                                            KEN PAXTON
                                        ATTORNEY GENERAL OF TEXAS




                                              March 21, 2018



Jeffrey Barnard, M.D.                                     Opinion No. KP-0188
Chair
Texas Forensic Science Commission                         Re: Whether postmortem toxicological
1700 North Congress Avenue, Suite 445                     analysis conducted pursuant to the request of
Austin, Texas 78701                                       a medical examiner or forensic pathologist is
                                                          subject to accreditation requirements of the
                                                          Forensic Science Commission (RQ-0183-KP)

Dear Dr. Barnard:

        You ask about the accreditation authority of the Texas Forensic Science Commission (the
"Commission") concerning postmortem toxicological analysis conducted pursuant to the request
of a medical examiner or forensic pathologist. 1 The Commission administers forensic science
accreditation and licensing programs under article 38.01 of the Code of Criminal Procedure. TEX.
CODE CRIM. PROC. art. 38.01, § 4-d. You state that "[t]oxicology is the science of identifying and
understanding the adverse effects of external chemical and physical agents on biological systems."
Request Letter at 2; see MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1323 (11th ed. 2004)
(defining "toxicology" as "a science that deals with poisons and their effect and with the problems
involved"). You explain that medical examiners and forensic pathologists typically request
postmortem toxicology to determine an individual's cause and manner of death. Request Letter at
2-3. You ask generally "whether postmortem toxicological analysis ... conducted pursuant to the
request of a medical examiner or forensic pathologist is subject to Commission accreditation
requirements." Id. at 1:

        Article 38.01 creates the Commission and assigns its duties and authority. TEX. CODE
CRIM. PROC. art. 38.01. The statute does not require accreditation of particular types of analysis
or testing such as postmortem toxicology. Rather, article 38.01, section 4-a requires the
Commission to license certain persons as forensic analysts. Id. art. 38.01, § 4-a. Also, section 4-d
requires the Commission to accredit "crime laboratories and other,entities conducting forensic
analyses of physical evidence for use in criminal proceedings." Id. art. 38.01, § 4-d(b)(l). As you
ask only about accreditation, we limit our review to the Commission's authority to accredit entities
under article 38.01.


        1
         See Letter from Jeffrey Barnard, M.D., Chair, Tex. Forensic Sci. Comm'n, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1, 3 (Sept. 22, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs
("Request Letter").
Jeffrey Barnard, M.D. - Page 2                       (KP-0188)



        The Co;mmission's accreditation authority under article 38.01 depends on the meaning of
several key terms that article 38.01 defines by reference to article 38.35. See Entergy Gulf States,
Inc. v. Summers, 282 S.W.3d 433, 478 (Tex. 2009) (holding that "[i]f a statute defines a term, a
court is bound to construe that term by its statutory definition only" (internal quotation marks
omitted)). As defined, a "'crime laboratory' includes a public or private laboratory or other entity
that conducts a forensic analysis subject to [article 38.35]." TEX. CODE CRIM. PROC. art.
38.35(a)(l) (emphasis added); see also id. art. 38.01, § 2(3) (stating that the term "'[c]rime
laboratory' has the meaning assigned by Article 38.35"). For accreditation purposes,

                 "Forensic 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. The term
                 includes an examination or test requested by a law enforcement
                 agency, prosecutor, criminal suspect or defendant, or court. The
                 term does not include:



                          (F) an expert examination or test conducted principally for
                          the purpose of scientific research, medical practice, civil or
                          administrative litigation, or other purpose unrelated to
                          determining the connection of physical evidence to a
                          criminal action.

Id. art. 38.35(a)(4)(F) (emphases added); see also id. art. 38.01, § 4-d(a) (adopting the definition
of"forensic analysis" from article 38.35). 2 Additionally, article 38.35 defines "physical evidence"
as "any tangible object, thing, or substance relating to a criminal action," and "criminal action" as
"includ[ing] an investigation, complaint, arrest, bail, bond, trial, appeal, punishment, or other
matter related to conduct proscribed by a criminal offense." Id. art. 38.35(a)(2), (5).

        You ask whether postmortem toxicology conducted pursuant to the request of a medical
examiner or forensic pathologist falls within the "medical practice" exception from the definition
of"forensic analysis" in article 38.35(a)(4)(F). Request Letter at 3. You ask further if the answer
depends on whether the postmortem toxicology results are used for the purpose of determining the
connection of evidence to a criminal action. Id. Neither article 38.01 nor article 38.35 addresses
whether the laboratory of a medical examiner or forensic pathologist must be accredited. See TEX.
CODE CRIM. PROC. arts. 38.01, .35. However, a laboratory of a medical examiner or forensic
pathologist can be a "crime laboratory" subject to the Commission's accreditation requirements if
it performs a "forensic analysis subject to" article 38.35. Id. art. 38.35(a)(l). Toxicologic
examinations or testing performed on physical evidence are subject to article 38.35 if they are
performed "for the purpose of determining the connection of the evidence to a criminal action."

         2
          Article 38.01, section 2 also provides a definition of "forensic analysis." TEX. CODE CRIM. PROC. art.
38.01, § 2(4). However, sections 4-a and 4-d specifically adopt the definition located in article 38.35 for licensing
and credentialing purposes. Id. art. 38.01, §§ 4-a(a)(I), 4-d(a).
Jeffrey Barnard, M.D. - Page 3                       (KP-0188)



Id. art. 38.35(a)(4). The exclusion for examinations or tests conducted principally for medical
practice purposes is limited to purposes "unrelated to determining the connection of physical
evidence to a criminal action." Id. art. 38.35(a)( 4)(F). Harmonizing the definition of forensic
analysis with its exceptions, a court would likely conclude that testing constituting medical
practice is excluded only if its principal purpose is "unrelated to determining the connection of
physical evidence to a criminal action." Id. Thus, a laboratory performing postmortem toxicology
analysis is a crime laboratory subject to accreditation requirements if, and only if, the purpose of
the analysis is to determine the connection of the evidence to a criminal action. Id.

        Under article 38.35, the purpose of the examination or testing, not how the results are
ultimately used, determines whether the laboratory performing the postmortem toxicology analysis
is subject to accreditation. Id. Further, the purpose of the toxicology depends on why a medical
examiner or forensic pathologist requests the analysis. Cf id art. 38.35(a)(4)(F) (stating that for
forensic accreditation purposes, the term '"forensic analysis' ... includes an examination or test
requested by" law enforcement, prosecutors, suspects, defendants, or a court). You acknowledge
that "[p]ostmortem toxicology may but does not necessarily involve a criminal action," but you do
not provide us with information about circumstances when a request for postmortem toxicology
analysis is or is not related to a criminal action. Request Letter at 3. The facts and circumstances
concerning a particular request by a medical examiner or forensic pathologist for postmortem
toxicology testing and examination will likely determine whether the laboratory that performs the
analysis is subject to accreditation requirements. 3

         Moreover, even if statutory definitions could encompass a particular type of analysis,
article 38.01 authorizes the Commission to further refine by rule the scope and applicability of the
accreditation process requirements to comport with certain practical considerations. See TEX.
CODE CRIM. PROC. art. 38.01, § 4-d(b); see also 37 TEX. ADMIN. CODE§ 651.5 (Tex. Forensic Sci.
Comm'n, Forensic Disciplines and Procedures Subject to Commission Accreditation).
Specifically, the Commission may create exemptions from the accreditation process for an entity
conducting a particular type of forensic analysis examination or test that is admissible under a
statute or well-established rule of evidence, or if it is "routinely conducted outside of a crime
laboratory by a person other than an employee of the crime laboratory." Id. art. 38.01, § 4-d(c)(2)-
(3). Nevertheless, the Commission's duty to establish an accreditation process for crime
laboratories and other specified entities requires the Commission to determine in the first instance,
subject to judicial review, whether particular postmortem toxicological analysis is performed for
the purpose of determining the connection of physical evidence to a criminal action and therefore
subject to accreditation requirements.




         3 As discussed above, whether a laboratory or division is subject to accreditation does not resolve whether
 individual forensic analysts are subject to licensing requirements.
Jeffrey Barnard, M.D. - Page 4                (KP-0188)



                                       SUMMARY

                        Postmortem toxicological analysis requested by a medical
                examiner or forensic pathologist is subject to the Forensic Science
                Commission's accreditation authority only if it is performed for the
                purpose of determining the connection of physical evidence to a
                criminal action. Such purpose depends on why a medical examiner
                or forensic pathologist requests the analysis, not how the results are
                ultimately used. Whether any particular postmortem toxicological
                analysis is performed for the purpose of determining the connection
                of physical evidence to a criminal action is for the Commission to
              · determine in the first instance, subject to judicial review.

                                              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

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
