                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEX.AS




                                                January 8, 2016



Dr. Vincent J.M. Di Maio                                   Opinion No. KP-0055
Presiding Officer
Texas Forensic Science Commission                          Re: Responsibilities of the Texas Forensic
1700 North Congress Avenue, Suite 445                      Science Commission under article 39.14 of the
Austin, Texas 78701                                        Code of Criminal Procedme (RQ-0032-KP)

Dear Dr. Di Maio:

        The Texas Forensic Science Commission ("Commission") asks about its responsibility to
"notify relevant parties of exculpatory, impeachment or mitigating information" under the Code
of Criminal Procedure. 1 Your specific questions are:

                 (1) As a state agency with possession of information that may be
                     covered by Article 39.1 [4]2 of the Texas Code of Criminal
                     Procedure, what is the Commission's notification responsibility
                     when it receives such information?

                 (2) If the Commission notifies the prosecutor with jurisdiction over
                     the case, is that notification sufficient with the understanding the
                     prosecutor will assess the matter and determine whether
                     notification to the defendant is necessary? Or does the
                     Commission need to provide separate defendant notification?

                 (3) If a laboratory disclosure involves professional misconduct by a
                     forensic scientist with the potential to impact criminal cases in
                     many different jurisdictions, does the Commission need to
                     notify the prosecutor in each jurisdiction or may it communicate
                     the information to the Texas District and County Attorney's
                     Association for distribution to its membership?



          1
           See letter from Lynn Garcia, Gen. Counsel, Tex. Forensic Science Comm'n, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1, (July 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").

        2
         A telephone call to your office verified that your questions concern article 39.14 of the Code of Criminal
Procedure instead of article 39.15. Telephone conference with Tex. Forensic Science Comm'n (Sept. 10, 2015).
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                (4) Are the notification obligations the same for the prosecutor
                    representative on the Commission as the forensic scientists, or
                    does the prosecutor have obligations beyond those of other
                    members because of his unique position?

Request Letter at 2 (footnote added). The Commission was created to provide a process to report
and investigate alleged negligence and misconduct affecting the integrity of various types of
laboratories and offices in Texas that process forensic science used in criminal proceedings. See
Pena v. State, 226 S. W.3d 634, 649 (Tex. App.-Waco 2007) (citing Sen. Comm. on Crim. Justice,
Bill Analysis, Tex. S.B. 1263, 79th Leg., R.S. (2005)), rev 'don other grounds, 285 S.W.3d 459
(Tex. Crim. App. 2009); see also TEX. CODE CRIM. PROC. art. 38.01 (governing the Commission);
Tex. Att'y Gen. Op. No. GA-0866 (2011) at 1-2 (describing functions of the Commission). Under
article 38.01 of the Code of Criminal Procedure, the Commission has its own reporting
requirements. See generally TEX. CODE CRIM. PROC. art. 38.01, § (4)(e) (requiring the
Commission to make its investigation reports available to the public); see also id art. 38.01, §§ (7),
(8), (10) (detailing the reporting requirements of the Commission's investigative reports).

        You tell us that the Commission is investigating a complaint involving forensic video
analysis and has received information that may be exculpatory in nature. Request Letter at 2. You
note that a prosecutor and defendant in a particular criminal case may not be aware of any
potentially exculpatory information received by the Commission unless made aware of it by the
Commission. See id In this context, you are concerned that the "Commission may receive
information that could constitute 'exculpatory, impeachment, or mitigating' information as the
term is described in Article 39 .1 [4] of the ... Code of Criminal Procedure." Id We look to article
39.14(h), which pertains to "exculpatory, impeachment, or mitigating" evidence, to address your
questions. TEX. CODE CRIM. PROC. art. 39.14(h); see Request Letter at 1-2.

        Article 39.14(h) provides that "[n]otwithstanding any other provision of this article, the
state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item,
or information in the possession, custody, or control of the state that tends to negate the guilt of
the defendant or would tend to reduce the punishment for the offense charged." TEX. CODE CRIM.
PROC. art. 39.14(h). By its plain language the duties imposed by article 39.14(h) devolve upon the
state. Id; see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (stating that a statute is
to be interpreted according to its plain language). Thus, we consider how a court would construe
the term "state" in article 39.14(h) to determine whether the Commission has a duty thereunder to
make certain notifications. The primary cannon of statutory construction is to ascertain and give
effect to the Legislature's intent. Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex.
2013). Courts determine that intent by looking at the "plain meaning of the text, given the context
of the statute as a whole." Id

        Absent a judicial or statutory definition, the term "state" is capable of numerous definitions.
See, e.g., Texas v. White, 74 U.S. 700, 721 (1868) (defining "state" broadly as a "political
community of free citizens occupying a territory of defined boundaries"); Monsanto Co. v.
Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939-40 (Tex. 1993) (stating that the "ordinary
meaning of 'state' ... envisions an entity having statewide jurisdiction" instead of an entity with
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"local or limited jurisdiction"). Yet, the language and context of article 39. l 4(h) indicate the term
"state" has a limited scope.

         In providing that prosecutions shall be carried on "in the name and by authority of The
State of Texas," and that prosecutors shall represent the state in criminal matters, the Code of
Criminal Procedure identifies local prosecutors as representatives of the state for criminal
purposes. TEX. CODE CRIM. PROC. arts. 1.23, 2.01-.02; see also Black's Law Dictionary 1341 (9th
ed. 2009) (defining "prosecutor" to mean "[a] legal officer who represents the state ... in criminal
matters"). The language in article 39.14 itself, when considered as a whole, also indicates that a
prosecutor is the individual acting for the state. See Fredericksburg Care Co. L.P. v. Perez, 461
S.W.3d 513, 520 (Tex. 2015) (construing statute as a whole and not pursuant to isolated
provisions). Article 39.14(a) requires the state to produce certain information as soon "as
practicable after receiving a timely request from the defendant." See TEX. CODE CRIM. PROC. art.
39.14(a). Similarly, under article 39.14(b), the court has authority to order "one or more of the
parties" to disclose certain information, which by its plain language does not include someone who
is not a party to an action. Id art. 39.14(b). Article 39.14(k) provides that "at any time before,
during, or after trial the state" shall disclose the discovery of the existence of additional information
required to be disclosed to the defendant or to the court. Id art. 39.14(k). Again, the timing
requirement of this provision makes sense only if it imposes burdens upon those directly involved
in the trial.

         Additionally, the legislative history suggests that the Legislature intended for the article
39.14 burden to fall upon prosecutors. See Fin. Comm'n a/Tex. v. Norwood, 418 S.W.3d 566, 586
(Tex. 2013) (recognizing that legislative history may be considered when construing a statute).
The bill analysis for the 2013 bill amending and implementing article 39.14(h) indicates that the
bill "requires prosecutors to tum over to the defense" any relevant information. Senate Comm. on
Crim. Justice, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S. (2013) (emphasis added) (describing
criminal discovery as the "exchange of relevant information between prosecutors and the
defense"). For these reasons, a court would likely construe the term "state," as used in article
39.14(h), to mean the prosecution representing the State of Texas in criminal cases.

          Moreover, with respect to the Commission specifically, the "exculpatory, impeachment,
or mitigating" evidence that must be disclosed is that which "tends to negate the guilt of the
defendant or would tend to reduce the punishment for the offense charged." TEX. CODE CRIM.
PROC. art. 39. l 4(h). Yet, the Commission is specifically prohibited by its own statute from making
any findings that are related to the guilt or innocence of a party in a criminal case. Id art. 38.01,
§ (4)(g). Accordingly, it is likely that a court would determine that article 39.14(h) imposes no
notification duties on the Commission.

           Your second and third questions presume that the Commission has a duty under article
39.14(h) and ask about various methods by which to comply with the statute. See Request Letter
at 2. Given our conclusion to the first question, we need not address these questions. We can
advise you, however, that the lack of a duty under article 39. l 4(h) does not negate the requirement
in article 38.01, § (4)(e) for the Commission to make its completed investigation reports available
to the public. See generally TEX. CODE CRIM. PROC. art. 38.01, § (4)(e). Moreover, there is nothing
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in article 38.01 that expressly prohibits the Commission from notifying relevant parties of
exculpatory, impeachment, or mitigating information.

        Your fourth question is whether the prosecutor member of the Commission has a duty that
differs from the other members of the Commission. See Request Letter at 2; see also TEX. CODE
CRIM. PROC. art. 38.01, § (3)(a)(2) (requiring that the Commission include a prosecuting attorney).
Given our conclusion that the Commission likely has no notification duties under article 39.14(h),
the prosecutor member of the Commission would have a duty to comply with article 39.14 only in
his or her capacity as a prosecutor for the state in a particular case. See TEX. CODE CRIM. PROC.
art. 39.14(a); see generally Tex. Att'y Gen. Op. No. KP-0041 (2015) at 4.
Dr. Vincent J.M. Di Maio - Page 5           (KP-0055)



                                      SUMMARY

                     A court would likely conclude that article 39.14(h) of the
              Code of Criminal Procedure does not create a duty for the Texas
              Forensic Science Commission to notify relevant parties of
              exculpatory, impeachment, or mitigating information.

                      Given the conclusion that the Commission likely has no
              notification duties under article 39. l 4(h), the prosecutor member of
              the Commission would have a duty to comply with article 39.14
              only in his or her capacity as a prosecutor for the state in a particular
              case.

                                              Very truly yours,




                                              KEN PAXTON
                                              Attorney General of Texas



CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
