S.B. No. 1287
 
 
 
 
AN ACT
  relating to the Texas Forensic Science Commission, the
  accreditation of crime laboratories, and the licensing and
  regulation of forensic analysts; authorizing fees; requiring an
  occupational license.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2, Article 38.01, Code of Criminal
  Procedure, is amended by amending Subdivision (1) and adding
  Subdivision (5) to read as follows:
               (1)  "Accredited field of forensic science" means a
  specific forensic method or methodology validated or approved by
  the commission under this article [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].
               (5)  "Physical evidence" has the meaning assigned by
  Article 38.35.
         SECTION 2.  Section 3(a), Article 38.01, Code of Criminal
  Procedure, is amended to read as follows:
         (a)  The commission is composed of nine members appointed by
  the governor as follows:
               (1)  two members who must have expertise in the field of
  forensic science;
               (2)  one member who 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)  one member who 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 must be a faculty member or staff
  member of The University of Texas who specializes in clinical
  laboratory medicine that the governor selects from a list of five
  [10] names submitted by the chancellor of The University of Texas
  System;
               (5)  one member who must be a faculty member or staff
  member of Texas A&M University who specializes in clinical
  laboratory medicine that the governor selects from a list of five
  [10] names submitted by the chancellor of The Texas A&M University
  System;
               (6)  one member who must be a faculty member or staff
  member of Texas Southern University that the governor selects from
  a list of five [10] names submitted by the chancellor of Texas
  Southern University;
               (7)  one member who 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 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 from a list of five [10] names
  submitted by the chancellor of the Texas State University System.
         SECTION 3.  Sections 4(b) and (b-1), Article 38.01, Code of
  Criminal Procedure, are amended to read as follows:
         (b)  If the commission conducts an investigation under
  Subsection (a)(3) of a crime laboratory that is accredited [by the
  Department of Public Safety] under this article [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;
                     (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 this article [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.
         SECTION 4.  Article 38.01, Code of Criminal Procedure, is
  amended by adding Sections 3-a, 4-a, 4-b, and 4-c to read as
  follows:
         Sec. 3-a.  RULES. The commission shall adopt rules
  necessary to implement this article.
         Sec. 4-a.  FORENSIC ANALYST LICENSING. (a) Notwithstanding
  Section 2, in this section:
               (1)  "Forensic analysis" has the meaning assigned by
  Article 38.35. 
               (2)  "Forensic analyst" means a person who on behalf of
  a crime laboratory accredited under this article technically
  reviews or performs a forensic analysis or draws conclusions from
  or interprets a forensic analysis for a court or crime laboratory.  
  The term does not include a medical examiner or other forensic
  pathologist who is a licensed physician.
         (b)  A person may not act or offer to act as a forensic
  analyst unless the person holds a forensic analyst license. The
  commission by rule may establish classifications of forensic
  analyst licenses if the commission determines that it is necessary
  to ensure the availability of properly trained and qualified
  forensic analysts to perform activities regulated by the
  commission.
         (c)  The commission by rule may establish voluntary
  licensing programs for forensic disciplines that are not subject to
  accreditation under this article.
         (d)  The commission by rule shall:
               (1)  establish the qualifications for a license that
  include:
                     (A)  successful completion of the education
  requirements established by the commission;
                     (B)  specific course work and experience,
  including instruction in courtroom testimony and ethics in a crime
  laboratory;
                     (C)  successful completion of an examination
  required or recognized by the commission; and
                     (D)  successful completion of proficiency testing
  to the extent required for crime laboratory accreditation;
               (2)  set fees for the issuance and renewal of a license;
  and
               (3)  establish the term of a forensic analyst license.
         (e)  The commission by rule may recognize a certification
  issued by a national organization in an accredited field of
  forensic science as satisfying the requirements established under
  Subsection (d)(1)(C) to the extent the commission determines the
  content required to receive the certification is substantially
  equivalent to the content of the requirements under that
  subsection. 
         (f)  The commission shall issue a license to an applicant
  who:
               (1)  submits an application on a form prescribed by the
  commission;
               (2)  meets the qualifications established by
  commission rule; and
               (3)  pays the required fee.
         Sec. 4-b.  ADVISORY COMMITTEE. (a) The commission shall
  establish an advisory committee to advise the commission and make
  recommendations on matters related to the licensing of forensic
  analysts under Section 4-a.
         (b)  The advisory committee consists of nine members as
  follows:
               (1)  one prosecuting attorney recommended by the Texas
  District and County Attorneys Association;
               (2)  one defense attorney recommended by the Texas
  Criminal Defense Lawyers Association; and
               (3)  seven members who are forensic scientists, crime
  laboratory directors, or crime laboratory quality managers,
  selected by the commission from a list of 20 names submitted by the
  Texas Association of Crime Laboratory Directors.
         (c)  The commission shall ensure that appointments under
  Subsection (b)(3) include representation from municipal, county,
  state, and private crime laboratories that are accredited under
  this article.
         (d)  The advisory committee members serve staggered two-year
  terms, with the terms of four or five members, as appropriate,
  expiring on August 31 of each year.  An advisory committee member
  may not serve more than two consecutive terms. A vacancy on the
  advisory committee is filled by appointing a member in the same
  manner as the original appointment to serve for the unexpired
  portion of the term.
         (e)  The advisory committee shall elect a presiding officer
  from among its members to serve a one-year term.  A member may serve
  more than one term as presiding officer.
         (f)  The advisory committee shall meet annually and at the
  call of the presiding officer or the commission.
         (g)  An advisory committee member is not entitled to
  compensation.  A member is entitled to reimbursement for actual and
  necessary expenses incurred in performing duties as a member of the
  advisory committee subject to the General Appropriations Act.
         (h)  Chapter 2110, Government Code, does not apply to the
  advisory committee.
         Sec. 4-c.  DISCIPLINARY ACTION. (a) On a determination by
  the commission that a license holder has committed professional
  misconduct under this article or violated this article or a rule or
  order of the commission under this article, the commission may:
               (1)  revoke or suspend the person's license;
               (2)  refuse to renew the person's license; or
               (3)  reprimand the license holder.
         (b)  The commission may place on probation a person whose
  license is suspended.  If a license suspension is probated, the
  commission may require the license holder to:
               (1)  report regularly to the commission on matters that
  are the basis of the probation; or 
               (2)  continue or review continuing professional
  education until the license holder attains a degree of skill
  satisfactory to the commission in those areas that are the basis of
  the probation.
         (c)  Disciplinary proceedings of the commission are governed
  by Chapter 2001, Government Code.  A hearing under this section
  shall be conducted by an administrative law judge of the State
  Office of Administrative Hearings.
         SECTION 5.  Section 411.0205, Government Code, is
  transferred to Chapter 38, Code of Criminal Procedure, redesignated
  as Section 4-d, Article 38.01, Code of Criminal Procedure, and
  amended to read as follows:
         Sec. 4-d  [411.0205].  CRIME LABORATORY ACCREDITATION
  PROCESS. (a) Notwithstanding Section 2, in this section [In this
  section, "crime laboratory,"] "forensic analysis" has the meaning
  [analysis," and "physical evidence" have the meanings] assigned by
  Article 38.35[, Code of Criminal Procedure].
         (b)  The commission [director] by rule:
               (1)  shall establish an accreditation process for crime
  laboratories and other entities conducting forensic analyses of
  physical evidence for use in criminal proceedings; and
               (2)  may modify or remove a crime laboratory exemption
  under this section if the commission [director] determines that the
  underlying reason for the exemption no longer applies.
         (b-1)  As part of the accreditation process established and
  implemented under Subsection (b), the commission [director] may:
               (1)  establish minimum standards that relate to the
  timely production of a forensic analysis to the agency requesting
  the analysis and that are consistent with this article and
  applicable laws [code];
               (2)  validate or approve specific forensic methods or
  methodologies; and
               (3)  establish procedures, policies, and practices to
  improve the quality of forensic analyses conducted in this state.
         (b-2)  The commission [director] may require that a
  laboratory, facility, or entity required to be accredited under
  this section pay any costs incurred to ensure compliance with the
  accreditation process.
         (b-3)  A [The director shall require that a] laboratory,
  facility, or entity that must be accredited under this section
  shall, as part of the accreditation process, agree to consent to any
  request for cooperation by the commission [Texas Forensic Science
  Commission] that is made as part of the exercise of the commission's
  duties under this article [Article 38.01, Code of Criminal
  Procedure].
         (c)  The commission [director] by rule may exempt from the
  accreditation process established under Subsection (b) a crime
  laboratory conducting a forensic analysis or a type of analysis,
  examination, or test if the commission [director] determines that:
               (1)  independent accreditation is unavailable or
  inappropriate for the laboratory or the type of analysis,
  examination, or test performed by the laboratory;
               (2)  the type of analysis, examination, or test
  performed by the laboratory is admissible under a well-established
  rule of evidence or a statute other than Article 38.35[, Code of
  Criminal Procedure];
               (3)  the type of analysis, examination, or test
  performed by the laboratory is routinely conducted outside of a
  crime laboratory by a person other than an employee of the crime
  laboratory; or
               (4)  the laboratory:
                     (A)  is located outside this state or, if located
  in this state, is operated by a governmental entity other than the
  state or a political subdivision of the state; and
                     (B)  was accredited at the time of the analysis
  under an accreditation process with standards that meet or exceed
  the relevant standards of the process established [by the director]
  under Subsection (b).
         (d)  The commission [director] may at any reasonable time
  enter and inspect the premises or audit the records, reports,
  procedures, or other quality assurance matters of a crime
  laboratory that is accredited or seeking accreditation under this
  section.
         (e)  The commission [director] may collect costs incurred
  under this section for accrediting, inspecting, or auditing a crime
  laboratory.
         (f)  If the commission [director] provides a copy of an audit
  or other report made under this section, the commission [director]
  may charge $6 for the copy, in addition to any other cost permitted
  under Chapter 552, Government Code, or a rule adopted under that
  chapter.
         [(g)     Funds 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 may be
  used only to defray the cost of administering this section or
  Subchapter G.]
         SECTION 6.  Section 8, Article 38.01, Code of Criminal
  Procedure, is amended 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 designates [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 this article [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.
         SECTION 7.  Article 38.01, Code of Criminal Procedure, is
  amended by adding Section 12 to read as follows:
         Sec. 12.  COLLECTION OF CERTAIN FORENSIC EVIDENCE.  The
  commission shall establish a method for collecting DNA and other
  forensic evidence related to unidentified bodies located less than
  120 miles from the Rio Grande River.
         SECTION 8.  Articles 38.35(a)(3) and (4), Code of Criminal
  Procedure, are amended to read as follows:
               (3)  "Commission" ["Director"] means the Texas
  Forensic Science Commission established under Article 38.01
  [public safety director of the Department of Public Safety].
               (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.  The term includes an examination or test requested by a
  law enforcement agency, prosecutor, criminal suspect or defendant,
  or court.  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 [Section 411.0205(c), Government Code];
                     (E)  a presumptive test performed for the purpose
  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.
         SECTION 9.  Articles 38.35(d) and (e), Code of Criminal
  Procedure, are amended to read as follows:
         (d)(1)  Except as provided by Subsection (e), a forensic
  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
  conducting the analysis was not accredited by the commission
  [director] under Article 38.01 [Section 411.0205, Government
  Code].
               (2)  If before the date of the analysis the commission
  [director] issues a certificate of accreditation under Article
  38.01 [Section 411.0205, Government Code,] to a crime laboratory
  conducting the analysis, the certificate is prima facie evidence
  that the laboratory was accredited by the commission [director] at
  the time of the analysis.
         (e)  A forensic analysis of physical evidence under this
  article and expert testimony relating to the evidence are not
  inadmissible in a criminal action based solely on the accreditation
  status of the crime laboratory conducting the analysis if the
  laboratory:
                     (A)  except for making proper application, was
  eligible for accreditation by the commission [director] at the time
  of the examination or test; and
                     (B)  obtains accreditation from the commission
  [director] before the time of testimony about the examination or
  test.
         SECTION 10.  Articles 38.43(i) and (m), Code of Criminal
  Procedure, are amended to read as follows:
         (i)  Before a defendant is tried for a capital offense in
  which the state is seeking the death penalty, subject to Subsection
  (j), the state shall require either the Department of Public Safety
  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.
         (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.
         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.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1287 passed the Senate on
  April 16, 2015, by the following vote: Yeas 30, Nays 1; and that
  the Senate concurred in House amendments on May 29, 2015, by the
  following vote: Yeas 28, Nays 3.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1287 passed the House, with
  amendments, on May 26, 2015, by the following vote: Yeas 74,
  Nays 72, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor