Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 28.
DNA DATABASE
Subchapter H. ACCREDITATION
37 TAC §§28.121 - 28.132
The Department of Public Safety (DPS) proposes to adopt the
following new §§28.121 - 28.132, concerning accreditation of crime
laboratories and other entities.
DPS proposes the new sections under the authority of §4 of House Bill
2703, 78th Legislature, Regular Session which added Government Code §411.0205.
This new law provides that the DPS director by rule shall establish an accreditation
process for crime laboratories and other entities conducting forensic analyses
of physical evidence for use in criminal proceedings. The purpose of the proposed
sections is to implement the DPS accreditation process as provided by the
new law.
New §28.121 explains the DPS purpose; new §28.122 identifies
definitions; new §28.123 identifies DPS approved national accrediting
bodies; new §28.124 identifies disciplines and subdisciplines subject
to statutory DPS accreditation; new §28.125 identifies disciplines, subdisciplines,
and procedures to which statutory DPS accreditation does not apply; new §28.126
identifies disciplines and subdisciplines that are exempt from statutory DPS
accreditation; new §28.127 explains full DPS accreditation; new §28.128
explains provisional DPS accreditation; new §28.129 explains the term
for provisional accreditation; new §28.130 explains DPS accreditation
for a limited term; new §28.131 explains the withdrawal of DPS accreditation;
and new §28.132 explains how to contact DPS about these rules.
Tom Haas, Chief of Finance, has determined that for each of the first five
years the proposed rules will be in effect, the fiscal implications for state
government as a result of enforcing or administering the new rules will be
the cost of compliance and cost of the administration of the accreditation
program. As all state government crime laboratories in the state are currently
accredited by a national accrediting body, they will be eligible to apply
for, obtain, and maintain DPS accreditation without any new impact to the
state.
There is no estimated cost to state government expected as a result of
enforcing or administering the rules other than the costs associated with
maintaining accreditation and the costs associated with administrating the
accreditation process. The costs of administration of the DPS accreditation
process will be absorbed by DPS. There are no estimated reductions in costs
to state government as a result of enforcing or administering the rules. There
is no estimated loss or increase in revenue to state government as a result
of enforcing or administering the rules since DPS is not charging any applicant
entities for DPS accreditation. Enforcing or administering the rules does
not have any foreseeable implications relating to cost or revenues for state
government.
There is anticipated effect on local government for the first five years
the proposed rules will be in effect. The cost of obtaining and maintaining
accreditation from a national recognized accrediting body will be incurred
by any local government that operates a crime laboratory and elects to obtain
DPS accreditation. Under House Bill 2703, accreditation is not required for
crime laboratories until September 1, 2005, provided that the laboratory takes
specified steps to preserve evidence.
Local governments that elect to seek DPS accreditation will incur the cost
of obtaining and maintaining accreditation by a national accreditating body.
There is no fee charged by DPS for DPS accreditation. The most common available
accreditation is ASCLD/LAB accreditation. The application fee structure for
new applicant laboratories in ASCLD/LAB is as follows: (1) five hundred dollars
($500 US) for laboratories having ten or fewer proficiency tested personnel
(including vacancies), at the time of the application; (2) one thousand dollars
($1000 US) for laboratories having more than ten but no more than twenty-five
proficiency tested personnel (including vacancies), at the time of the application;
(3) two thousand dollars ($2000 US) for laboratories having greater than twenty-five
proficiency tested personnel (including vacancies), at the time of the application;
(4) laboratory systems will not be assessed fees greater than three thousand
dollars ($3000 US), once this amount has been reached, no matter the number
of laboratories or proficiency tested personnel (including vacancies). Preparation
for accreditation costs will also be incurred. These costs include costs associated
with securing facilities, documents, and evidence, and costs associated with
preparation of statements of operating procedures.
Additional costs will be incurred in subsequent years to address inspection
and annual fees. Inspection fees are dependant upon the size and duration
of the inspection. It is not possible to give a definite figure until the
team and the inspection schedule are set. As a guide, ASCLD/LAB charges $500
per inspector for the first day of the inspection and $200 per inspector day
for each subsequent day. This includes travel days. In addition to the initial
inspection, laboratories should budget for possible revisits. The same per
day cost is required for revisits. In addition to application and inspection
costs, laboratories must typically pay an annual fee. ASCLD/LAB annual fees
are approximately $127.00 per proficiency tested person in the laboratory
with a minimum fee of $500.00. An accredited laboratory must also maintain
an appropriate proficiency testing program. Estimated costs are $150 per proficiency
tested employee.
The estimated cost to local government expected as a result of enforcing
or administering the rules is the cost of accreditation and maintenance of
that accreditation. There are no estimated reductions in costs to local government
as a result of enforcing or administering the rules. There is no estimated
loss or increase in revenue to local government as a result of enforcing or
administering the rules. Enforcing or administering the rules does not have
any foreseeable implications relating to cost or revenues for local government
other than the costs associated with the national accreditation process.
Questions regarding the application fees to ASCLD/LAB should be directed
to ASCLD/LAB at (919) 773-2600.
Texas Government Code, §2006.002, requires a state agency considering
adoption of a rule that would have an adverse economic effect on small businesses
or micro-businesses to reduce the effect if doing so is legal and feasible
considering the purpose of the statutes under which the rules is to be adopted.
Before adopting a rule that would have an adverse economic effect on small
businesses, a state agency must prepare a statement of the effect of the rule
on small businesses, which must include an analysis of the cost of compliance
with the rule for small businesses and a comparison of the cost with the cost
of compliance for the largest businesses affected by the rule, using cost
for each employee, cost for each hour of labor, or cost for each $100 of sales.
Mr. Haas has estimated that the cost of compliance with the proposed sections
for small businesses, micro-businesses, and individuals that are private laboratories,
will be the cost of accreditation and maintenance of accreditation. Although
there is no fee charged by DPS for DPS accreditation, the proposed rules require
an applicant for DPS accreditation to obtain accreditation from a national
accrediting body. The most common available accreditation is ASCLD/LAB accreditation.
The application fee structure for new applicant laboratories in ASCLD/LAB
is as follows: (1) five hundred dollars ($500 US) for laboratories having
ten or fewer proficiency tested personnel (including vacancies), at the time
of the application; (2) one thousand dollars ($1000 US) for laboratories having
more than ten but no more than twenty-five (25) proficiency tested personnel
(including vacancies), at the time of the application; (3) two thousand dollars
($2000 US) for laboratories having greater than twenty-five proficiency tested
personnel (including vacancies), at the time of the application; (4) laboratory
systems will not be assessed fees greater than three thousand dollars ($3000
US), once this amount has been reached, no matter the number of laboratories
or proficiency tested personnel (including vacancies). Preparation for accreditation
costs will also be incurred. These costs include costs associated with securing
facilities, documents, and evidence, and costs associated with preparation
of statements of operating procedures.
Assuming that a private laboratory or other entity that is an individual,
small business or micro-business incurs during a given year the cost of accreditation
application, the lowest accreditation fee would be $500 for private laboratories
having ten or fewer proficiency tested employees. Comparable costs per proficiency
tested employee for the largest private laboratories would be the total cost
$3000, no matter how many employees.
Costs to maintain accreditation should also be considered. Inspection fees
are dependant upon the size and duration of the inspection. It is not possible
to give a definite figure until the team and the inspection schedule are set.
As a guide, ASCLD/LAB charges $500 per inspector for the first day of the
inspection and $200 per inspector day for each subsequent day. This includes
travel days. In addition to the initial inspection, laboratories should budget
for possible revisits. The same per day cost is required for revisits. In
addition to application and inspection costs, laboratories must typically
pay an annual fee. ASCLD/LAB annual fees are approximately $127.00 per proficiency
tested person in the laboratory with a minimum fee of $500.
Assuming that a private laboratory or other entity that is an individual,
small business or micro-business incurs during a given year the cost of accreditation
inspection, the lowest accreditation inspection fee would be $500 per day
regardless of the number of employees. The comparable cost to the largest
private laboratories is $500 per day regardless of the number of employees.
Assuming that a private laboratory or other entity that is an individual,
small business or micro-business incurs during a given year the cost of accreditation
annual fees, the lowest accreditation annual fee would be $127.00 per proficiency
tested employee, with a minimum fee of $500. Comparable costs per proficiency
tested employee for the annual fee for the largest private laboratories are
anticipated to not exceed $3000, no matter how many employees.
An accredited laboratory must also maintain an appropriate proficiency
testing program. Estimated costs are $150 per proficiency tested employee.
The cost of testing would be the same for an individual, small business, micro-businesses
or large businesses.
Although there may be some impact on small businesses, micro-businesses,
and individuals, House Bill 2703 provides a specific mandate that directs
DPS to establish an accreditation system. There is no feasible alternative
to national accreditation.
No private real property rights are affected by adoption of this rule.
Accordingly, no takings impact assessment regarding the rules are required
under Government Code §2007.043.
There is no foreseeable negative impact upon employment conditions in this
state as a result of the proposed rule.
Mr. Haas has determined that for each year of the first five years that
the proposed sections will be in effect, the public benefit anticipated will
be the implementation of an accreditation procedure authorized by the Legislature
which will promote higher quality crime laboratory procedures. The probable
economic costs to persons required to comply with the rule has been detailed
above.
Comments on the proposal may be submitted to Ron Urbanovksy, Director,
Crime Laboratory Service, Department of Public Safety, P.O. Box 4143, Austin,
Texas 78765-4143; or by electronic mail at LabQA@txdps.state.tx.us. DPS will
accept comments for 21 days after publication in the
Texas Register
. For further information, call Ron Urbanovsky at (512)
424-2143.
The new sections are proposed under Government Code §411.0205
which provides that the DPS director by rule shall establish an accreditation
process for crime laboratories and other entities conducting forensic analyses
of physical evidence for use in criminal proceedings.
Government Code §411.0205 is affected by this proposal.
§28.121.Purpose.
This subchapter contains the director's rules governing the Department
of Public Safety (DPS) accreditation of a crime laboratory or other entity
required for admission of evidence or testimony under Code of Criminal Procedure,
Article 38.35, because the laboratory or entity conducts a forensic analysis
of physical evidence for use in a criminal proceeding.
§28.122.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Forensic analysis--has the meaning assigned by Code of
Criminal Procedure, Article 38.35. The term does not include:
(A)
an expert examination or test excluded under Code of Criminal
Procedure, Article 38.35, Subsection (a)(1) or (2);
(B)
an expert examination or test that was not conducted for
the purpose of determining the connection of physical evidence to a criminal
action;
(C)
the location, identification, collection, or preservation
of physical evidence by laboratory or investigative personnel unless the activity
is integral to an expert examination or test; or
(D)
field testing such as screening or presumptive testing
unless the activity is integral to an expert examination or test.
(2)
Laboratory or crime laboratory--refers to an entity that
conducts a forensic analysis of physical evidence for use in a criminal proceeding.
(3)
National accrediting body--refers to an entity that issues
an accreditation recognized throughout the relevant scientific community in
the United States and that accredits an organization or entity, including
its personnel, procedures, and facilities.
(4)
Physical evidence--has the meaning assigned by Code of
Criminal Procedure, Article 38.35.
§28.123.Approved National Accrediting Bodies.
(a)
A laboratory may apply for statutory DPS accreditation
if accreditation is required for evidence admissibility under Code of Criminal
Procedure, Article 38.35. A laboratory may apply for voluntary DPS accreditation
if permitted under this subchapter.
(b)
To be accredited by DPS, the laboratory must first be accredited
by a national accrediting body that is approved by the director under this
subchapter.
(c)
The director approves the following national accrediting
bodies, subject to the stated discipline or subdiscipline limitations:
(1)
American Board of Forensic Toxicology (ABFT)--approved
for accreditation of toxicology discipline only.
(2)
American Society of Crime Laboratory Directors, Laboratory
Accreditation Board (ASCLD/LAB)--approved for accreditation of all disciplines
which it accredits.
(3)
National Association of Medical Examiners (NAME).
(4)
National Forensic Science Technology Center (NFSTC)--approved
for accreditation of DNA discipline only.
§28.124.Disciplines and Subdisciplines Subject to Statutory DPS Accreditation.
'Forensic analysis'/national accreditation. This section describes
a discipline or subdiscipline that involves forensic analysis for use in a
criminal proceeding and for which accreditation is available from an approved
national accrediting body.
(1)
A laboratory may apply for statutory DPS accreditation
for: controlled substances, toxicology (subdisciplines include alcohol and
drugs), biology (subdisciplines include serology and DNA), firearm/toolmark
(subdisciplines include firearms and toolmarks), questioned documents, trace
evidence (subdisciplines include fire debris, explosives, fibers, gun shot
residue, glass, hairs and paint), forensic pathology and digital evidence.
(2)
The subdiscipline of impression evidence, including footwear,
tiretrack, and similar impression evidence, may be assigned to various administrative
sections in different laboratories. The director deems impression evidence
to be a subdiscipline of several disciplines under this subchapter, including
trace evidence, firearm/toolmark, or questioned documents.
§28.125.Disciplines, Subdisciplines, and Procedures to Which Statutory DPS Accreditation Does Not Apply.
This section describes a discipline, subdiscipline, or procedure excluded
from the definition of forensic analysis by the Code of Criminal Procedure,
Article 38.35, Subsection (a) or by this section based on their nature.
(1)
Expressly excluded from 'forensic analysis'/national accreditation.
This paragraph describes a discipline, subdiscipline, or procedure that is
excluded from the definition of forensic analysis by the Code of Criminal
Procedure, Article 38.35, Subsection (a) and for which national accreditation
is available. A laboratory may apply for voluntary DPS accreditation for:
latent print examination (including development and comparison).
(2)
Expressly excluded from 'forensic analysis'/no national
accreditation. This paragraph describes a discipline, subdiscipline, or procedure
that is excluded from the definition of forensic analysis by the Code of Criminal
Procedure, Article 38.35, Subsection (a) and for which national accreditation
is unavailable. A laboratory may not apply for voluntary or statutory DPS
accreditation for: tests of breath specimens under Transportation Code, Chapter
724.
(3)
Not 'forensic analysis' by its nature/national accreditation.
This paragraph describes a discipline, subdiscipline, or procedure that does
not normally involve forensic analysis of physical evidence for use in a criminal
proceeding and for which national accreditation is available. If a laboratory
has another discipline or subdiscipline that may be accredited by a national
accrediting body, then national accreditation is available, and the laboratory
may apply for voluntary DPS accreditation for: blood spatter.
(4)
Not 'forensic analysis' by its nature/no national accreditation.
This paragraph describes a discipline, subdiscipline, or procedure that does
not normally involve forensic analysis of physical evidence for use in a criminal
proceeding and for which national accreditation is unavailable. A laboratory
may not apply for voluntary or statutory DPS accreditation for: forensic photography,
non-criminal paternity testing, non-criminal testing of human or nonhuman
blood, urine, or tissue, a crime scene search team (associated with an accredited
laboratory) if the team does not engage in forensic analysis because it only
engages in the location, identification, collection, or preservation of physical
evidence and the activity is not integral to an expert examination or test,
other evidence processing or handling that is excluded under §28.122(1)(C)
or (D) of this subchapter (relating to Definitions), polygraph, voice stress
analysis, or forensic hypnosis.
§28.126.Disciplines and Subdisciplines Exempt from Statutory DPS Accreditation.
This section describes a discipline or subdiscipline that is 'forensic
analysis' but is not subject to national accreditation by one or more national
accrediting bodies approved by the director under this subchapter.
(1)
Even though a discipline or subdiscipline is forensic analysis,
if no accreditation is available from a national accrediting body for the
discipline or subdiscipline, a laboratory may not apply for voluntary or statutory
DPS accreditation for: sexual assault examination of the person, forensic
anthropology, entomology, or botany, facial or traffic accident reconstruction,
video examination, voiceprint analysis, statement analysis, or profiling.
(2)
If a laboratory has no other discipline or subdiscipline
accredited by a relevant national accrediting body, the laboratory may not
apply for voluntary or statutory DPS accreditation for: blood spatter or a
standing crime scene search team (associated with a laboratory).
§28.127.Full DPS Accreditation.
(a)
Issuance and renewal. The director may issue or renew voluntary
or statutory accreditation under this section.
(b)
Application. An applicant for full DPS accreditation shall
complete and submit a current form LAB-5 and attach copies of the following:
Figure: 37 TAC §28.127(b) (Proposed) (.pdf format)
(1)
an accreditation certificate and letter of notification
of accreditation from a national accrediting body approved by the director
under this subchapter; and
(2)
each document provided by the national accrediting body
that identifies the discipline or subdiscipline for which the laboratory has
received accreditation and any limitation or restriction regarding that accreditation.
(c)
Additional information. The director may require additional
information to properly evaluate the application either as part of the original
application or as supplemental information.
(d)
Reports to director.
(1)
If accredited by ASCLD/LAB, a laboratory shall provide
the director with a copy of each
Annual Accreditation
Review Report
. If accredited by another national accrediting body,
a laboratory shall provide the director with a copy of each equivalent annual
accreditation assessment document. The copy shall be submitted to the director
at the same time that it is due to the national accrediting body.
(2)
A laboratory shall provide the director with a copy of
correspondence and each report or communication between the laboratory and
the national accrediting body. The laboratory shall submit the copy to the
director no later than 10 business days after the date the laboratory receives
or transmits the correspondence, report, or communication.
(3)
A laboratory that discontinues a specific forensic discipline
or subdiscipline shall submit written notification to the director at least
10 business days before the effective date of the deletion.
§28.128.Provisional DPS Accreditation.
(a)
Issuance and renewal. The director may issue or renew provisional
accreditation under this section.
(b)
Application. An applicant for provisional DPS accreditation
shall complete and submit a current form LAB-5 as referenced in §28.127(b)
of this subchapter (relating to Full DPS Accreditation) and attach copies
of the following:
(1)
the application for accreditation by a national accrediting
body approved by the director under this subchapter;
(2)
the initial audit, inspection, or review report from an
independent auditor based on the standards of the national accrediting body;
(3)
a full response in writing to the initial audit, inspection,
or review report described in paragraph (2) of this subsection; and
(4)
each document provided by the national accrediting body
that identifies the discipline or subdiscipline for which the laboratory seeks
accreditation.
(c)
Additional information. The director may require additional
information to properly evaluate the application either as part of the original
application or as supplemental information.
(d)
Reports to director.
(1)
The laboratory shall request that the national accrediting
body provide the director with a copy of each audit, inspection, or review
report conducted before full DPS accreditation.
(2)
A laboratory shall provide the director with a copy of
correspondence and each report or communication between the laboratory and
the national accrediting body. The laboratory shall submit the copy to the
director no later than 10 business days after the date the laboratory receives
or transmits the correspondence, report, or communication.
(3)
A laboratory that discontinues a specific forensic discipline,
subdiscipline, or procedure shall submit written notification to the director
at least 10 business days before the effective date of the deletion.
(e)
Second sample required. A laboratory with provisional DPS
accreditation under this section must:
(1)
preserve one or more separate samples of the physical evidence
for use by the defense attorney or use under order of the convicting court;
and
(2)
agree to preserve, and preserve those samples until all
appeals in the case are final.
§28.129.Term for Provisional Accreditation.
(a)
Lab before August 19, 2003 filing provisional application
on or before September 1, 2003. A laboratory or its discipline or subdiscipline
that was in existence before August 19, 2003, and that applies for accreditation
from a national accrediting body on or before September 1, 2003, may apply
for a provisional DPS accreditation for a term not to exceed one year.
(b)
Lab before August 19, 2003 filing provisional application
on or before September 1, 2004. A laboratory or its discipline or subdiscipline
that was in existence before August 19, 2003, and that applies for accreditation
from a national accrediting body on or before September 1, 2004, may apply
for a provisional DPS accreditation for a term not to exceed 180 days.
(c)
Lab established and provisional application filed on or
after August 20, 2003. A laboratory or its discipline or subdiscipline that
was not in existence before August 20, 2003, and that applies for accreditation
from a national accrediting body on or after that date may apply for a provisional
DPS accreditation for a term not to exceed one year.
§28.130.DPS Accreditation for a Limited Term.
A laboratory, including an out of state, federal, or private laboratory,
may request DPS accreditation for a term less than the term normally available
under this subchapter.
§28.131.Withdrawal of DPS Accreditation.
(a)
Automatic withdrawal. The director shall automatically
withdraw:
(1)
the full DPS accreditation for a laboratory, discipline,
or subdiscipline at the date and time that the national accrediting body withdraws
its relevant laboratory, discipline, or subdiscipline accreditation; or
(2)
the provisional DPS accreditation for a laboratory, discipline,
or subdiscipline at the date and time that the national accrediting body notifies
the director that the laboratory has withdrawn its application for the relevant
national accreditation of the laboratory, discipline, or subdiscipline.
(b)
Director withdrawal. The director may withdraw full or
provisional DPS accreditation for a laboratory, discipline, or subdiscipline
if the laboratory fails to comply with a rule under this subchapter.
§28.132.Communication.
The laboratory shall communicate with DPS or the director under this
subchapter through the DPS Crime Laboratory Service at:
(1)
telephone number: (512) 424-2105;
(2)
fax number: (512) 424-5645;
(3)
e-mail address: LabQA@txdps.state.tx.us;
(4)
web site: http://www.txdps.state.tx.us;
(5)
Post Office Box mailing address: Crime Laboratory Service,
QA MSC 0460, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas
78765-4143; and
(6)
physical mailing address: Crime Laboratory Service, QA
MSC 0460, Texas Department of Public Safety, 5805 N. Lamar Blvd., Austin,
Texas 78752-4422.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 25, 2003.
TRD-200304527
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: September 7, 2003
For further information, please call: (512) 424-2135