By: Hinojosa  S.B. No. 1658
         (In the Senate - Filed March 11, 2011; March 23, 2011, read
  first time and referred to Committee on Criminal Justice;
  May 10, 2011, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 6, Nays 1; May 10, 2011,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1658 By:  Hinojosa
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the 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,
  and the accreditation of criminal laboratories by the Department of
  Public Safety of the State of Texas.
         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[, "forensic analysis" has the meaning assigned by Article
  38.35(a)].
         SECTION 2.  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), and (b-2) 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 misconduct;
               (2)  require a crime laboratory [all laboratories,
  facilities, or entities] that conducts [conduct] forensic analyses
  to report professional negligence or 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 an investigation of a
  forensic analysis without a report containing 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:
               (1)  must include the preparation of a written report
  that contains:
                     (A)  observations of the commission regarding the
  integrity and reliability of the forensic analysis conducted;
                     (B)  best practices identified by the commission
  during the course of the investigation; and
                     (C)  other recommendations that are relevant, as
  determined by the commission; and
               (2)  may include one or more:
                     (A)  analyses, if any, of the alleged negligence
  or misconduct;
                     (B)  analyses of whether negligence or misconduct
  occurred;
                     (C)  recommendations as to any corrective action
  required of the laboratory;
                     (D)  retrospective reexaminations of other
  forensic analyses conducted by the laboratory that may involve the
  same kind of negligence or misconduct; and
                     (E)  follow-up evaluations of the laboratory to
  review:
                           (i)  the implementation of any corrective
  action required under Paragraph (C); or
                           (ii)  the conclusion of any retrospective
  reexamination under Paragraph (D).
         (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)
  [Subsection (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.
         SECTION 3.  Article 38.01, Code of Criminal Procedure, is
  amended by adding Sections 8, 9, and 10 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, 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, 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.
         SECTION 4.  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 5.  Not later than December 1, 2012, 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 6.  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, 2011.
 
  * * * * *