TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 28. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER F. CODIS USER LABORATORIES

37 TAC §28.93

The Texas Department of Public Safety proposes amendments to §28.93, concerning Policy, Procedure, and Rule Compliance. Amendment to the rule is necessary in order to reduce the number of documents that DNA laboratories are required to submit to the Department of Public Safety (DPS) every two years. DPS does not need the fifty plus page Quality Assurance Audit Document, but merely needs the final determination report by the Federal Bureau of Investigation that the DNA laboratory audited met all of the quality assurance requirements for forensic DNA testing laboratories.

Oscar Ybarra, Chief of Finance, has determined that for each year of the first five-year period the rule is in effect there will be no fiscal implications for state or local government or local economies.

In addition, Mr. Ybarra has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be current and updated rules.

Mr. Ybarra also has determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

The Department has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The Department has determined that Chapter 2007 of the Texas 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, MSC 0460, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-4143, (512) 424-2143.

The amendment is proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; and Texas Government Code, §§411.0205, 411.144, 411.147, 411.152, and 411.1471, which state the director by rule shall establish an accreditation process for crime laboratories and other entitles conducting forensic analyses of physical evidence for use in criminal proceedings.

Texas Government Code, §§411.004(3), 411.0205, 411.144, 411.147, 411.152, and 411.1471 are affected by this proposal.

§28.93.Policy, Procedure, and Rule Compliance.

A CODIS user laboratory shall:

(1) comply with CODIS policy and with this chapter, including the collection, preservation, shipment, and analysis of a sample or specimen and access and use of the DNA database;

(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 inform the director within 30 days of the completion of such annual audit, and shall provide the director with a copy of the notification, by the FBI, of the determination on all external audits within 30 days of receipt [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].

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 June 29, 2009.

TRD-200902667

Lamar Beckworth

Director

Texas Department of Public Safety

Earliest possible date of adoption: August 9, 2009

For further information, please call: (512) 424-2135