Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 28.
DNA DATABASE
Subchapter H. ACCREDITATION
37 TAC §§28.121 - 28.132
The Department of Public Safety (DPS) adopts the following
new sections on an emergency basis: §§28.121 - 28.132, concerning
accreditation of crime laboratories and other entities. The sections being
added relate to purpose, definitions, identification of approved national
accrediting bodies, identification of disciplines and subdisciplines subject
to statutory DPS accreditation, identification of disciplines, subdisciplines
and procedures to which statutory DPS accreditation does not apply, identification
of disciplines and subdisciplines exempt from statutory DPS accreditation,
procedures for full DPS accreditation, procedures for provisional DPS accreditation,
term for provisional accreditation, accreditation for a limited term, withdrawal
of DPS accreditation, and requirements for communication with DPS.
The new sections are being adopted on an emergency basis pursuant to §2001.034
of the Government Code, which allows a state agency to adopt emergency rules
if a requirement of state or federal law requires adoption on less than 30
days notice. These new sections are simultaneously being submitted to the
DPS finds that requirements of state law mandate the adoption of the rules
as an emergency on fewer than 30 days notice. Specifically, §4 of House
Bill 2703, 78th Legislature, Regular Session has added new 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. Section 5 of House Bill
2703 directs the DPS director to adopt rules under Government Code §411.0205
not later than the 61st day after the effective date of the Act. House Bill
2703 was signed by the Governor on June 20, 2003. DPS finds that emergency
adoption of the rules is required in order to timely comply with the statutory
requirements of House Bill 2703. New §28.121 explains purpose; new §28.122
identifies definitions; new §28.123 identifies DPS approved national
accrediting bodies; new §28.124 identifies disciplines and subdisciplines
subject to statutory DPS accreditation; new §28.125 identifies disciplines,
subdisciplines, and procedures to which statutory DPS accreditation does not
apply; new §28.126 identifies disciplines and subdisciplines that are
exempt from statutory DPS accreditation; new §28.127 explains full DPS
accreditation; new §28.128 explains provisional DPS accreditation; new §21.129
explains the term for provisional accreditation; new §28.130 explains
DPS accreditation for a limited term; new §28.131 explains the withdrawal
of DPS accreditation; and new §28.132 explains how to contact DPS.
The new sections are adopted on an emergency basis under Government
Code §411.0205 which provides that 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. The
sections are also adopted under Government Code §2001.034.
No other codes are affected.
§28.121.Purpose.
This subchapter contains the director's rules governing the Department
of Public Safety (DPS) accreditation of a crime laboratory or other entity
required for admission of evidence or testimony under Code of Criminal Procedure,
Article 38.35, because the laboratory or entity conducts a forensic analysis
of physical evidence for use in a criminal proceeding.
§28.122.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Forensic analysis--has the meaning assigned by Code of
Criminal Procedure, Article 38.35. The term does not include:
(A)
an expert examination or test excluded under Code of Criminal
Procedure, Article 38.35, Subsection (a)(1) or (2);
(B)
an expert examination or test that was not conducted for
the purpose of determining the connection of physical evidence to a criminal
action;
(C)
the location, identification, collection, or preservation
of physical evidence by laboratory or investigative personnel unless the activity
is integral to an expert examination or test; or
(D)
field testing such as screening or presumptive testing
unless the activity is integral to an expert examination or test.
(2)
Laboratory or crime laboratory--refers to an entity that
conducts a forensic analysis of physical evidence for use in a criminal proceeding.
(3)
National accrediting body--refers to an entity that issues
an accreditation recognized throughout the relevant scientific community in
the United States and that accredits an organization or entity, including
its personnel, procedures, and facilities.
(4)
Physical evidence--has the meaning assigned by Code of
Criminal Procedure, Article 38.35.
§28.123.Approved National Accrediting Bodies.
(a)
A laboratory may apply for statutory DPS accreditation
if accreditation is required for evidence admissibility under Code of Criminal
Procedure, Article 38.35. A laboratory may apply for voluntary DPS accreditation
if permitted under this subchapter.
(b)
To be accredited by DPS, the laboratory must first be accredited
by a national accrediting body that is approved by the director under this
subchapter.
(c)
The director approves the following national accrediting
bodies, subject to the stated discipline or subdiscipline limitations:
(1)
American Board of Forensic Toxicology (ABFT)--approved
for accreditation of toxicology discipline only.
(2)
American Society of Crime Laboratory Directors, Laboratory
Accreditation Board (ASCLD/LAB)--approved for accreditation of all disciplines
which it accredits.
(3)
National Forensic Science Technology Center (NFSTC)--approved
for accreditation of DNA discipline only.
§28.124.Disciplines and Subdisciplines Subject to Statutory DPS Accreditation.
'Forensic analysis'/national accreditation. This section describes
a discipline or subdiscipline that involves forensic analysis for use in a
criminal proceeding and for which accreditation is available from an approved
national accrediting body.
(1)
A laboratory may apply for statutory DPS accreditation
for: controlled substances, toxicology (subdisciplines include alcohol and
drugs), biology (subdisciplines include serology and DNA), firearm/toolmark
(subdisciplines include firearms and toolmarks), questioned documents, trace
evidence (subdisciplines include fire debris, explosives, fibers, gun shot
residue, glass, hairs and paint), and digital evidence.
(2)
The subdiscipline of impression evidence, including footwear,
tiretrack, and similar impression evidence, may be assigned to various administrative
sections in different laboratories. The director deems impression evidence
to be a subdiscipline of several disciplines under this subchapter, including
trace evidence, firearm/toolmark, or questioned documents.
§28.125.Disciplines, Subdisciplines, and Procedures to Which Statutory DPS Accreditation Does Not Apply.
This section describes a discipline, subdiscipline, or procedure excluded
from the definition of forensic analysis by the Code of Criminal Procedure,
Article 38.35, Subsection (a) or by this section based on their nature.
(1)
Expressly excluded from 'forensic analysis'/national accreditation.
This paragraph describes a discipline, subdiscipline, or procedure that is
excluded from the definition of forensic analysis by the Code of Criminal
Procedure, Article 38.35, Subsection (a) and for which national accreditation
is available. A laboratory may apply for voluntary DPS accreditation for:
latent print examination (including development and comparison).
(2)
Expressly excluded from 'forensic analysis'/no national
accreditation. This paragraph describes a discipline, subdiscipline, or procedure
that is excluded from the definition of forensic analysis by the Code of Criminal
Procedure, Article 38.35, Subsection (a) and for which national accreditation
is unavailable. A laboratory may not apply for voluntary or statutory DPS
accreditation for: tests of breath specimens under Transportation Code, Chapter
724.
(3)
Not 'forensic analysis' by its nature/national accreditation.
This paragraph describes a discipline, subdiscipline, or procedure that does
not normally involve forensic analysis of physical evidence for use in a criminal
proceeding and for which national accreditation is available. If a laboratory
has another discipline or subdiscipline that may be accredited by a national
accrediting body, then national accreditation is available, and the laboratory
may apply for voluntary DPS accreditation for: blood spatter.
(4)
Not 'forensic analysis' by its nature/no national accreditation.
This paragraph describes a discipline, subdiscipline, or procedure that does
not normally involve forensic analysis of physical evidence for use in a criminal
proceeding and for which national accreditation is unavailable. A laboratory
may not apply for voluntary or statutory DPS accreditation for: forensic photography,
non-criminal paternity testing, non-criminal testing of human or nonhuman
blood, urine, or tissue, a crime scene search team (associated with an accredited
laboratory) if the team does not engage in forensic analysis because it only
engages in the location, identification, collection, or preservation of physical
evidence and the activity is not integral to an expert examination or test,
other evidence processing or handling that is excluded under §28.122(1)
(C) or (D) of this subchapter (relating to Definitions), polygraph, voice
stress analysis, or forensic hypnosis.
§28.126.Disciplines and Subdisciplines Exempt from Statutory DPS Accreditation.
This section describes a discipline or subdiscipline that is 'forensic
analysis' but is not subject to national accreditation by one or more national
accrediting bodies approved by the director under this subchapter.
(1)
Even though a discipline or subdiscipline is forensic analysis,
if no accreditation is available from a national accrediting body for the
discipline or subdiscipline, a laboratory may not apply for voluntary or statutory
DPS accreditation for: forensic pathology (including a medical examiner),
sexual assault examination of the person, forensic anthropology, entomology,
or botany, facial or traffic accident reconstruction, video examination, voiceprint
analysis, statement analysis, or profiling.
(2)
If a laboratory has no other discipline or subdiscipline
accredited by a relevant national accrediting body, the laboratory may not
apply for voluntary or statutory DPS accreditation for: blood spatter or a
standing crime scene search team (associated with a laboratory).
§28.127.Full DPS Accreditation.
(a)
Issuance and renewal. The director may issue or renew voluntary
or statutory accreditation under this section.
(b)
Application. An applicant for full DPS accreditation shall
complete and submit a current form LAB-5a and attach copies of the following:
Figure: 37 TAC §28.127(b) (Emergency) (.pdf format)
(1)
an accreditation certificate and letter of notification
of accreditation from a national accrediting body approved by the director
under this subchapter; and
(2)
each document provided by the national accrediting body
that identifies the discipline or subdiscipline for which the laboratory has
received accreditation and any limitation or restriction regarding that accreditation.
(c)
Additional information. The director may require additional
information to properly evaluate the application either as part of the original
application or as supplemental information.
(d)
Reports to director.
(1)
If accredited by ASCLD/LAB, a laboratory shall provide
the director with a copy of each
Annual Accreditation
Review Report
. If accredited by another national accrediting body,
a laboratory shall provide the director with a copy of each equivalent annual
accreditation assessment document. The copy shall be submitted to the director
at the same time that it is due to the national accrediting body.
(2)
A laboratory shall provide the director with a copy of
correspondence and each report or communication between the laboratory and
the national accrediting body. The laboratory shall submit the copy to the
director no later than 10 business days after the date the laboratory receives
or transmits the correspondence, report, or communication.
(3)
A laboratory that discontinues a specific forensic discipline
or subdiscipline shall submit written notification to the director at least
10 business days before the effective date of the deletion.
§28.128.Provisional DPS Accreditation.
(a)
Issuance and renewal. The director may issue or renew provisional
accreditation under this section.
(b)
Application. An applicant for provisional DPS accreditation
shall complete and submit a current form LAB-5a as referenced in §28.127(b)
of this subchapter (relating to Full DPS Accreditation) and attach copies
of the following:
(1)
the application for accreditation by a national accrediting
body approved by the director under this subchapter;
(2)
the initial audit, inspection, or review report from an
independent auditor based on the standards of the national accrediting body;
(3)
a full response in writing to the initial audit, inspection,
or review report described in paragraph (2) of this subsection; and
(4)
each document provided by the national accrediting body
that identifies the discipline or subdiscipline for which the laboratory seeks
accreditation.
(c)
Additional information. The director may require additional
information to properly evaluate the application either as part of the original
application or as supplemental information.
(d)
Reports to director.
(1)
The laboratory shall request that the national accrediting
body provide the director with a copy of each audit, inspection, or review
report conducted before full DPS accreditation.
(2)
A laboratory shall provide the director with a copy of
correspondence and each report or communication between the laboratory and
the national accrediting body. The laboratory shall submit the copy to the
director no later than 10 business days after the date the laboratory receives
or transmits the correspondence, report, or communication.
(3)
A laboratory that discontinues a specific forensic discipline,
subdiscipline, or procedure shall submit written notification to the director
at least 10 business days before the effective date of the deletion.
(e)
Second sample required. A laboratory with provisional DPS
accreditation under this section must:
(1)
preserve one or more separate samples of the physical evidence
for use by the defense attorney or use under order of the convicting court;
and
(2)
agree to preserve, and preserve those samples until all
appeals in the case are final.
§28.129.Term for Provisional Accreditation.
(a)
Lab before August 19, 2003 filing provisional application
on or before September 1, 2003. A laboratory or its discipline or subdiscipline
that was in existence before August 19, 2003, and that applies for accreditation
from a national accrediting body on or before September 1, 2003, may apply
for a provisional DPS accreditation for a term not to exceed one year.
(b)
Lab before August 19, 2003 filing provisional application
on or before September 1, 2004. A laboratory or its discipline or subdiscipline
that was in existence before August 19, 2003, and that applies for accreditation
from a national accrediting body on or before September 1, 2004, may apply
for a provisional DPS accreditation for a term not to exceed 180 days.
(c)
Lab established and provisional application filed on or
after August 20, 2003. A laboratory or its discipline or subdiscipline that
was not in existence before August 20, 2003, and that applies for accreditation
from a national accrediting body on or after that date may apply for a provisional
DPS accreditation for a term not to exceed one year.
§28.130.DPS Accreditation for a Limited Term.
A laboratory, including an out of state, federal, or private laboratory,
may request DPS accreditation for a term less than the term normally available
under this subchapter.
§28.131.Withdrawal of DPS Accreditation.
(a)
Automatic withdrawal. The director shall automatically
withdraw:
(1)
the full DPS accreditation for a laboratory, discipline,
or subdiscipline at the date and time that the national accrediting body withdraws
its relevant laboratory, discipline, or subdiscipline accreditation; or
(2)
the provisional DPS accreditation for a laboratory, discipline,
or subdiscipline at the date and time that the national accrediting body notifies
the director that the laboratory has withdrawn its application for the relevant
national accreditation of the laboratory, discipline, or subdiscipline.
(b)
Director withdrawal. The director may withdraw full or
provisional DPS accreditation for a laboratory, discipline, or subdiscipline
if the laboratory fails to comply with a rule under this subchapter.
§28.132.Communication.
The laboratory shall communicate with DPS or the director under this
subchapter through the DPS Crime Laboratory Service at:
(1)
telephone number: (512) 424-2105;
(2)
fax number: (512) 424-5645;
(3)
e-mail address: LabQA@txdps.state.tx.us;
(4)
web site: http://www.txdps.state.tx.us;
(5)
Post Office Box mailing address: Crime Laboratory Service,
QA MSC 0460, Texas Department of Public Safety, P.O. Box 4143, Austin, Texas
78765-4143; and
(6)
physical mailing address: Crime Laboratory Service, QA
MSC 0460, Texas Department of Public Safety, 5805 N. Lamar Blvd., Austin,
Texas 78752-4422.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on July 25, 2003.
TRD-200304528
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective Date: August 19, 2003
Expiration Date: December 17, 2003
For further information, please call: (512) 424-2135