Is forensic evidence from an unaccredited Texas crime lab admissible, and what can the Forensic Science Commission require?

Plain-English summary

Dr. Vincent Di Maio, presiding officer of the Texas Forensic Science Commission, asked the AG about three connected issues: which law controls the admissibility of forensic expert testimony, the Commission's authority to grant or withhold accreditation exemptions, and the scope of crime-lab reporting duties. The AG noted up front that whether evidence is admissible is for the trial court to decide and is not a proper subject for an AG opinion, but the office could advise on how the relevant statutes should be construed.

On the threshold question, two provisions both speak to forensic expert testimony. Article 38.35(d)(1) of the Code of Criminal Procedure says 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 lab was not accredited by the Commission. Rule 702 of the Texas Rules of Evidence, by contrast, generally allows expert testimony that will help the trier of fact. The AG explained that the Rules themselves yield to a Texas statute: Rule 101(d) directs that a court must admit or exclude evidence when a statute requires it, and where a rule irreconcilably conflicts with a statute, the statute prevails. Because article 38.35 excludes some evidence Rule 702 might allow, the two can conflict, and in that event article 38.35 controls. So the AG analyzed the remaining questions under article 38.35 alone.

The AG then took the specific questions. First, a court would likely conclude that forensic analysis, as defined in article 38.35, from a lab that is neither accredited by the Commission nor exempt by statute or rule is inadmissible in a Texas criminal action under article 38.35(d)(1). The only narrow escape is when a lab was eligible for accreditation at the time of the test and obtains accreditation before the testimony is given. Second, the Commission's exemption power under article 38.01, section 4-d(c) uses the word "may," which signals discretionary authority, so a court would likely conclude the Commission may, in its reasonable discretion, refrain from granting an exemption while it resolves concerns about the integrity and reliability of the analysis.

Finally, on reporting, article 38.01, section 4(a)(2) requires the Commission to make a crime lab that conducts forensic analyses report professional negligence or professional misconduct. The reporting duty is tied to the article 38.01 definition of forensic analysis, which excludes only certain autopsy work, and it applies to negligence or misconduct without regard to whether a discipline is accredited. Because the statute requires the Commission to investigate any allegation that would substantially affect the integrity of a forensic analysis, the AG concluded a court would likely read the reporting duty broadly: a lab must report negligence or misconduct across all of its forensic disciplines, not just the accredited ones.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting Commission (as the opinion described it): The opinion told the Commission that a court would likely treat unaccredited, non-exempt forensic analysis as inadmissible, that the Commission may use reasonable discretion to withhold an exemption, and that labs must report misconduct across all disciplines, while declining to decide admissibility itself.

Crime laboratories (as the opinion described them): The opinion explained that a lab must be accredited at the time it conducts forensic analysis for that analysis and related testimony to be admissible, and that its duty to report professional negligence or misconduct reaches all of its forensic disciplines, accredited or not.

Prosecutors and defense attorneys (as the opinion described them): The opinion framed article 38.35(d)(1) as controlling over Rule 702 to the extent of a conflict, so accreditation status at the time of analysis bears directly on whether forensic evidence comes in.

Common questions

Is forensic evidence from an unaccredited Texas crime lab admissible?
Under this opinion, a court would likely find it inadmissible. Article 38.35(d)(1) makes forensic analysis and related testimony inadmissible if the lab was not accredited by the Commission at the time of the analysis and is not exempt.

Does the accreditation statute override the general expert-testimony rule?
Yes, to the extent they conflict. The opinion explained that under Rule 101(d), a statute prevails over the Rules of Evidence where they irreconcilably conflict, so article 38.35 controls over Rule 702.

Is there any exception for a lab that becomes accredited later?
The opinion noted a narrow one: analysis is not inadmissible based solely on accreditation status if the lab was eligible for accreditation at the time of the test and obtains accreditation before the testimony is given.

Can the Forensic Science Commission refuse to grant an accreditation exemption?
The opinion concluded a court would likely find the Commission may, in its reasonable discretion, withhold an exemption, because the statute says it "may" exempt, which signals discretion.

Do crime labs have to report misconduct in non-accredited disciplines?
Yes. The opinion read the reporting duty in article 38.01, section 4(a)(2) to reach professional negligence or misconduct in all forensic disciplines, not just the accredited ones.

Background and statutory framework

Article 38.35(d)(1) of the Code of Criminal Procedure makes forensic analysis of physical evidence and related expert testimony inadmissible in a criminal action if the crime lab was not accredited by the Commission under Article 38.01 at the time of the analysis, with a narrow carve-out where a lab eligible for accreditation obtains it before testimony (Tex. Code Crim. Proc. arts. 38.35(d)(1), 38.35(e)(A)-(B), 38.35(a)(4), 38.35(a)(4)(A)-(F)). Rule 702 of the Texas Rules of Evidence generally allows helpful expert testimony, but the Rules apply except as otherwise provided, and Rule 101(d) requires a court to admit or exclude evidence when a statute so requires and to let a statute prevail over an irreconcilable rule (Tex. R. Evid. 702, 101(b), 101(d); Scherl v. State, 7 S.W.3d 650, 653 (Tex. App.—Texarkana 1999, pet. ref'd); NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, N.A., 317 S.W.3d 462, 469 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)). The Commission accredits crime laboratories through a rulemaking process, generally requiring accreditation by a recognized body, and may exempt a lab or type of analysis when independent accreditation is unavailable or inappropriate (Tex. Code Crim. Proc. art. 38.01, §§ 4-d(b)(1), 4-d(b-1)(2), 4-d(c)(1), 4-d(c)(1)-(4), 4-a(d)(1)(C), 4-a(e); 37 Tex. Admin. Code §§ 651.1-.11 (2016), 651.1(b) (2016)).

The word "may" in the exemption provision indicates discretionary authority unless context requires otherwise, so the Commission may withhold an exemption in its reasonable discretion (Tex. Gov't Code § 311.016(1); Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011)). The reporting duty requires a crime lab that conducts forensic analyses to report professional negligence or professional misconduct, keyed to the article 38.01 definition of forensic analysis, which excludes only certain autopsy work, and the Commission must investigate any allegation that would substantially affect the integrity of a forensic analysis, so the duty reaches all disciplines (Tex. Code Crim. Proc. art. 38.01, §§ 2(4), 4(a), 4(a)(2), 4(a)(3); Tex. Att'y Gen. Op. No. GA-1048 (2014)).

Citations

Constitutional, statutory, and rule provisions:

• Tex. Code Crim. Proc. art. 38.35(d)(1), 38.35(e)(A)-(B), 38.35(a)(4), 38.35(a)(4)(A)-(F)
• Tex. Code Crim. Proc. art. 38.01, §§ 2(4), 4(a), 4(a)(2), 4(a)(3), 4-a(d)(1)(C), 4-a(e), 4-d(b)(1), 4-d(b-1)(2), 4-d(c)(1), 4-d(c)(1)-(4)
• Tex. R. Evid. 101(b), 101(d), 702
• Tex. Gov't Code § 311.016(1)
• 37 Tex. Admin. Code §§ 651.1-.11 (2016), 651.1(b) (2016)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-1048 (2014)

Cases:

• Scherl v. State, 7 S.W.3d 650 (Tex. App.—Texarkana 1999, pet. ref'd)
• NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, N.A., 317 S.W.3d 462 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
• Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0127
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0127.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 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 crime
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)(1). On the other hand, Rule 702 of the Texas Rules 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. EVID. 702. Given that both the statute and the rule of evidence speak to the admissibility of expert testimony, you "seek 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. EVID. 101(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. 101(d); see also Scherl 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)(1). 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, N.A., 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 101(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)(1). Request Letter at 1. Subpart (d)(1) 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)(1). 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)(1); 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 accredited by a recognized accrediting body." 37 TEX. ADMIN. CODE § 651.1(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)(1).

    In article 38.35, subpart (d)(1), 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)(1). 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)(1).

    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 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.

                                SUMMARY

                  In addressing the admissibility of forensic analysis of physical evidence, article 38.35(d)(1) 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)(1); 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

[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.texasattorneygeneral.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)-(B).

[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)(1). 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).

[5] The 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)(1)(C). Id. art. 38.01, § 4-a(e); see also id. § 4-a(d)(1)(C) (requiring successful completion or recognition of an examination, among other things, to qualify for a forensic analyst license).

[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).