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") adopts 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.

The amendments are adopted with changes to the proposed text as published in the June 16, 2017, issue of the Texas Register (42 TexReg 3126). All changes reflect rule adoptions made by the Commission at its May 26, 2017, quarterly meeting and were made pursuant to Tex. Code Crim. Procedure art. 38.01 §4-d, which mandates the Commission establish an accreditation process for crime laboratories and other entities conducting forensic analyses of physical evidence for use in criminal proceedings.

Summary of Comments. No comments were received regarding the edits and amendments to these sections, but two additional, non-substantive edits to proposed rules §651.1 - 651.10 were made--1) references to the recognized accrediting body American Society of Crime Laboratory Directors, Laboratory Accreditation Board (ASCLD/LAB) were changed throughout to read "ANSI-ASQ National Accreditation Board (ANAB)" due to a change in corporate structure of the organization and 2) references to "subdiscipline" or "subdisciplines" were changed to read "categories of analysis" to harmonize the Commission’s rules with the way accrediting bodies use the reference.

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

Cross reference to statute. The adoption affects 37 TAC §§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 by the Commission of a crime laboratory or other entity conducting forensic analyses of physical evidence for use in criminal proceedings.

(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 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.

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

(4) Crime Laboratory--Includes a public or private laboratory or other entity that conducts forensic analysis as set forth in Article 38.35, Code of Criminal Procedure. The term includes a forensic DNA laboratory and a CODIS user laboratory.

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

§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 category of analysis limitations:

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

(2) ANSI-ASQ National Accreditation Board (ANAB)--recognized for accreditation of all disciplines which are eligible for accreditation under this subchapter.

(3) 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 category of analysis for Urine Drug Testing for all classes of drugs approved by the accrediting body.

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

(5) 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, category of analysis or procedure, the Commission may temporarily recognize the new discipline, category of analysis or procedure. A temporary approval shall be effective for 120 days.

§651.5.Forensic Disciplines and Procedures Subject to Commission Accreditation.

(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 is available from a recognized accrediting body.

(b) By discipline or category of analysis. A crime laboratory may apply for Commission accreditation 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) 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, and individual characteristic database;

(4) Firearms/Toolmarks. Categories of analysis 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;

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

(6) 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), and fire debris and explosives (qualitative determination); or

(7) other discipline and its related categories of analysis if accredited by a recognized accrediting body and approved by the Commission.

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

(d) If an accreditation for a category of analysis is accompanied by the term 'only' or a similar notation, the Commission will deem the accreditation to exclude other categories of analysis in that discipline.

(e) 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 and Procedures to Which Commission Accreditation 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 exempted by the Code of Criminal Procedure, Article 38.35. No crime laboratory accreditation is currently required for the following disciplines:

(1) latent print examination;

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

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

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

§651.7.Forensic Disciplines and Procedures Exempt from Commission Accreditation Requirements by Administrative Rule.

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

(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 category of analysis so determined by the Commission, including those identified and listed at the Commission’s website.

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

(c) 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, 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 category of analysis as so determined by the Commission.

§651.8.Full Commission Accreditation.

(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 category of analysis 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 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 category of analysis:

(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 (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, category of analysis, 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 (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 category of analysis 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 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, category of analysis, 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 (relating to Withdrawal of Commission Accreditation).

(b) Provisional term.

(1) A laboratory 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 (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 adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 18, 2017.

TRD-201703673

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: October 8, 2017

Proposal publication date: June 16, 2017

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