TITLE 37.PUBLIC SAFETY AND CORRECTIONS

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 [ or Specimen ].

Any person may voluntarily submit a [ blood ] sample [ or other specimen ] to the director for the purpose of creating a DNA record under Subchapter B of this chapter.

§28.4.Sample Collection.

A criminal justice or law enforcement agency or DNA laboratory may not collect, and the director may not accept, a [ blood ] sample [ or other specimen ] taken from a person who is not deceased, whether submitted voluntarily or as required by this chapter, unless:

(1) a [ the ] blood sample is collected in a medically approved manner by:

(A) a physician, registered nurse, licensed vocational nurse, licensed clinical laboratory technologist; or

(B) another person who is trained to properly collect blood samples [ or other specimens ] and supervised by a licensed physician; or

(2) a sample [ the specimen ] other than [ a ] blood [ sample ] is collected in a manner approved by the director in a policy adopted under this chapter.

§28.5.Sample Submitted to Director.

A person who collects a [ 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 .

§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 [ 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:

(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


Subchapter B. CODIS RESPONSIBILITIES OF THE DIRECTOR

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 [ blood ] sample[ , or other specimen ] for the following purposes:

(1) to assist a federal, state, or local criminal justice agency [ or law enforcement agencies ] in the investigation or prosecution of sex-related offenses or other offenses in which biological evidence is recovered;

(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; [ and ]

(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 [ and ] protocol development; [ and ]

(6) [ (C) ] retesting to validate or update the original analysis or to assist in database or DNA laboratory quality control.

§28.23.Types of DNA Files.

The DNA database may contain DNA records, including profiles, for the following types of records:

(1) an individual [ adult ] described by §28.41 of this title (relating to Sample Collection by TDCJ);

(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) [ (3) ] a biological sample [ specimen ] of a deceased victim of a crime;

(5) [ (4) ] a biological sample [ specimen ] that is legally obtained in the investigation of a crime, regardless of origin;

(6) [ (5) ] an unidentified missing person, or unidentified skeletal remains or body parts;

(7) [ (6) ] a close biological relative of a person who has been reported missing to a law enforcement agency;

(8) [ (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

(9) [ (8) ] an unidentified person, if the record does not contain personal identifying information.

§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 [ and other biological molecules ].

(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 [ or Specimen ] Collection Kits.

The director shall provide a reasonable quantity of [ 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.

§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


Subchapter C. CODIS RESPONSIBILITIES OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE

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.

[ (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: ]

[(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 [ or other specimens ] from individuals [ inmates ] under this subchapter;

(2) preserve each [ blood ] sample [ or other specimen ] collected;

(3) maintain a record of the collection of the sample [ or specimen ]; and

(4) send the sample [ or specimen ] to the director for scientific analysis under Subchapter B of this chapter.

§28.43.Sample Collection.

(a) Time to collect. TDCJ [ 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. ]

(b) Use of force. A TDCJ [ 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 ].

(c) Contracts. TDCJ may contract for phlebotomy services under this subchapter.

§28.44.Fingerprint and Signature.

(a) TDCJ [ 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. ]

(b) The thumbs [ thumb or other finger ] must be rolled to capture the entire print.

(c) TDCJ [ 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.

§28.45. Individual [ Inmate ] in Another Institution.

If an individual [ 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.

§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


Subchapter C. CODIS RESPONSIBILITIES OF THE INSTITUTIONAL DIVISION

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


Subchapter D. CODIS RESPONSIBILITIES OF THE TEXAS YOUTH COMMISSION

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.

[ (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: ]

[(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 [ or other specimens ] from juveniles under this subchapter;

(2) preserve each [ blood ] sample [ or other specimen ] collected;

(3) maintain a record of the collection of the sample [ or specimen ]; and

(4) send the sample [ or specimen ] to the director for scientific analysis under Subchapter B of this chapter.

§28.63.Sample Collection.

(a) Time to collect. TYC shall obtain the sample [ 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. ]

(b) Use of force. A TYC employee may use force against a juvenile 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 ].

(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 [ 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. ]

(b) The thumbs [ thumb or other finger ] must be rolled to capture the entire print.

(c) TYC 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.

§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


Subchapter E. FORENSIC DNA LABORATORIES

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 [ adopted under Government Code, §411.0206, ] that govern the regulation of [ a non-CODIS, forensic ] DNA laboratories [ laboratory ] located in this state.

(b) The rules contained in this subchapter apply to [ a ] forensic DNA laboratories, including a CODIS user laboratory, [ laboratory ] and do not apply to:

[(1) a CODIS user laboratory;]

(1) [ (2) ] any laboratory, including a crime laboratory, which does not conduct DNA testing; or

(2) [ (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.

§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 [ 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.]

(c) [ (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.

(d) [ (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.

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


Subchapter F. CODIS USER LABORATORIES

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 [ adopted under Government Code, Chapter 411, Subchapter G, ] that govern the regulation of a CODIS user laboratory located in this state.

(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; [ and ]

(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


Subchapter G. DATABASE RECORDS

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) ] [ 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.

(4) [ (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.

[(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) [ (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 ].

§28.112.Purpose and Applicability.

(a) Purpose. This subchapter contains the director's rules governing the taking of a biological sample [ specimen ] from certain eligible individuals by an agency in order to populate the DPS [ restricted ] DNA database.

(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 [ restricted ] DNA sample [ specimen ] taken from an eligible individual for an offense covered by this subchapter.

(2) This subchapter does not apply to:

(A) a standard DNA sample [ specimen ] or record maintained by the director under Subchapters A through F of this chapter; or

(B) a [ 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).

§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) ] 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 ]

(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 [ specimen ] to create a [ restricted ] DNA record under this subchapter.

§28.114.Approval of Outside Laboratory.

(a) Date of approval. A laboratory outside the department must:

(1) be approved on the date a [ restricted ] DNA sample [ specimen ] is analyzed by the lab; and

(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 [ Restricted ] DNA Procedural Guidelines. The laboratory must be accredited under Subchapter H of this chapter.

§28.115.Collection of Sample [ Specimen ].

(a) Generally. An agency may collect a [ 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:

(1) only use a sample [ specimen ] collection kit obtained [ purchased ] from [ or approved by ] the director; and

(2) not collect the sample [ specimen ] using a trusty, probationer, volunteer, or other individual who is not officially associated with the agency.

(b) Evidentiary sample [ 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 ].

(c) Collection kit. For the purpose of collecting a DNA sample under this subchapter the [ 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.

(d) Training. The director may provide or approve training under this subchapter as described in the [ Restricted ] DNA Procedural Guidelines. If an agency frequently submits unusable samples [ specimens ], the director may require additional training before accepting further samples [ specimens ].

(e) Statutory prohibition. Under Government Code, §411.1471(d) [ and §411.1472(c) ], no agency may take a blood sample for the purpose of creating a [ restricted ] DNA record under this subchapter .

(f) Court-ordered sample [ 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:

(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 [ restricted specimen ] under this subchapter. These steps should include inquiry into each appropriate information system available to law enforcement.

[(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) [ (i) ] Duty--standard sample [ specimen ]. The duty to require or take a standard sample [ specimen ]:

(1) is affected by the fact that an individual proves that a DNA sample [ restricted specimen ] has already been collected under this subchapter ; and

(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 [ Specimen ].

(a) Preservation. The agency collecting the DNA sample [ restricted specimen ] shall use a preservation method and procedure approved by the director and described in the [ Restricted ] DNA Procedural Guidelines.

[(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) ] 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.

(c) [ (d) ] After forwarding. If the collecting agency forwards the sample [ specimen ] kit and its associated database card to an approved lab, the agency:

(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 [ specimen ] material, including the unprocessed buccal swab and any remaining extracted DNA, and

(C) all other original kit components, including the original database card.

(d) [ (e) ] Acceptance or rejection. The director:

(1) may accept a usable sample [ specimen ] that substantially complies with this subchapter;

(2) may reject an unusable sample [ specimen ] that does not comply with this subchapter;

(3) shall notify the submitting agency of any rejection; and

(4) may destroy the rejected sample [ specimen ], if it is unusable.

(e) [ (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.

(f) [ (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).

(g) [ (h) ] Profile entry. The director shall enter the record's profile into the [ its ] database.

§28.117.[ Restricted ] DNA Record.

(a) Maintenance by agency. An agency collecting a [ 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.

(b) Certification. The individual agency representative who collects the sample [ 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:

(1) the individual is properly trained; and

(2) the DNA sample [ restricted specimen ] was taken in compliance with this subchapter.

(c) Retention period. Unless a court orders differently, the collecting agency shall retain the copy of the [ Restricted ] DNA Database Card and any associated record for a period of three years from the date of collection.

[(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) [ (e) ] Maintenance by DPS. The director shall maintain a [ restricted ] DNA sample [ specimen ] and record under this subchapter using standard CODIS laboratory procedures.

[(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 [ or Specimen ].

(a) Prosecutor determines no profile. The director encourages but does not require the appropriate felony prosecutor to file a motion for a [ restricted ] DNA sample [ specimen ] to be taken under this subchapter, if an original, DNA sample [ restricted specimen ]:

(1) - (3) (No change.)

(b) Request from a felony prosecutor. If the defendant has already submitted a [ 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: ]

[(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) ] 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 ].

(d) [ (e) ] Profile does exist. If the director determines that a valid [ restricted ] DNA record does exist for a defendant, the director:

(1) shall not solicit an additional DNA sample [ specimen ] to be taken by TDCJ or TYC without a written request from a felony prosecutor;

(2) may contact the appropriate felony prosecutor to submit a written request under this section; and

(3) may store an unsolicited sample [ specimen ] for future testing.

§28.119.Notification and Information.

[ (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.

[(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.[ Restricted ] DNA Communications.

(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


Subchapter H. ACCREDITATION

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 [ granting of ] recognition of an [ to a recognized ] accrediting body by the director; and

(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) [ or (2) ];

(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 [ limitation ] may include controlled substances [ substance ( ]marihuana , precursor analysis, and clandestine laboratory analysis or [ only) or similar limitation ];

(2) under the toxicology discipline, subdiscipline [ limitation ] may include forensic toxicology , urine drug testing, and [ ( ]blood alcohol analysis [ only), or similar limitation ];

(3) under the biology discipline, subdiscipline [ limitation ] may include biology , [ ( ]serology , and DNA [ only) or similar limitation ];

(4) under the firearms/toolmark discipline, subdiscipline [ limitation ] may include: firearms , ballistics, and [ / ]toolmarks [ (firearms only), (serial number restoration only), or similar limitation ];

(5) under the questioned documents discipline, subdiscipline [ limitation ] may include questioned documents , [ ( ]handwriting , and ink analysis [ only) or similar limitation ];

(6) under the trace evidence discipline, subdiscipline [ 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

(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 [ 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.

[(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) ] 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:

(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) [ (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:

(A) [ (i) ] forensic photography;

(B) [ (ii) ] non-criminal paternity testing;

(C) [ (iii) ] non-criminal testing of human or nonhuman blood, urine, or tissue;

(D) [ (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;

(E) [ (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

(F) [ (vi) ] other discipline or subdiscipline so determined by the director.

§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 [ voluntary or statutory ] DPS accreditation for:

(1) (No change.)

(2) forensic [ pathology, ] anthropology, entomology, or botany;

(3) - (4) (No change.)

(5) serial number restoration [ digital evidence (subdisciplines may include computer forensics, audio, video, or imaging) ];

(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 [ voluntary or statutory ] accreditation under this section.

(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 [ Disciplinary ] Action).

§28.139.Provisional DPS Accreditation.

(a) Issuance and renewal. The director may issue [ or renew ] provisional accreditation under this section that is non-renewable for that discipline, subdiscipline, or procedure .

(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) [ (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.

(e) [ (d) ] Reports to director.

(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) [ (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 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 [ the director accepts an application ]; and

(2) extends until withdrawn by the recognized accrediting body or by the director under §28.154 (relating to Withdrawal of DPS Accreditation) [ 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 ].

(b) Provisional term [ application ].

(1) A laboratory or its discipline or subdiscipline [ 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 ].

(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


Subchapter I. COMPLAINTS, SPECIAL REVIEW, AND ADMINISTRATIVE ACTION

37 TAC §§28.151 - 28.155

The Texas Department of Public Safety proposes amendments to Subchapter I, §§28.151 - 28.154, and new §28.155, concerning Complaints, Special Review, and Disciplinary Action. 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, §411.0205, Article 38.35 Code of Criminal Procedure, and Article 38.01 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 §28.151(a) add new paragraphs (7) and (8). Amendments to §28.152(a) amends paragraph (5) and adds new paragraph (6). The amendments to these sections are necessary as they relate to the complaint process and refer to the new Forensic Science Commission created in Article 38.01 Code of Criminal Procedure. Amendment to §28.154 deletes paragraph (5) regarding withdrawal of DPS accreditation. Current §§28.155 - 28.157 are simultaneously repealed with current §28.157 being proposed as new §28.155. In addition, the title of the subchapter is changed, and other minor 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 amendments and new section 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 section 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 section 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.

§28.151.Complaint Process.

(a) Question or complaint. If the director learns of a fact, circumstance, or complaint that raises a question about the integrity or trustworthiness of a laboratory, [ an individual associated with the laboratory, ] or a procedure, examination, or test conducted by the laboratory since the date of application for DPS accreditation , the director may take any of the following actions :

(1) communicate further with the source of the complaint to assess the appropriateness of further action;

(2) refer the matter to the laboratory's director for evaluation, audit, correction, or other appropriate action;

(3) initiate an audit under §28.152 of this title (relating to Unscheduled Audit);

(4) issue a letter to the laboratory [ or individual ]:

(A) demanding an immediate response and explanation of the matter;

(B) demanding that the laboratory permit or arrange for an immediate inspection or audit of the matter; or

(C) explaining the action to be taken by the director in the matter;

(5) notify or refer the matter to a law enforcement agency or prosecutor and recommend appropriate criminal action; [ or ]

(6) refer the matter to a district judge and recommend appropriate action to convene a court of inquiry under Code of Criminal Procedure, Chapter 52 ; [ . ]

(7) refer the matter to the Texas Forensic Science Commission; and

(8) any other actions deemed appropriate by the director.

(b) Source and scope. A question or complaint may be raised by any source, including an individual, entity, or audit. The scope of any action taken or proposed by the director under this section shall be determined by the director, based on the nature of the question or complaint.

(c) Records. The director may maintain a public record of a laboratory's accreditation or approval status.

(1) The director may maintain on the public record a notation of an action taken under this subchapter, including a question, complaint, or audit.

(2) A question, complaint, or audit is public information when in the possession of the director.

§28.152.Unscheduled Audit.

(a) If the director determines that there is reasonable cause to believe that a laboratory has failed to maintain quality assurance standards as provided under the laboratory's specific policy required by its recognized accrediting body or the FBI DNA Quality Assurance Audit Document , or has violated any rule in this chapter, the director may take appropriate action, including one or more of the following:

(1) direct the laboratory to conduct an internal audit and implement appropriate corrective action;

(2) order the laboratory to obtain, at its own expense, a special external audit by an auditor approved by the laboratory's recognized accrediting body and provide that report to the director within a reasonable time frame determined by the director not to exceed 60 days from the date of the order;

(3) notify the laboratory that further testing is not approved by DPS [ order the laboratory to cease conducting a new DNA analysis for a Texas criminal case ];

(4) initiate an evaluation of continued accreditation under Subchapter H of this chapter; or

(5) provide appropriate compliance information to the Texas Forensic Science Commission and/or any entity that may be responsible for oversight of the laboratory ; or [ . ]

(6) any other actions deemed appropriate by the director.

(b) An [ A special ] audit under this subsection shall comply with [ the ] minimum standards [ of the current Focused, Unscheduled, Non-compliance Guidelines ] for audits or inspections as established [ that have been issued ] by the director of the department's Crime Laboratory Service [ Section ].

(c) The director of the department may enter an accredited [ a CODIS user ] laboratory at any reasonable time to conduct an inspection or audit under this chapter. [ However, the director will not enter a forensic DNA laboratory or an accredited laboratory to conduct an on-site inspection or audit under this chapter. ]

§28.153.Corrective Action Plan.

(a) If a laboratory is subject to an [ a ] unscheduled audit that has resulted in a finding of non-compliance, the laboratory shall propose a corrective action plan and submit the plan to the director within 30 days from the date that the laboratory receives the audit results. If the laboratory has been notified that further testing is not approved [ ceased conducting DNA analyses pursuant to an order under §28.152(3) of this title (relating to Unscheduled Audit) ], the plan should identify the date that the laboratory intends to reinstate approved [ DNA ] testing.

(b) A proposed corrective action plan under this section must fully address each non-compliance finding and identify corrective action that meets or exceeds the standards:

(1) required by the laboratory's recognized accrediting body; and

(2) approved by the director.

(c) The director shall promptly review a proposed corrective action plan and take the following action:

(1) approve the corrective plan if it meets the requirements of this section; or

(2) decline to approve the corrective plan and identify necessary revisions to the plan.

(d) The director shall notify the laboratory of approval or disapproval of the audit response. If disapproved, the director shall notify the laboratory of required corrective action, and the laboratory shall implement the corrective action in a timely manner specified in the notification, except as provided by subsection (e) of this section.

(e) A laboratory shall implement and complete an approved corrective action plan described in subsection (d) of this section, unless the laboratory demonstrates good cause for extension to the director before the due date for completion.

§28.154.Withdrawal of DPS Accreditation.

The director may withdraw [ full or provisional ] DPS accreditation for a laboratory, discipline, or subdiscipline if the laboratory [ or an individual associated with the laboratory ]:

(1) violates this chapter;

(2) fails to respond meaningfully within five business days to a letter issued by the director under this subchapter;

(3) fails to timely submit an audit required under this subchapter; or

(4) fails to allow or substantially interferes with an inspection or audit conducted under this subchapter . [ ; or ]

[(5) is the subject of:]

[(A) an indictment presented under the Code of Criminal Procedure, Chapter 20, based on conduct related to this subchapter; or]

[(B) a court of inquiry convened under the Code of Criminal Procedure, Chapter 52, based on conduct related to this subchapter.]

§28.155.Review by Director.

(a) Reconsideration. A laboratory that has been ordered to take action under this subchapter may request reconsideration by the director in writing within 15 days of the order.

(b) Reinstatement. An accredited laboratory that has had DPS accreditation withdrawn automatically under §28.141 of this title (relating to Automatic Withdrawal of DPS Accreditation) may have its accreditation reinstated by the director if the laboratory shows that it presently meets or exceeds the quality assurance standards required by the laboratory's recognized accrediting body.

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-200700328

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


Subchapter I. COMPLAINTS, SPECIAL REVIEW, AND DISCIPLINARY ACTION

37 TAC §§28.155 - 28.157

(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 §§28.155 - 28.157, concerning Complaints, Special Review, and Disciplinary Action. Section 28.155 and §28.156 are being completely repealed, while §28.157 is being repealed and simultaneously filed as new §28.155.

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.

§28.155.Prohibition of CODIS User Lab Activity.

§28.156.Forensic DNA Laboratory Sanctions.

§28.157.Review by Director.

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-200700329

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