TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY
CHAPTER 28. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES
SUBCHAPTER
N.
The Texas Department of Public Safety (the department) proposes new §§28.211 - 28.215, concerning Texas Crime Laboratory Records Portal. These new rules implement Senate Bill 991, 88th Leg., R.S. (2023), which establishes an electronic discovery portal hosted by the department that makes crime laboratory records equally available to prosecutors and defense counsel.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there may be fiscal implications for state or local government. Ms. Whittenton has also determined that the proposed rules may result in an adverse economic effect on small businesses, but not on micro-businesses or rural communities.
The total estimated number of Texas accredited forensic laboratories is 40. Five to ten of these laboratories are small businesses while the remaining are state, county, and city laboratories. These laboratories will have costs associated with initial set up of the portal and recurring annual expenses. Expenses for these laboratories will be related to added labor, goods, and services, including the acquisition of scanning equipment, servers, increased digital storage, and website hosting services. The estimated fiscal impact for the first fiscal year is $3,000-$50,000 for initial setup and then recurring annual costs estimated to range from $1,000-$21,000 for digital storage, website administration, and labor. For crime laboratories that have adequate storage and existing services, the cost to participate may be negligible.
The department considered alternative methods to mitigate these effects under a regulatory flexibility analysis, but none were suitable because crime laboratories in Texas are statutorily required to participate in the portal. For example, the department considered exempting smaller laboratories in Texas which performed an insufficient number of forensic analyses in criminal actions in Texas to warrant participation in the portal, but the statutory scheme only provided this authority to the department for crime laboratories located outside of Texas. In addition, the department considered gradually phasing in the requirement for crime laboratories to participate in the portal using a pilot style program, but this was not consistent with the statutory framework. Therefore, no alternatives consistent with the statutory requirements or with the health, safety, environmental, and economic welfare of the state were identified.
There is no anticipated economic cost to individuals who are required to comply with these rules as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of these rules will be more efficient and consistent access to crime laboratory records.
The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does create a government program; will require the creation of new employee positions; will require an increase in future legislative appropriations to the agency; and will not require an increase or decrease in fees paid to the agency. The proposed rulemaking does create a new regulation. The proposed rulemaking does not expand, limit, or repeal an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state's economy.
Comments on the proposal may be submitted to Justin Parker, Crime Laboratory Division, Texas Department of Public Safety, 402 W. IH-30, Garland, Texas 75043, or by email to CLRConnect@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; §411.162, which authorizes the department by rule to establish and maintain a central computerized portal that facilitates the process for requesting crime laboratory records among crime laboratories, attorneys representing the state, and parties authorized to access the records pursuant to Article 39.14, Code of Criminal Procedure; §411.163, which authorizes the department by rule to require mandatory participation in the transfer of crime laboratory records using the crime laboratory portal and provide exemptions; §411.164, which authorizes the department by rule to require the attorney representing the state to provide access and use of the crime laboratory portal to the defense; and Senate Bill 991, 88th Leg., R.S. (2023).
This proposal is made pursuant to Texas Government Code, §§411.004(3), 411.162, 411.163, and 411.164.
§
28.211.
(a) In this subchapter, the terms "accredited field of forensic science" and "forensic examination or test not subject to accreditation" have the meanings provided by Texas Code of Criminal Procedure, Article 38.01; and the terms "crime laboratory," "criminal action," and "forensic analysis" have the meanings provided by Texas Code of Criminal Procedure, Article 38.35.
(b) The Texas Crime Laboratory Records Portal (the portal) administered by the department, as required by Texas Government Code, §411.162, is a central computerized portal that facilitates the sharing of crime laboratory records between crime laboratories, attorneys representing the state, and defense counsel. The purpose of the portal is to ensure that attorneys representing the state and defense counsel have equal access to relevant forensic analysis records.
§
28.212.
(a) All crime laboratories that operate disciplines in an accredited field of forensic science and conduct forensic analysis for use in a criminal action in Texas must participate in the portal by transferring crime laboratory records as soon as practicable through the portal for at least those accredited fields of forensic science. A crime laboratory may also choose to participate in the portal for any forensic examination or test not subject to accreditation but for which the crime laboratory performs casework.
(b) A crime laboratory that only performs forensic examinations or tests not subject to accreditation is not required to participate in the portal but may choose to participate.
(c) A crime laboratory located outside of Texas but accredited by the Texas Forensic Science Commission that performs an average of fewer than 300 cases annually in Texas during the immediately preceding five-year period may submit a request to be designated exempt from mandatory participation in the portal.
(1) A crime laboratory's request to be designated exempt from mandatory participation must be made to the DPS Crime Laboratory Records Program Manager (manager) at CLRConnect@dps.texas.gov.
(2) The manager must respond to the request for exemption within 60 days of receipt of the request.
(3) A crime laboratory that is denied an exemption request may appeal that decision to the DPS Crime Laboratory Division Chief by mailing an appeal request with relevant information, including the exemption request and the response, to: Crime Laboratory Division Chief, Texas Department of Public Safety, Attn: CLR Connect Exemption Appeal, 5805 N. Lamar Blvd. (MSC 0460), Austin, Texas, 78752.
(d) Exemptions are effective for two years. Subsequent exemption requests are not guaranteed and must be requested no fewer than 60 days before the exemption expires.
(e) The department must provide a list on the portal webpage of each crime laboratory that has been designated exempt from mandatory portal participation with the exemption effective date.
(f) A crime laboratory, regardless of an exemption designation, must continue to comply with all discovery obligations as set forth by Texas Code of Criminal Procedure, Article 39.14.
§
28.213.
All case-specific records related to a criminal action's forensic analysis that have reached a crime laboratory's designated completion step must be made available through the portal as soon as practicable and obtainable by any authorized user with sufficient rights to access that case. A case-specific record is a record pertaining solely to a single case or cases linked to a specific criminal action.
§
28.214.
(a) A crime laboratory must make non-case-specific records available either through the portal or on the crime laboratory's public website. A non-case-specific record is a record relevant beyond a single case or cases linked to a specific criminal action, including information on instruments, techniques, laboratory personnel, or general methodologies. Crime laboratories that make records available on a public website must include information related to the location of those records on the portal.
(b) The portal must include a process for requesting non-case-specific records not otherwise available through the portal or made publicly available on a crime laboratory's website.
§
28.215.
Attorneys representing the state must designate at least one administrator to maintain up-to-date portal access to defense counsel and others assigned to the case consistent with Texas Code of Criminal Procedure, Article 39.14 (d), (e), and (f).
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2025.
TRD-202501232
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: May 25, 2025
For further information, please call: (512) 424-5848