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 §651.7

The Texas Forensic Science Commission ("Commission") adopts an amendment to 37 TAC §651.7 which describes forensic disciplines exempt from accreditation requirements without changes to the text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4478). The rules will not be republished. The amendment removes the modifying phrase "including bloodstain pattern analysis and trajectory determination" from the term "crime scene reconstruction," because the term "crime scene reconstruction" is now defined in better detail elsewhere in the Commission rules (§651.202, Definitions). The Commission recently defined the term "crime scene reconstruction" in §651.202 to clarify which types of crime scene activities are considered forensic analysis. The new definition renders the modifying phrase "including bloodstain pattern analysis and trajectory determination" unnecessary, because these activities are covered by the new definition provided in §651.202. The adopted amendment is nonsubstantive. The amendment is necessary to reflect adoptions made by the Commission at its June 12, 2020 quarterly meeting. The adoption is made in accordance with the Commission's accreditation authority under Code of Criminal Procedure, Article 38.01 §4-d, and the Commission's rulemaking authority under Article 38.01 §3-a.

Summary of Comments. No comments were received regarding the amendments to this section.

Statutory Authority. The adoption is proposed pursuant to Code of Criminal Procedure, Article 38.01 §3-a, which directs the Commission to adopt rules necessary to implement Article 38.01, and §4-d(b) and (c), which authorize the Commission to adopt rules providing, modifying, or removing accreditation exemptions.

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 August 6, 2020.

TRD-202003181

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: August 26, 2020

Proposal publication date: July 3, 2020

For further information, please call: (512) 784-0037


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

The Texas Forensic Science Commission ("Commission") adopts new rule 37 TAC §651.106 to describe the existing process by which accreditation may be reinstated after revocation by the Commission, and adopts conforming amendments to 37 TAC §651.10 which describes the term of Commission accreditation without changes to the text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4480). The adoption also amends §§651.101 - 651.105 to clarify the sources, grounds, and procedures for crime laboratory accreditation-related complaints and reviews by the Commission without changes to the text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4480). The rules will not be republished. The adopted amendments clarify and codify existing procedures. The amendments and additions are necessary to reflect adoptions made by the Commission at its June 12, 2020 quarterly meeting and were made in accordance with the Commission's rulemaking authority under Code of Criminal Procedure, Article 38.01 §3-a, and crime laboratory accreditation authority under Code of Criminal Procedure, Article 38.01 §4-d(b).

Summary of Comments. No comments were received regarding the amendments to this section.

SUBCHAPTER A. ACCREDITATION

37 TAC §651.10

Statutory Authority. The amendments are adopted under Code of Criminal Procedure, Article 38.01 §§3-a and 4-d(b). Article 38.01 §3-a directs the Commission to adopt rules necessary to implement Article 38.01, and Article 38.01 §4-d(b), which directs the Commission to adopt rules establishing and ensuring compliance with the accreditation process.

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 August 6, 2020.

TRD-202003182

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: August 26, 2020

Proposal publication date: July 3, 2020

For further information, please call: (512) 784-0037


SUBCHAPTER B. ACCREDITATION-RELATED ACTIONS AND PROCEDURE FOR HEARING AND APPEAL

37 TAC §§651.101 - 651.106

Statutory Authority. The amendments and new rule are adopted under Code of Criminal Procedure, Article 38.01 §§3-a and 4-d(b). Article 38.01 §3-a directs the Commission to adopt rules necessary to implement Article 38.01, and Article 38.01 §4-d(b), which directs the Commission to adopt rules establishing and ensuring compliance with the accreditation process.

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 August 6, 2020.

TRD-202003183

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: August 26, 2020

Proposal publication date: July 3, 2020

For further information, please call: (512) 784-0037


SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §§651.207, 651.208, 651.220, 651.221

The Texas Forensic Science Commission ("Commission") adopts amendments to 37 TAC §651.207, describing the requirements for forensic analyst and forensic technician licensure, §651.208, describing the requirements for renewal of a forensic analyst or technician license, and §651.220, which describes the option for an uncommon forensic analysis license issued for purposes of ensuring the availability of uncommon forensic analysis, timeliness of forensic analysis, and/or service to counties with limited access to forensic analysis. The Commission also adopts new §651.221, which moves an existing provision (permitting an out-of-state laboratory to obtain a license for certain purposes) for clarity. The amended rules and new rule are adopted without changes to the text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4483). The rules will not be republished.

The proposed amendments to §651.207 and §651.220 remove the distinction between in-state and out-of-state laboratories and establish a universally applied de minimis casework threshold for license category determination. Under the Commission's current blanket (as revised de minimis) rule, a laboratory only qualified if the laboratory was not located in Texas. The amendments apply to all laboratories regardless of geographic location and update qualifying criteria to achieve greater consistency and parity among laboratories regardless of geographic location.

The adopted amendments to §651.207 authorize and set an exam fee of $50 for forensic analysts practicing in unaccredited forensic disciplines who make a voluntary choice to take the exam. This is the same exam fee charged for forensic analysts retesting after the first three attempts.

The adopted amendments to §651.208 remove the limitation on the number of journal articles a forensic analyst may count towards his or her total credit for continuing forensic education in a license cycle. The current limit on journal articles is 8 of 24 total required credit hours per two-year license cycle, and the proposed rule change removes this limit. The Commission makes this change in light of the current COVID-19 pandemic that has resulted in travel and gathering restrictions preventing analysts from fulfilling their continuing forensic education requirements at in-person or live trainings, many of which have been cancelled. The Commission plans to reinstate the requirement for live training modalities during the next license cycle if the large gathering restrictions are lifted or if analysts are provided access to traditional forensic training conferences and meetings via alternative digital platforms.

Finally, adopted new rule §651.221 moves an existing provision (permitting an out-of-state laboratory to obtain a license for certain purposes) for clarity. It also extends the rule to apply to any laboratory regardless of geographical location. The new rule does not change the requirements for a laboratory to obtain this type of license.

The amendments are necessary to reflect adoptions made by the Commission at its June 12, 2020, quarterly meeting. The amendments are made in accordance with the Commission's forensic analyst licensing authority under Code of Criminal Procedure, Article 38.01 §4-a, and the Commission's rulemaking authority under Code of Criminal Procedure, Article 38.01 §3-a.

Summary of Comments. No comments were received regarding the amendments to this section.

Statutory Authority. The rule is adopted pursuant to Code of Criminal Procedure, Article 38.01 §§3-a and 4-a. Article 38.01 §3-a directs the Commission to adopt rules necessary to implement Article 38.01, and Article 38.01 §4-a, which directs the Commission to adopt rules establishing the requirements for forensic analyst licensure.

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 August 6, 2020.

TRD-202003180

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: August 26, 2020

Proposal publication date: July 3, 2020

For further information, please call: (512) 784-0037


37 TAC §651.219

The Texas Forensic Science Commission ("Commission") adopts an amendment to 37 TAC §651.219 without changes to the text as published in the July 3, 2020 issue of the Texas Register (454 TexReg 4491). The rules will not be republished. §651.219 outlines the Commission's Code of Professional Responsibility for Forensic Analysts, Forensic Technicians, and Crime Laboratory Management ("Code"). The adopted amendment removes the distinction to clarify that the Code applies to forensic science-related professional activities engaged in by a licensee regardless of geographic location. The amendment is necessary to reflect adoptions made by the Commission at its June 12, 2020 quarterly meeting. The amendment is made in accordance with the Commission's forensic analyst licensing authority under Code of Criminal Procedure, Article 38.01 §§3-a and 4-(a).

Summary of Comments. No comments were received regarding the amendments to this section.

Statutory Authority. The amendment is adopted under Code of Criminal Procedure, Article 38.01 §3-a, which directs the Commission to adopt rules necessary to implement Article 38.01, and Article 38.01 §4-(a), which directs the Commission to adopt rules to establish the qualifications for a forensic analyst license.

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 August 6, 2020.

TRD-202003179

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: August 26, 2020

Proposal publication date: July 3, 2020

For further information, please call: (512) 784-0037


SUBCHAPTER D. PROCEDURE FOR PROCESSING COMPLAINTS AND LABORATORY SELF-DISCLOSURES

37 TAC §651.302, §651.309

The Texas Forensic Science Commission ("Commission") adopts new 37 TAC §651.309 to describe the existing process by which a person or party may appeal a final investigative report by the Commission and adopts amendments to 37 TAC §651.302, relating to definitions to add a definition for the term "final investigative report" for clarity. Section 651.309 is adopted without changes to the text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4492). The rule will not be republished. Section 651.302 is adopted with a non-substantive change to the text as published in the July 3, 2020, issue of the Texas Register (45 TexReg 4492). The rule will be republished.

The changes are necessary to reflect adoptions made by the Commission at its June 12, 2020, quarterly meeting and are made in accordance with the Commission's rulemaking authority under Code of Criminal Procedure, Article 38.01 §§3-a, and investigative authority under Code of Criminal Procedure, Article 38.01 §4(a).

Summary of Comments. No comments were received regarding the new rule or amendments to this section.

Statutory Authority. The rules are adopted pursuant to Code of Criminal Procedure, Article 38.01 §§3-a and 4(a). Article 38.01 §3-a directs the Commission to adopt rules necessary to implement Article 38.01, and Article 38.01 §4(a) directs the Commission to investigate allegations of professional negligence or professional misconduct.

§651.302.Definitions.

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

(1) Accredited field of forensic science--means a specific forensic method or methodology validated or approved by the Commission under Article 38.01, Code of Criminal Procedure §4-d as part of the accreditation process for crime laboratories.

(2) Crime laboratory--has the meaning assigned by Article 38.35, Code of Criminal Procedure.

(3) Forensic analysis--has the meaning assigned by Article 38.01, Code of Criminal Procedure.

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

(5) 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 (relating to List of Recognized Accrediting Bodies).

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

(7) Professional misconduct--means the forensic analyst or crime laboratory, through a material act or omission, deliberately failed to follow a standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was deliberate if the forensic analyst or crime laboratory was aware of and consciously disregarded an accepted standard of practice.

(8) Professional negligence--means the forensic analyst or crime laboratory, through a material act or omission, negligently failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the negligent act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was negligent if the forensic analyst or crime laboratory should have been but was not aware of an accepted standard of practice.

(9) For purposes of these definitions, the term "standard of practice" includes any of the activities engaged in by a "forensic analyst" as those activities are defined in Article 38.01, Code of Criminal Procedure. "Forensic analyst" means a person who on behalf of a crime laboratory accredited under Article 38.01, 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.

(10) The term "would substantially affect the integrity of the results of a forensic analysis" does not necessarily require that a criminal case be impacted or a report be issued to a customer in error. The term includes acts or omissions that would call into question the integrity of the forensic analysis, the forensic analyst or analysts, or the crime laboratory as a whole regardless of the ultimate outcome in the underlying criminal case.

(11) Final investigative report--means a required, written report issued by the Commission pursuant to Article 38.01, Code of Criminal Procedure §4(b).

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 August 6, 2020.

TRD-202003178

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Effective date: August 26, 2020

Proposal publication date: July 3, 2020

For further information, please call: (512) 784-0037