreditation by one or more recognized accrediting bodies.]

[(b)] [Even though a discipline or subdiscipline is forensic analysis, the Commission has determined that no accreditation is appropriate or available from a recognized accrediting body for the following disciplines, subdisciplines, or procedures and a laboratory may not apply for Commission accreditation for:]

(1) sexual assault examination of a [the] 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) profiling;]

(9) [(10)] forensic odontology for purposes of human identification or age assessment, not to include bite mark comparison related to patterned injuries;

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

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

(12) other discipline or subdiscipline so determined by the Commission, including those identified and listed at the Commission's website.

(b) [(c)] A request for exemption shall be submitted in writing to the Commission.

(c) This subsection describes a discipline, subdiscipline, 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. Accreditation 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 subchapter; or

(7) other discipline or subdiscipline as so determined by the Commission.

§651.8.Full Commission.

(a) Issuance and renewal. The Commission may issue or renew accreditation under this section.

(b) Application. An applicant for full Commission accreditation shall complete and submit to the Commission a current Laboratory Accreditation Form and attach copies of the following:

(1) an accreditation certificate and letter of notification of accreditation from a recognized accrediting body; and

(2) each document provided by the recognized accrediting body that identifies the discipline or subdiscipline for which the laboratory has received accreditation and any limitation or restriction regarding that accreditation.

(c) Additional information. The Commission may require additional information to properly evaluate the application either as part of the original application or as supplemental information.

(d) Reports to the Commission.

(1) If accredited by ASCLD/LAB d/b/a ANAB, a laboratory shall provide the Commission with a copy of each Annual Accreditation Review Report. If accredited by another recognized accrediting body, a laboratory shall provide the Commission with a copy of each equivalent annual accreditation assessment document. The copy shall be submitted to the Commission at the same time that it is due to the recognized accrediting body.

(2) A laboratory shall provide the Commission with a copy of correspondence and each report or communication between the laboratory and the recognized accrediting body. The laboratory shall submit the copy to the Commission no later than 30 days after the date the laboratory receives or transmits the correspondence, report, or communication.

(3) A laboratory that discontinues a specific forensic discipline or subdiscipline:

(A) if known beforehand, should submit written notification to the Commission at least 30 days before the effective date of the discontinuation; or

(B) if unknown beforehand, shall submit written notification to the Commission at least 5 business days after the effective date of the discontinuation.

(e) Federal forensic laboratories. A federal forensic laboratory is deemed to be accredited by the Commission without application provided that the laboratory is accredited by a recognized accrediting body as provided under §651.4 of this subchapter [title ] (relating to List of Recognized Accrediting Bodies). A laboratory deemed accredited is not subject to the reporting requirements of this subchapter or the processes provided under Subchapter B of this chapter (relating to Complaints, Special Review, and Administrative Action).

§651.9.Provisional Commission Accreditation.

(a) Issuance and renewal. The Commission may issue provisional accreditation under this section that is non-renewable for that discipline, subdiscipline, or procedure.

(b) Application. An applicant for provisional Commission accreditation shall complete and submit to the Commission a current Laboratory Accreditation Form as referenced in §651.8(b) of this subchapter [title] (relating to Full Commission Accreditation) and attach copies of the following:

(1) the application for accreditation by a recognized accrediting body;

(2) the initial audit, inspection, or review report from an independent auditor based on the standards of the recognized accrediting body;

(3) a full response in writing to the initial audit, inspection, or review report described in paragraph (2) of this subsection; and

(4) each document provided by the recognized accrediting body that identifies the discipline or subdiscipline for which the laboratory seeks accreditation.

(c) Provisional-Interim. If a laboratory is in good standing with its accrediting body and has made application to renew or replace its accreditation, the laboratory may apply for Provisional Commission Accreditation if necessary to cover a period between times that it qualifies for full Commission accreditation. For this Provisional Commission Accreditation, the laboratory may complete and submit to the Commission a current Laboratory Accreditation Form as referenced in §651.8(b) of this subchapter [title] and attach copies of the following:

(1) the application for accreditation by a recognized accrediting body; and

(2) each document provided by the recognized accrediting body that identifies the discipline or sub-discipline for which the laboratory seeks accreditation.

(d) Additional information. The Commission may require additional information to properly evaluate the application either as part of the original application or as supplemental information.

(e) Reports to the Commission.

(1) The laboratory shall request that the recognized accrediting body provide the Commission with a copy of each audit, inspection, or review report conducted before full Commission accreditation.

(2) A laboratory shall provide the Commission with a copy of correspondence and each report or communication between the laboratory and the recognized accrediting body. The laboratory shall submit the copy to the Commission no later than 30 days after the date the laboratory receives or transmits the correspondence, report, or communication.

(3) A laboratory that discontinues a specific forensic discipline, subdiscipline, or procedure shall submit written notification to the Commission at least 30 days before the effective date of the discontinuation.

(f) Second sample required. A laboratory with provisional Commission accreditation under this section must:

(1) preserve one or more separate samples of the physical evidence for use by the defense attorney or use under order of the convicting court; and

(2) agree to preserve, and preserve those samples until all appeals in the criminal case are final.

§651.10.Accreditation Term.

(a) Normal term. The normal term for Commission accreditation:

(1) begins on the date of issuance of the initial Commission accreditation letter; and

(2) extends until withdrawn by the recognized accrediting body or by the Commission under §651.11 of this subchapter [title] (relating to Withdrawal of Commission Accreditation).

(b) Provisional term.

(1) A laboratory or its discipline or subdiscipline that applies for accreditation from a recognized accrediting body may apply to the Commission for provisional accreditation in accordance with §651.9 of this subchapter [title] (relating to Provisional Commission Accreditation) for a term not to exceed one year from the date the Commission issues the accreditation unless formally extended for good cause by the Commission.

(2) If a currently accredited laboratory is in the process of renewing or replacing its accreditation from a recognized accrediting body, prior to the end of its term, and applies for provisional Commission accreditation, the term of that provisional accreditation may not exceed six (6) months.

(c) Limited term. A laboratory, including an out of state, federal, or private laboratory, may request Commission accreditation for a term less than the term normally available under this subchapter.

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 June 2, 2017.

TRD-201702162

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: July 16, 2017

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


SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §§651.201 - 651.221

The Texas Forensic Science Commission ("Commission") proposes new rules to 37 TAC Chapter 651 to add Subchapter C related to its newly created Forensic Analyst Licensing Program. The proposed new rules reflect adoptions made by the Commission at its May 26, 2017 quarterly meeting 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 new 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.

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 proposal 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.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Lynn Garcia, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or lynn.garcia@fsc.texas.gov. Comments must be received by July 16, 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 §651.212 or §651.213 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.

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

(a) Forensic analysis/recognized accreditation. This section describes a discipline or subdiscipline 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 subdiscipline. An individual may apply to the Commission for a Forensic Analyst License for one or more of the following disciplines or subdisciplines:

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

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

(3) Forensic Biology. Subdisciplines may include one or more of the following categories: collection, DNA-STR, DNA-YSTR, DNA-Mitochondrial, DNA-SNP, body fluid identification, relationship testing, microbiology, and individual characteristic database;

(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 who performs work in any of the other forensic biology subdisciplines 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.

(4) Firearms/Toolmarks. Subdisciplines may include one or more of the following categories: collection, physical comparison, determination of functionality, length measurement, serial number restoration, 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 the firearm/toolmark technician subdiscipline. A firearm/toolmark technician must comply with the licensing requirements for a Forensic Analyst License limited to the firearm/toolmark technician subdiscipline set forth in this subchapter.

(B) An individual who performs work in any of the other subdisciplines 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.

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

(6) Materials (Trace). Subdisciplines 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

(7) Other discipline and its related subdisciplines if accredited by a recognized accrediting body and the Commission.

(c) Cross-subdisciplines. A laboratory may choose to assign a particular subdiscipline to a different administrative section or unit in the laboratory than the administrative section or unit designated in this section.

(d) If a license for a subdiscipline is accompanied by the term 'only' or a similar notation, the Commission will deem the license to exclude other subdisciplines in that discipline.

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

This section describes a discipline, subdiscipline, or procedure that is excluded from the definition of forensic analysis or otherwise expressly exempt 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, Subdisciplines, 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 forensic disciplines:

(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, not to include bite mark comparison related to patterned injuries;

(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 subdiscipline as determined by the Commission.

(b) This subsection describes a discipline, subdiscipline, 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 subdiscipline as so determined by the Commission.

§651.206.Non-proficiency Tested Laboratory Personnel in Support Function Exempt from Commission Licensing Requirement.

This section describes laboratory personnel exempt from the licensing requirements of this subchapter because the person's laboratory duties are limited to non-forensic analysis support functions that do not require proficiency testing by the laboratory's accrediting body.

(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.

(2) 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 Out of State Transfer Exemption.

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

(b) Application. An applicant for a Forensic Analyst License shall complete and submit to the Commission a current Forensic Analyst License Application form, pay the required fee posted on the Commission's website and provide documentation that he or she has satisfied all applicable requirements set forth under this section.

(c)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.

(1) Minimum Education Requirements.

(A) 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.

(B) 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.

(C) Forensic Biology (DNA Analyst or Forensic Biology Screener). An applicant for a Forensic Analyst License in DNA analysis or forensic biology screening must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science or higher from an accredited university.

(D) 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 if the application is submitted before 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 or a closely related field from an accredited university if the application is submitted after January 1, 2019.

(E) Firearm/Toolmark Technician. An applicant for a Forensic Analyst License limited to the firearm/toolmark technician subsidicipline must have a high school diploma or equivalent degree or higher.

(F) Document Examination. An applicant for a Forensic Analyst License in document examination must have a high school diploma or equivalent degree or higher if the application is submitted before 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 or a closely related field from an accredited university if the application is submitted after January 1, 2019.

(G) 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 or a closely related field from an accredited university.

(2) Specific Coursework Requirements.

(A) Seized Drugs. An applicant for a Forensic Analyst License in seized drugs must have a minimum of twelve semester hours (or equivalent) in chemistry above general or introductory level coursework including a combination of organic, analytical and instrumental chemistry from an accredited university. If the application is submitted after January 1, 2019, the applicant must also have a three-semester credit hour college-level statistics course from an accredited university or a program approved by the Commission.

(B) Toxicology. An applicant for a Forensic Analyst License in toxicology must fulfill the Scientific Working Group for Forensic Toxicology, Standard for Laboratory Personnel, Appendix A, required courses as appropriate to the analyst's role and training program. If the application is submitted after January 1, 2019, the applicant must also have a three-semester credit hour college-level statistics course from an accredited university or a program approved by the Commission.

(C) 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. If the application is submitted after January 1, 2019, the applicant must also have a three-semester credit hour college-level statistics course from an accredited university or a program approved by the Commission.

(D) Forensic Biology: Screener. Laboratory personnel whose duties are limited to biology screening and who do not conduct DNA analysis may apply for a Forensic Analyst License limited to biology screening.

(i) Biology screeners are not required to fulfill the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing.

(ii) An applicant for a Forensic Analyst license limited to biology screening applying after January 1, 2019 must have a three-semester credit hour 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.

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

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

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

(H) Materials (Trace). If the application is submitted after January 1, 2019, the applicant must have a three-semester credit hour college-level statistics course from an accredited university or a program approved by the Commission. An applicant for a Forensic Analyst License in Materials (Trace) for one or more of the chemical analysis subdisciplines (chemical determination, physical/chemical comparison, gunshot residue (collection and qualitative determination), and fire debris and explosives (qualitative determination)) must have a minimum of twelve-semester credit hour college level courses in chemistry above general or introductory coursework including a combination of organic, analytical and instrumental chemistry from an accredited university. With the exception of the Chemical Analysis Subdisciplines of Materials (Trace) course requirements, no other specific college-level coursework is required.

(3) General Forensic Analyst Licensing Exam Requirement.

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

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

(ii) An applicant may take the General Forensic Analyst Licensing Exam up to three times. The first time an applicant takes the exam, the exam is free. The second or third time an applicant takes the exam, the applicant must pay a fee for each exam published on the Commission's website.

(iii) 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.

(B) Exam Exemption. If a Forensic Analyst License applicant has taken and successfully passed a certification exam by an FSC-recognized certification body identified in this subchapter, the exam may be used to fulfill the General Forensic Analyst Licensing Exam requirement set forth in this section.

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

(D) Funding Limitation. The General Forensic Analyst Licensing Exam requirement is contingent upon sufficient legislative appropriation of funds to the Commission for exam development and administration.

(4) Knowledge-based Competency Requirements.

(A) An applicant must obtain written certification from his or her laboratory's quality assurance manager that the applicant has satisfied the knowledge-based competency requirements proscribed by the Commission and published on the Commission's website for the particular forensic discipline for which the applicant is applying for a Forensic Analyst License.

(B) A signed certification by the laboratory's quality assurance manager that the applicant has satisfied the knowledge-based competency requirements must be provided on the Knowledge-based Competency Requirements and Proficiency Testing Certification Form provided by the Commission.

(5) Proficiency Testing Requirement.

(A) An applicant must be routinely proficiency-tested in accordance with the laboratory's accrediting body proficiency testing requirement.

(B) A signed certification by the laboratory's quality assurance manager that the applicant has satisfied the proficiency testing requirements of the laboratory's accrediting body as of the date of the analyst's application must be provided on the Knowledge-based Competency Requirements and Proficiency Testing Certification form provided by the Commission.

(6) License Term and Fee.

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

(B) Application Fee. An applicant shall pay the required Forensic Analyst License application fee as designated by the Commission and published on the Commission's website.

(C) Annual Maintenance Fee. An applicant shall pay the required Forensic Analyst License annual maintenance fee as designated by the Commission and published on the Commission's website.

(7) Out of state transfer exemption. An applicant who demonstrates the following on a Forensic Analyst License application is exempt from the minimum education requirements under this subchapter:

(A) applicant was previously employed at an accredited laboratory outside of Texas within the 2 years immediately prior to the date of application;

(B) applicant has at least five (5) years of experience in his/her forensic discipline;

(C) applicant can demonstrate positive contribution to the field of his/her particular forensic discipline.

(D) an applicant exempt from the minimum education requirements under this subchapter must be able to fulfill all other requirements to obtain a Forensic Analyst License.

§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 three-year license term.

(b) Expiration. A Forensic Analyst License or renewed Forensic Analyst License expires three 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, pay the required fee indicated on the Commission's website, attach documentation of fulfillment of Continuing Forensic Education requirements set forth in this section, and complete the mandatory online legal and ethics update described in this section.

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

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

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

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

(1) minimum number of hours;

(2) acceptable type of coursework;

(3) assessment mechanisms; and

(4) documentation required.

(f) If an applicant fails to fulfill any or all of the requirements pertaining to license renewal, continuing forensic education and the mandatory legal and ethics 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.

(g) The requirements of this section shall take effect on a date to be designated by the Commission.

§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 the required license reinstatement fee designated on the Commission's website; and

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

§651.210.List of Recognized National Certification Body Examinations.

(a) The Commission by rule may recognize a certification issued by a national organization in an accredited field of forensic science as satisfying the general forensic analyst licensing exam requirement established in this subchapter to the extent the Commission determines the content required to receive the certification is substantially equivalent to the content of the general examination requirements under this subchapter.

(b) No national certification is currently recognized by the Commission as satisfying the general forensic analyst licensing exam requirement established under this subchapter.

§651.211.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;

(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 licensing requirements set forth in this subchapter at the time of application but plans to meet all the requirements within the nine-month provisional license period.

(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 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 nine months 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.

§651.212.Temporary Forensic Analyst License.

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

(b) Eligibility. An individual may apply to the Commission for a temporary Forensic Analyst License if the individual plans to act as a forensic analyst in Texas for no more than one criminal matter in a one-year time period.

(c) 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 fee as designated on the Commission's website, 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.

(d) 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.

(e) Temporary License Term. A temporary Forensic Analyst License is granted for a period of one year from the date of issuance.

(f) Temporary License Extension. If the criminal matter for which the temporary license was originally granted has not yet been resolved upon the expiration of one year from the date the temporary license was granted, the temporary licensee may apply to the Commission to extend the license for a supplemental one-year term.

(g) Temporary License Limitations. A temporary Forensic Analyst License does not apply to any criminal matter other than those offenses related to the criminal case or incident for which the temporary license was granted.

(h) 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.

§651.213.Voluntary Forensic Analyst License.

The Commission may by rule establish voluntary licensing programs for forensic disciplines that are not subject to accreditation by the Commission.

§651.214.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 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 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 issues 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.

§651.215.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.

§651.216.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.

§651.217.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 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.

§651.218.Ineligibility for License.

(a) Authority to Suspend, Revoke, Disqualify, or Deny. The Commission has the authority to suspend or revoke a Forensic Analyst License, disqualify a person from receiving a license, or deny to a person the opportunity to take the general forensic licensing examination on the grounds that the person has been convicted of:

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

(2) 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;

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

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

(b) Subsection (a) of this section does not apply to a person who has been convicted only of an offense punishable as a Class C misdemeanor unless:

(1) The person is an applicant for or the holder of a license that authorizes the person to possess a firearm; and

(2) The offense for which the person was convicted is a misdemeanor crime of domestic violence as that term is defined by 18 U.S.C. §921.

(c) A Forensic Analyst License holder's license shall be revoked on the license holder's imprisonment following a felony conviction, felony community supervision, revocation of parole, or revocation of mandatory supervision.

§651.219.Factors in Determining Whether Conviction Related to Occupation.

(a) In determining whether a criminal conviction directly relates to forensic analyst's work, the Commission shall consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;

(3) 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

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.

(b) Additional Factors for the Commission to Consider. In determining the fitness to perform the duties and discharge the responsibilities of a forensic analyst who has been convicted of a crime, the Commission shall consider:

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

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

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

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

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

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

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

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

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

(c) The 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.

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

(1) maintained a record of steady employment;

(2) supported the applicant's dependents;

(3) maintained a record of good conduct; and

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

§651.220.Proceedings Governed by Administrative Procedure Act.

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

(b) The Commission shall publish guidelines in the Texas Register and on its website relating to the practice of consideration of criminal convictions. The guidelines shall state the reasons a particular crime is considered to be related to a particular license and any other criterion that affects the decisions of the Commission.

(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 §651.221(d) 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.

§651.221.Preliminary Evaluation of License Eligibility.

(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 does not exist, 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 fee adopted by the Commission. Fees adopted by the Commission under this section must be in an amount sufficient to cover the cost of administering this section.

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 June 2, 2017.

TRD-201702168

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: July 16, 2017

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