                                                KEN PAXTON
                                           ATTORNEY GENERAL OF TEXAS




                                                 January 17, 2017



Dr. Vincent Di Maio                                         Opinion No. KP-0127
Presiding Officer
Texas Forensic Science Commission                            Re: The admissibility of certain forensic
1700 North Congress Avenue, Suite 445                        analyses in Texas courts, statutory authority of
Austin, Texas 78701                                          the Texas Forensic Science Commission, and
                                                             reporting requirements for certain cnme
                                                             laboratories (RQ-0117-KP)

Dear Dr. Di Maio:

        The Texas Forensic Science Commission ("Commission") asks about the admissibility of
certain forensic analyses in Texas courts, the Commission's statutory authority to exempt certain
forensic analyses from its accrediting process, and reporting requirements for certain crime
laboratories. 1 At the outset, we note that questions regarding the admissibility of evidence are for
the particular court to determine and are not appropriate for an attorney general opinion. Tex.
Att'y Gen. Op. No. GA-1048 (2014) at 3, n.5. However, we can advise about the legal construction
of statutes relating to admissibility.

        We first consider the threshold matter you raise of identifying the controlling law on the
admissibility of expert testimony relating to forensic analysis in a criminal case. See Request
Letter at 3. The Code of Criminal Procedure provides that, except under limited circumstances;
"a forensic analysis of physical evidence" and related expert testimony "are not admissible in a
criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not
accredited by the commission under Article 38.01."2 TEX. CODE CRIM. PROC. art. 38.35(d)(l). On
the other hand, Rule 702 of the Texas R.ules of Evidence ("Rules") permits an expert witness to
testify "if the expert's scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue." TEX. R. Evm. 702. Given that
both the statute and the rule of evidence speak to the admissibility of expert testimony, you "seek


         1
         See Letter from Lynn Garcia, Gen. Counsel, Tex. Forensic Science Comm'n, to Honorable Ken Paxton,
Tex. Att'y Gen. at 1 (July 18, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").

         2
          Such forensic analysis and related expert testimony "are not inadmissible in a criminal action based solely
on the accreditation status of the crime laboratory" if the crime laboratory was otherwise eligible for accreditation at
the time of the forensic examination or test and it obtains accreditation from the Commission before the testimony is
given. TEX. CODE CRIM. PROC. art. 38.35(e)(A)-(8).
Dr. Vincent Di Maio - Page 2                          (KP-0127)



guidance on whether Article 38.35's application to 'forensic analysis' supersedes the general
expert admissibility rule set forth in Texas Rule of Evidence 702." Request Letter at 3.

        The Rules, promulgated by the Texas Supreme Court, "apply to proceedings in Texas
courts except as otherwise provided'' by subparts (d)-(f) of Rule 101. TEX. R. Evm. lOl(b)
(emphasis added). Rule 101 (d) states that "[d]espite these rules, a court must admit or exclude
evidence if required to do so by ... a ... Texas statute .... If possible, a court should resolve by
reasonable construction any inconsistency between these rules and applicable . . . statutory
provisions ...." Id IOI(d); see also Scher! v. State, 7 S.W.3d. 650, 653 (Tex. App.-Texarkana
1999, pet. ref' d) (acknowledging that where a rule "irreconcilably conflicts" with a statute, the
statute "will prevail"). The exclusion of article 38.35 applies to "expert testimony relating to"
forensic analysis. TEX. CODE CRIM. PROC. art. 38.35(d)(l). Thus, to the extent that an expert's
testimony relates to forensic analysis of physical evidence performed by a crime laboratory that is
unaccredited by the Commission, it would fall within the scope of article 38.35 and be excluded.
Because article 38.35 excludes evidence that Rule 702 might otherwise allow, circumstances may
arise where the two provisions irreconcilably conflict. See NXCESS Motor Cars, Inc. v. JPMorgan
Chase Bank, NA., 317 S.W.3d 462, 469 (Tex. App.-Houston [1st Dist.] 2010, pet. denied)
(stating that statutes conflict "[i]f the same factual situation can harvest different results under
different statutes" (quotation marks omitted)). Therefore, pursuant to Rule lOl(d), article 38.35
prevails over Rule 702 to the extent of a conflict. As such, we examine your questions under the
authority of article 38.35 only and without reference to Rule 702.

         You ask "whether 'forensic analysis' as defined in Article 38.35 of the Code of Criminal
Procedure that is neither accredited by the Commission nor exempt [from accreditation] by statute
or administrative rule is admissible in a criminal action" in light of article 38.35, subpart (d)(l).
Request Letter at 1. Subpart (d)(l) of article 38.35 makes "a forensic analysis of physical
evidence" and related expert testimony "not admissible in a criminal action if, at the time of the
analysis, the crime laboratory conducting the analysis was not accredited by the commission under
Article 38.01." TEX. CODE CRIM. PROC. art. 38.35(d)(l). For purposes of article 38.35, "forensic
analysis" generally means "a medical, chemical, toxicologic, ballistic, or other expert examination
or test performed on physical evidence, including DNA evidence, for the purpose of determining
the connection of the evidence to a criminal action."3 Id art. 38.35(a)(4). The Commission
accredits "crime laboratories and other entities conducting forensic analyses of physical evidence
for use in criminal proceedings" through an accreditation process it establishes by rule. Id. art.
38.01, § 4-d(b)(l); see also 37 TEX. ADMIN. CODE §§ 651.1-.11 (2016) (Tex. Forensic Science
Comm'n, Accreditation). 4 To be accredited by the Commission, "a laboratory must first be

          3
            Certain examinations and tests are not considered "forensic analysis" and thus would not be subject to the
prohibition of article 38.35, subpart (d)(I). Id. art. 38.35(a)(4)(A)-(F) (listing exceptions to the term "forensic
analysis"). However, you tell us that the clarification you seek concerns "the admissibility status of forensic
disciplines that clearly meet the 'forensic analysis' definition." Request Letter at 3.

         4 As part of the accreditation process, the Commission may "validate or approve specific forensic methods

 or methodologies." TEX. CODE CRIM. PROC. art. 38.01, § 4-d(b-1)(2).
Dr. Vincent Di Maio - Page 3                           (KP-0127)



accredited by a recognized accrediting body." 37 TEX. ADMIN. CODE § 651.l(b) (2016) (Tex.
Forensic Science Comm'n, Purpose). However, recognized accreditation by an independent body.
is sometimes unavailable. 5 In such instances, the Commission "by rule may exempt from the
accreditation process" a crime laboratory or a particular type of forensic analysis if it "determines
that . . . independent accreditation is unavailable or inappropriate for the laboratory" or the
particular forensic analysis. TEX. CODE CRIM. PROC. art. 38.01, § 4-d(c)(l).

         In article 38.35, subpart (d)(l), the Legislature expressly requires that a crime laboratory
be "accredited by the [C]ommission" at the time it conducts forensic analysis in order for any
forensic analysis and related testimony to be admissible in a criminal action in a Texas court. Id.
art. 38.35(d)(l). The only instance in which a forensic analysis and related expert testimony is not
inadmissible "based solely" on the laboratory's accreditation status is if the laboratory is "eligible
for accreditation by the commission at the time of the examination or test" and it "obtains
accreditation from the commission before the time of the testimony about the examination or test."
Id. art. 38.35(e)(A)-(B). Thus, a court would likely conclude that "forensic analysis," as defined
in article 38.35 of the Code of Criminal Procedure, from a crime laboratory that is neither
accredited by the Commission nor exempt [from accreditation] by statute or administrative rule is
inadmissible in a criminal action in a Texas court under article 38.35(d)(l).

         Next, you ask whether "the Commission has the discretion under Article 38.01, § 4-d(c) to
withhold an exemption from the accreditation requirement pending resolution of concerns
regarding the integrity and reliability of the forensic analysis." Request Letter at 3. Subpart 4-
d( c) of article 38.01 provides that the Commission "may" exempt a type of forensic analysis from
the accreditation requirement under certain circumstances. TEX. CODE CRIM. PROC. art. 38.01,
§ 4-d(c)(1)-(4 ). The word "may" in a statute indicates discretionary authority unless the context
"necessarily requires a different construction." TEX. Gov'T CODE§ 311.016(1) ("'May' creates
discretionary authority or grants permission or a power."); see also Iliff v. Iliff, 339 S.W.3d 74, 81
(Tex. 2011) (noting that the "word 'may' imports the exercise of discretion"). Because the context
of the statute does not indicate otherwise, a court would likely conclude that the Commission may
refrain from granting an exemption from accreditation under article 38.01, § 4-d(c), in its
reasonable discretion.

        Your last question concerns the reporting requirements of article 38.01, § 4(a)(2) of the
Code of Criminal Procedure. Under that provision, the Commission shall "require a crime
laboratory that conducts forensic analyses to report professional negligence or professional
misconduct" to the Commission. TEX. CODE CRIM. PROC. art. 38.01, § 4(a)(2). You explain that
"[m]any accredited crime laboratories in Texas conduct forensic analyses in both accredited
disciplines (e.g., DNA analysis, toxicology, etc.) and unaccredited disciplines (e.g., latent print
analysis, crime scene, etc.)." Request Letter at 4 (emphasis omitted). You ask whether the



          5The  Commission may recognize a national organization in an accredited field of forensic science by rule if
 it "determines the content required to receive the certification is substantially equivalent" to the content that would
 otherwise be required by the Commission under article 38.01, subsection 4-a(d)(l)(C). Id. art. 38.01, § 4-a(e); see
 also id. § 4-a(d)(l)(C) (requiring successful completion or recognition of an examination, among other things, to
 qualify for a forensic analyst license).
Dr. Vincent Di Maio - Page 4                         (KP-0127)



reporting requirement applies to "all of the forensic analyses" performed by a crime laboratory or
to only analyses pertaining to a discipline that is "subject to accreditation." Id at 4.

       The reporting requirement applies to a crime laboratory "that conducts forensic analyses."
TEX. CODE CRIM. PROC. art. 38.01 § 4(a)(2). The reporting requirement appears within article
38.01, which has its own definition of forensic analysis:

                 In [article 38.01] . . . "[f]orensic analysis" means a medical,
                 chemical, toxicologic, ballistic, or other expert examination or test
                 performed on physical evidence, including DNA evidence, for the
                 purpose of determining the connection of the evidence to a criminal
                 action, except that the term does not include the portion of an
                 autopsy conducted by a medical examiner or other forensic
                 pathologist who is a licensed physician.

Id art. 38.01, § 2(4). 6 Thus, any crime laboratory that engages in forensic analysis within the
scope of this definition is subject to the reporting requirement. Moreover, the reporting
requirement applies broadly to "professional negligence or professional misconduct" without
regard to whether the discipline involved is accredited or non-accredited. Id. § 4(a). The fact that
article 38.01 requires the Commission to "investigate ... any allegation of professional negligence
or professional misconduct that would substantially affect the integrity of the results of a forensic
analysis conducted by a crime laboratory" suggests that the Legislature was concerned with all
instances of professional negligence or professional misconduct. Id art. 38.01, § 4(a)(3) (emphasis
added). For these reasons, a court would likely conclude that, pursuant to article 38.01, subpart
4(a)(2), a crime laboratory must report professional negligence or professional misconduct
pertaining to forensic analyses in all disciplines, not just those that are accredited.




         6 Unlike in article 38.35, "forensic analysis" in article 38.01 excludes only autopsy-related examinations or

tests conducted by specific persons. It does not exclude other examinations, tests, or disciplines. Id. art. 38.01,
§ 2(4).
Dr. Vincent Di Maio - Page 5                 (KP-0127)



                                      SUMMARY

                       In addressing the admissibility of forensic analysis of
               physical evidence, article 38.35(d)(l) of the Code of Criminal
               Procedure prevails over Rule 702 of the Texas Rules of Evidence to
               the extent of a conflict, pursuant to Rule 101 (d) of the Texas Rules
               of Evidence.

                      A court would likely conclude that (1) "forensic analysis" as
              defined in article 38.35 of the Code of Criminal Procedure from a
              crime laboratory that is neither accredited by the Forensic Science
              Commission nor exempt from accreditation by statute or
              administrative rule is inadmissible in a criminal action in a Texas
              court under article 38.35(d)(l); and (2) the Commission may refrain
              from granting an exemption from accreditation under article 38.01,
              subpart (4-d)( c) of the Code of Criminal Procedure in its reasonable
              discretion.

                      A court would likely conclude that, pursuant to article 38.01,
              subpart 4(a)(2) of the Code of Criminal Procedure, a crime
              laboratory must report professional negligence or professional
              misconduct pertaining to forensic analyses in all disciplines-not
              just those that are accredited-to the Commission.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee
