Does the Texas Forensic Science Commission have to disclose exculpatory evidence it finds?

Plain-English summary

The Texas Forensic Science Commission investigates complaints about crime labs and forensic work used in criminal cases. While looking into a forensic video analysis complaint, it received information that might be exculpatory, the kind of evidence that could help a defendant. The Commission's presiding officer asked the AG a basic question: when the Commission turns up that kind of information, does the law require the Commission itself to notify the prosecutor, the defendant, or anyone else?

The relevant statute is article 39.14(h) of the Code of Criminal Procedure, part of Texas's criminal discovery rules. It says "the state" must disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the state's possession that tends to negate the defendant's guilt or reduce the punishment. So the whole question turned on whether the Forensic Science Commission counts as "the state" for that duty.

The AG concluded it does not. Reading the statute as a whole, "state" in this context means the prosecution, the local prosecutors who carry on criminal cases in the name of the State of Texas. The discovery provisions throughout article 39.14 speak of requests from the defendant, orders to "the parties," and disclosures before, during, and after trial, all of which make sense only for the people actually litigating a case. The legislative history of the 2013 amendment described the duty as one on prosecutors to turn relevant information over to the defense. On top of that, the Commission is forbidden by its own statute, article 38.01, from making any finding about a person's guilt or innocence, which sits awkwardly with a duty framed around evidence that negates guilt. So the AG concluded a court would likely hold that article 39.14(h) imposes no notification duty on the Commission.

The AG noted that the second and third questions, about how the Commission would comply if it had a duty, did not need answering given that conclusion. Two practical points remained: the Commission still must make its completed investigation reports public under article 38.01, and nothing in that statute prohibits the Commission from notifying relevant parties on its own. As for the fourth question, the prosecutor who sits on the Commission has the article 39.14 duty only when acting as a prosecutor in a particular case, not because of Commission membership.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Articles 39.14 and 38.01 of the Code of Criminal Procedure have been amended in the past and may have changed since 2016, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

The Texas Forensic Science Commission (as the opinion described it): The opinion described the Commission as likely having no notification duty under article 39.14(h), while keeping its separate duty to make completed investigation reports public under article 38.01 and its freedom to notify relevant parties on its own.

Prosecutors and the Commission's prosecutor member (as the opinion described it): The opinion described the article 39.14 disclosure duty as falling on the prosecution representing the State of Texas, and described the Commission's prosecutor member as bound by article 39.14 only when acting as a prosecutor in a specific case.

Criminal defendants and their counsel (as the opinion described it): The opinion described the duty to disclose exculpatory, impeachment, or mitigating evidence as resting with the prosecution, not the Commission.

Common questions

Does the Texas Forensic Science Commission have to disclose exculpatory evidence it finds?
The AG concluded that a court would likely find no such duty under article 39.14(h); that disclosure duty falls on the prosecution, not the Commission.

Who counts as "the state" that must hand over exculpatory evidence?
The AG read "state" in article 39.14(h) to mean the prosecution representing the State of Texas in criminal cases, based on the statute's text, its structure as a whole, and its legislative history.

Why isn't the Commission covered?
Besides the text pointing to prosecutors, the AG noted the Commission is barred by article 38.01 from making findings about guilt or innocence, while the disclosure duty is framed around evidence that negates guilt or reduces punishment.

Can the Commission still tell prosecutors or defendants what it found?
The AG said nothing in article 38.01 prohibits the Commission from notifying relevant parties, and the Commission must in any event make its completed investigation reports public.

Does the prosecutor on the Commission have extra duties?
The AG concluded the prosecutor member has the article 39.14 duty only in his or her capacity as a prosecutor in a particular case, not because of Commission membership.

Background and statutory framework

The Texas Forensic Science Commission was created to investigate alleged negligence and misconduct affecting forensic laboratories whose work is used in criminal proceedings, and it operates under article 38.01 of the Code of Criminal Procedure, which includes its own public-reporting requirements (Tex. Code Crim. Proc. art. 38.01; Pena v. State, 226 S.W.3d 634, 649 (Tex. App.-Waco 2007), rev'd on other grounds, 285 S.W.3d 459 (Tex. Crim. App. 2009)). Article 39.14(h) requires "the state" to disclose exculpatory, impeachment, or mitigating evidence to the defendant (Tex. Code Crim. Proc. art. 39.14).

Construing the statute by its plain language and as a whole (Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015); Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013); Fredericksburg Care Co. L.P. v. Perez, 461 S.W.3d 513, 520 (Tex. 2015)), the AG noted that "state" can carry many meanings (Texas v. White, 74 U.S. 700, 721 (1868); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939-40 (Tex. 1993)) but here is limited to the prosecution, since the Code identifies local prosecutors as the state's representatives in criminal matters (Tex. Code Crim. Proc. arts. 1.23, 2.01-.02). The legislative history of the 2013 amendment confirmed the duty falls on prosecutors (Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 586 (Tex. 2013)). Because the Commission is also barred from making guilt-or-innocence findings, the AG concluded article 39.14(h) likely imposes no duty on it, leaving its public-reporting obligation under article 38.01 intact.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. art. 39.14 (criminal discovery, including subsection (h) on exculpatory, impeachment, or mitigating evidence)
• Tex. Code Crim. Proc. art. 38.01 (Forensic Science Commission; public-reporting requirements; bar on guilt-or-innocence findings)
• Tex. Code Crim. Proc. art. 1.23 (prosecutions carried on in the name of the State of Texas)
• Tex. Code Crim. Proc. arts. 2.01-.02 (prosecutors represent the state in criminal matters)

Cases:

• Pena v. State, 226 S.W.3d 634, 649 (Tex. App.-Waco 2007), rev'd on other grounds, 285 S.W.3d 459 (Tex. Crim. App. 2009)
• Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)
• Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013)
• Texas v. White, 74 U.S. 700, 721 (1868)
• Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939-40 (Tex. 1993)
• Fredericksburg Care Co. L.P. v. Perez, 461 S.W.3d 513, 520 (Tex. 2015)
• Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 586 (Tex. 2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0055
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0055.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

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 Procedure (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 39.14 [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?

(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'd on 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 39.14 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 canon 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 "local or limited jurisdiction"). Yet, the language and context of article 39.14(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 of 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 turn 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. 39.14(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 39.14(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 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.

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 39.14(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.

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

[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.texasattorneygeneral.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).