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 TAC §651.4 to recognize the merging of two crime laboratory accreditation organizations, the ANSI-ASQ National Accreditation Board ("ANAB") and American Board of Forensic Toxicology ("ABFT"). The amendments are necessary to reflect adoptions made by the Commission at its August 16, 2019, quarterly meeting. The amendments are 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 combines two already-recognized crime laboratory accrediting bodies into one accrediting body pursuant to a recent merger of the two organizations.

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 combines two already-recognized crime laboratory accrediting bodies into one accrediting body pursuant to a recent merger of the two organizations.

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 amendment will have no government growth impact as described in Title 34, Part 1, Texas Administrative Code §11.1. The amendment combines two already-recognized crime laboratory accrediting bodies into one accrediting body pursuant to a recent merger of the two organizations and therefore does not expand the Commission oversight authority.

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 November 18, 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 TAC §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) ANSI-ASQ National Accreditation Board (ANAB)/ 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/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 October 7, 2019.

TRD-201903598

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: November 17, 2019

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


SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §651.207, §651.220

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 Texas Administrative Code §651.207 and §651.220 in an effort to achieve greater consistency with respect to the criteria for forensic analyst license requirements for out-of-state forensic analysts licensed under the blanket provision and requirements for licensure of in-state forensic analysts. The proposal also harmonizes the cost of provisional forensic analyst licensure with the cost of regular forensic analyst licensure. The rules are necessary to reflect adoptions made by the Commission at its August 16, 2019, quarterly meeting. The rules are made in accordance with the Commission's forensic analyst licensing authority under Tex. Code. Crim. Proc. art. 38.01 §4-a.

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 rules will be in effect, there will be minimal to neutral fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. The proposed rules do not impose any direct costs on state or local entities. The proposed rules elevate the requirements for out-of-state forensic analysts that are employees of crime laboratories offering forensic services in Texas criminal cases. Changes include an increase in the cost of the forensic analyst license from $10/year per forensic analyst to $50/year per forensic analyst for out-of-state crime laboratory employees seeking licensure under the blanket license option. In 2019, Texas granted blanket licenses to 435 out-of-state forensic analysts at a total cost of only $4,350 to out-of-state laboratories. The total cost in licensing fees for these same analysts under this proposal is $21,750.00--for a total fee increase of $17,400. Thus, any fiscal impact on those private laboratories is expected to be minimal to neutral at best. While it is possible the out-of-state laboratories will pass the increase in fees on to submitting agencies through price increases, this possible impact is too speculative and attenuated to predict with any reliability. Further, even if the out-of-state laboratories were to increase prices, there is no requirement that state and local governments utilize those laboratories, thereby allowing the market to determine the fair price for testing. State and local law enforcement agencies are not required by law to outsource any forensic casework.

With regard to the changes to the provisional license fee, 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 proposed change. The proposal harmonizes the cost of provisional licenses with the cost of regular forensic analyst licenses by lowering the provisional license fee from $220 to $110 and by requiring provisional licensees to pay $220 at the time the licensee applies for and is granted a regular forensic analyst license--a provision that was unclear as the rules are currently written.

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

With regard to the changes to the provisional license fee, the Commission expects no adverse economic effect on rural communities, as the proposed rules do not impose any new direct costs on municipalities in rural communities. The proposed rules harmonize the cost of provisional licensure with regular licensure.

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 rules are in effect, the anticipated public benefit will be greater consistency with respect to requirements for all forensic analysts subject to the State's licensing rules.

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 rule will have a minimal to neutral economic impact on any small or micro business. The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. All of the crime laboratories or forensic analysts subject to the increased requirements in the proposal are located outside of Texas. Therefore, the Commission expects no adverse economic impact on any small or micro businesses. In fact, Texas small privately-owned laboratories subject to these rules take the position that achieving greater consistency in fee structure between in-state and out-of-state private laboratories would be beneficial to Texas.

With regard to the changes to the provisional license fee, the Commission expects no adverse economic effect on any small or micro businesses as the proposed rules do not impose any new direct costs on these businesses. The proposed rules harmonize the cost of provisional licensure with regular licensure.

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 the proposal does not (1) create or eliminate a government program; (2) require the creation of new employee positions or the elimination of existing employee positions; (3) require an increase or decrease in future legislative appropriations to the agency; (4) create a new regulation; or (5) increase or decrease the number of individuals subject to the rule's applicability. However, the proposal does (1) require an increase in fees paid to the Commission by out-of-state crime laboratories performing forensic services in Texas criminal cases; and (2) expands the requirements of an existing blanket-license regulation for out-of-state crime laboratories performing forensic services in Texas criminal cases. The rules are necessary to ensure the integrity and reliability of forensic science in Texas criminal cases and to reach greater consistency between what is required of in-state forensic analysts and out-of-state forensic analysts.

With regard to the changes to the provisional license fee, 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 existing fees for licensure of forensic analysts to harmonize the cost of obtaining a regular forensic analyst license with the cost of obtaining a provisional forensic analyst license

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that the proposal increases costs to regulated persons as the proposal increases the fee for a forensic analyst license for out-of-state crime laboratory analysts subject to Texas licensing requirements. Current requirements for out-of-state blanket-licensed forensic analysts, including licensing fees, were initially imposed to meet the statutory deadline for implementation of the 84th Texas Legislature's mandate to create a forensic analyst licensing program in Texas and to avoid any disruption in outsourced forensic services to our criminal justice system. After implementation of the initial rules of the licensing program, the Commission assessed the appropriate level of oversight for out-of-state crime laboratory analysts subject to Texas licensing rules in an effort to balance the economic viability of these services being offered in Texas with more consistent licensing requirements for these forensic analysts. Licensing fees, coursework requirements and exam requirements were always contemplated to increase gradually over time with a goal of equating the requirements for out-of-state forensic analysts with the requirements for in-state forensic analysts. Moreover, the Commission is tasked with improving the integrity and reliability of forensic science in the Texas criminal justice system, a task vital to protecting the health, safety, and welfare of the residents of this state. As part of that initiative, the Commission is committed to ensuring the integrity of the forensic analysts that enter our courtrooms, whether the forensic analysts are from in-state or out-of-state.

With regard to the changes to the provisional license fee, Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that there are no increased costs to regulated persons. The proposal amends existing fees for licensure of forensic analysts to equate the cost of obtaining a regular forensic analyst license with the cost of obtaining a provisional forensic analyst license. Moreover, the rules are adopted to implement legislation or rules necessary to protect the health, safety, and welfare of the residents of this State. The rules proposed here are necessary to implement the 84th Texas Legislature's mandate that the Texas Forensic Science Commission create a Forensic Analyst Licensing program. See Tex. S.B. 1287, 84th Leg., R.S. (2015). The Commission's licensing program took effect in January 2019, and the proposed changes are necessary to equate the cost of licensure across all licensees. The proposed rules relate to the public safety of Texas citizens as they require forensic analysts testifying in criminal cases in Texas to meet certain minimum requirements, including payment of a fee for administration of the program, which is in furtherance of ensuring the integrity and reliability of forensic analysis used in criminal cases.

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 November 18, 2019, to be considered by the Commission.

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

Cross reference to statute. The proposal affects 37 Texas Administrative Code §651.207 and §651.220.

§651.207.Forensic Analyst Licensing Requirements Including License Term, Fee and Procedure for Denial of 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 $110 for Analysts and $75 for Technicians/Screeners [$220];

(E) License Reinstatement fee of $220;

(F) Blanket License fee of $1000 per ten (10) licenses [$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) 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) 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) 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) 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) 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) 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

(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 $110 for Analysts and $75 for Technicians/Screeners [$220];

(E) License Reinstatement fee of $220; or

(F) Blanket License fee of $1000 [$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 Application and Reconsideration.

(1) Application Review. The Commission Director or Designee must review each completed application and determine whether the applicant meets the qualifications and requirements set forth in this subchapter.

(2) Denial of Application. The Commission, through its Director or Designee, may deny an 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 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.

§651.220.Blanket License for Out-of-State Laboratories for Purpose of Ensuring the Availability of Uncommon Forensic Analyses, Timeliness of Forensic Analyses, and/or Service to Counties with Limited Access to Forensic Analysis.

(a) A laboratory located outside the State of Texas may apply to the Commission for a blanket license on behalf of its laboratory personnel who perform forensic analyses primarily outside of Texas but whose Texas cases fall within one of the following categories:

(1) The Texas customer requests a type of forensic analysis that is not widely available in accredited forensic laboratories; or

(2) The request is necessary to ensure the availability of timely forensic analyses in counties for which access to forensic analyses is limited; and

(3) The laboratory's workflow process is organized in such a manner that the temporary license criteria are impractical or inapplicable to the forensic analysts performing the analyses in question; and

(4) Obtaining a forensic analyst license for the individuals engaged in the testing in question would be so burdensome as to restrict the out-of-state laboratory's ability to offer forensic analyses in Texas.

(b) A blanket license granted under this section shall apply to all forensic analyses performed by up to 10 (ten) forensic analysts in the laboratory per year.

(c) Application and Fee. The laboratory shall submit an application for a blanket license to the Commission[,] and pay the requisite blanket license fee as set forth in this subchapter.[, and submit a certification on a form provided by the Commission, stating laboratory employees performing forensic analyses for Texas cases have:]

[(1) reviewed the Code of Professional Responsibility in this subchapter; and]

[(2) completed all training materials related to Brady v. Maryland discovery obligations and the Michael Morton Act (Tex. Code Crim. Proc. art. 39.14) as provided by the Commission.]

(d) License Term. A blanket license granted under this section shall expire two (2) years [one (1) year] from the date of issuance.

(e) Minimum Education Requirements. An applicant applying for licensure under a blanket forensic analyst or forensic technician license must satisfy the minimum education requirements for the forensic discipline in which the candidate is seeking licensure as described in §651.207 of this subchapter, relating to Forensic Analyst Licensing Requirements Including License Term, Fee and Procedure for Denial of Application and Reconsideration.

(f) Specific Coursework Requirements. An applicant applying for licensure under a blanket forensic analyst or forensic technician license must satisfy the specific coursework requirements for the discipline in which the candidate is seeking licensure as described in §651.207 of this subchapter.

(g) General Forensic Analyst Licensing Exam Requirement for Blanket Licensees. An applicant applying for licensure under a blanket forensic analyst or forensic technician license must satisfy and comply with the General Forensic Analyst Licensing Exam rules and requirements as described in §651.207(g) of this subchapter. Blanket licensees in any forensic discipline set forth in this subchapter may fulfill the General Forensic Analyst Licensing Exam requirement by taking a modified three-module exam covering the subject areas of Evidence Handling, Brady v. Maryland/Michael Morton Act, and Professional Responsibility as administered by the Commission.

(h) Proficiency Testing Requirement. An applicant applying for licensure under a blanket forensic analyst or forensic technician license must be routinely proficiency-tested in accordance with and on the timeline set forth by the laboratory's accrediting body proficiency testing requirements.

(i) [(e)] The Licensing Advisory Committee and/or the Commission Director or Designee shall review each laboratory blanket license application and make a determination regarding whether to grant a blanket license under this section based on the criteria set forth in subsection (a)(1) - (4) of this section. Any laboratory that is denied a request for blanket license may appeal the decision to the full Commission.

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 October 7, 2019.

TRD-201903594

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: November 17, 2019

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


37 TAC §651.208

The Texas Forensic Science Commission ("Commission') proposes amendments to 37 TAC §651.208 to specify Forensic Technicians must complete a Commission-sponsored Mandatory Legal and Professional Responsibility update each license cycle. The amendments are necessary to reflect adoptions made by the Commission at its August 16, 2019, quarterly meeting. The amendments are made in accordance with the Commission's forensic analyst licensing authority under Tex. Code. Crim. Proc. art. 38.01 §4-a.

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 will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. Analysts are already required to remain current in their respective disciplines and the proposed educational requirements regarding professional responsibility will be made available via online training at no cost. As such, there is no anticipated effect on local employment or the local economy as a result of the proposal.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed amendments do 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 amendments are in effect, the anticipated public benefit will be notification to practicing forensic technicians of the Commission's expectations with regard to continuing education in the maintenance of a forensic technician's license. Continuing education requirements help the Commission ensure the integrity and reliability of qualified forensic technicians in our criminal justice system.

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 the rules do not impose any economic costs to these businesses.

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 there is no anticipated government growth impact as the proposal provides specification to continuing education requirements previously adopted by the Commission. The proposed rules do not create a new regulation. The proposed rules do not increase the number of individuals subject to the licensing requirements already established by the Commission.

Requirement for Rule Increasing Costs to Regulated Persons. Chapter 2001, Government Code, Section 2001.0045 states that "a state agency may not adopt a proposed rule for which the fiscal note for the notice... states that the rule imposes a cost on regulated persons... unless... the state agency (1) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (2) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the proposed rule." The section does not apply, however, to rules adopted to implement legislation or to rules necessary to protect the health, safety, and welfare of the residents of this State. The rules proposed here are necessary to implement the 84th Texas Legislature's mandate that the Texas Forensic Science Commission create a Forensic Analyst Licensing program by January 1, 2019. See Tex. S.B. 1287, 84th Leg., R.S. (2015). The Commission's licensing program is new and continuing education requirements did not exist prior to the Commission's recent adoption of the forensic analyst licensing program rules. Moreover, the proposed rules relate to the public safety of Texas citizens as they require forensic analysts testifying in criminal cases in Texas to meet certain minimum education requirements, which are in furtherance of ensuring the integrity and reliability of forensic analysis used in criminal cases.

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 November 18, 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 §651.208.

§651.208.Forensic Analyst and Forensic Technician License Renewal.

(a) Renewal. The Commission may renew an individual's Forensic Analyst or Forensic Technician License up to 90 days before to the expiration of the individual's two-year license term.

(b) Expiration. A Forensic Analyst or Forensic Technician License or renewed Forensic Analyst or Forensic Technician License expires two years from the date the initial application was granted.

(c) Effective date. A renewed Forensic Analyst or Forensic Technician License takes effect on the date the licensee's previous license expires.

(d) Application. An applicant for a Forensic Analyst or Forensic Technician License renewal shall complete and submit to the Commission a current Forensic Analyst or Forensic Technician License Renewal Application [form] provided by [on] the Commission[Commission's website], pay the required fee, attach documentation of fulfillment of Continuing Forensic Education requirements set forth in this section, provide an updated copy of the Commission's Proficiency Testing Certification form signed by the licensee's authorized laboratory representative, and complete the mandatory online legal and professional responsibility update described in this section.

(e) Continuing Forensic Education Including Mandatory Legal and Professional Responsibility Update:

(1) Forensic Analyst and Forensic Technician Licensees must complete a Commission-sponsored mandatory legal and professional responsibility update by the expiration of each two-year license cycle as provided by the Commission. Forensic Technicians are not required to complete any other continuing forensic education requirements listed in this section.

(2) Mandatory legal and professional responsibility training topics may include training on current and past criminal forensic legal issues, professional responsibility and human factors, courtroom testimony, disclosure and discovery requirements under state and federal law, and other relevant topics as designated by the Commission.

(3) All forensic analysts shall be required to satisfy the following Continuing Forensic Education Requirements:

(A) Completion of twenty-four (24) continuing forensic education hours per 2-year license cycle.

(B) Eight (8) hours of the twenty-four (24) hours may be peer-reviewed journal articles - one peer-reviewed journal article equals one hour.

(C) Sixteen (16) hours of the twenty-four (24) must be discipline-specific training and/or conference education hours; if a licensee is licensed in multiple forensic disciplines, at least 8 hours of discipline-specific training in each forensic discipline are required.

(D) The remaining eight (8) hours may be general forensic training and/or conference education hours that include hours credited for the mandatory legal and professional responsibility training.

(4) Continuing forensic education programs will be offered and/or designated by the Commission and will consist of independent, online trainings, readings, and participation in recognized state, regional, and national forensic conferences and workshops.

(5) Approved continuing forensic education hours are applied for credit on the date the program and/or training is delivered.

(f) If an applicant fails to fulfill any or all of the requirements pertaining to license renewal, continuing forensic education and the mandatory legal and professional responsibility update, the applicant may apply to the Commission for special dispensation on a form to be provided on the Commission's website. Upon approval by the Commission, the applicant may be allowed an extension of time to fulfill remaining continuing forensic education requirements.

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 October 7, 2019.

TRD-201903596

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: November 17, 2019

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


37 TAC §651.210

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 Texas Administrative Code §651.210 to restrict applicants who are not currently employed at an accredited crime laboratory from eligibility for a provisional forensic analyst license and to clarify forensic technicians may be licensed provisionally. The amendments are necessary to reflect adoptions made by the Commission at its August 16, 2019, quarterly meeting. The amendments are made in accordance with the Commission's forensic analyst licensing authority under Tex. Code. Crim. Proc. art. 38.01 §4-a.

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 will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposed amendments do 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 amendments are in effect, the anticipated public benefit will be proper notification of eligibility requirements for provisional licensure 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 amendments will not have an adverse economic effect on any small or micro business because the rules do not impose any economic costs to these businesses.

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 there is no anticipated government growth impact as the proposal limits the eligibility for licensure pursuant to the Commission's authority to grant a forensic analyst license. The Commission may only grant a forensic analyst license to candidates employed at Commission-accredited crime laboratories pursuant to Tex. Code Crim. Proc. art. 38.01 §4-a (2). Further, the rule proposal clarifies technicians are eligible for provisional licenses.

Requirement for Rule Increasing Costs to Regulated Persons. Leigh M. Savage, Associate General Counsel of the Texas Forensic Science Commission, has determined that there are no increased costs to regulated persons pursuant to the rule proposal. The proposal limits the eligibility for licensure pursuant to the Commission's authority to grant a forensic analyst license and clarifies that technicians may be granted a provisional license.

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 November 18, 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 §651.208.

§651.210.Provisional Forensic Analyst or Forensic Technician License.

(a) Issuance. The Commission may issue a provisional Forensic Analyst or Forensic Technician License.

(b) Eligibility. An individual may apply to the Commission for a provisional Forensic Analyst or Forensic Technician License if the individual meets the following qualifications:

(1) applicant is currently employed in an accredited laboratory for which the licensing requirements of this subchapter apply; and [ or]

[(2) applicant was previously employed in an accredited laboratory for which the licensing requirements of this subchapter did not apply and the applicant was approved for independent casework by the laboratory;]

(2) [(3)] applicant cannot meet one or more of the forensic analyst license requirements set forth in this subchapter at the time of application but plans to meet all the requirements within the one-year provisional license period and meets all other requirements described in §651.207 of this subchapter, relating to Forensic Analyst Licensing Requirements Including License Term, Fee and Procedure for Denial of Application and Reconsideration.

(c) Application. An applicant for a provisional Forensic Analyst or Forensic Technician License shall complete and submit to the Commission a current Provisional Forensic Analyst License Application form, pay the required fee and submit a signed statement on a form to be provided by the Commission stating he or she has fulfilled the eligibility requirements of this section.

(d) Provisional License Term. A provisional Forensic Analyst or Forensic Technician License is granted for a period of one year from the date of issuance.

(e) Scope of Provisional License. A provisionally licensed Forensic Analyst or Forensic Technician may technically review or perform forensic analysis or draw conclusions from or interpret a forensic analysis for a court or crime laboratory to the extent a fully licensed forensic analyst or forensic technician may perform these duties.

(f) Effective Date of Forensic Analyst or Forensic Technician License Requirements for Provisionally Licensed Analysts. A provisionally licensed forensic analyst or forensic technician shall be subject to the forensic analyst or forensic technician licensing requirements in effect on the date the forensic analyst or forensic technician is granted the provisional [forensic analyst] license.

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 October 7, 2019.

TRD-201903597

Leigh Savage

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: November 17, 2019

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