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AN ACT
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relating to the Texas Forensic Science Commission, the |
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accreditation of crime laboratories, and the licensing and |
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regulation of forensic analysts; authorizing fees; requiring an |
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occupational license. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2, Article 38.01, Code of Criminal |
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Procedure, is amended by amending Subdivision (1) and adding |
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Subdivision (5) to read as follows: |
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(1) "Accredited field of forensic science" means a |
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specific forensic method or methodology validated or approved by |
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the commission under this article [public safety director of the
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Department of Public Safety under Section 411.0205(b-1)(2),
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Government Code, as part of the accreditation process for crime
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laboratories established by rule under Section 411.0205(b) of that
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code]. |
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(5) "Physical evidence" has the meaning assigned by |
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Article 38.35. |
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SECTION 2. Section 3(a), Article 38.01, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) The commission is composed of nine members appointed by |
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the governor as follows: |
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(1) two members who must have expertise in the field of |
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forensic science; |
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(2) one member who must be a prosecuting attorney that |
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the governor selects from a list of 10 names submitted by the Texas |
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District and County Attorneys Association; |
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(3) one member who must be a defense attorney that the |
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governor selects from a list of 10 names submitted by the Texas |
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Criminal Defense Lawyers Association; |
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(4) one member who must be a faculty member or staff |
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member of The University of Texas who specializes in clinical |
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laboratory medicine that the governor selects from a list of five |
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[10] names submitted by the chancellor of The University of Texas |
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System; |
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(5) one member who must be a faculty member or staff |
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member of Texas A&M University who specializes in clinical |
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laboratory medicine that the governor selects from a list of five |
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[10] names submitted by the chancellor of The Texas A&M University |
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System; |
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(6) one member who must be a faculty member or staff |
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member of Texas Southern University that the governor selects from |
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a list of five [10] names submitted by the chancellor of Texas |
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Southern University; |
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(7) one member who must be a director or division head |
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of the University of North Texas Health Science Center at Fort Worth |
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Missing Persons DNA Database; and |
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(8) one member who must be a faculty or staff member of |
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the Sam Houston State University College of Criminal Justice and |
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have expertise in the field of forensic science or statistical |
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analyses that the governor selects from a list of five [10] names |
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submitted by the chancellor of the Texas State University System. |
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SECTION 3. Sections 4(b) and (b-1), Article 38.01, Code of |
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Criminal Procedure, are amended to read as follows: |
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(b) If the commission conducts an investigation under |
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Subsection (a)(3) of a crime laboratory that is accredited [by the
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Department of Public Safety] under this article [Section 411.0205,
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Government Code,] pursuant to an allegation of professional |
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negligence or professional misconduct involving an accredited |
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field of forensic science, the investigation: |
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(1) must include the preparation of a written report |
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that identifies and also describes the methods and procedures used |
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to identify: |
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(A) the alleged negligence or misconduct; |
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(B) whether negligence or misconduct occurred; |
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(C) any corrective action required of the |
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laboratory, facility, or entity; |
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(D) observations of the commission regarding the |
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integrity and reliability of the forensic analysis conducted; |
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(E) best practices identified by the commission |
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during the course of the investigation; and |
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(F) other recommendations that are relevant, as |
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determined by the commission; and |
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(2) may include one or more: |
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(A) retrospective reexaminations of other |
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forensic analyses conducted by the laboratory, facility, or entity |
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that may involve the same kind of negligence or misconduct; and |
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(B) follow-up evaluations of the laboratory, |
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facility, or entity to review: |
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(i) the implementation of any corrective |
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action required under Subdivision (1)(C); or |
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(ii) the conclusion of any retrospective |
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reexamination under Paragraph (A). |
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(b-1) If the commission conducts an investigation under |
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Subsection (a)(3) of a crime laboratory that is not accredited [by
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the Department of Public Safety] under this article [Section
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411.0205, Government Code,] or the investigation is conducted |
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pursuant to an allegation involving a forensic method or |
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methodology that is not an accredited field of forensic science, |
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the investigation may include the preparation of a written report |
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that contains: |
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(1) observations of the commission regarding the |
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integrity and reliability of the forensic analysis conducted; |
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(2) best practices identified by the commission during |
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the course of the investigation; or |
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(3) other recommendations that are relevant, as |
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determined by the commission. |
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SECTION 4. Article 38.01, Code of Criminal Procedure, is |
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amended by adding Sections 3-a, 4-a, 4-b, and 4-c to read as |
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follows: |
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Sec. 3-a. RULES. The commission shall adopt rules |
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necessary to implement this article. |
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Sec. 4-a. FORENSIC ANALYST LICENSING. (a) Notwithstanding |
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Section 2, in this section: |
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(1) "Forensic analysis" has the meaning assigned by |
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Article 38.35. |
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(2) "Forensic analyst" means a person who on behalf of |
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a crime laboratory accredited under this article technically |
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reviews or performs a forensic analysis or draws conclusions from |
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or interprets a forensic analysis for a court or crime laboratory. |
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The term does not include a medical examiner or other forensic |
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pathologist who is a licensed physician. |
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(b) A person may not act or offer to act as a forensic |
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analyst unless the person holds a forensic analyst license. The |
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commission by rule may establish classifications of forensic |
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analyst licenses if the commission determines that it is necessary |
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to ensure the availability of properly trained and qualified |
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forensic analysts to perform activities regulated by the |
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commission. |
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(c) The commission by rule may establish voluntary |
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licensing programs for forensic disciplines that are not subject to |
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accreditation under this article. |
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(d) The commission by rule shall: |
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(1) establish the qualifications for a license that |
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include: |
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(A) successful completion of the education |
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requirements established by the commission; |
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(B) specific course work and experience, |
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including instruction in courtroom testimony and ethics in a crime |
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laboratory; |
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(C) successful completion of an examination |
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required or recognized by the commission; and |
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(D) successful completion of proficiency testing |
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to the extent required for crime laboratory accreditation; |
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(2) set fees for the issuance and renewal of a license; |
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and |
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(3) establish the term of a forensic analyst license. |
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(e) The commission by rule may recognize a certification |
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issued by a national organization in an accredited field of |
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forensic science as satisfying the requirements established under |
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Subsection (d)(1)(C) to the extent the commission determines the |
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content required to receive the certification is substantially |
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equivalent to the content of the requirements under that |
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subsection. |
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(f) The commission shall issue a license to an applicant |
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who: |
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(1) submits an application on a form prescribed by the |
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commission; |
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(2) meets the qualifications established by |
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commission rule; and |
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(3) pays the required fee. |
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Sec. 4-b. ADVISORY COMMITTEE. (a) The commission shall |
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establish an advisory committee to advise the commission and make |
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recommendations on matters related to the licensing of forensic |
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analysts under Section 4-a. |
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(b) The advisory committee consists of nine members as |
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follows: |
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(1) one prosecuting attorney recommended by the Texas |
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District and County Attorneys Association; |
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(2) one defense attorney recommended by the Texas |
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Criminal Defense Lawyers Association; and |
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(3) seven members who are forensic scientists, crime |
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laboratory directors, or crime laboratory quality managers, |
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selected by the commission from a list of 20 names submitted by the |
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Texas Association of Crime Laboratory Directors. |
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(c) The commission shall ensure that appointments under |
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Subsection (b)(3) include representation from municipal, county, |
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state, and private crime laboratories that are accredited under |
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this article. |
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(d) The advisory committee members serve staggered two-year |
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terms, with the terms of four or five members, as appropriate, |
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expiring on August 31 of each year. An advisory committee member |
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may not serve more than two consecutive terms. A vacancy on the |
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advisory committee is filled by appointing a member in the same |
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manner as the original appointment to serve for the unexpired |
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portion of the term. |
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(e) The advisory committee shall elect a presiding officer |
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from among its members to serve a one-year term. A member may serve |
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more than one term as presiding officer. |
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(f) The advisory committee shall meet annually and at the |
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call of the presiding officer or the commission. |
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(g) An advisory committee member is not entitled to |
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compensation. A member is entitled to reimbursement for actual and |
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necessary expenses incurred in performing duties as a member of the |
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advisory committee subject to the General Appropriations Act. |
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(h) Chapter 2110, Government Code, does not apply to the |
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advisory committee. |
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Sec. 4-c. DISCIPLINARY ACTION. (a) On a determination by |
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the commission that a license holder has committed professional |
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misconduct under this article or violated this article or a rule or |
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order of the commission under this article, the commission may: |
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(1) revoke or suspend the person's license; |
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(2) refuse to renew the person's license; or |
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(3) reprimand the license holder. |
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(b) The commission may place on probation a person whose |
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license is suspended. If a license suspension is probated, the |
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commission may require the license holder to: |
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(1) report regularly to the commission on matters that |
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are the basis of the probation; or |
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(2) continue or review continuing professional |
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education until the license holder attains a degree of skill |
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satisfactory to the commission in those areas that are the basis of |
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the probation. |
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(c) Disciplinary proceedings of the commission are governed |
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by Chapter 2001, Government Code. A hearing under this section |
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shall be conducted by an administrative law judge of the State |
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Office of Administrative Hearings. |
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SECTION 5. Section 411.0205, Government Code, is |
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transferred to Chapter 38, Code of Criminal Procedure, redesignated |
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as Section 4-d, Article 38.01, Code of Criminal Procedure, and |
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amended to read as follows: |
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Sec. 4-d [411.0205]. CRIME LABORATORY ACCREDITATION |
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PROCESS. (a) Notwithstanding Section 2, in this section [In this
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section, "crime laboratory,"] "forensic analysis" has the meaning |
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[analysis," and "physical evidence" have the meanings] assigned by |
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Article 38.35[, Code of Criminal Procedure]. |
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(b) The commission [director] by rule: |
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(1) shall establish an accreditation process for crime |
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laboratories and other entities conducting forensic analyses of |
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physical evidence for use in criminal proceedings; and |
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(2) may modify or remove a crime laboratory exemption |
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under this section if the commission [director] determines that the |
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underlying reason for the exemption no longer applies. |
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(b-1) As part of the accreditation process established and |
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implemented under Subsection (b), the commission [director] may: |
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(1) establish minimum standards that relate to the |
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timely production of a forensic analysis to the agency requesting |
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the analysis and that are consistent with this article and |
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applicable laws [code]; |
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(2) validate or approve specific forensic methods or |
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methodologies; and |
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(3) establish procedures, policies, and practices to |
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improve the quality of forensic analyses conducted in this state. |
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(b-2) The commission [director] may require that a |
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laboratory, facility, or entity required to be accredited under |
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this section pay any costs incurred to ensure compliance with the |
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accreditation process. |
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(b-3) A [The director shall require that a] laboratory, |
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facility, or entity that must be accredited under this section |
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shall, as part of the accreditation process, agree to consent to any |
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request for cooperation by the commission [Texas Forensic Science
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Commission] that is made as part of the exercise of the commission's |
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duties under this article [Article 38.01, Code of Criminal
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Procedure]. |
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(c) The commission [director] by rule may exempt from the |
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accreditation process established under Subsection (b) a crime |
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laboratory conducting a forensic analysis or a type of analysis, |
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examination, or test if the commission [director] determines that: |
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(1) independent accreditation is unavailable or |
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inappropriate for the laboratory or the type of analysis, |
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examination, or test performed by the laboratory; |
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(2) the type of analysis, examination, or test |
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performed by the laboratory is admissible under a well-established |
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rule of evidence or a statute other than Article 38.35[, Code of
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Criminal Procedure]; |
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(3) the type of analysis, examination, or test |
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performed by the laboratory is routinely conducted outside of a |
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crime laboratory by a person other than an employee of the crime |
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laboratory; or |
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(4) the laboratory: |
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(A) is located outside this state or, if located |
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in this state, is operated by a governmental entity other than the |
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state or a political subdivision of the state; and |
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(B) was accredited at the time of the analysis |
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under an accreditation process with standards that meet or exceed |
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the relevant standards of the process established [by the director] |
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under Subsection (b). |
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(d) The commission [director] may at any reasonable time |
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enter and inspect the premises or audit the records, reports, |
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procedures, or other quality assurance matters of a crime |
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laboratory that is accredited or seeking accreditation under this |
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section. |
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(e) The commission [director] may collect costs incurred |
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under this section for accrediting, inspecting, or auditing a crime |
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laboratory. |
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(f) If the commission [director] provides a copy of an audit |
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or other report made under this section, the commission [director] |
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may charge $6 for the copy, in addition to any other cost permitted |
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under Chapter 552, Government Code, or a rule adopted under that |
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chapter. |
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[(g)
Funds collected under this section shall be deposited
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in the state treasury to the credit of the state highway fund, and
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money deposited to the state highway fund under this section may be
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used only to defray the cost of administering this section or
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Subchapter G.] |
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SECTION 6. Section 8, Article 38.01, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 8. ANNUAL REPORT. Not later than December 1 of each |
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year, the commission shall prepare and publish a report that |
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includes: |
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(1) a description of each complaint filed with the |
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commission during the preceding 12-month period, the disposition of |
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each complaint, and the status of any complaint still pending on |
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December 31; |
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(2) a description of any specific forensic method or |
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methodology the commission designates [recommends to the public
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safety director of the Department of Public Safety for validation
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or approval under Section 411.0205(b-1)(2), Government Code,] as |
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part of the accreditation process for crime laboratories |
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established by rule under this article [Section 411.0205(b) of that
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code]; |
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(3) recommendations for best practices concerning the |
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definition of "forensic analysis" provided by statute or by rule |
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[of the Department of Public Safety]; |
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(4) developments in forensic science made or used in |
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other state or federal investigations and the activities of the |
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commission, if any, with respect to those developments; and |
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(5) other information that is relevant to |
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investigations involving forensic science, as determined by the |
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presiding officer of the commission. |
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SECTION 7. Article 38.01, Code of Criminal Procedure, is |
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amended by adding Section 12 to read as follows: |
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Sec. 12. COLLECTION OF CERTAIN FORENSIC EVIDENCE. The |
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commission shall establish a method for collecting DNA and other |
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forensic evidence related to unidentified bodies located less than |
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120 miles from the Rio Grande River. |
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SECTION 8. Articles 38.35(a)(3) and (4), Code of Criminal |
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Procedure, are amended to read as follows: |
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(3) "Commission" ["Director"] means the Texas |
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Forensic Science Commission established under Article 38.01 |
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[public safety director of the Department of Public Safety]. |
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(4) "Forensic analysis" means a medical, chemical, |
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toxicologic, ballistic, or other expert examination or test |
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performed on physical evidence, including DNA evidence, for the |
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purpose of determining the connection of the evidence to a criminal |
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action. The term includes an examination or test requested by a |
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law enforcement agency, prosecutor, criminal suspect or defendant, |
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or court. The term does not include: |
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(A) latent print examination; |
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(B) a test of a specimen of breath under Chapter |
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724, Transportation Code; |
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(C) digital evidence; |
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(D) an examination or test excluded by rule under |
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Article 38.01 [Section 411.0205(c), Government Code]; |
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(E) a presumptive test performed for the purpose |
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of determining compliance with a term or condition of community |
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supervision or parole and conducted by or under contract with a |
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community supervision and corrections department, the parole |
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division of the Texas Department of Criminal Justice, or the Board |
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of Pardons and Paroles; or |
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(F) an expert examination or test conducted |
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principally for the purpose of scientific research, medical |
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practice, civil or administrative litigation, or other purpose |
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unrelated to determining the connection of physical evidence to a |
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criminal action. |
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SECTION 9. Articles 38.35(d) and (e), Code of Criminal |
|
Procedure, are amended to read as follows: |
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(d)(1) Except as provided by Subsection (e), a forensic |
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analysis of physical evidence under this article and expert |
|
testimony relating to the evidence are not admissible in a criminal |
|
action if, at the time of the analysis, the crime laboratory |
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conducting the analysis was not accredited by the commission |
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[director] under Article 38.01 [Section 411.0205, Government
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Code]. |
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(2) If before the date of the analysis the commission |
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[director] issues a certificate of accreditation under Article |
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38.01 [Section 411.0205, Government Code,] to a crime laboratory |
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conducting the analysis, the certificate is prima facie evidence |
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that the laboratory was accredited by the commission [director] at |
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the time of the analysis. |
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(e) A forensic analysis of physical evidence under this |
|
article and expert testimony relating to the evidence are not |
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inadmissible in a criminal action based solely on the accreditation |
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status of the crime laboratory conducting the analysis if the |
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laboratory: |
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(A) except for making proper application, was |
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eligible for accreditation by the commission [director] at the time |
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of the examination or test; and |
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(B) obtains accreditation from the commission |
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[director] before the time of testimony about the examination or |
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test. |
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SECTION 10. Articles 38.43(i) and (m), Code of Criminal |
|
Procedure, are amended to read as follows: |
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(i) Before a defendant is tried for a capital offense in |
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which the state is seeking the death penalty, subject to Subsection |
|
(j), the state shall require either the Department of Public Safety |
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through one of its laboratories or a laboratory accredited under |
|
Article 38.01 [Section 411.0205, Government Code,] to perform DNA |
|
testing, in accordance with the laboratory's capabilities at the |
|
time the testing is performed, on any biological evidence that was |
|
collected as part of an investigation of the offense and is in the |
|
possession of the state. The laboratory that performs the DNA |
|
testing shall pay for all DNA testing performed in accordance with |
|
this subsection. |
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(m) A defendant may have another laboratory accredited |
|
under Article 38.01 [Section 411.0205, Government Code,] perform |
|
additional testing of any biological evidence required to be tested |
|
under Subsection (i). On an ex parte showing of good cause to the |
|
court, a defendant may have a laboratory accredited under Article |
|
38.01 [Section 411.0205, Government Code,] perform testing of any |
|
biological material that is not required to be tested under |
|
Subsection (i). The defendant is responsible for the cost of any |
|
testing performed under this subsection. |
|
SECTION 11. Article 64.03(c), Code of Criminal Procedure, |
|
is amended to read as follows: |
|
(c) If the convicting court finds in the affirmative the |
|
issues listed in Subsection (a)(1) and the convicted person meets |
|
the requirements of Subsection (a)(2), the court shall order that |
|
the requested forensic DNA testing be conducted. The court may |
|
order the test to be conducted by: |
|
(1) the Department of Public Safety; |
|
(2) a laboratory operating under a contract with the |
|
department; or |
|
(3) on the request of the convicted person, another |
|
laboratory if that laboratory is accredited under Article 38.01 |
|
[Section 411.0205, Government Code]. |
|
SECTION 12. Section 411.145(c), Government Code, is amended |
|
to read as follows: |
|
(c) A fee collected under this section shall be deposited in |
|
the state treasury to the credit of the state highway fund, and |
|
money deposited to the state highway fund under this section and |
|
under Articles 42.12 and 102.020(h), Code of Criminal Procedure, |
|
may be used only to defray the cost of administering this subchapter |
|
[and Section 411.0205]. |
|
SECTION 13. Section 420.003(1), Government Code, is amended |
|
to read as follows: |
|
(1) "Accredited crime laboratory" means a crime |
|
laboratory, as that term is defined by Article 38.35, Code of |
|
Criminal Procedure, that has been accredited under Article 38.01 of |
|
that code [Section 411.0205]. |
|
SECTION 14. On the effective date of this Act: |
|
(1) a certificate of accreditation issued by the |
|
Department of Public Safety under former Section 411.0205, |
|
Government Code, is continued in effect as a certificate of |
|
accreditation of the Texas Forensic Science Commission; and |
|
(2) an application or proceeding before the Department |
|
of Public Safety under former Section 411.0205, Government Code, |
|
that is pending on the effective date of this Act is transferred |
|
without change in status to the Texas Forensic Science Commission. |
|
SECTION 15. Not later than January 1, 2016, the Texas |
|
Forensic Science Commission shall appoint the members of the |
|
advisory committee in accordance with Section 4-b, Article 38.01, |
|
Code of Criminal Procedure, as added by this Act. In making the |
|
appointments, the commission shall designate: |
|
(1) four members to serve terms expiring August 31, |
|
2016; and |
|
(2) five members to serve terms expiring August 31, |
|
2017. |
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SECTION 16. Not later than January 1, 2017, the Texas |
|
Forensic Science Commission shall make recommendations to the |
|
legislature regarding suggested changes to the licensing of |
|
forensic analysts as established by this Act, including |
|
recommendations regarding the issuance of licenses to individuals |
|
practicing as forensic analysts on the effective date of this Act. |
|
SECTION 17. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect September 1, 2015. |
|
(b) Section 4-a(b), Article 38.01, Code of Criminal |
|
Procedure, as added by this Act, takes effect January 1, 2019. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 1287 passed the Senate on |
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April 16, 2015, by the following vote: Yeas 30, Nays 1; and that |
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the Senate concurred in House amendments on May 29, 2015, by the |
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following vote: Yeas 28, Nays 3. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 1287 passed the House, with |
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amendments, on May 26, 2015, by the following vote: Yeas 74, |
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Nays 72, two present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |