TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 15. TEXAS FORENSIC SCIENCE COMMISSION

CHAPTER 651. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER A. ACCREDITATION

37 TAC §651.4

The Texas Forensic Science Commission ("Commission") proposes an amendment to 37 Texas Administrative Code §651.4, concerning List of Recognized Accrediting Bodies, to make an non-substantial edit to an acronym in its list of recognized accrediting bodies. The amendment is necessary to reflect adoptions made by the Commission at its May 3, 2019, quarterly meeting. The amendment is made in accordance with the Commission's accreditation authority under Tex. Code. Crim. Proc. art. 38.01 §4-d.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendment will be in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There will be no anticipated effect on local employment or the local economy as a result of the proposal. The amendment makes a non-substantial edit to correct the spelling of an acronym in the Commission's list of recognized accrediting bodies.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed amendment does not impose any direct costs or fees on municipalities in rural communities.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission has also determined that for each year of the first five years the proposed amendment is in effect, the anticipated public benefit will be proper notification of the national accreditation programs recognized by the Commission.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f). Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendment will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person or laboratory who is required to comply with the rule as proposed. The amendment makes a non-substantial edit to correct the spelling of an acronym in the Commission's list of recognized accrediting bodies.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The amendment makes a non-substantial edit to correct the spelling of an acronym in the Commission's list of recognized accrediting bodies.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority. The amendment is proposed under Tex. Code Crim. Proc. art 38.01 §4-d.

Cross reference to statute. The proposal affects 37 Texas Administrative Code §651.4.

§651.4.List of Recognized Accrediting Bodies.

(a) The Commission recognizes the accrediting bodies in this subsection, subject to the stated discipline or category of analysis limitations:

(1) American Board of Forensic Toxicology (ABFT)--recognized for accreditation of toxicology discipline only.

(2) ANSI-ASQ National Accreditation Board (ANAB)--recognized for accreditation of all disciplines which are eligible for accreditation under this subchapter.

(3) Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services (HHS/SAMHSA) [(HHS/SAMSHA)], formerly known as the National Institute on Drug Abuse of the Department of Health and Human Services (HHS/NIDA)--recognized for accreditation of toxicology discipline in the category of analysis for Urine Drug Testing for all classes of drugs approved by the accrediting body.

(4) College of American Pathologists (CAP) Forensic Drug Testing Accreditation Program only--recognized for accreditation of toxicology discipline.

(5) American Association for Laboratory Accreditation (A2LA)--recognized for accreditation of all disciplines which are eligible for accreditation under this chapter.

(b) If an accrediting body is recognized under subsection (a) of this section and the recognized body approves a new discipline, category of analysis or procedure, the Commission may temporarily recognize the new discipline, category of analysis or procedure. A temporary approval shall be effective for 120 days.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902242

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661


SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §651.202

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 Texas Administrative Code §651.202, concerning Definitions, to provide clarification to its definition of professional misconduct to reflect definitions in Code of Criminal Procedure Article 38.01 that were not available when the Commission first defined the term. The amendments are necessary to reflect adoptions made by the Commission at its May 3, 2019, quarterly meeting. The amendments are made in accordance with the Commission's authority under Article 38.01 §4-a, Code of Criminal Procedure with respect to the Commission's Forensic Analyst Licensing program.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendments will be in effect, there is no anticipated fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. The amendments clarify the definition of professional misconduct to reflect definitions in Article 38.01, Code of Criminal Procedure.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed amendments do not impose any direct costs on municipalities in rural communities.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be sufficient and accurate notification regarding the definition of professional misconduct for forensic analysts.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs. The amendments clarify the definition of professional misconduct to reflect definitions in Article 38.01, Code of Criminal Procedure.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The amendments clarify the definition of professional misconduct to reflect definitions in Article 38.01, Code of Criminal Procedure.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined the proposed amendments impose no cost on regulated persons.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority. The amendment is proposed under Tex. Code Crim. Proc. art 38.01 §4-a.

Cross reference to statute. The proposal affects 37 Texas Administrative Code §651.202.

§651.202.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Forensic analyst - Means a person who on behalf of a crime laboratory accredited under Article 38.01 §4-d, Code of Criminal Procedure, technically reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory. The term does not include a medical examiner or other forensic pathologist who is a licensed physician.

(2) Forensic analysis - Has the meaning assigned by Article 38.35, Code of Criminal Procedure.

(3) Forensic pathology - Includes that portion of an autopsy conducted by a medical examiner or other forensic pathologist who is a licensed physician.

(4) Accredited laboratory - Includes a public or private laboratory or other entity that conducts forensic analysis as defined in Article 38.35, Code of Criminal Procedure and is accredited by a national accrediting body recognized by the Commission and listed in §651.4 of this title.

(5) Physical evidence - Has the meaning assigned by Article 38.35, Code of Criminal Procedure.

(6) Accredited university - A college or university accredited by a national accrediting body recognized by the United States Department of Education, or a foreign university with a degree program(s) recognized as equivalent by the Commission.

(7) Professional Misconduct - Professional misconduct means the forensic analyst or crime laboratory [actor], through a material act or omission, deliberately failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed [generally accepted at the time of the forensic analysis that an ordinary forensic professional or entity would have exercised], and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was deliberate if the forensic analyst or crime laboratory [ actor] was aware of and consciously disregarded an accepted standard of practice required for a forensic analysis.

(8) Technician - An individual who performs basic analytical functions under the supervision of a qualified analyst but does not evaluate data, reach conclusions or sign any report for court or investigative purposes shall be considered a technician under the disciplines set forth in this section, with the exception of a Firearms/Toolmarks Technician who may issue a report provided it is limited to a representation that a firearm was test-fired and/or cartridge cases were entered into the National Integrated Ballistics Information Network.

(9) Interpretation for Toxicology - Interpretation is the consideration of dose-response relationships between drugs, alcohol or other compounds of interest and the resulting behavioral or physical changes to human performance, including the evaluation of pharmacokinetic and pharmacodynamics parameters. Examples include but are not limited to: calculation of dose or other pharmacokinetic calculations; determination of drug/drug interactions; determination (or reporting) of therapeutic, toxic, or lethal drug ranges; evaluation of drug absorption, distribution, metabolism, or excretion; and determination of the effects (mental or physical).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902238

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661


37 TAC §651.203, §651.207

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 TAC §651.203 and §651.207 related to its forensic analyst licensing program to remove document examination from the list of forensic disciplines subject to Commission licensing requirements. The amendments are necessary to reflect adoptions made by the Commission at its May 3, 2019, quarterly meeting. The amendments are made in accordance with the Commission's authority under Article 38.01 §4-a, Code of Criminal Procedure with respect to the Commission's Forensic Analyst Licensing program.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendments will be in effect, there is no anticipated fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. The amendments reduce Commission licensing oversight by removing requirements for licensure for the forensic discipline document examination.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed rules do not impose any direct costs on municipalities in rural communities. The amendments reduce Commission licensing oversight by removing requirements for licensure for the forensic discipline document examination.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be sufficient and accurate notification regarding forensic disciplines subject to Commission licensing requirements.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs. The amendments reduce Commission licensing oversight by removing requirements for licensure for the forensic discipline document examination.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The amendments reduce Commission licensing oversight by removing requirements for licensure for the forensic discipline document examination.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined the proposed rule imposes no cost on regulated persons.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority. The amendment is proposed under Tex. Code Crim. Proc. art 38.01 §4-a.

Cross reference to statute. The proposal affects 37 Texas Administrative Code §651.203 and §651.207.

§651.203.Forensic Disciplines Subject to Commission Licensing; Categories of Licensure.

(a) Forensic analysis/recognized accreditation. This section describes the forensic disciplines for which accreditation by an accrediting body recognized by the Commission is required by Article 38.01, Code of Criminal Procedure and for which licensing is therefore also required.

(b) By discipline. An individual may apply to the Commission for a Forensic Analyst License for one or more of the disciplines set forth in this section. The specific requirements for obtaining a license in any of the following disciplines may differ depending upon the categories of analysis within the discipline for which the individual is qualified to perform independent casework as set forth in §651.207 of this subchapter. An individual's license shall designate the category or categories of licensure for which the individual has been approved for independent casework and for which the individual has met the requirements set forth in §651.207 of this subchapter as follows:

(1) Seized Drugs. Categories of analysis may include one or more of the following: qualitative determination, quantitative measurement, weight measurement, and volume measurement; Categories of Licensure: Seized Drugs Analyst; Seized Drugs Technician;

(2) Toxicology. Categories of analysis may include one or more of the following: qualitative determination and quantitative measurement; Categories of Licensure: Toxicology Analyst Alcohol only (Non-interpretive); Toxicology Analyst (General, Non-interpretive); Toxicologist (Interpretive); Toxicology Technician;

(3) Forensic Biology. Categories of analysis may include one or more of the following: DNA-STR, DNA-YSTR, DNA-Mitochondrial, DNA-SNP, body fluid identification, relationship testing, microbiology, individual characteristic database, and nucleic acids other than human DNA; Categories of Licensure: DNA Analyst; Forensic Biology Screening Analyst; Analyst of Nucleic Acids other than Human DNA; Forensic Biology Technician;

(4) Firearms/Toolmarks. Categories of analysis may include one or more of the following: physical comparison, determination of functionality, length measurement, trigger pull force measurement, qualitative chemical determination, distance determination, ejection pattern determination, product (make/model) determination, evaluation of firearm-related evidence for NIBIN suitability, performance of NIBIN entries and individual characteristic database; Categories of Licensure: Firearms/Toolmarks Analyst; Firearms/Toolmarks Technician;

[(5) Document Examination. Categories of analysis may include one or more of the following: document authentication, physical comparison, and product determination; Categories of Licensure: Document Examination Analyst; Document Examination Technician;]

(5) [(6)] Materials (Trace). Categories of analysis may include one or more of the following: physical determination, chemical determination, physical/chemical comparison, product (make/model) determination, gunshot residue analysis, footwear and tire tread analysis, and fire debris and explosives analysis (qualitative determination); Categories of Licensure: Materials (Trace) Analyst; Materials (Trace) Technician.

(c) Cross-disciplines. A laboratory may choose to assign a particular discipline or category of analysis to a different administrative section or unit in the laboratory than the designation set forth in this subchapter. Though an individual may perform a category of analysis under a different administrative section or unit in the laboratory, the individual still shall comply with the requirements for the discipline or category of analysis as outlined in this subchapter.

(d) Analysts and Technicians Performing Forensic Analysis on Behalf of the United States Government. Any forensic analyst or technician who performs forensic analysis on behalf of a publicly funded laboratory or law enforcement entity operating under the authority of the United States Government is deemed licensed to perform forensic analysis in Texas for purposes of this subchapter.

§651.207.Forensic Analyst Licensing Requirements Including License Term, Fee and Procedure for Denial of [Initial] Application [or Renewal Application] and Reconsideration.

(a) Issuance. The Commission may issue an individual's Forensic Analyst License under this section.

(b) Application. Before being issued a Forensic Analyst License, an applicant shall:

(1) demonstrate that he or she meets the definition of Forensic Analyst set forth in this subchapter;

(2) complete and submit to the Commission a current Forensic Analyst License Application form;

(3) pay the required fee(s) as applicable:

(A) Initial Application fee of $220 for Analysts and $150 for Technicians/Screeners;

(B) Biennial renewal fee of $200 for Analysts and $130 for Technicians/Screeners;

(C) Temporary License fee of $100;

(D) Provisional License fee of $220;

(E) License Reinstatement fee of $220;

(F) Blanket License fee of $100; and/or

(G) Special Exam Fee of $50 for General Forensic Analyst Licensing Exam, required only if testing beyond the three initial attempts; and

(4) provide documentation that he or she has satisfied all applicable requirements set forth under this section.

(c) Minimum Education Requirements.

(1) Seized Drugs Analyst. An applicant for a Forensic Analyst License in seized drugs must have a baccalaureate or advanced degree in chemical, physical, biological science, chemical engineering or forensic science from an accredited university.

(2) Seized Drugs Technician. An applicant for a Forensic Analyst License limited to the seized drug technician category must have a minimum of an associate's degree or equivalent.

(3) Toxicology (Toxicology Analyst (Alcohol Only, Non-interpretive), Toxicology Analyst (General, Non-interpretive), Toxicologist (Interpretive)). An applicant for a Forensic Analyst License in toxicology must have a baccalaureate or advanced degree in a chemical, physical, biological science, chemical engineering or forensic science from an accredited university.

(4) Toxicology Technician. An applicant for a Forensic Analyst License limited to the toxicology technician category must have a minimum of an associate's degree or equivalent.

(5) Forensic Biology (DNA Analyst, Forensic Biology Screener, Nucleic Acids other than Human DNA Analyst, Forensic Biology Technician). An applicant for any category of forensic biology license must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(6) Firearm/Toolmark Analyst. An applicant for a Forensic Analyst License in firearm/toolmark analysis must have a baccalaureate or advanced degree in a chemical, physical, biological science, engineering or forensic science from an accredited university.

(7) Firearm/Toolmark Technician. An applicant for a Forensic Analyst License limited to firearm/toolmark technician must have a minimum of a high school diploma or equivalent degree.

[(8) Document Examination Analyst. An applicant for a Forensic Analyst License in document examination must have a baccalaureate or advanced degree in a chemical, physical, biological science, engineering or forensic science from an accredited university.]

[(9) Document Examination Technician. An applicant for a Forensic Analyst License limited to document examination technician must have a minimum of a high school diploma or equivalent degree.]

(8) [(10)] Materials (Trace) Analyst. An applicant for a Forensic Analyst License in materials (trace) must have a baccalaureate or advanced degree in a chemical, physical, biological science, chemical engineering or forensic science from an accredited university. A Materials (Trace) Analyst performing only impression evidence analyses must have a minimum of a high school diploma or equivalent degree.

(9) [(11)] Materials (Trace) Technician. An applicant for a Forensic Analyst License limited to materials (trace) technician must have a minimum of a high school diploma or equivalent degree.

(10) [(12)] Foreign/Non-U.S. degrees. The Commission shall recognize equivalent foreign, non-U.S. baccalaureate or advanced degrees. The Commission reserves the right to charge licensees a reasonable fee for credential evaluation services to assess how a particular foreign degree compares to a similar degree in the United States. The Commission may accept a previously obtained credential evaluation report from an applicant or licensee in fulfillment of the degree comparison assessment.

(11) [(13)] If an applicant does not meet the minimum education qualifications outlined in this section, the procedure in (f) or (j) of this section applies.

(d) Specific Coursework Requirements.

(1) Seized Drugs Analyst. An applicant for a Forensic Analyst License in seized drugs must have a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university. In addition to the chemistry coursework, an applicant must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(2) Toxicology. An applicant for a Forensic Analyst License in toxicology must fulfill required courses as appropriate to the analyst's role and training program as described in the categories below:

(A) Toxicology Analyst (Alcohol Only, Non-interpretive). A toxicology analyst who conducts, directs or reviews the alcohol analysis of forensic toxicology samples, evaluates data, reaches conclusions and may sign a report for court or investigative purposes, but does not provide interpretive opinions regarding human performance must complete a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university.

(B) Toxicology Analyst (General, Non-interpretive). A toxicology analyst who conducts, directs or reviews the analysis of forensic toxicology samples, evaluates data, reaches conclusions and may sign a report for court or investigative purposes, but does not provide interpretive opinions regarding human performance must complete a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework that includes organic chemistry and two three-semester credit hour (or equivalent) college-level courses in analytical chemistry and/or interpretive science courses that may include Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science, Spectroscopic Analysis, Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology.

(C) Toxicologist (Interpretive). A toxicologist who provides interpretive opinions regarding human performance related to the results of toxicological tests (alcohol and general) for court or investigative purposes must complete a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework that includes organic chemistry, one three-semester credit hour (or equivalent) course in college-level analytical chemistry (Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science or Spectroscopic Analysis) and one three-semester credit hour (or equivalent) college-level courses in interpretive science (Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology).

(D) An applicant for a toxicology license for any of the categories outlined in subparagraphs (A) - (C) of this paragraph must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(3) DNA Analyst. An applicant for a Forensic Analyst License in DNA analysis must demonstrate he/she has fulfilled the specific requirements of the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing effective September 1, 2011. An applicant must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(4) Firearm/Toolmark Analyst. An applicant must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. No other specific college-level coursework is required.

[(5) Document Examination Analyst. An applicant must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. No other specific college-level coursework is required.]

(5) [(6)] Materials (Trace) Analyst. An applicant for a Forensic Analyst License in materials (trace) for one or more of the chemical analysis categories of analysis (chemical determination, physical/chemical comparison, gunshot residue analysis, and fire debris and explosives analysis) must have a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university. In addition to chemistry coursework for the chemical analysis categories, all materials (trace) license applicants must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. An applicant for a Forensic Analyst License in materials (trace) limited to impression evidence is not required to fulfill any specific college-level coursework requirements other than the statistics requirement.

(6) [(7)] Exemptions from specific coursework requirements. The following categories of licenses are exempted from coursework requirements:

(A) An applicant for the technician license category of any forensic discipline set forth in this subchapter is not required to fulfill any specific college-level coursework requirements.

(B) An applicant for a Forensic Analyst License limited to forensic biology screening, nucleic acids other than human DNA and/or Forensic Biology Technician is not required to fulfill the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing or any other specific college-level coursework requirements.

(e) Requirements Specific to Forensic Science Degree Programs. For a forensic science degree to meet the Minimum Education Requirements set forth in this section, the forensic science degree program must be either accredited by the Forensic Science Education Programs Accreditation Commission (FEPAC) or if not accredited by FEPAC, it must meet the minimum curriculum requirements pertaining to natural science core courses and specialized science courses set forth in the FEPAC Accreditation Standards.

(f) Waiver of Specific Coursework Requirements and/or Minimum Education Requirements for Lateral Hires, Promoting Analysts and Current Employees. Specific coursework requirements and minimum education requirements are considered an integral part of the licensing process; all applicants are expected to meet the requirements of the forensic discipline(s) for which they are applying or to offer sufficient evidence of their qualifications as described below in the absence of specific coursework requirements or minimum education requirements. The Commission Director or Designee may waive one or more of the specific coursework requirements or minimum education requirements outlined in this section for an applicant who:

(1) has five or more years of credible experience in an accredited laboratory in the forensic discipline for which he or she seeks licensure; or

(2) is certified by one or more of the following nationally recognized certification bodies in the forensic discipline for which he or she seeks licensure;

(A) The American Board of Forensic Toxicology;

(B) The American Board of Clinical Chemistry;

(C) The American Board of Criminalistics;

(D) The International Association for Identification; or

(E) The Association of Firearm and Toolmark Examiners; and [or]

[(F) The American Board of Forensic Document Examiners; and]

(3) provides written documentation of laboratory-sponsored training in the subject matter areas addressed by the specific coursework requirements.

(4) An applicant must request a waiver of specific coursework requirements and/or minimum education requirements at the time the application is filed.

(5) An applicant requesting a waiver from specific coursework requirements and/or minimum education requirements shall file any additional information needed to substantiate the eligibility for the waiver with the application. The Commission Director or Designee shall review all elements of the application to evaluate waiver request(s) and shall grant a waiver(s) to qualified applicants.

(g) General Forensic Analyst Licensing Exam Requirement.

(1) Exam Requirement. An applicant for a Forensic Analyst License must pass the General Forensic Analyst Licensing Exam administered by the Commission.

(A) An applicant is required to take and pass the General Forensic Analyst Licensing Exam one time.

(B) An applicant may take the General Forensic Analyst Licensing Exam no more than three times. If an applicant fails the General Forensic Analyst Licensing Exam or the Modified General Forensic Analyst Licensing Exam three times, the applicant has thirty (30) days from the date the applicant receives notice of the failure to request special dispensation from the Commission as described in subparagraph (C) of this paragraph. Where special dispensation is granted, the applicant has 90 days from the date he or she receives notice the request for exam is granted to successfully complete the exam requirement. However, for good cause shown, the Commission or its Designee at its discretion may waive this limitation.

(C) Requests for Exam. If an applicant fails the General Forensic Analyst Licensing Exam or Modified General Forensic Analyst Licensing Exam three times, the applicant must request in writing special dispensation from the Commission to take the exam more than three times. Applicants may submit a letter of support from their laboratory director or licensing representative and any other supporting documentation supplemental to the written request.

(D) If an applicant sits for the General Forensic Analyst Licensing Exam or the Modified General Forensic Analyst Licensing Exam more than three times, the applicant must pay a $50 exam fee each additional time the applicant sits for the exam beyond the three initial attempts.

(E) Expiration of Provisional License if Special Dispensation Exam Unsuccessful. If the 90-day period during which special dispensation is granted expires before the applicant successfully completes the exam requirement, the applicant's provisional license expires.

(2) Modified General Forensic Analyst Licensing Exam. Technicians in any discipline set forth in this subchapter may fulfill the General Forensic Analyst Licensing Exam requirement by taking a modified exam administered by the Commission.

(3) Examination Requirements for Promoting Technicians. If a technician passes the modified General Forensic Analyst Licensing Exam and later seeks a full Forensic Analyst License, the applicant must complete the portions of the General Forensic Analyst Exam that were not tested on the modified exam.

(4) Credit for Pilot Exam. If an individual passes the Pilot General Forensic Analyst Licensing Exam, regardless of his or her eligibility status for a Forensic Analyst License at the time the exam is taken, the candidate has fulfilled the General Forensic Analyst Licensing Exam Requirement of this section should he or she later become subject to the licensing requirements and eligible for a Forensic Analyst License.

(5) Eligibility for General Forensic Analyst Licensing Exam and Modified General Forensic Analyst Licensing Exam.

(A) Candidates for the General Forensic Analyst Licensing Exam and Modified General Forensic Analyst Licensing Exam must be employees of a crime laboratory accredited under Texas law to be eligible to take the exam.

(B) Student Examinee Exception. A student is eligible for the General Forensic Analyst Licensing Exam one time if the student:

(i) is currently enrolled in an accredited university as defined in §651.202 of this subchapter;

(ii) has completed sufficient coursework to be within 24 semester hours of completing the requirements for graduation at the accredited university at which the student is enrolled; and

(iii) designates an official university representative who will proctor and administer the exam at the university for the student.

(h) Proficiency Testing Requirement.

(1) An applicant must be routinely proficiency-tested in accordance with and on the timeline set forth by the laboratory's accrediting body proficiency testing requirements.

(2) A signed certification by the laboratory's authorized representative that the applicant has satisfied the applicable proficiency testing requirements of the laboratory's accrediting body as of the date of the analyst's application must be provided on the Proficiency Testing Certification form provided by the Commission. For applicants not yet required to be proficiency tested pursuant to the timeline set forth by the accrediting body, the laboratory's authorized representative shall so certify on the form provided by the Commission.

(i) License Term and Fee.

(1) A Forensic Analyst License shall expire two years from the date the applicant is granted a license.

(2) Application Fee. An applicant or licensee shall pay the following fee(s) as applicable:

(A) Initial Application fee of $220 for Analysts and $150 for Technicians/Screeners;

(B) Biennial renewal fee of $200 for Analysts and $130 for Technicians/Screeners;

(C) Temporary License fee of $100;

(D) Provisional License fee of $220;

(E) License Reinstatement fee of $220; or

(F) Blanket License fee of $100.

(3) An applicant who is granted a provisional license and has paid the required fee will not be required to pay an additional initial application fee if the provisional status is removed within one year of the date the provisional license is granted.

(j) Procedure for Denial of [Initial] Application [or Renewal Application] and Reconsideration.

(1) Application Review. The Commission Director or Designee must review each completed [initial] application [or renewal application] and determine whether the applicant meets the qualifications and requirements set forth in this subchapter. [If a person who has applied for a Forensic Analyst License does not meet the qualifications or requirements set forth in this subchapter and has submitted a complete application, the Director or Designee must notify the applicant in writing consult with members of the Licensing Advisory Committee before denying the application].

(2) Denial of Application. The Commission, through its Director or Designee, may deny an [initial or renewal] application if the applicant fails to meet any of the qualifications or requirements set forth in this subchapter.

(3) Notice of Denial. The Commission, through its Director or Designee, shall provide the applicant a written statement of the reason(s) for denial of the [initial or renewal] application.

(4) Request for Reconsideration. Within twenty (20) days of the date of the notice that the Commission has denied the application, the applicant may request that the Commission reconsider the denial. The request must be in writing, identify each point or matter about which reconsideration is requested, and set forth the grounds for the request for reconsideration.

(5) Reconsideration Procedure. The Commission must consider a request for reconsideration at its next meeting where the applicant may appear and present testimony.

(6) Commission Action on Request. After reconsidering its decision, the Commission may either affirm or reverse its original decision.

(7) Final Decision. The Commission, through its Director or Designee, must notify the applicant in writing of its decision on reconsideration within fifteen (15) business days of the date of its meeting where the final decision was rendered.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902240

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661


37 TAC §651.206

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 TAC §651.206 related to its forensic analyst licensing program to expand the list of exemptions under which a forensic analyst is not required to comply with forensic analyst license requirements. The amendments are necessary to reflect adoptions made by the Commission at its May 3, 2019, quarterly meeting. The amendments are made in accordance with the Commission's authority under Article 38.01 §4-a, Code of Criminal Procedure with respect to the Commission's Forensic Analyst Licensing program.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendments will be in effect, there is no anticipated fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. The amendments expand the list of scenarios by which forensic analysts may be exempt from license requirements.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed rules do not impose any direct costs on municipalities in rural communities.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be sufficient and accurate notification regarding exemptions from licensing requirements for forensic analysts.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The proposal amends current exemptions to cover additional scenarios in which a person may be exempt from forensic analyst licensing requirements.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined the proposed rule imposes no cost on regulated persons.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority. The amendments are proposed under Tex. Code Crim. Proc. art 38.01 §4-a.

Cross reference to statute. The proposal affects 37 Texas Administrative Code §651.206.

§651.206.Exemptions from Commission Licensing Requirements [Requirement for Support Personnel and Previously Employed Forensic Analysts].

(a) Non-proficiency tested laboratory support personnel exemption. An individual who performs only support functions that do not require participation in proficiency testing in accordance with the laboratory's accrediting body requirements is not required to obtain a Forensic Analyst License.

(b) Proficiency tested laboratory support personnel waiver application.

(1) A laboratory may apply to the Commission for an exemption from the licensing requirement on behalf of personnel who are subject to accrediting body proficiency testing requirements, but perform only support functions so limited in nature (e.g., aliquoting, accessioning, data entry etc.) as to render the licensing requirement overly burdensome and impractical for those employees.

(2) The Licensing Advisory Committee shall review each support personnel waiver application and make a determination as to the applicability of the exemption under this section based on the description in paragraph (1) of this subsection. Any laboratory that is denied a support personnel waiver request may appeal the decision to the full Commission.

(c) The exemptions in this section related to support personnel are limited to individuals performing support roles as described above. An individual who technically reviews or draws conclusions from or interprets forensic analysis must obtain a Forensic Analyst License even if he or she is not required to be proficiency tested by the laboratory's accrediting body.

(d) Exemption for forensic analyses performed prior to the effective date of licensing requirements. A forensic analyst who provides [no longer performs forensic analysis on behalf of a Texas-accredited laboratory or in a Texas criminal action who returns for the limited purpose of providing] testimony and related analysis in a court proceeding regarding forensic analysis [analytical work] performed prior to the effective date of the licensing requirement [for the particular forensic discipline] is not required to obtain a Forensic Analyst License for the sole purpose of offering the testimony and related analysis [as long as the analyst was in compliance with any applicable licensing rules at the time the forensic analysis was conducted].

(e) Exemption for forensic analyses performed by former licensee. A forensic analyst who no longer performs forensic analysis on behalf of a Texas-accredited laboratory or in a Texas criminal action who provides testimony and related analysis in a court proceeding regarding forensic analysis performed when the analyst was licensed by the Commission in the particular forensic discipline is not required to obtain a Forensic Analyst License as long as the analyst was in compliance with any applicable licensing rules at the time the forensic analysis was conducted.

(f) Exemption for forensic discipline change. A forensic analyst who currently performs forensic analysis on behalf of a Texas-accredited laboratory or in a Texas criminal action who provides testimony and related analysis in a court proceeding regarding forensic analysis performed for a different forensic discipline than the discipline in which the forensic analyst is currently licensed is not required to obtain a Forensic Analyst License as long as the analyst was in compliance with any applicable licensing rules at the time the forensic analysis was conducted.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902239

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661


37 TAC §651.213

The Texas Forensic Science Commission ("Commission") proposes an amendment to 37 TAC §651.213, related to the forensic analyst licensing of military service members, veterans and spouses, to provide an option for Commission recognition of a license from another state with similar requirements for military spouses in response to the 86th Legislature's SB 1200. The amendments are made in accordance with the Commission's authority under Article 38.01 §4-a, Code of Criminal Procedure with respect to the Commission's Forensic Analyst Licensing program.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendment will be in effect, there is no anticipated fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. The amendment provides an option for recognition of a forensic analyst license from another state.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed amendment does not impose any direct costs on municipalities in rural communities.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has also determined that for each year of the first five years the proposed amendment is in effect, the anticipated public benefit will be sufficient and accurate notification regarding options for licensure for military spouses.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendment will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs. The amendment provides an option for recognition of a forensic analyst license from another state without any cost to the applicant.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendment will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The amendment provides an option for recognition of a forensic analyst license from another state and does not impose any additional requirements of an applicant.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined the proposed amendment imposes no cost on regulated persons.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority.

The amendment is proposed under Tex. Code Crim. Proc. art 38.01 §4-a.

Cross reference to statute. The proposal affects 37 TAC §651.213.

§651.213.Licensing of Military Service Members, Military Veterans, and Military Spouses.

(a) Definitions. The terms "active duty," "military service member," "military spouse," and "military veteran" have the meaning assigned by the Texas Occupations Code Title 2, §55.001.

(b) Exemption from License Fees. All active duty, military service members, military veterans and military spouses who apply for or renew a forensic analyst license are exempt from fee requirements described under this subchapter.

(c) Exemption from Penalty for Failure to Renew License. All active duty, military service members, military veterans, and military spouses who hold a Forensic Analyst License are exempt from any increased fee or other penalty imposed by the Commission for failing to renew his/her license in a timely manner if the individual establishes to the satisfaction of the Commission that the individual failed to renew the license in a timely manner because the individual was serving as a military service member.

(d) Extension of License Renewal Deadlines for Military Service Members. A military service member who holds a Forensic Analyst License is entitled to two years of additional time to complete:

(1) any continuing education requirements; and

(2) any other requirement related to the renewal of the military service member's license.

(e) Alternative Licensing for Military Service Members, Military Veterans, and Military Spouses. The Commission shall issue a license to an applicant who is a military service member, military veteran, or military spouse who:

(1) holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state; or

(2) within the five years preceding the application date held the license with this state; and

(3) the Commission Presiding Officer or Designee may waive any prerequisite to obtaining a license for an applicant described in this subsection after reviewing the applicant's credentials.

(f) Recognition of Out-of-State License of Military Spouse. Notwithstanding any other law, a military spouse may on behalf of a crime laboratory accredited by the Commission technically review or perform a forensic analysis or draw conclusions from or interpret a forensic analysis for a court or crime laboratory for which a license is required without obtaining the applicable license if the spouse is currently licensed in good standing by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the forensic analyst license in this state.

(1) Before acting as a forensic analyst or forensic technician or performing any forensic analysis, the military spouse must:

(A) notify the Commission of the spouse's intent to act as a forensic analyst;

(B) submit to the Commission proof of the spouse's residency in this state and a copy of the spouse's military identification card; and

(C) receive from the Commission confirmation that the agency has verified the spouse's license in the other jurisdiction and the spouse is authorized to act as a forensic analyst in the state.

(2) The military spouse shall comply with all other laws and regulations applicable to forensic analysts and forensic technicians in this state.

(3) A military spouse may act as a forensic analyst under authority of this subsection for the period during which the military service member to whom the military spouse is married is stationed at a military installation in this state but not to exceed three years from the date the spouse receives the confirmation described in paragraph (1)(C) of this subsection.

(4) A license issued under this subsection expires not later than the third anniversary of the date the Commission provided the confirmation and may not be renewed.

(g) [(f)] License Eligibility Requirements for Applicants with Military Experience. Notwithstanding any other law, the Commission shall credit verified military service, training or education toward the licensing requirements, other than the general forensic examination requirement, for a Forensic Analyst License.

(h) [(g)] License Application and Examination. Notwithstanding any other law, the Commission shall waive the license application and any examination fees paid to the Commission for an applicant who is:

(1) a military service member or military veteran whose military service, training, or education substantially meets all of the requirements for the license; or

(2) a military service member or military veteran who holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state.

(i) [(h)] Notice of Chapter Provisions. The Commission shall prominently post a notice on the home page of the Commission's website describing the provisions of this subchapter that are available to military service members, military veterans, and military spouses.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902245

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661


37 TAC §651.216, §651.217

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 Texas Administrative Code (TAC) §651.216 and §651.217 related to its forensic analyst licensing program to address the 86th Legislature's passage of SB-284 which amended Article 38.01 §4-c, Code of Criminal Procedure relating to disciplinary proceedings applicable to a licensed forensic analyst and to address the 86th Legislature's passage of HB-1342 which amended Chapter 53, Occupations Code relating to relating to consequences of criminal convictions and licensure. The amendments are necessary to reflect adoptions made by the Commission at its May 3, 2019, quarterly meeting. The amendments are made in accordance with the Commission's authority under Article 38.01 §4-c, Code of Criminal Procedure with respect to disciplinary action by the Commission against a forensic analyst license holder.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendments will be in effect, there is no anticipated fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. The proposal amends the disciplinary process for actions against a forensic analyst license holder pursuant to the 86th Legislature's passage of SB-284.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed rules do not impose any direct costs on municipalities in rural communities.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be sufficient and accurate notification regarding the appeals process for disciplinary action by the Commission and forensic analyst license eligibility.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The proposal amends an already-existing disciplinary process for which a forensic analyst license may be denied for a professional misconduct finding against a license holder or applicant for a license in response to the 86th Legislature's SB-284.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined the proposal imposes no cost on regulated persons.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority. The amendments are proposed under Tex. Code Crim. Proc. art 38.01 §4-c.

Cross reference to statute. The proposal affects 37 TAC §651.216 and §651.217.

§651.216.Disciplinary Action.

(a) The Commission may take disciplinary action against a license holder or applicant for a license under certain limited circumstances as set forth in Article 38.01, Code of Criminal Procedure.

(b) Professional Misconduct Finding. On a determination by the Commission that a license holder or applicant for a license has committed professional misconduct in accordance with the definition provided in §651.202 of this subchapter (relating to Definitions) and under Article 38.01, Code of Criminal Procedure or violated Article 38.01, Code of Criminal Procedure, or a rule or order of the Commission under Article 38.01, Code of Criminal Procedure, the Commission may:

(1) revoke or suspend the person's license;

(2) refuse to renew the person's license;

(3) reprimand the license holder; or

(4) deny the person a license.

(c) Probation. The Commission may place on probation a person whose license is suspended. If a license suspension is probated, the Commission may require the license holder to:

(1) report regularly to the Commission on matters that are the basis of the probation; or

(2) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the Commission in those areas that are the basis of the probation.

(d) Disciplinary Proceedings by the Judicial Branch Certification Commission. The Commission shall give written notice by certified mail of a determination described by subsection (a) of this section to a license holder who is the subject of the determination. The notice must:

(1) include a brief summary of the alleged misconduct or violation;

(2) state the disciplinary action taken by the Commission; and

(3) inform the license holder of the license holder's right to a hearing before the Judicial Branch Certification Commission on the occurrence of the misconduct or violation, the imposition of the disciplinary action, or both.

(d) State Office of Administrative Hearings. Disciplinary proceedings of the Commission are governed by Chapter 2001, Government Code. A hearing under this section shall be conducted by an administrative law judge of the State Office of Administrative Hearings.

(e) Hearing Request. Not later than the 20th day after the date the license holder receives the notice under subsection (d) of this section, the license holder may request a hearing by submitting a written request to the Judicial Branch Certification Commission. If the license holder fails to timely submit a request, the Commission's disciplinary action becomes final and is not subject to review by the Judicial Branch Certification Commission.

[(e) State Office of Administrative Hearings procedural rules governed by Chapter 2001, Government Code apply to the extent not inconsistent with Commission rules in this subchapter.]

(f) Judicial Branch Certification Commission Hearing. If the license holder requests a hearing, the Judicial Branch Certification Commission shall conduct a hearing to determine whether there is substantial evidence to support the determination under subsection (a) of this section that the license holder committed professional misconduct or violated this subchapter or a commission rule or order under this subchapter. If the Judicial Branch Certification Commission upholds the determination, the Judicial Branch Certification Commission shall determine the type of disciplinary action to be taken. The Judicial Branch Certification Commission shall conduct the hearing in accordance with the procedures provided by Subchapter B, Chapter 153, Government Code, as applicable, and the rules of the Judicial Branch Certification Commission.

[(f) Proposals for decision issued by a State Office of Administrative Hearings judge shall be considered by the Commission to be proposals for final decision and either adopted, changed or reversed by the Commission to the extent permitted by Chapter 2001, Government Code.]

[(g) Procedure for Opportunity for Hearing and Participation and Notice of Disciplinary Action. If revocation, suspension, reprimand, refusal to renew or probation of a Forensic Analyst License is proposed by the Commission based on subsection (b) of this section, the Commission shall, within ten business (10) days, give written notice of the basis of the proposal and state that the licensee or applicant must request, in writing, a hearing within thirty (30) business days of receipt of the notice, or the right to a hearing shall be waived and the disciplinary action stands.]

[(h) Notice of Hearing; Contents. The Commission shall provide timely notice of any scheduled hearing related to disciplinary action taken by the Commission to the person or party against which the action is taken. The notice must include:

(1) a statement of the time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular sections of the statutes and rules involved; and

(4) either;

(A) a short, plain statement of the factual matters asserted; or

(B) an attachment that incorporates by references the factual matters asserted in the complaint or petition filed with the Commission.]

[(i) Limited Statement. If the Commission is unable to state factual matters in detail at the time notice is served, an initial notice may be limited to a statement of the issues involved. On timely written application by a licensee, a more definite and detailed statement of the facts shall be furnished not less than seven (7) days before the date set for the hearing.]

[(j) Right to Counsel. Each party in a contested case is entitled to the assistance of counsel before the Commission. The Commission is not responsible for any legal fees. A party may expressly waive the right to assistance of counsel.]

[(k) Appeals. Any appeals shall be resolved in accordance with Chapter 2001, Government Code.]

(g) [(l)] License Status.

(1) If a license holder makes timely and sufficient application for the renewal of a license, the existing license does not expire until the application has been finally determined by the Commission. If the application is denied or the terms of the new license are limited, the existing license does not expire until the last day for seeking review of a Commission decision or a later date fixed by order of the Judicial Branch Certification Commission or Administrative Regional Presiding Judges or a later date fixed by order of the reviewing [court].

(2) A revocation, suspension, annulment, or withdrawal of a license is not effective unless, before institution of Commission proceedings:

(A) the Commission gives notice by personal service or by registered or certified mail to the license holder of facts or conduct alleged to warrant the intended action; and

(B) the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license.

(3) A Forensic Analyst License remains valid unless it expires without timely application for renewal, is amended, revoked, suspended, annulled or withdrawn, or the denial of a renewal application becomes final. The term or duration of a license is tolled during the period the license is subjected to review by the Judicial Branch Certification Commission or Administrative Regional Presiding Judges [judicial review]. However, the term or duration of a license is not tolled if, during [judicial] review by the Judicial Branch Certification Commission or Administrative Regional Presiding Judges, the licensee engages in the activity for which the license was issued.

(h) [(m)]Interpreters for Deaf or Hearing Impaired Parties and Witnesses.

(1) In an appeal of a disciplinary action by the Commission [contested cases], the Commission shall provide an interpreter whose qualifications are approved by the Texas Department of Assistive and Rehabilitative Services to interpret the proceedings for a party or subpoenaed witness who is deaf or hearing impaired.

(2) In this section, "deaf or hearing impaired" means having a hearing impairment, whether or not accompanied by a speech impairment, that inhibits comprehension of the proceedings or communication with others.

(i) [(n)]Informal Disposition of Disciplinary Action Appeals[ Contested Case]. Unless precluded by law, an informal disposition may be made of an appeal of a disciplinary action by the Commission [contested case] by:

(1) stipulation;

(2) agreed settlement;

(3) consent order; or

(4) default.

§651.217.Ineligibility for License Based on Criminal Conviction.

(a) A proceeding before the Commission to establish factors required to be considered under this section is governed by Chapter 53[2001], Government Code. Any appeals proceeding in response to disciplinary action taken by the Commission in the form of license denial, revocation, suspension or other action taken by the Commission under this subsection is governed by Article 38.01 §4-c, Code of Criminal Procedure.

(b) Guidelines for consideration of criminal convictions. If an applicant has a criminal conviction above a Class C misdemeanor, the applicant may not be qualified to hold a forensic analyst license.

(1) Convictions that may trigger a denial. Subject to paragraph (7) of this subsection, the[. The] Commission may suspend or revoke a forensic analyst license, disqualify a person from receiving a license, refuse to renew a person's license or deny to a person the opportunity to take the general forensic licensing examination on the grounds the person has been convicted of:

(A) an offense that directly relates to the duties and responsibilities associated with an analyst's license;

[(B) an offense that does not directly relate to the duties and responsibilities associated with an analyst's license and that was committed less than five years before the date the person applies for a license;]

(B) [(C)] an offense listed in Article 42A.054, Code of Criminal Procedure; or

(C) [(D)] a sexually violent offense as defined by Article 62.001, Code of Criminal Procedure.

(2) A forensic analyst license holder's license may be revoked on the license holder's imprisonment following a felony conviction, felony community supervision, revocation of parole, or revocation of mandatory supervision.

(3) An offense from another state containing elements substantially similar to the enumerated offenses under the Texas Penal Code shall be considered under this section the same way as the offense would have been considered had it been committed in Texas.

(4) Offenses that apply to category paragraph (1)(A) of this subsection because they directly relate to the duties and responsibilities associated with an analyst's license may include, but are not limited to:

(A) misrepresentation (e.g., fraud, extortion, bribery, theft by check, and deceptive business practices);

(B) failure to register as a sex offender (as required by the Texas Code of Criminal Procedure, Chapter 62);

(C) property crimes, such as theft or burglary;

(D) crimes against persons, such as homicide, kidnapping, and assault;

(E) drug crimes, such as possession;

(F) multiple DWI and DUI crimes;

(G) all felony convictions; and

(H) Misdemeanors above a Class C misdemeanor and felony convictions considered by Texas courts to be crimes of moral turpitude.

(5) Consequences. In the event of a criminal conviction, the Commission may take one of the following courses of action:

(A) declare a prospective applicant unsuitable for a license;

(B) deny a renewal application for an existing license;

(C) revoke or suspend an existing license; or

(D) deny a person the opportunity to take the general forensic analyst licensing examination.

(6) Determining whether conviction directly relates to the duties and responsibilities associated with the analyst's license. [there are grounds to deny. There are four general factors the Commission considers] In [in] determining whether a [particular] criminal conviction directly relates to the duties and responsibilities associated with the analyst's license, the Commission shall consider each of the following factors [should be grounds to deny, revoke or suspend a license]:

(A) the nature and seriousness of the crime;

(B) the relationship of the crime to the purposes for requiring a license to engage in the analyst's occupation;

(C) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; [and]

(D) the relationship of the crime to the ability or[,] capacity[, or fitness] required to perform the duties and discharges the responsibilities of the analyst's work; and[.]

(E) any correlation between the elements of the crime and the duties and responsibilities of the analyst's work.

(7) Additional factors for consideration after determining conviction directly relates to occupation. If the Commission determines under paragraph (6) of this subsection that a criminal conviction directly relates to the duties and responsibilities associated with the analyst's license, [Determining an applicant's fitness to perform the duties. In determining an applicant's fitness to perform the duties and discharge the responsibilities of a forensic analyst who has been convicted of a crime,] the Commission considers the following in determining whether to take an action authorized by paragraph (1) of this subsection in addition to the factors listed in paragraph (6)[(5)] of this subsection:

(A) the extent and nature of the person's past criminal activity;

(B) the age of the person when the crime was committed;

(C) the amount of time that has elapsed since the person's last criminal activity;

(D) the conduct and work activity of the person before and after the criminal activity;

(E) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and

(F) evidence of the person's compliance with any conditions of community supervision, parole, or mandatory supervision; and

[(F) other evidence of the person's fitness, including letters or recommendations from:

(i) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility to the person;

(ii) the sheriff or chief of police in the community where the person resides; and

(iii) any other person in contact with the convicted person.]

(G) other evidence of the person's fitness, including letters of recommendation.

(8) An applicant has the responsibility, to the extent possible, to obtain and provide to the Commission the recommendations described by paragraph (7)(G)[of the prosecution, law enforcement, and correctional authorities as required by paragraph (7) (F)(i)-(iii)] of this subsection.

[(9) In addition to fulfilling the requirements of paragraph (8) of this subsection, the applicant shall furnish proof in the form required by the Commission that the applicant has:

(A) maintained a record of steady employment;

(B) supported the applicant's dependents;

(C) maintained a record of good conduct; and

(D) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted.]

(c) Notice and Review of Suspension, Revocation or Denial of License. If the Commission suspends or revokes a license or denies a person a license or the opportunity to be examined for a license because of the person's prior conviction of an offense [a crime and the relationship of the crime to the license], the Commission shall notify the person in writing of:

(1) the reason for the suspension, revocation, denial, or disqualification, including any factor considered under paragraphs (6) or (7) of this subsection that served as the basis for the suspension, revocation, denial, or disqualification;

(2) the review procedure provided by §651.216(d)-(f) [§651.216(d)-(g)]) of this title (relating to Disciplinary Action); and

(3) the earliest date the person may appeal the action of the Commission.

[(d) Judicial Review. A person whose license has been suspended or revoked or who has been denied a license or the opportunity to take the general examination as set forth in this subchapter and who has exhausted the person's administrative appeals may file an action in district court in Travis County for review of the evidence presented to the Commission and the decision of the Commission.]

[(e) Petition for Judicial Review. A petition for judicial review must be filed not later than the 30th day after the date the Commission's decision is final and appealable.]

(d) [(f)] Presiding Officer or Designee Authority to Approve Applications. The Commission's Presiding Officer or Designee may unilaterally approve an application where a criminal background check returns a misdemeanor conviction or convictions older than ten (10) years from the date the application is submitted and the Presiding Officer or Designee has determined the individual is eligible for a license notwithstanding the misdemeanor conviction or convictions.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902247

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661


37 TAC §651.218

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 Texas Administrative Code §651.218, related to its forensic analyst licensing program, to clarify its guidelines for consideration of criminal convictions for license applicants pursuant to the 86th Legislature's changes in HB 1342. The amendments are made in accordance with the Commission's authority under Article 38.01 §4-a, Code of Criminal Procedure with respect to the Commission's Forensic Analyst Licensing program.

Fiscal Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for each year of the first five years the proposed amendments will be in effect, there is no anticipated fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. The amendments narrow the scope under which the Commission may deny a person a license based on a criminal conviction.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed rules do not impose any direct costs on municipalities in rural communities.

Public Benefit/Cost Note. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be sufficient and accurate notification regarding the factors considered in evaluating a person's eligibility for licensure based on prior criminal history.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs.

Takings Impact Assessment. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

Government Growth Impact Statement. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The amendments narrow the scope under which the Commission may deny a person a license based on a criminal conviction.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined the proposed rule imposes no cost on regulated persons. The amendments narrow the scope under which the Commission may deny a person a license based on a criminal conviction.

Request for Public Comment. The Texas Forensic Science Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Savage, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by August 26, 2019, to be considered by the Commission.

Statutory Authority. The amendment is proposed under Tex. Code Crim. Proc. art 38.01 §4-a.

Cross reference to statute. The proposal affects 37 Texas Administrative Code §651.218.

§651.218.Preliminary Evaluation of License Eligibility Based on Criminal History.

(a) Request for Criminal History Evaluation Letter. A person may request the Commission issue a criminal history evaluation letter regarding the person's eligibility for a license if the person:

(1) is enrolled or planning to enroll in an educational program that prepares a person for an initial license or is planning to take the examination for an initial license; and

(2) has reason to believe he or she is ineligible for the license due to a conviction or deferred adjudication for a felony or misdemeanor offense.

(b) The request must state the basis for the person's potential ineligibility.

(c) Authority to Investigate. The Commission has the same powers to investigate a request submitted under this section and the requestor's eligibility that the Commission has to investigate a person applying for a license.

(d) Determination of Eligibility; Letter. If the Commission determines that a ground for ineligibility does not exist [exists], the Commission shall notify the requestor in writing of the Commission's determination on each ground of potential ineligibility.

(e) Determination of Ineligibility; Letter. If the Commission determines that the requestor is ineligible for a license, the Commission shall issue a letter setting out each basis for potential ineligibility, including any factor considered under §651.216(b)(6) or §651.216(b)(7) of this subchapter that served as the basis for potential ineligibility, and the Commission's determination as to eligibility. In the absence of new evidence known to but not disclosed by the requestor or not reasonably available to the Commission at the time the letter is issued, the Commission's ruling on the request determines the requestor's eligibility with respect to the grounds for potential ineligibility set out in the letter.

(f) The Commission must provide notice of determination of eligibility or ineligibility not later than the 90th day after the date the Commission receives the request.

(g) The Commission may charge a person requesting an evaluation under this section a $25 fee. Fees adopted by the Commission under this section must be in an amount sufficient to cover the cost of administering this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2019.

TRD-201902246

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: August 25, 2019

For further information, please call: (512) 936-0661