Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 28.
DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES
Subchapter A. DEFINITIONS AND GENERAL CODIS PROVISIONS
37 TAC §§28.2, 28.4, 28.5, 28.7
The Texas Department of Public Safety proposes amendments
to Subchapter A, §§28.2, 28.4, 28.5, and 28.7 concerning Definitions
And General CODIS Provisions. Due to legislation from the 79th Regular Legislative
Session in House Bill 1068, the statutes regarding regulation of DNA laboratories
were revised, including the repeal of Texas Government Code, §411.0206
and revisions to Texas Government Code, §411.144. Based on the changes
to the law, it is necessary to propose revisions and additional clarification
of minimum applicable standards for forensic laboratories and other entities.
The amendments to §§28.2, 28.4, and 28.5 are necessary for general
clarification of procedures and terminology. The amendment to §28.7 removes
the term "restricted" which was deleted from the Government Code. Other non-substantive
grammatical and terminology changes have also been made.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the amendments are in effect there will be no fiscal
implications for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the amendments are in effect the public benefit anticipated as a result
of enforcing the amended rules will be current and updated rules. There is
no anticipated adverse economic effect on individuals, small businesses, or
micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments are proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.2.Voluntary Sample [
Any person may voluntarily submit a [
§28.4.Sample Collection.
A criminal justice or law enforcement agency or DNA laboratory may
not collect, and the director may not accept, a [
(1)
a
[
(A)
a physician, registered nurse, licensed vocational nurse,
licensed clinical laboratory technologist; or
(B)
another person who is trained to properly collect blood
samples [
(2)
a sample
[
§28.5.Sample Submitted to Director.
A person who collects a [
§28.7.Communications.
(a)
Information about this chapter is available at the following
web site: http://www.txdps.state.tx.us.
(b)
Except as provided by §28.99 of this title (relating
to CODIS Communications) and §28.120 of this title (relating to [
(1)
telephone number: (512) 424-2105;
(2)
fax number: (512) 424-5645;
(3)
e-mail address: LABQA@txdps.state.tx.us;
(4)
Post Office Box mailing address: Crime Laboratory Service,
Attention Quality Assurance, MSC 0460, Texas Department of Public Safety,
P.O. Box 4143, Austin, Texas 78765-4143; and
(5)
physical mailing address: Crime Laboratory Service, QA
MSC 0460, Texas Department of Public Safety, 5805 North Lamar Boulevard, 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 February 6, 2007.
TRD-200700316
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.21 - 28.23, 28.26 - 28.31
The Texas Department of Public Safety proposes amendments
to Subchapter B, §§28.21 - 28.23, 28.26, and 28.27; and new §§28.28
- 28.31, concerning CODIS Responsibilities of the Director. Due to legislation
from the 79th Regular Legislative Session in House Bill 1068, the statutes
regarding regulation of DNA laboratories were revised, including the repeal
of Texas Government Code, §411.0206 and revisions to Texas Government
Code, §411.144. Based on the changes to the law, it is necessary to propose
revisions and additional clarification of minimum applicable standards for
forensic laboratories and other entities.
The amendments to the sections are necessary in order for general clarification
of procedures and terminology. In addition, §28.23 adds new paragraph
(3) which describes another type of DNA record that may be contained in the
DNA database. New §28.28 lists the provisions a sample must comply with
in order to be in compliance with DPS provisions. New §28.29 regards
reporting the existence of satisfactory DNA samples, when asked by a criminal
justice agency. New §28.30 regards the administrative removal of a DNA
record from the database. Current §28.28 is being simultaneously repealed
in ordered to be filed as new §28.31.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the amendments and new sections are in effect there
will be no fiscal implications for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the amendments and new sections are in effect the public benefit anticipated
as a result of enforcing the proposal will be current and updated rules. There
is no anticipated adverse economic effect on individuals, small businesses,
or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments and new sections are proposed pursuant to Texas
Government Code, §§411.0205, 411.144, 411.147, 411.152, and 411.1471,
which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.21.DNA Database Authority.
The director shall record DNA data and establish and maintain a computerized
database that serves as the central depository in the state for criminal DNA
records, including profiles. The director may maintain the DNA database at
the DPS Crime Laboratory
Service
or another suitable location.
§28.22.DNA Database Purposes.
The director may receive, analyze, store, and destroy a record, profile,
or
[
(1)
to assist
a
federal, state, or local criminal
justice
agency
[
(2)
in criminal cases, for use in the investigation of an offense,
the exclusion or identification of suspects
or offenders
, and the
prosecution
or defense
of the case;
(3)
to assist in the recovery or identification of human remains
from a disaster or for humanitarian purposes;
(4)
to assist in the identification of living or deceased missing
persons; [
(5)
if personal identifying information is removed:
(A)
to establish a population statistics database;
and
(B)
to assist in identification research
, forensic validation
studies, or forensic
[
(6)
[
§28.23.Types of DNA Files.
The DNA database may contain DNA records, including profiles, for the
following types of records:
(1)
an
individual
[
(2)
a juvenile described by §28.61 of this title (relating
to Sample Collection by TYC);
(3)
an individual charged with, convicted
of, or placed on deferred adjudication for certain offenses described in Subchapter
G of this chapter;
(4)
[
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
§28.26.DNA Database.
(a)
Capabilities. The DNA database must be capable of classifying,
matching, and storing the profiles or other results of analyses of DNA [
(b)
National standards. Standards for DNA analysis shall meet
or exceed the current standards for quality assurance and proficiency testing
for forensic DNA analysis issued by the FBI. The DNA database may contain
only DNA records of DNA analyses, including profiles, performed according
to the standards required by this chapter.
(c)
Compatibility. The DNA database must be compatible with
the national DNA index system (NDIS) procedures sponsored by the FBI to the
extent required by the FBI to permit the useful exchange and storage of DNA
records or information derived from those records, including profiles.
(d)
FBI liaison. The director is the liaison for DNA data,
records, profiles, evidence, and other related matters between the FBI and
a DNA laboratory or a criminal justice or law enforcement agency.
§28.27.Sample [
The director shall provide a reasonable quantity of [
§28.28.Compliance with Collection Provisions.
In order for a sample to comply with DPS collection provisions, all
of the following standards must be met:
(1)
The sample shall have been collected pursuant to the following:
(A)
proper statutory authority;
(B)
court-order; or
(C)
voluntary submission.
(2)
The sample shall be collected with a collection kit approved
and provided by the director.
(3)
The sample shall be collected in accordance with the kit
instructions.
(4)
The sample documentation shall include fingerprints.
§28.29.Existence of Satisfactory Sample.
(a)
Information shall be released to a criminal justice or
law enforcement agency about whether or not a satisfactory DNA sample has
been received.
(b)
A formal request shall be provided and should contain:
the offender's full name, date of birth, and Texas State Identification (SID)
number.
(c)
The information that may be released includes: if a sample
has been received, the date of receipt, the submitting agency, and the verification
status.
(d)
The department shall maintain a record of requests under
this section.
§28.30.Administrative Removal.
If a sample has been erroneously taken from an individual that is not
required by statute to provide a sample, the agency collecting the sample
shall provide a formal request to the director asking that the sample be destroyed.
Prior to destruction, a check of the offender's criminal history will be conducted
to verify that there are no qualifying offenses. If an individual is determined
to have a qualifying offense, and a satisfactory sample has not been previously
submitted, the agency will be notified that the sample is being retained.
If there are no qualifying offenses, the sample and its associated records
will be removed, and the collecting agency notified of the removal. Communications
may be made as detailed in §28.99 of this title (relating to CODIS Communications).
§28.31.Court Order.
If any person subject to this chapter fails or refuses to comply with
this chapter or with Government Code, Chapter 411, Subchapter G, the director
may request a district or county attorney or the attorney general to seek
compliance with the act through a court order.
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 February 6, 2007.
TRD-200700317
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §28.28
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Public Safety or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Public Safety proposes the
repeal of Subchapter B, §28.28, concerning Court Order. The section is
being repealed and simultaneously being filed as new §28.31. It is necessary
to renumber the section due to the addition of other new sections to Subchapter
B, concerning CODIS Responsibilities of the Director.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the repeal is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the repeal is in effect the public benefit anticipated as a result
of enforcing the repeal will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to this rule. Accordingly, the department is not required to
complete a takings impact assessment regarding this rule.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The repeal is proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.28.Court Order.
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 February 6, 2007.
TRD-200700318
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.41 - 28.47
The Texas Department of Public Safety proposes amendments
to Subchapter C, §§28.41 - 28.45, and new §28.46 and §28.47,
concerning CODIS Responsibilities of the the Institutional Division. Due to
legislation from the 79th Regular Legislative Session in House Bill 1068,
the statutes regarding regulation of DNA laboratories were revised, including
the repeal of Texas Government Code, §411.0206 and revisions to Texas
Government Code, §411.148. Based on the changes to the law, it is necessary
to propose revisions and additional clarification of minimum applicable standards
for forensic laboratories and other entities.
The amendments to the sections are necessary in order for general clarification
of procedures and terminology, including changing the title of the subchapter
and deleting stipulations of collection from certain individuals in §28.41
to accommodate the changes in §411.148 of the Government Code. In addition,
current §§28.46 - 28.48 are being repealed with current §28.47
and §28.48 being simultaneously filed as new §28.46 and §28.47.
Also, §28.45 is being amended to more effectively address collection
of DNA samples from individuals in other institutions.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the amendments and new sections are in effect there
will be no fiscal implications for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the amendments and new sections are in effect the public benefit anticipated
as a result of enforcing the proposal will be current and updated rules. There
is no anticipated adverse economic effect on individuals, small businesses,
or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments and new sections are proposed pursuant to Texas
Government Code, §§411.0205, 411.144, 411.147, 411.152, and 411.1471,
which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.41.Sample Collection by TDCJ.
[
[(1)
is ordered by a court to give the sample
or specimen; or]
[(2)
is serving a sentence for a felony, unless
due to insufficient funding the executive director of TDCJ has given priority
only to certain serious offenders.]
[(b)
An inmate, who entered the institutional
division before April 1, 2004, and who has not provided a specimen under this
subchapter, is covered by the law previously in effect.]
§28.42.TDCJ Responsibilities.
TDCJ shall:
(1)
obtain samples [
(2)
preserve each [
(3)
maintain a record of the collection of the sample [
(4)
send the sample [
§28.43.Sample Collection.
(a)
Time to collect.
TDCJ
[
(b)
Use of force.
A TDCJ
[
(c)
Contracts. TDCJ may contract for phlebotomy services under
this subchapter.
§28.44.Fingerprint and Signature.
(a)
TDCJ
[
(b)
The
thumbs
[
(c)
TDCJ
[
§28.45. Individual [
If an
individual
[
§28.46.Advance Notice of Release.
TDCJ shall notify the director that an individual subject to this subchapter
is to be released from custody not earlier than the 120th day before the individual's
release date and not later than the 90th day before the individual's release
date.
§28.47.Release without Sample.
If an individual is released without first having submitted a required
sample, TDCJ shall file an appropriate report with the director. The director
may then seek post-release compliance with this subchapter.
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 February 6, 2007.
TRD-200700319
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.46 - 28.48
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Public Safety or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Public Safety proposes the
repeal of Subchapter C, §§28.46 - 28.48, concerning CODIS Responsibilities
of the Institutional Division. Section 28.46 is being completely repealed,
while §28.47 and §28.48 are being repealed and simultaneously filed
as new §28.46 and §28.47.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the repeal is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the repeal is in effect the public benefit anticipated as a result
of enforcing the repeal will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The repeal is proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.46.Release Date and Administrative Action.
§28.47.Advance Notice of Release.
§28.48.Release without Sample.
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 February 6, 2007.
TRD-200700320
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.61 - 28.67
The Texas Department of Public Safety proposes amendments
to Subchapter D, §§28.61 - 28.64, and new §§28.65 - 28.67,
concerning CODIS Responsibilities of the Texas Youth Commission. Due to legislation
from the 79th Regular Legislative Session in House Bill 1068, the statutes
regarding regulation of DNA laboratories were revised, including the repeal
of Texas Government Code, §411.0206 and revisions to Texas Government
Code, §411.148. Based on the changes to the law, it is necessary to propose
revisions and additional clarification of minimum applicable standards for
forensic laboratories and other entities.
The amendments to the sections are necessary in order for general clarification
of procedures and terminology, including deleting the list of offenses which
require sample collection from §28.61 as it is now located in Subchapter
G, and replacing that language with the new language in §411.148 of the
Government Code; adding new §28.65 regarding collection of a DNA sample
and administrative action with a juvenile in another institution and adding
new §28.66 regarding advance notice of release. Current §28.65 and §28.66
are being repealed simultaneously with this proposal. Repealed §28.66
will be filed as new §28.67.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the amendments and new sections are in effect there
will be no fiscal implications for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the amendments and new sections are in effect the public benefit anticipated
as a result of enforcing the proposal will be current and updated rules. There
is no anticipated adverse economic effect on individuals, small businesses,
or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments and new sections are proposed pursuant to Texas
Government Code, §§411.0205, 411.144, 411.147, 411.152, and 411.1471,
which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.61.Sample Collection by TYC.
[
[(1)
an offense:]
[(A)
under Penal Code, §19.02, (murder);]
[(B)
under Penal Code, §19.03, (capital murder);]
[(C)
under Penal Code, §22.02, (aggravated assault);]
[(D)
an offense under Penal Code, §30.02, (burglary),
if the offense is punishable under subsection (c)(2) or (d) of that section;
or]
[(E)
for which the juvenile is required to register as a sex
offender under Code of Criminal Procedure, Chapter 62; or]
[(2)
a penal law if the juvenile has previously
been convicted of or adjudicated as having engaged in:]
[(A)
a violation of a penal law described in paragraph (1)
of this subsection; or]
[(B)
a violation of a penal law under federal law or the laws
of another state that involves the same conduct as a violation of a penal
law described in paragraph (1) of this subsection.]
[(b)
A juvenile, who entered TYC before April
1, 2004, and who has not provided a specimen under this subchapter, is covered
by the law previously in effect.]
§28.62.TYC Responsibilities.
TYC shall:
(1)
obtain samples [
(2)
preserve each [
(3)
maintain a record of the collection of the sample [
(4)
send the sample [
§28.63.Sample Collection.
(a)
Time to collect. TYC shall obtain the sample [
(b)
Use of force. A TYC employee may use force against a juvenile
required to provide a sample [
(c)
Contracts. TYC may contract for phlebotomy services under
this subchapter.
§28.64.Collection of Fingerprint and Signature.
(a)
TYC shall collect and forward
thumbprints
[
(b)
The
thumbs
[
(c)
TYC shall provide a legible signature of the person collecting
the sample [
§28.65.Juvenile in Another Institution.
If a juvenile is confined in another juvenile detention facility after
adjudication and before admission to TYC, and TYC determines that the juvenile
is likely to be released before being admitted to TYC, TYC shall cause a sample
to be collected from the juvenile. The administrator of the other juvenile
detention facility shall cooperate fully with TYC as necessary to allow TYC
to perform its duties under this subchapter.
§28.66.Advance Notice of Release.
TYC shall notify the director that a juvenile subject to this subchapter
is to be released from custody not earlier than the 120th day before the juvenile's
release date.
§28.67.Release without Required Sample.
If a juvenile is released without first having submitted a required
sample, TYC shall file an appropriate report with the director. The director
may seek post-release compliance with this subchapter.
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 February 6, 2007.
TRD-200700321
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §28.65, §28.66
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Public Safety or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Public Safety proposes the
repeal of Subchapter D, §28.65 and §28.66, concerning CODIS Responsibilities
of the Texas Youth Commission. Section 28.65 is being completely repealed,
while §28.66 is being repealed and simultaneously filed as new §28.67.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the repeal is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the repeal is in effect the public benefit anticipated as a result
of enforcing the repeal will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The repeal is proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.65.Release Date and Administrative Action.
§28.66.Release without Required Sample.
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 February 6, 2007.
TRD-200700322
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §28.81, §28.82
The Texas Department of Public Safety proposes amendments
to Subchapter E, §28.81 and §28.82, concerning Forensic DNA Laboratories.
Due to legislation from the 79th Regular Legislative Session in HB 1068, the
statutes regarding regulation of DNA laboratories were revised, including
the repeal of Texas Government Code, §411.0206 and revisions to Texas
Government Code, §411.144. Based on the changes to the law, it is necessary
to propose revisions and additional clarification of minimum applicable standards
for forensic laboratories and other entities.
The amendments to §28.81 and §28.82 are necessary in order for
general clarification of procedures and terminology.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the rules are in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of enforcing the rules will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to this rule. Accordingly, the department is not required to
complete a takings impact assessment regarding this rule.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments are proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.81.Purpose and Applicability.
(a)
This subchapter contains the director's rules [
(b)
The rules contained in this subchapter apply to [
[(1)
a CODIS user laboratory;]
(1)
[
(2)
[
§28.82.Minimum Standards.
(a)
(No change.)
(b)
Before conducting a DNA test, a forensic DNA laboratory
shall:
(1)
obtain DPS accreditation under Subchapter H of this chapter;
and
or
(2)
comply with the
audit standards required by the laboratory's
recognized accrediting body
[
[
[
[
[
[
[
(c)
[
(d)
[
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 February 6, 2007.
TRD-200700323
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.91 - 28.98
The Texas Department of Public Safety proposes amendments
to Subchapter F, §§28.91 - 28.93, and new §§28.94 - 28.98,
concerning CODIS User Laboratories. Due to legislation from the 79th Regular
Legislative Session in HB 1068, the statutes regarding regulation of DNA laboratories
were revised, including the repeal of Texas Government Code, §411.0206
and revisions to Texas Government Code, §411.144. Based on the changes
to the law, it is necessary to propose revisions and additional clarification
of minimum applicable standards for forensic laboratories and other entities.
The amendments to §§28.91 - 28.93 are necessary in order for
the general clarification of procedures and terminology. Current §28.94
is deleted as the audit provisions were added to §28.93. The remaining
provisions are proposed new, having been renumbered accordingly. New §28.98
regards prohibitions of CODIS user lab activity.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the rules are in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of enforcing the rules will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to this rule. Accordingly, the department is not required to
complete a takings impact assessment regarding this rule.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments are proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.91.Purpose and Applicability.
(a)
This subchapter contains the director's rules [
(b)
(No change.)
§28.92.CODIS Laboratory Application.
A DNA laboratory in this state
that is maintained by a criminal
justice agency
may apply to become a CODIS user laboratory by completing
an application form provided by the director and providing requested information.
§28.93.Policy, Procedure, and Rule Compliance.
A CODIS user laboratory shall:
(1)
(No change.)
(2)
follow the procedures established by the director under
this chapter and specified by the FBI, including the use of comparable test
procedures, profiles, laboratory equipment, supplies and computer software;
[
(3)
maintain accreditation under Subchapter H of this chapter
; and
[
(4)
be subject to the provision of the annual
audit described by the
FBI DNA Quality Assurance
Audit Document
. The laboratory shall submit to the director a copy
of the audit report along with its response to the audit no later than 30
days after the date a laboratory either receives or completes an audit report.
§28.94.Entry and Inspection.
The director may enter and inspect a CODIS user laboratory during reasonable
business hours and to monitor operations related to:
(1)
the collection, preservation, shipment, and analysis of
samples;
(2)
the access and use of the DNA database; and
(3)
any other matters including compliance with FBI guidelines.
§28.95.CODIS Records and Reports.
(a)
A CODIS user laboratory conducting a DNA analysis under
this subchapter shall transmit the DNA record of the analysis, including profiles,
to the director at the DPS Crime Laboratory Service.
(b)
If a CODIS user laboratory agrees or is required to report
the results of an analysis, comparison, or other match to a criminal justice
or law enforcement agency, the laboratory shall make reasonable efforts to
submit the report to the agency no later than 30 days after completing its
report of the comparison or match.
§28.96.Analysis of CODIS Sample.
A CODIS user laboratory may analyze a biological sample collected under
this chapter or other DNA sample only:
(1)
to type the genetic markers contained in the sample;
(2)
for criminal justice and law enforcement purposes; or
(3)
for other purposes described by this subchapter or a purpose
described by §28.22 of this title (relating to DNA Database Purposes).
§28.97.Second Sample for Trial.
Because the convicted offender CODIS sample and its analysis are intended
only to point to a suspect, if possible a second DNA sample must be obtained
from a suspect in a criminal investigation if forensic DNA evidence is necessary
for use as substantive evidence in the prosecution of a case.
§28.98.Prohibition of CODIS User Laboratory Activity.
If a CODIS user laboratory violates this subchapter, the director may
prohibit the laboratory from:
(1)
exchanging DNA records with another DNA laboratory or criminal
justice or law enforcement agency; or
(2)
accessing the CODIS system.
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 February 6, 2007.
TRD-200700325
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.94 - 28.98
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in the offices
of the Texas Department of Public Safety or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Public Safety proposes the repeal
of §§28.94 - 28.98, concerning CODIS User Laboratories. Section
28.94 is being completely repealed, while §§28.95 - 28.98 are being
repealed and simultaneously filed as new §§28.94 - 28.97.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the repeal is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the repeal is in effect the public benefit anticipated as a result
of enforcing the repeal will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register.
For further information, call D. Pat Johnson at (512)
424-2143.
The repeal is proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.94.Annual Audit.
§28.95.Entry and Inspection.
§28.96.CODIS Records and Reports.
§28.97.Analysis of CODIS Sample.
§28.98.Second Sample for Trial.
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 February 6, 2007.
TRD-200700324
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.111 - 28.120
The Texas Department of Public Safety proposes amendments
to Subchapter G, §§28.111 - 28.120, concerning DNA Database Records.
Due to legislation from the 79th Regular Legislative Session in HB 1068, the
statutes regarding regulation of DNA laboratories were revised, including
the repeal of Texas Government Code, §411.0206 and revisions to Texas
Government Code, §411.148. Based on the changes to the law, it is necessary
to propose revisions and additional clarification of minimum applicable standards
for forensic laboratories and other entities.
Amendments to Subchapter G change the title of the subchapter. In addition,
further amendments are necessary in order to clarify procedures for the collection
of additional samples, and to delete information concerning a restricted DNA
database, restricted DNA specimen, record segregation by agency, and record
segregation by DPS and regarding access. The list of eligible individuals
in §28.113 was amended to coincide with changes in §411.148 of the
Government Code and Chapter 62, Code of Criminal Procedure. In addition, portions
of §28.118 regarding additional DNA samples were deleted to simplify
the rules.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the amendments are in effect there will be no fiscal
implications for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the amendments are in effect the public benefit anticipated as a result
of enforcing the amended rules will be current and updated rules. There is
no anticipated adverse economic effect on individuals, small businesses, or
micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to the rules. Accordingly, the department is not required to
complete a takings impact assessment regarding the rules.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register.
For further information, call D. Pat Johnson at (512)
424-2143.
The amendments are proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.111.Subchapter Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
Approved laboratory or lab--means a public or private forensic
laboratory that is approved by the director under this subchapter. The term
does not include the department's crime laboratory
service
.
(2)
(No change.)
[(3)
Restricted DNA database--means the database
that contains forensic DNA records maintained by the director of a specimen
taken from a suspect, defendant, probationer, or convict under:]
[(A)
Government Code, §411.1471 (DNA Records of Persons
Charged With or Convicted of Certain Felonies);]
[(B)
Government Code, §411.1472 (DNA Records of Persons
Placed on Community Supervision for Certain Offenses); or]
[(C)
Code of Criminal Procedure, Article 17.47 (Conditions
Requiring Submission of a Specimen).]
(3)
[
(4)
[
[(6)
Restricted DNA record--means any type
of record of a restricted DNA specimen, including its profile.]
[(7)
Restricted DNA specimen or restricted
specimen--means a DNA sample or specimen, normally a buccal swab, taken under
this subchapter. The term does not include:]
[(A)
a blood sample; or]
[(B)
a standard DNA specimen.]
(5)
[
§28.112.Purpose and Applicability.
(a)
Purpose. This subchapter contains the director's rules
governing the taking of a biological
sample
[
(b)
Applicability. The general law and rules governing CODIS
apply to this subchapter except as otherwise provided by this subchapter.
(1)
This subchapter applies to a [
(2)
This subchapter does not apply to:
(A)
a standard DNA
sample
[
(B)
a [
§28.113.Eligible Individual.
This subchapter applies to an eligible individual described in this
section, including an individual who is:
(1) - (4)
(No change.)
[(5)
placed on community supervision, including
deferred adjudication community supervision, for a felony described by paragraph
(1) of this section;]
(5)
[
(6)
required to register under Chapter 62
Code of Criminal Procedure, who is not otherwise required to provide a standard
sample; or
(7)
described by paragraph (1), (2), or (4) of this section
and who voluntarily provides a
sample
[
§28.114.Approval of Outside Laboratory.
(a)
Date of approval. A laboratory outside the department must:
(1)
be approved on the date a [
(2)
remain approved at least until the date the analysis report
is submitted by the lab to the director.
(b)
Manner. An agency or other entity seeking approval for
a lab under this section must submit to the director a written justification
for the approval as described in the [
§28.115.Collection of Sample [
(a)
Generally. An agency may collect a [
(1)
only use a
sample
[
(2)
not collect the
sample
[
(b)
Evidentiary
sample
[
(c)
Collection kit.
For the purpose of collecting a DNA
sample under this subchapter the
[
(d)
Training. The director may provide or approve training
under this subchapter as described in the [
(e)
Statutory prohibition. Under Government Code, §411.1471(d)
[
(f)
Court-ordered
sample
[
(1)
a booking clerk or another individual performing a similar
function at a county jail; or
(2)
a member of a sex offender registration unit or another
individual performing a similar function for the agency.
(g)
Criminal history check. If an agency arrests an individual
for a felony offense potentially covered by this subchapter, the director
encourages but does not require the agency to take reasonable steps to determine
if the individual has the criminal history sufficient to take a
DNA sample
[
[(h)
Duty--restricted specimen. The duty to
require or take a restricted specimen is not affected by the fact that:]
[(1)
an individual asserts or proves that a standard specimen
has already been collected; or]
[(2)
a standard profile appears to already exist for the individual.]
(h)
[
(1)
is affected by the fact that an individual proves that
a
DNA sample
[
(2)
is not affected by the fact that:
(A)
an individual asserts or proves that a standard specimen
has already been collected; or
(B)
a standard profile appears to already exist for the individual.
§28.116.Processing of Sample [
(a)
Preservation. The agency collecting the
DNA sample
[
[(b)
Restricted DNA Database Card. The individual
agency representative who collects the specimen shall complete the card in
a manner approved by the director and described in the
Restricted DNA Procedural Guidelines.
]
(b)
[
(c)
[
(1)
may request the lab to return a copy of the profile to
the agency; and
(2)
must instruct the lab that the lab shall, as soon as is
reasonably practicable after creating the profile, forward to the director:
(A)
the profile;
(B)
all remaining
sample
[
(C)
all other original kit components, including the original
database card.
(d)
[
(1)
may accept a usable
sample
[
(2)
may reject an unusable
sample
[
(3)
shall notify the submitting agency of any rejection; and
(4)
may destroy the rejected
sample
[
(e)
[
(f)
[
(g)
[
§28.117.[
(a)
Maintenance by agency. An agency collecting a [
(b)
Certification. The individual agency representative who
collects the
sample
[
(1)
the individual is properly trained; and
(2)
the
DNA sample
[
(c)
Retention period. Unless a court orders differently, the
collecting agency shall retain the copy of the [
[(d)
Record segregation by agency. The director
encourages but does not require a collecting agency to segregate restricted
DNA records from any other type of DNA record that may be maintained by the
agency.]
(d)
[
[(f)
Record segregation by DPS. Except as
provided by this subsection, the director shall segregate a restricted DNA
record collected under this subchapter from other DNA records created and
entered into the standard DNA database under other law. If Government Code, §411.148
(DNA Records of Certain Inmates) or §411.150 (DNA Records of Certain
Juveniles), require a standard DNA record to be created for inclusion in the
standard database, segregation is no longer required and the director may
enter the restricted DNA record into the standard DNA database.]
[(g)
Access. An agency or other person may
access a restricted DNA record in the same manner as a standard DNA record.]
§28.118.Additional Sample [
(a)
Prosecutor determines no profile. The director encourages
but does not require the appropriate felony prosecutor to file a motion for
a [
(1) - (3)
(No change.)
(b)
Request from a felony prosecutor. If the defendant has
already submitted a [
[(1)
TDCJ under Government Code, §411.148
(DNA Records of Certain Inmates);]
[(2)
TYC under Government Code, §411.150
(DNA Records of Certain Juveniles);]
[(3)
a court convicting a defendant of a misdemeanor
under Government Code, §411.1471(a)(3); or]
[(4)
a court placing a defendant on community
supervision, including deferred adjudication community supervision under Government
Code, §411.1472 (DNA Records of Persons Placed on Community Supervision
for Certain Offenses).]
[(c)
No request required. The director does
not require a request from a felony prosecutor for:]
[(1)
a second restricted specimen ordered by a magistrate before
release on bail or bond under Code of Criminal Procedure, Article 17.47 (Conditions
Requiring Submission of a Specimen); or]
[(2)
a standard DNA specimen, including a sex offender registration
specimen, unless the defendant has already given a restricted specimen under
Government Code, §411.1471(b) or §411.1472(b).]
(c)
[
(d)
[
(1)
shall not solicit an additional DNA
sample
[
(2)
may contact the appropriate felony prosecutor to submit
a written request under this section; and
(3)
may store an unsolicited
sample
[
§28.119.Notification and Information.
[
[(b)
Information. The director may furnish
information and forms relating to this chapter to an agency making a request
in any form to the director through the Crime Laboratory Service.]
§28.120.[
(a) - (b)
(No change.)
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 February 6, 2007.
TRD-200700326
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
37 TAC §§28.131, 28.132, 28.135 - 28.140
The Texas Department of Public Safety proposes amendments
to Subchapter H, §§28.131, 28.132, and 28.135 - 28.140, concerning
Accreditation. Due to legislation from the 79th Regular Legislative Session
in HB 1068, the statutes regarding regulation of DNA laboratories were revised,
including the repeal of Texas Government Code, §411.0206; revisions to
Texas Government Code, §411.144; and revisions to Article 38.35, Code
of Criminal Procedure. Based on the changes to the law, it is necessary to
propose revisions and additional clarification of minimum applicable standards
for forensic laboratories and other entities.
Amendments to Subchapter H are necessary in order to delete voluntary DPS
accreditation from the sections and to add four new categories for which labs
may not apply to DPS for accreditation. Other non-substantive grammatical
and terminology changes have been made throughout the sections.
Oscar Ybarra, Chief of Finance, has determined that, for each year of the
first five-year period the rules are in effect, there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that, for each year of the first five-year
period the rules are in effect, the public benefit anticipated as a result
of enforcing the rules will be current and updated rules. There is no anticipated
adverse economic effect on individuals, small businesses, or micro-businesses.
The department has determined that Chapter 2007 of the Government Code
does not apply to this rule. Accordingly, the department is not required to
complete a takings impact assessment regarding this rule.
Comments on the proposal may be submitted to D. Pat Johnson, Director,
Crime Laboratory Service, MSC0460, 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 30 days after publication in the
Texas Register
. For further information, call D. Pat Johnson at (512)
424-2143.
The amendments are proposed pursuant to Texas Government Code, §§411.0205,
411.144, 411.147, 411.152, and 411.1471, which states the 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.
Texas Government Code, §§411.0205, 411.144, 411.147, 411.152,
and 411.1471 are affected by this proposal.
§28.131.Purpose.
(a)
Generally. This subchapter contains the director's rules
adopted under Government Code, §411.0205, that govern:
(1)
the [
(2)
(No change.)
(b) - (d)
(No change.)
[(e)
Voluntary DPS accreditation. A laboratory
may apply to the director for voluntary DPS accreditation for any purpose
if permitted under this subchapter.]
§28.132.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Environmental testing--means an analysis by a laboratory
conducted for the purpose of determining the chemical, molecular,
carcinogenic,
radioactive,
or pathogenic components of air, water, soil, or other
environmental media for use in an administrative, civil, or criminal matter.
(2)
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) [
(B) - (D)
(No change.)
(3)
Forensic pathology--includes
that portion of an autopsy
conducted by
a medical examiner
or other forensic pathologist who
is a licensed physician
. The term does not include a toxicology or other
laboratory associated with the office of a medical examiner.
(4) - (5)
(No change.)
§28.135.Disciplines and Subdisciplines Subject to DPS Accreditation.
(a) - (b)
(No change.)
(c)
Limited to subdiscipline. A laboratory may apply to the
director for DPS accreditation limited to one or more of the following subdisciplines:
(1)
under the controlled substances discipline, subdiscipline
[
(2)
under the toxicology discipline, subdiscipline [
(3)
under the biology discipline, subdiscipline [
(4)
under the firearms/toolmark discipline, subdiscipline [
(5)
under the questioned documents discipline, subdiscipline
[
(6)
under the trace evidence discipline, subdiscipline [
(7)
(No change.)
(d) - (f)
(No change.)
§28.136.Disciplines, Subdisciplines, and Procedures to Which Statutory DPS Accreditation Does Not Apply.
This section describes
disciplines, subdisciplines, or procedures
[
[(1)
Voluntary DPS accreditation only. 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 recognized accreditation is available.
A laboratory may apply to the director for voluntary DPS accreditation for:
latent print examination (including development and comparison).]
[(2)
No DPS accreditation.]
(1)
[
(A)
breath specimen testing under Transportation
Code, Chapter 724
;
[
(B)
latent print examination;
(C)
digital evidence (including computer forensics,
audio, or imaging); or
(D)
an examination or test excluded by rule
under §411.0205(c), Government Code.
(E)
the portion of an autopsy conducted by
a medical examiner or other forensic pathologist who is a licensed physician.
(2)
[
(A)
[
(B)
[
(C)
[
(D)
[
(E)
[
(F)
[
§28.137.Disciplines, Subdisciplines, and Procedures Exempt from Statutory DPS Accreditation.
(a)
(No change.)
(b)
Even though a discipline or subdiscipline is forensic analysis,
the director has determined that no accreditation is appropriate or available
from a recognized accrediting body for the following disciplines, subdisciplines,
or procedures and a laboratory may not apply to the director for [
(1)
(No change.)
(2)
forensic [
(3) - (4)
(No change.)
(5)
serial number restoration
[
(6) - (10)
(No change.)
(11)
other discipline or subdiscipline so determined by the
director
, including those identified and listed at the department's website
.
(c)
A request for exemption shall be submitted
in writing to the director.
§28.138.Full DPS Accreditation.
(a)
Issuance and renewal. The director may issue or renew [
(b) - (d)
(No change.)
(e)
Federal forensic laboratories. A federal forensic laboratory
is deemed to be accredited by the director without application provided that
the laboratory is accredited by a recognized accrediting body as provided
under §28.134 of this subchapter (relating to List of Recognized Accrediting
Bodies). A laboratory deemed accredited is not subject to the reporting requirements
of this subchapter or the processes provided under Subchapter I of this chapter
(relating to Complaints, Special Review, and
Administrative
[
§28.139.Provisional DPS Accreditation.
(a)
Issuance and renewal. The director may issue [
(b)
(No change.)
(c)
Provisional-Interim. If a laboratory is
in good standing with its accrediting body and has made application to renew
or replace its accreditation, the laboratory may apply for Provisional DPS
Accreditation if necessary to cover a period between times that it qualifies
for full DPS accreditation. For this Provisional DPS Accreditation, the laboratory
may complete and submit to the director a current form LAB-5 as referenced
in §28.138(b) of this subchapter and attach copies of the following:
(1)
the application for accreditation by a recognized accrediting
body; and
(2)
each document provided by the recognized accrediting body
that identifies the discipline or sub-discipline for which the laboratory
seeks accreditation.
(d)
[
(e)
[
(1)
The laboratory shall request that the recognized 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 recognized accrediting body. The laboratory shall submit the copy to the
director no later than 30 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 30 days before the effective date of the discontinuation.
(f)
[
(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 criminal case are final.
§28.140.Accreditation Term.
(a)
Normal term. The normal term for DPS accreditation:
(1)
begins on the date
of issuance of the initial DPS
accreditation letter
[
(2)
extends until withdrawn by the recognized accrediting
body or by the director under §28.154 (relating to Withdrawal of DPS
Accreditation)
[
(b)
Provisional
term
[
(1)
A laboratory or its discipline or subdiscipline
[
(2)
If a currently accredited laboratory is
in the process of renewing or replacing its accreditation from a recognized
accrediting body, prior to the end of its term, and applies for provisional
DPS accreditation, the term of that provisional accreditation may not exceed
six (6) months.
(c)
(No change.)
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 February 6, 2007.
TRD-200700327
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: March 25, 2007
For further information, please call: (512) 424-2135
or Specimen ].
blood
] sample [
or other specimen
] to the director for the purpose of creating a DNA
record under Subchapter B of this chapter.
blood
] sample
[
or other specimen
] taken from a person who is not deceased, whether
submitted voluntarily or as required by this chapter, unless:
the
] blood sample is collected
in a medically approved manner by:
or other specimens
] and supervised by a licensed physician;
or
the specimen
] other than
[
a
] blood [
sample
] is collected in a manner approved
by the director in a policy adopted under this chapter.
blood
] sample [
or other specimen
] under Subchapter C, D, or G of this chapter shall send the sample
[
or specimen
] to the director at the DPS Crime Laboratory
Service
.
Restricted
] DNA Communications), a forensic DNA laboratory or accredited
laboratory shall communicate with the department or the director through the
DPS Crime Laboratory Service at:
Subchapter B. CODIS RESPONSIBILITIES OF THE DIRECTOR
blood
] sample[
, or other specimen
] for the
following purposes:
or law enforcement agencies
] in the
investigation or prosecution of sex-related offenses or other offenses in
which biological evidence is recovered;
and
]
and
] protocol development; [
and
]
(C)
]
retesting to validate
or update the original analysis or
to assist in database or DNA laboratory
quality control.
adult
] described by §28.41
of this title (relating to Sample Collection by TDCJ);
(3)
] a biological
sample
[
specimen
] of a deceased victim of a crime;
(4)
] a biological
sample
[
specimen
] that is legally obtained in the investigation of a crime,
regardless of origin;
(5)
] an unidentified missing person,
or unidentified skeletal remains or body parts;
(6)
] a close biological relative
of a person who has been reported missing to a law enforcement agency;
(7)
] a person at risk of becoming
lost, such as a child or a person declared by a court to be mentally incapacitated,
if the record is required by court order or a parent, conservator, or guardian
of the person consents to the record; or
(8)
] an unidentified person, if
the record does not contain personal identifying information.
and other biological molecules
].
or Specimen ] Collection Kits.
blood
]
sample collection kits to a criminal justice or law enforcement agency in
this state
, which is required by statute to collect offender samples,
at no cost to the agency. A [
blood
] sample collection kit
shall consist of
any items necessary for sample collection including
[
specimen vials, mailing containers and labels, report forms
],
instructions [
for collection of blood sample or other specimens
],
and any other item designated by the director.
Agencies shall use the
supplies contained in the kit, as directed in the instructions, unless otherwise
approved by the director.
Subchapter C. CODIS RESPONSIBILITIES OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE
(a)
]
An
individual confined in a penal institution
operated by or under contract with the Texas Department of Criminal Justice
[
inmate of the institutional division
] shall provide one
or more
DNA
[
blood
] samples [
or other specimens
taken by or at the request of the institutional division
] for the purpose
of creating a DNA record
.
[
if the inmate:
]
or other specimens
] from
individuals
[
inmates
] under this subchapter;
blood
] sample [
or other
specimen
] collected;
or specimen
]; and
or specimen
] to the director
for scientific analysis under Subchapter B of this chapter.
The institutional
division
] shall obtain the sample [
or specimen
] from an
individual
[
inmate of the institutional division
] during
the diagnostic process
or at another time determined by TDCJ
. [
The division shall collect a blood sample from an inmate confined in the division
who has completed the diagnostic process before February 1, 1996, not later
than the 90th day before the inmate's earliest parole eligibility date.
]
An
] employee
[
of the institutional division
] may use force against an
individual
[
inmate
] required to provide a sample [
or
specimen
] under this subchapter when and to the degree the employee
reasonably believes the force is immediately necessary to
collect
[
obtain
] the sample [
or specimen
].
The institutional division
]
shall collect and forward
thumbprints
[
a right thumbprint
] with each
DNA
[
blood
] sample [
or specimen
] collected under this subchapter. [
If the subject has no right
thumb, the division shall collect and forward a left thumbprint or other fingerprint
with an appropriate notation.
]
thumb or other finger
]
must be rolled to capture the entire print.
The institutional division
]
shall provide a legible signature of the person collecting the sample [
or specimen
] and, for identification purposes, should make reasonable
efforts to collect a legible signature from the subject providing the sample.
Inmate ] in Another Institution.
inmate
] is confined in
another
[
a penal
] institution
after sentencing and before
admission to TDCJ, and TDCJ determines that the individual is likely to be
released before being admitted to TDCJ, TDCJ shall cause a sample to be collected
from the individual
[
awaiting transfer to the institutional division
for an offense described in §28.41 of this title (relating to Sample
Collection by TDCJ), the institutional division shall obtain the sample or
specimen from the inmate as soon as practicable after the Parole Division
informs the institutional division that the inmate is likely to be paroled
before being admitted to the institutional division
]. The administrator
of the other penal institution shall cooperate under this section as required
by law.
Subchapter C. CODIS RESPONSIBILITIES OF THE INSTITUTIONAL DIVISION
Subchapter D. CODIS RESPONSIBILITIES OF THE TEXAS YOUTH COMMISSION
(a)
]
A juvenile who is
, after an adjudication
for conduct constituting a felony, confined in a facility operated by or under
contract with
[
committed to
] TYC shall provide one or more
DNA
[
blood
] samples [
or other specimens
] taken
by or at the request of the commission for the purpose of creating a DNA record
.
[
if the juvenile has not already provided the required specimen
under other state law and if the juvenile is ordered by a juvenile court to
give the sample or specimen or is committed to the commission for an adjudication
as having engaged in delinquent conduct that violates:
]
or other specimens
] from juveniles
under this subchapter;
blood
] sample [
or other
specimen
] collected;
or specimen
]; and
or specimen
] to the director
for scientific analysis under Subchapter B of this chapter.
or specimen
] from a juvenile during the initial examination
or at another
time determined by TYC
. [
TYC shall collect a sample or specimen
from a juvenile who has completed the initial examination before January 1,
2005, not later than the 90th day before the juvenile's earliest parole eligibility
date.
]
or specimen
] under this subchapter
when and to the degree the employee reasonably believes the force is immediately
necessary to
collect
[
obtain
] the sample [
or specimen
].
a right thumbprint
] with each
DNA
[
blood
] sample
[
or specimen
] collected under this subchapter. [
If the subject
has no right thumb, TYC shall collect and forward a left thumbprint or other
fingerprint with an appropriate notation.
]
thumb or other finger
]
must be rolled to capture the entire print.
or specimen
] and, for identification purposes, should
make reasonable efforts to collect a legible signature from the subject providing
the sample.
Subchapter E. FORENSIC DNA LABORATORIES
adopted
under Government Code, §411.0206,
] that govern the regulation
of [
a non-CODIS, forensic
] DNA
laboratories
[
laboratory
] located in this state.
a
] forensic DNA
laboratories, including a CODIS user laboratory,
[
laboratory
] and do not apply to:
(2)
] any laboratory, including a
crime laboratory, which does not conduct DNA testing; or
(3)
] any entity that conducts DNA
testing, if that testing is performed for a purpose other than forensic analysis
under Code of Criminal Procedure, Article 38.35.
second-sample provision described
in Code of Criminal Procedure, Article 38.35(e)
].
(c)
A forensic DNA laboratory
shall comply with the audit standards required by:]
(1)
Subchapter H of this chapter; and]
(2)
the laboratory's recognized accrediting body.]
(d)
No later than 30 days after
the date the laboratory receives an audit report from its recognized accrediting
body, a forensic DNA laboratory shall submit to the director a copy of the
report along with its response to the audit. The response shall demonstrate:]
(1)
that each finding of substantial deficiency
has been corrected or adequately addressed; or]
(2)
good cause for the director to waive each finding
of substantial deficiency.]
(e)
] A forensic DNA laboratory shall
establish and maintain a procedure that requires prompt reporting of each
substantial deficiency by the laboratory. Laboratory personnel shall promptly
report an incident of substantial deficiency by the laboratory to appropriate
authorities, including the laboratory's director, the director of the department,
the laboratory's recognized accrediting body, and the appropriate prosecutor
or other criminal justice or law enforcement agency. This section does not
apply to a deficiency that laboratory personnel reasonably believe to be minor
and not substantial.
(f)
] If a forensic DNA laboratory
agrees or is required to report the results of an analysis, comparison, or
other match to a criminal justice or law enforcement agency, the laboratory
shall make reasonable efforts to submit the report to the agency no later
than 30 days after completing its report of the comparison or match.
Subchapter F. CODIS USER LABORATORIES
adopted
under Government Code, Chapter 411, Subchapter G,
] that govern the regulation
of a CODIS user laboratory located in this state.
and
]
.
]
Subchapter G. DATABASE RECORDS
(4)
] [
Restricted
] DNA
Database Card--means a form (
LAB-13
[
LAB-13R
]) available
from the director to be used by an agency to make a record under this subchapter.
(5)
] [
Restricted
] DNA
Procedural Guidelines--means the latest draft of the director's publication
by that name [
(Form LAB-11)
] and any cross-referenced material,
including a procedure or specimen collection method approved by the director.
(8)
] Standard DNA
sample
[
specimen or standard specimen
]--means a DNA sample [
or specimen
], normally a blood sample, taken under Subchapters A through F of this
chapter, including a standard sex offender DNA
sample
[
specimen
].
specimen
]
from certain eligible individuals by an agency in order to populate the DPS
[
restricted
] DNA database.
restricted
] DNA
sample
[
specimen
] taken from an eligible individual for an
offense covered by this subchapter.
specimen
]
or record maintained by the director under Subchapters A through F of this
chapter; or
standard
] suspect
reference sample
[
specimen
] that is not a
voluntary sample
[
restricted
specimen
] described by §28.113(7) of this title (relating to Eligible
Individual).
(6)
] released on bail or bond under
Code of Criminal Procedure, Article 17.47 [
(Conditions Requiring Submission
of a Specimen), for an offense described by this section
]; [
or
]
specimen
] to
create a [
restricted
] DNA record under this subchapter.
restricted
] DNA
sample
[
specimen
] is analyzed by the lab; and
Restricted
]
DNA Procedural Guidelines.
The
laboratory must be accredited under Subchapter H of this chapter.
Specimen ].
restricted
]
DNA
sample
[
specimen
] from an eligible individual. The
agency collecting the
sample
[
specimen
] shall use a
collection method approved by the director and described in the [
type-name="italic">Restricted
]
DNA Procedural
Guidelines
and may:
specimen
] collection
kit
obtained
[
purchased
] from [
or approved by
]
the director; and
specimen
]
using a trusty, probationer, volunteer, or other individual who is not officially
associated with the agency.
specimen
] discouraged.
The
[
In the same manner as a standard specimen, the
] director
does not intend for a [
restricted
] DNA
sample
[
specimen
] to be used in court as the evidentiary
sample
[
specimen
] establishing identity. An agency should use information about
matching the
database sample's
[
restricted specimen's
]
profile to an unknown profile to obtain a separate evidentiary
sample
[
specimen
].
The
] director shall make
reasonable efforts to provide an adequate supply of
sample
[
specimen
] kits to each sheriff's department operating a county jail
and, upon request, to any other agency with appropriately trained personnel.
Restricted
]
DNA Procedural Guidelines.
If an agency frequently submits unusable
samples
[
specimens
], the director may require additional training before accepting
further
samples
[
specimens
].
and §411.1472(c)
], no agency may take a blood sample for
the purpose of creating a [
restricted
] DNA record
under this
subchapter
.
specimen
].
If a court, including a magistrate, orders the taking of a [
restricted
] DNA
sample
[
specimen
] under this subchapter,
the director encourages but does not require the court to order
that
the
sample be
[
specimen
] taken by an agency that
has the personnel, training, and other resources necessary to efficiently
and properly take the
sample
[
specimen
]. The director
expects these personnel will normally be:
restricted specimen
] under this subchapter. These steps
should include inquiry into each appropriate information system available
to law enforcement.
(i)
] Duty--standard
sample
[
specimen
]. The duty to require or take a standard
sample
[
specimen
]:
restricted specimen
] has already been
collected
under this subchapter
; and
Specimen ].
restricted specimen
] shall use a preservation method and
procedure approved by the director and described in the [
Restricted
]
DNA Procedural Guidelines.
(c)
] Forwarding. The collecting
agency shall forward the
sample
[
specimen
] together
with the original [
Restricted
] DNA Database Card to the director
or an approved lab no later than the end of the third business day after the
collection.
(d)
] After forwarding. If the collecting
agency forwards the
sample
[
specimen
] kit and its associated
database card to an approved lab, the agency:
specimen
] material,
including the unprocessed buccal swab and any remaining extracted DNA, and
(e)
] Acceptance or rejection. The
director:
specimen
]
that substantially complies with this subchapter;
specimen
] that does not comply with this subchapter;
specimen
], if it is unusable.
(f)
] Testing fee--DPS lab. The director
shall absorb the cost of testing necessary to create a profile for a
DNA sample
[
restricted specimen
] submitted directly to the
DPS Crime Laboratory
Service
by the collecting agency.
(g)
] Testing fee--approved lab.
The collecting agency shall initially pay the cost of testing necessary to
create a profile for a
DNA sample
[
restricted specimen
]
submitted to an outside lab approved under this subchapter. The agency may
then seek reimbursement from the criminal justice division of the governor's
office under Code of Criminal Procedure, Article 102.056(e).
(h)
] Profile entry. The director
shall enter the record's profile into
the
[
its
] database.
Restricted ] DNA Record.
restricted
] DNA
sample
[
specimen
] from an eligible individual
shall maintain a record of the collection under this section, including a
copy of the [
Restricted
] DNA Database Card and any associated record.
specimen
] shall certify compliance
with the [
Restricted
]
DNA Procedural Guidelines.
The individual shall make the certification
on a [
Restricted
] DNA Database Card completed at the time of collection.
The card (
LAB-13
[
LAB-13R
]) includes a certification
that:
restricted specimen
]
was taken in compliance with this subchapter.
Restricted
] DNA
Database Card and any associated record for a period of three years from the
date of collection.
(e)
] Maintenance by DPS. The director
shall maintain a [
restricted
] DNA
sample
[
specimen
] and record under this subchapter using standard CODIS laboratory procedures.
or Specimen ].
restricted
] DNA
sample
[
specimen
] to be
taken under this subchapter, if an original,
DNA sample
[
restricted specimen
]:
restricted
] DNA
sample
[
specimen
], an attorney representing the state in felony prosecutions may submit
a written request to the director to determine that a defendant should provide
a standard DNA
sample
[
specimen or a second restricted specimen
under Government Code, §411.1472 (DNA Records of Persons Placed on Community
Supervision for Certain Offenses)
]. The request must include justification
demonstrating to the director that the interests of justice or public safety
require that the defendant provide an additional DNA
sample
[
specimen
]. [
The director shall make available on the department's
web site a sample letter for a request under this section. If the director
concurs with the justification offered by the prosecutor, the director shall
forward the request, as appropriate, to:
]
(d)
] DPS determines no profile.
If the director determines that no valid [
restricted
] DNA profile
exists for a defendant under this subchapter, the director deems that the
interests of justice and public safety require that a defendant provide an
additional, standard
sample
[
specimen
]. The director
may contact an appropriate felony prosecutor to submit a written request under
this section to ensure that each defendant, who is required to provide a
sample
[
specimen
], does provide at least one profiled DNA
sample
[
specimen
].
(e)
] Profile does exist. If the
director determines that a valid [
restricted
] DNA record does exist
for a defendant, the director:
specimen
] to be taken by TDCJ or TYC without a written request from
a felony prosecutor;
specimen
] for future testing.
(a)
]
[
Notification.
] If this subchapter
requires or permits an agency to communicate with the department or the director,
the agency must communicate with the department or the director through the
DPS Crime Laboratory Service.
Restricted ] DNA Communications.
Subchapter H. ACCREDITATION
granting of
] recognition
of an
[
to a recognized
] accrediting body by the director; and
or (2)
];
limitation
] may include controlled
substances
[
substance (
]marihuana
, precursor analysis, and clandestine laboratory
analysis or
[
only) or similar limitation
];
limitation
] may include
forensic
toxicology
, urine drug testing,
and
[
(
]blood alcohol
analysis
[
only), or
similar limitation
];
limitation
] may include biology
,
[
(
]serology
, and DNA
[
only) or similar limitation
];
limitation
] may include: firearms
, ballistics, and
[
/
]toolmarks [
(firearms only), (serial number restoration only),
or similar limitation
];
limitation
] may include questioned documents
,
[
(
]handwriting
, and ink analysis
[
only) or similar limitation
];
limitation
] may include: [
trace evidence (
]fire debris [
only)
], [
(
]explosives [
only)
], [
(
]fibers
[
only)
], [
(
]gun shot residue [
only)
], [
(
]glass [
only)
], [
(
]hairs [
only)
],
[
(
]paint [
only)
], [
(
]filaments [
only)
],
and unknown substances
[
or similar limitation
];
and
a discipline, subdiscipline, or procedure
] excluded from
the definition of forensic analysis
or otherwise exempted
by the
Code of Criminal Procedure, Article 38.35, [
subsection (a)
] or
by this subchapter based on their nature.
(A)
] This
paragraph
[
subparagraph
] describes a discipline, subdiscipline, or procedure that
is excluded from the definition of forensic analysis
or otherwise exempted
by the Code of Criminal Procedure, Article 38.35, [
subsection
(a)
] and for which no recognized accreditation is appropriate or available.
A laboratory may not apply to the director for [
voluntary or statutory
] DPS accreditation for:
.
]
(B)
] This
paragraph
[
subparagraph
] 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 recognized accreditation is inappropriate
or unavailable. A laboratory may not apply to the director for [
voluntary
or statutory
] DPS accreditation for:
(i)
] forensic photography;
(ii)
] non-criminal paternity testing;
(iii)
] non-criminal testing of human
or nonhuman blood, urine, or tissue;
(iv)
] a crime scene search team
(whether or not 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;
(v)
] other evidence processing or
handling that is excluded under
§28.132(2)
[
§28.132(2)(B),
(C), or (D)
] of this title (relating to Definitions); or
(vi)
] other discipline or subdiscipline
so determined by the director.
voluntary
or statutory
] DPS accreditation for:
pathology,
] anthropology, entomology,
or botany;
digital evidence
(subdisciplines may include computer forensics, audio, video, or imaging)
];
voluntary or statutory
] accreditation under this section.
Disciplinary
] Action).
or renew
] provisional accreditation under this section
that is non-renewable
for that discipline, subdiscipline, or procedure
.
(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.
(e)
] Second sample required. A laboratory
with provisional DPS accreditation under this section must:
the director accepts an application
];
and
expires on the date indicated on the laboratory's
recognized accreditation documentation, unless the recognized accrediting
body extends its accreditation as part of its routine renewal process
].
application
].
that was not in existence on August 20, 2003, and
] that applies
for accreditation from a recognized accrediting body [
on or after that
date
] may apply to the director for a provisional DPS accreditation
in accordance with §28.139 (relating to Provisional DPS Accreditation)
for a term not to exceed one year from the date the director
issues the accreditation unless formally extended for good cause by the director
[
accepts the application
].
Subchapter I. COMPLAINTS, SPECIAL REVIEW, AND ADMINISTRATIVE ACTION