S.B. No. 1238
 
 
 
 
AN ACT
  relating to the composition and duties of and investigations
  conducted by the Texas Forensic Science Commission, the
  administrative attachment of the Texas Forensic Science Commission
  to Sam Houston State University, the accreditation of criminal
  laboratories by the Department of Public Safety of the State of
  Texas, and the status of certain local government corporations as
  criminal justice agencies for the purpose of engaging in criminal
  identification activities, including forensic analysis.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2, Article 38.01, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 2.  DEFINITIONS [DEFINITION].  In this article:
               (1)  "Accredited field of forensic science" means a
  specific forensic method or methodology validated or approved by
  the public safety director of the Department of Public Safety under
  Section 411.0205(b-1)(2), Government Code, as part of the
  accreditation process for crime laboratories established by rule
  under Section 411.0205(b) of that code.
               (2)  "Commission" means the Texas Forensic Science
  Commission.
               (3)  "Crime laboratory" has the meaning assigned by
  Article 38.35.
               (4)  "Forensic analysis" means a medical, chemical,
  toxicologic, ballistic, or other expert examination or test
  performed on physical evidence, including DNA evidence, for the
  purpose of determining the connection of the evidence to a criminal
  action, except that the term does not include the portion of an
  autopsy conducted by a medical examiner or other forensic
  pathologist who is a licensed physician[, "forensic analysis" has
  the meaning assigned by Article 38.35(a)].
         SECTION 2.  Subsections (a) and (b), Section 3, Article
  38.01, Code of Criminal Procedure, are amended to read as follows:
         (a)  The commission is composed of [the following] nine
  members[:
               [(1)  four members] appointed by the governor as
  follows:
               (1)  two members who [(A)  two of whom] must have
  expertise in the field of forensic science;
               (2) [(B)]  one member who [of whom] must be a
  prosecuting attorney that the governor selects from a list of 10
  names submitted by the Texas District and County Attorneys
  Association;
               (3)  [and
                     [(C)]  one member who [of whom] must be a defense
  attorney that the governor selects from a list of 10 names submitted
  by the Texas Criminal Defense Lawyers Association;
               (4)  one member who [(2)     three members appointed by
  the lieutenant governor:
                     [(A)  one of whom] must be a faculty member or
  staff member of The University of Texas who specializes in clinical
  laboratory medicine that the governor selects [selected] from a
  list of 10 names submitted [to the lieutenant governor] by the
  chancellor of The University of Texas System;
               (5)  one member who [(B)  one of whom] must be a faculty
  member or staff member of Texas A&M University who specializes in
  clinical laboratory medicine that the governor selects [selected]
  from a list of 10 names submitted [to the lieutenant governor] by
  the chancellor of The Texas A&M University System;
               (6)  one member who [(C)  one of whom] must be a faculty
  member or staff member of Texas Southern University that the
  governor selects [who has expertise in pharmaceutical laboratory
  research selected] from a list of 10 names submitted [to the
  lieutenant governor] by the chancellor of Texas Southern
  University;
               (7)  one member who [and
               [(3)  two members appointed by the attorney general:
                     [(A)  one of whom] must be a director or division
  head of the University of North Texas Health Science Center at Fort
  Worth Missing Persons DNA Database; and
               (8)  one member who [(B)  one of whom] must be a faculty
  or staff member of the Sam Houston State University College of
  Criminal Justice and have expertise in the field of forensic
  science or statistical analyses that the governor selects 
  [selected] from a list of 10 names submitted [to the lieutenant
  governor] by the chancellor of the Texas State University System.
         (b)  Each member of the commission serves a two-year term.  
  The terms expire [term of the members appointed under Subsections
  (a)(1) and (2) expires] on September 1 of:
               (1)  each odd-numbered year, for a member appointed
  under Subsection (a)(1), (2), (3), or (4); and
               (2)  [.   The term of the members appointed under
  Subsection (a)(3) expires on September 1 of] each even-numbered
  year, for a member appointed under Subsection (a)(5), (6), (7), or
  (8).
         SECTION 3.  Section 4, Article 38.01, Code of Criminal
  Procedure, is amended by amending Subsections (a), (b), (d), and
  (e) and adding Subsections (a-1), (b-1), (b-2), (f), and (g) to read
  as follows:
         (a)  The commission shall:
               (1)  develop and implement a reporting system through
  which a crime laboratory may [accredited laboratories, facilities,
  or entities] report professional negligence or professional 
  misconduct;
               (2)  require a crime laboratory [all laboratories,
  facilities, or entities] that conducts [conduct] forensic analyses
  to report professional negligence or professional misconduct to the
  commission; and
               (3)  investigate, in a timely manner, any allegation of
  professional negligence or professional misconduct that would
  substantially affect the integrity of the results of a forensic
  analysis conducted by a crime laboratory [an accredited laboratory,
  facility, or entity].
         (a-1)  The commission may initiate for educational purposes
  an investigation of a forensic analysis without receiving a
  complaint, submitted through the reporting system implemented
  under Subsection (a)(1), that contains an allegation of
  professional negligence or professional misconduct involving the
  forensic analysis conducted if the commission determines by a
  majority vote of a quorum of the members of the commission that an
  investigation of the forensic analysis would advance the integrity
  and reliability of forensic science in this state.
         (b)  If the commission conducts an [An] investigation under
  Subsection (a)(3) of a crime laboratory that is accredited by the
  Department of Public Safety under Section 411.0205, Government
  Code, pursuant to an allegation of professional negligence or
  professional misconduct involving an accredited field of forensic
  science, the investigation:
               (1)  must include the preparation of a written report
  that identifies and also describes the methods and procedures used
  to identify:
                     (A)  the alleged negligence or misconduct;
                     (B)  whether negligence or misconduct occurred;
  [and]
                     (C)  any corrective action required of the
  laboratory, facility, or entity;
                     (D)  observations of the commission regarding the
  integrity and reliability of the forensic analysis conducted;
                     (E)  best practices identified by the commission
  during the course of the investigation; and
                     (F)  other recommendations that are relevant, as
  determined by the commission; and
               (2)  may include one or more:
                     (A)  retrospective reexaminations of other
  forensic analyses conducted by the laboratory, facility, or entity
  that may involve the same kind of negligence or misconduct; and
                     (B)  follow-up evaluations of the laboratory,
  facility, or entity to review:
                           (i)  the implementation of any corrective
  action required under Subdivision (1)(C); or
                           (ii)  the conclusion of any retrospective
  reexamination under Paragraph (A).
         (b-1)  If the commission conducts an investigation under
  Subsection (a)(3) of a crime laboratory that is not accredited by
  the Department of Public Safety under Section 411.0205, Government
  Code, or the investigation is conducted pursuant to an allegation
  involving a forensic method or methodology that is not an
  accredited field of forensic science, the investigation may include
  the preparation of a written report that contains:
               (1)  observations of the commission regarding the
  integrity and reliability of the forensic analysis conducted;
               (2)  best practices identified by the commission during
  the course of the investigation; or
               (3)  other recommendations that are relevant, as
  determined by the commission.
         (b-2)  If the commission conducts an investigation of a
  forensic analysis under Subsection (a-1), the investigation must
  include the preparation of a written report that contains:
               (1)  observations of the commission regarding the
  integrity and reliability of the forensic analysis conducted;
               (2)  best practices identified by the commission during
  the course of the investigation; and
               (3)  other recommendations that are relevant, as
  determined by the commission.
         (d)  The commission may require that a crime laboratory[,
  facility, or entity] investigated under this section pay any costs
  incurred to ensure compliance with Subsection (b), (b-1), or (b-2)
  [(b)(1)].
         (e)  The commission shall make all investigation reports
  completed under Subsection (b), (b-1), or (b-2) [(b)(1)] available
  to the public.  A report completed under Subsection (b), (b-1), or
  (b-2) [(b)(1)], in a subsequent civil or criminal proceeding, is
  not prima facie evidence of the information or findings contained
  in the report.
         (f)  The commission may not make a determination of whether
  professional negligence or professional misconduct occurred or
  issue a finding on that question in an investigation initiated
  under Subsection (a-1) or for which an investigation report may be
  prepared under Subsection (b-1).
         (g)  The commission may not issue a finding related to the
  guilt or innocence of a party in an underlying civil or criminal
  trial involving conduct investigated by the commission under this
  article.
         SECTION 4.  Article 38.01, Code of Criminal Procedure, is
  amended by adding Sections 8, 9, 10, and 11 to read as follows:
         Sec. 8.  ANNUAL REPORT. Not later than December 1 of each
  year, the commission shall prepare and publish a report that
  includes:
               (1)  a description of each complaint filed with the
  commission during the preceding 12-month period, the disposition of
  each complaint, and the status of any complaint still pending on
  December 31;
               (2)  a description of any specific forensic method or
  methodology the commission recommends to the public safety director
  of the Department of Public Safety for validation or approval under
  Section 411.0205(b-1)(2), Government Code, as part of the
  accreditation process for crime laboratories established by rule
  under Section 411.0205(b) of that code;
               (3)  recommendations for best practices concerning the
  definition of "forensic analysis" provided by statute or by rule of
  the Department of Public Safety;
               (4)  developments in forensic science made or used in
  other state or federal investigations and the activities of the
  commission, if any, with respect to those developments; and
               (5)  other information that is relevant to
  investigations involving forensic science, as determined by the
  presiding officer of the commission.
         Sec. 9.  ADMINISTRATIVE ATTACHMENT TO SAM HOUSTON STATE
  UNIVERSITY. (a)  The commission is administratively attached to
  Sam Houston State University.
         (b)  The Board of Regents of the Texas State University
  System shall provide administrative support to the commission as
  necessary to carry out the purposes of this article.
         (c)  Only the commission may exercise the duties of the
  commission under this article. Except as provided by Subsection
  (b), neither the Board of Regents of the Texas State University
  System nor Sam Houston State University has any authority or
  responsibility with respect to the duties of the commission under
  this article.
         Sec. 10.  OPEN RECORDS LIMITATION. Information that is
  filed as part of an allegation of professional misconduct or
  professional negligence or that is obtained during an investigation
  of an allegation of professional misconduct or professional
  negligence is not subject to release under Chapter 552, Government
  Code, until the conclusion of an investigation by the commission
  under Section 4.
         Sec. 11.  REPORT INADMISSIBLE AS EVIDENCE. A written report
  prepared by the commission under this article is not admissible in a
  civil or criminal action.
         SECTION 5.  Subchapter A, Chapter 411, Government Code, is
  amended by adding Section 411.0011 to read as follows:
         Sec. 411.0011.  CERTAIN LOCAL GOVERNMENT CORPORATIONS
  ENGAGED IN CRIMINAL IDENTIFICATION ACTIVITIES.  For purposes of
  this chapter, a reference to "criminal justice agency" includes a
  local government corporation created under Subchapter D, Chapter
  431, Transportation Code, for governmental purposes relating to
  criminal identification activities, including forensic analysis,
  that allocates a substantial part of its annual budget to those
  criminal identification activities.
         SECTION 6.  Section 411.0205, Government Code, is amended by
  adding Subsection (b-3) to read as follows:
         (b-3)  The director shall require that a laboratory,
  facility, or entity that must be accredited under this section, as
  part of the accreditation process, agree to consent to any request
  for cooperation by the Texas Forensic Science Commission that is
  made as part of the exercise of the commission's duties under
  Article 38.01, Code of Criminal Procedure.
         SECTION 7.  The term of a person appointed under former
  Subdivision (3), Subsection (a), Section 3, Article 38.01, Code of
  Criminal Procedure, as that law existed immediately before the
  effective date of this Act, expires September 1, 2014, and the
  governor shall appoint a person to fill each vacancy on that date in
  accordance with Subdivisions (7) and (8), Subsection (a), Section
  3, Article 38.01, Code of Criminal Procedure, as amended by this
  Act. On the expiration of a term under former Subdivision (1) or
  (2), Subsection (a), Section 3, Article 38.01, Code of Criminal
  Procedure, as that law existed immediately before the effective
  date of this Act, the governor shall appoint a person to fill each
  vacancy in accordance with Subdivision (1), (2), (3), (4), (5), or
  (6), Subsection (a), Section 3, Article 38.01, Code of Criminal
  Procedure, as amended by this Act, as applicable.
         SECTION 8.  Not later than December 1, 2014, the Texas
  Forensic Science Commission shall submit the first annual report
  required by Section 8, Article 38.01, Code of Criminal Procedure,
  as added by this Act.
         SECTION 9.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2013.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1238 passed the Senate on
  April 4, 2013, by the following vote: Yeas 30, Nays 0; and that
  the Senate concurred in House amendment on May 20, 2013, by the
  following vote: Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1238 passed the House, with
  amendment, on May 17, 2013, by the following vote: Yeas 141,
  Nays 0, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor