The Texas Department of Public Safety (DPS) adopts new Chapter 28, Subchapters A - I, §§28.1 - 28.7, 28.21 - 28.28, 28.41 - 28.48, 28.61 - 28.66, 28.81, 28.82, 28.91 - 28.99, 28.111 - 28.120, 28.131 - 28.137, 28.139 - 28.141, and 28.151 - 28.157, concerning DNA, CODIS, Forensic Analysis, and Crime Laboratories, without changes to the proposed text as published in the December 3, 2004, issue of the Texas Register (29 TexReg 11312) and will not be republished. Section 28.138 is adopted with changes and will be republished.

The new sections promulgate the rules and regulations as provided under House Bill 2703, 78th Texas Legislature (Regular Session) and codified under Government Code §411.0205 and §411.0206. The adopted rules also make extensive non-substantive revisions to existing rules under the authority of subchapter G of Chapter 411 of the Government Code.

As required by Government Code §2001.033(1), the director's reasoned justification for the rules is set out in this order. The order includes the preamble and the rules. The preamble contains a summary of the factual basis of the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rules, and the reasons why the director disagrees with comments and proposals.

Persons and groups who have provided comments regarding adoption of specific sections of the rules as proposed are the following: Nueces County; Federal Bureau of Investigation Forensic Laboratory. Changes to the new rules were made to the rules as detailed below. No comments were received regarding the adoption of the repeals.

Subchapter A is adopted in order to set out the definitions for the chapter to clarify administration provisions of the DNA database system and the department's participation in the national DNA identification index system (CODIS) as authorized under Subchapter G of Chapter 411 of the Government Code. The definitions also provide terms used in the accreditation process for crime laboratories as well as the new regulatory system for DNA laboratories as authorized under House Bill 2703 and codified under Government Code §411.0205 and §411.0206. The rules as adopted also contain non-substantive style revisions and conforming changes to update terminology used throughout the chapter. Adoption of the rules will enable the department to more effectively administer the regulations authorized by the applicable statutory provisions.

Comment: Comment proposes amending the definition of "Integrity or trustworthiness" contained in §28.1 by adding subparagraph (C) that would provide that integrity or trustworthiness includes "timeliness of production of a testing or analysis result to a requesting agency." Comment also proposes adding a definition of "timeliness or timely manner" that would be defined as "submission of a testing or analysis result to a requesting entity in a manner to reasonably allow for the requesting entity to comply with 17.151 of the Code of Criminal Procedure." Comment asserts that the changes are necessary because timeliness of the production of crime laboratory results is as important as its integrity and trustworthiness. Comment asserts that this is the case because delay in the production of a State-operated crime laboratory results in direct uncompensated fiscal impact to counties. Comment asserts that the rules should clearly state that a crime laboratory not producing testing or analysis results in a timely manner should be found to be in substantial deficiency, in that it has failed to meet operational standards.

Response: The department agrees that timeliness in laboratory results is a critical element. However, as the rules are applicable to all forensic laboratories operating within the state of Texas, it would be inappropriate to impose a "timeliness" requirement for analysis at this time since the requirement would result in a significant hardship to participating laboratories. This is because many government crime laboratories provide analysis services to client law enforcement agencies at no cost to those agencies. Imposing timeliness requirements on the laboratories would force government laboratories to absorb significant increases in workload without sufficient funding to achieve the requirement. As additional funding is not available at this time, the department believes that the better approach is for laboratories to work closely with client law enforcement agencies and prosecutors to cooperatively determine case priorities and testing requirements based on the needs of the client and the availability of laboratory resources. No changes to the regulations were made based on the comment.

Comment: Comment suggests that the department acquire information from specialists in the field of testing and analysis of crime laboratory materials for the purpose of incorporating a definitive set of timeliness standards in the rule. Comment proposes that an existing minimum general standard to incorporate for timely production exists in Article 17.151 of the Code of Criminal Procedure. Comment further asserts that the incorporation of a timeliness standard into the accreditation and operational standards of crime laboratories will provide prosecuting entities with the appropriate and necessary materials to seek timely prosecutions and relieve county government of the significant burden of detaining defendants awaiting trial in county facilities due to unnecessary laboratory delay.

Response: The department agrees that timeliness in laboratory results is a critical element. However, as the rules are applicable to all forensic laboratories operating within the state of Texas, it would be inappropriate to impose a "timeliness" requirement for analysis at this time since the requirement would result in a significant hardship to participating laboratories. This is because many government crime laboratories provide analysis services to client law enforcement agencies at no cost to those agencies. Imposing timeliness requirements on the laboratories would force government laboratories to absorb significant increases in workload without sufficient funding to achieve the requirement. As additional funding is not available at this time, the department believes that the better approach is for laboratories to work closely with client law enforcement agencies and prosecutors to cooperatively determine case priorities and testing requirements based on the needs of the client and the availability of laboratory resources. No changes to the regulations were made based on the comment.

Subchapter B is adopted to set out the CODIS responsibilities of the director. The rules in the subchapter primarily contain non-substantive style revisions and conforming changes to update terminology used in the subchapter. The substantive requirements are essentially unchanged from the requirements in the subchapter that is repealed. The new rules will improve the department's function as the central depository in the state for DNA records and are necessary to administer or enforce the DNA database system. No comments were received regarding this subchapter.

Subchapter C is adopted to explain institutional CODIS responsibilities as provided under Subchapter G of Chapter 411 of the Government Code. The rules primarily contain non-substantive style revisions and conforming changes to update terminology and clarify practices. The substantive requirements are essentially unchanged from the requirements in the chapter that is currently proposed for repeal. The new rules will improve the department's function as the central depository in the state for DNA records and are necessary to administer or enforce the DNA database system. No comments were received regarding this subchapter.

Subchapter D is adopted to explain the CODIS responsibilities of the Texas Youth Commission as provided under Subchapter G of Chapter 411 of the Government Code. The rules in this subchapter primarily contain non-substantive style revisions and conforming changes to update terminology used in the subchapter. The substantive requirements are essentially unchanged from the requirements in the subchapter that is repealed. The new rules will improve the department's function as the central depository in the state for DNA records. Specific authority for the rules is provided under Government Code §411.150. No comments were received regarding this subchapter.

Subchapter E is adopted as a new subchapter to administer the regulation of forensic DNA laboratories that are not CODIS forensic laboratories. Administration of the rules is provided under the new authority contained in House Bill 2703 which added Government Code §411.0206 and authorizes the director to regulate DNA testing, including the regulation of DNA laboratories. Adoption of the rules will enable the department to administer a regulatory system for DNA laboratories.

Comment: Comment asserts that §28.82(f) be modified by deleting a requirement that a laboratory submit results of analysis to a criminal justice or law enforcement agency within 30 days after completing the report. The comment asserts that the requirement should be that the report be submitted "in a timely manner." The comment asserts that "timely manner" should be changed as proposed based on the comments provided under Subchapter A.

Response: The department agrees that analysis and report completion should be accomplished in a timely manner. As stated in earlier responses, the department does not believe that laboratories can presently be required to complete analysis by a date certain. However, laboratories should be able to meet a basic objective date for submission of completed analysis to a client law enforcement agency and the requirement of 30 days is a reasonable expectation for a service level. No changes to the regulations were made based on the comment.

Subchapter F is adopted to administer the regulation of forensic DNA laboratories that are also CODIS forensic laboratories. Administration of the rules is provided under authority in Subchapter G of Chapter 411 as well as the new authority contained House Bill 2703 which added Government Code §411.0206 and authorizes the director to regulate DNA testing, including the regulation of DNA laboratories. Adoption of the rules will enable the department to administer a regulatory system for DNA laboratories. No comments were received regarding this subchapter.

Subchapter G is adopted to provide regulations for the administration of the restrictions for DNA records of persons released on bail, charged with, placed on community supervision for, or convicted of certain offenses. Administration of the rules is provided under the authority of Subchapter G of Government Code Chapter 411, as further detailed below, including §§411.1471, 411.1472, and 411.1531. The subchapter also contains conforming and nonsubstantive changes to update the current subchapter. The substantive requirements are essentially unchanged from the requirements in the subchapter that is repealed. Adoption of the regulations will clarify the administrative procedures of the program. No comments were received regarding this subchapter.

Subchapter H is adopted to update and renumber the subchapter concerning accreditation of crime laboratories. Administration of the rules is provided under authority contained House Bill 2703 which added Government Code §411.0205 and authorized the director to establish an accreditation process for crime laboratories. The substantive requirements are essentially unchanged from the requirements in the subchapter that is repealed. The adopted rules provide clarification of the minimum standards for accreditation as well as the department procedures for accreditation.

Comment: Comment was received that federal forensic laboratories should not be required to submit applications for accreditation by the department. Federal laboratories take the position that federal law prohibits a federal laboratory from operating under a state regulatory scheme.

Response: Staff agreed with this comment. Based on this comment a change was made to subchapter H as follows: §28.138 is amended to add subsection (e) to provide that federal forensic laboratories are deemed accredited by the director if they are accredited by a recognized accrediting body. Federal forensic laboratories are also not subject to the reporting requirements of subchapter H or the complaint and review process of subchapter I.

Subchapter I is a new subchapter that is adopted to lay out the complaint, special review and disciplinary action process that will be administered by the department under the authority of House Bill 2703, 78th Legislature, Regular Session, which added 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, and §411.0206 which provides that the director shall by rule regulate DNA testing, including regulation of DNA laboratories. The purpose of the proposed sections is to implement the DPS accreditation and regulation process as provided by that law by establishing a review process. No comments were received regarding this subchapter.

Subchapter A. DEFINITIONS AND GENERAL CODIS PROVISIONS