Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 13. TEXAS COMMISSION ON FIRE PROTECTION

CHAPTER 421. STANDARDS FOR CERTIFICATION

The Texas Commission on Fire Protection (commission) proposes amendments to 37 Texas Administrative Code Chapter 421, Standards For Certification, concerning §421.1 Procedures for Meetings, §421.3, Minimum Standards Set by the Commission, and §421.17, Requirement to Maintain Certification.

BACKGROUND AND PURPOSE

The purpose of the proposed amendments to rule §421.1 is to provide information regarding the appointment of advisory committees as mentioned in 37 Texas Administrative Code, Chapter 463, Advisory Committees, Practice and Procedures. Proposed amendments to §421.3 include the following functional descriptions: Plans Examiner, Fire and Safety Educator I, Fire and Safety Educator II, and Fire Marshal. Proposed amendments to §421.17 outlines new guidelines for expired certifications from one year to greater than one year but no longer than five years.

FISCAL NOTE IMPACT ON STATE AND LOCAL GOVERNMENT

Michael Wisko, Executive Director, has determined that for each year of the first five-year period, the proposed amendments are in effect, there will be no significant fiscal impact to state government or local governments as a result of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4).

PUBLIC BENEFIT AND COST NOTE

Mr. Wisko has also determined under Texas Government Code §2001.024(a)(5) that for each year of the first five years the amendments are in effect the public benefit will be more accurate, clear, and concise rules regarding the appointment of any advisory committee or ad hoc committee appointed by the commission.

LOCAL ECONOMY IMPACT STATEMENT

There is no anticipated effect on the local economy for the first five years that the proposed amended section is in effect; therefore, no local employment impact statement is required under Texas Government Code §2001.022 and 2001.024(a)(6).

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES AND RURAL COMMUNITIES

Mr. Wisko has determined there will be no impact on rural communities, small businesses, or micro-businesses as a result of implementing these amendments. Therefore, no economic impact statement or regulatory flexibility analysis, as provided by Texas Government Code §2006.002, is required.

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2006.0221 that during the first five years the amendments are in effect:

(1) the rules will not create or eliminate a government program;

(2) the rules will not create or eliminate any existing employee positions;

(3) the rules will not require an increase or decrease in future legislative appropriation;

(4) the rules will not result in a decrease in fees paid to the agency;

(5) the rules will not create a new regulation;

(6) the rules will not expand a regulation;

(7) the rules will not increase the number of individuals subject to the rule; and

(8) the rules are not anticipated to have an adverse impact on the state's economy.

TAKINGS IMPACT ASSESSMENT

The commission has determined that no private real property interests are affected by this proposal and this proposal does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, this proposal does not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

COSTS TO REGULATED PERSONS

The proposed amendments do not impose a cost on regulated persons, including another state agency, a special district, or a local government, and, therefore, are not subject to Texas Government Code §2001.0045.

ENVIRONMENTAL IMPACT STATEMENT

The commission has determined that the proposed amendments do not require an environmental impact analysis because the amendments are not major environmental rules under Texas Government Code §2001.0225.

REQUEST FOR PUBLIC COMMENT

Comments regarding the proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register, to Michael Wisko, Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768 or e-mailed to deborah.cowan@tcfp.texas.gov.

STATUTORY AUTHORITY

The amended rule is proposed under Texas Government Code, §419.008(f), which authorizes the commission to appoint advisory committees to assist it in the performance of its duties.

CROSS-REFERENCE TO STATUTE

No other statutes, articles, or codes are affected by these amendments.

§421.1.Procedures for Meetings.

[~~(a)~~] The Commission may maintain advisory committees and ad hoc committees to assist with rulemaking, curriculum development, and the performance of the Commission's duties. Rules related to these committees are outlined in the 37 Texas Administrative Code (TAC), Chapter 463, Advisory Committees, Practices and Procedures. [These committee names, make up, term limits, roles and meeting requirements will be outlined within this rule. These committees shall exist for no more than five (5) years and shall be reviewed and evaluated for continuance before the end of the fifth year.]

~~[(b) Time and place. The committees shall meet at such time and place in the State of Texas as they deem proper.]~~

~~[(c) Meeting called. Meetings shall be called by the chairman, by the Commission, or upon the written request of a quorum of members.]~~

~~[(d) Quorum. A majority of members shall constitute a quorum.]~~

~~[(e) Members. Committee members serve at the will of the Commission and may serve six-year staggered terms but may not serve more than two (2) consecutive terms.]~~

~~[(f) Officers. Committee Officers shall consist of a chairman and vice-chairman appointed by the Commission.]~~

~~[(g) Responsibility. Committee responsibilities shall be established by the Commission.]~~

~~[(h) Effective Date. All committees will have designated effective dates not to exceed five years without review and reestablishment by the Commission.]~~

[(i) Removal. It is a ground for removal from an advisory committee appointed by the Commission if a member is absent from more than half of the regularly scheduled committee meetings that the member is eligible to attend during a calendar year unless the absence is excused by a majority vote of the committee.]

[(j) Effective in 2021, the Commission established three (3) advisory committees, the Curriculum and Testing, Firefighter Advisory, and Health and Wellness. These committees will expire in 2026 unless reviewed and reestablished by the Commission. The Commission has established two (2) ad hoc committees, 427 and 435, which will exist for the period of time needed, not to exceed two years.]

§421.3.Minimum Standards Set by the Commission.

(a) General statement. It shall be clearly understood that the specified minimum standards described in this section are designated as a minimum program. Employing entities are encouraged to exceed the minimum program wherever possible. Continuous in-service training beyond the minimum standards for fire protection personnel is strongly recommended. Nothing in these regulations shall limit or be construed as limiting the powers of the Civil Service Commission, or the employing entity, to enact rules and regulations which establish a higher standard of training than the minimum specified, or which provides for the termination of the services of unsatisfactory employees during or upon completion of the prescribed probationary period.

(b) Functional position descriptions.

(1) Structural Fire Protection personnel. The following general position description for structural fire protection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the fire fighter operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. Successfully complete a commission approved course; achieve a passing score on written and performance certification examinations; must be at least 18 years of age; generally, the knowledge and skills required show the need for a high school education or equivalent; ability to communicate verbally, via telephone and radio equipment; ability to lift, carry, drag, and balance weight equivalent to the average human weight; ability to interpret in English, written and oral instructions; ability to work effectively in high stress situations; ability to work effectively in an environment with loud noises and flashing lights; ability to function through an entire work shift; ability to calculate weight and volume ratios; ability to read and understand English language manuals including chemical, medical and technical terms, and road maps; ability to accurately discern street signs and address numbers; ability to document in English, all relevant information in prescribed format in light of legal ramifications of such; ability to converse in English with coworkers and other emergency response personnel. Good manual dexterity with ability to perform all tasks related to the protection of life and property; ability to bend, stoop, and crawl on uneven surfaces; ability to withstand varied environmental conditions such as extreme heat, cold, and moisture; and ability to work in low or no light, confined spaces, elevated heights and other dangerous environments.

(B) Competency. A basic fire fighter must demonstrate competency handling emergencies utilizing equipment and skills in accordance with the objectives in Chapter 1 of the commission's Certification Curriculum Manual.

(2) Aircraft Rescue Fire Fighting personnel. The following general position description for aircraft rescue fire fighting personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of aircraft rescue fire fighting personnel operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for basic structural fire protection personnel: familiarity with geographic and physical components of an airport; ability to use and understand communication equipment, terminology, and procedures utilized by airports; ability and knowledge in the application of fire suppression agents; and ability to effectively perform fire suppression and rescue operations.

(B) Competency. Basic fire fighting and rescue personnel must demonstrate competency handling emergencies utilizing equipment and skills in accordance with the objectives in Chapter 2 of the commission's Certification Curriculum Manual.

(3) Marine Fire Protection personnel. The following general position description for marine fire protection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the marine fire fighter operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for basic structural fire protection personnel: familiarity with geographic and physical components of a navigable waterway; ability to use and understand communication equipment, terminology, and procedures used by the maritime industry; and knowledge in the operation of fire fighting vessels.

(B) Competency. A marine fire fighter must demonstrate competency in handling emergencies utilizing equipment and skills in accordance with the objectives in Chapter 3 of the commission's Certification Curriculum Manual.

(4) Fire Inspection personnel. The following general position description for fire inspection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the fire inspector operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. Successfully complete a commission approved course; achieve a passing score on certification examinations; must be at least 18 years of age; generally, the knowledge and skills required to show the need for a high school education or equivalent; ability to communicate verbally, via telephone and radio equipment; ability to lift, carry, and balance weight equivalent to weight of common tools and equipment necessary for conducting an inspection; ability to interpret written and oral instructions; ability to work effectively with the public; ability to work effectively in an environment with potentially loud noises; ability to function through an entire work shift; ability to calculate area, weight and volume ratios; ability to read and understand English language manuals including chemical, construction and technical terms, building plans and road maps; ability to accurately discern street signs and address numbers; ability to document, in writing, all relevant information in a prescribed format in light of legal ramifications of such; ability to converse in English with coworkers and other personnel. Demonstrate knowledge of characteristics and behavior of fire, and fire prevention principles. Good manual dexterity with the ability to perform all tasks related to the inspection of structures and property; ability to bend, stoop, and crawl on uneven surfaces; ability to climb ladders; ability to withstand varied environmental conditions such as extreme heat, cold, and moisture; and the ability to work in low light, confined spaces, elevated heights, and other dangerous environments.

(B) Competency. A fire inspector must demonstrate competency in conducting inspections utilizing equipment and skills in accordance with the objectives in Chapter 4 of the commission's Certification Curriculum Manual.

(5) Fire Investigator personnel. The following general position description for fire investigator personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the fire investigator operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. Successfully complete a commission approved course; achieve a passing score on certification examinations; be at least 18 years of age; generally, the knowledge and skills required to show the need for a high school education or equivalent; ability to communicate verbally, via telephone and radio equipment; ability to lift, carry, and balance weight equivalent to weight of common tools and equipment necessary for conducting an investigation; ability to interpret written and oral instructions; ability to work effectively with the public; ability to work effectively in a hazardous environment; ability to function through an entire work shift; ability to calculate area, weight and volume ratios; ability to read and understand English language manuals including chemical, legal and technical terms, building plans and road maps; ability to accurately discern street signs and address numbers; ability to document, in writing, all relevant information in a prescribed format in light of legal ramifications of such; ability to converse in English with coworkers and other personnel. Good manual dexterity with the ability to perform all tasks related to fire investigation; ability to bend, stoop, and walk on uneven surfaces; ability to climb ladders; ability to withstand varied environmental conditions such as extreme heat, cold and moisture; and the ability to work in low light, confined spaces, elevated heights, and other potentially dangerous environments.

(B) Competency. A fire investigator or arson investigator must demonstrate competency in determining fire cause and origin utilizing equipment and skills in accordance with the objectives in Chapter 5 of the commission's Certification Curriculum Manual.

(6) Hazardous Materials Technician personnel. The following general position description for hazardous materials personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the hazardous materials technician operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for basic structural fire protection personnel: successfully complete a commission approved course; achieving a passing score on the certification examination; the ability to analyze a hazardous materials incident, plan a response, implement the planned response, evaluate the progress of the planned response, and terminate the incident.

(B) Competency. A hazardous materials technician must demonstrate competency handling emergencies resulting from releases or potential releases of hazardous materials, using specialized chemical protective clothing and control equipment in accordance with the objectives in Chapter 6 of the commission's Certification Curriculum Manual.

(7) Hazardous Materials Incident Commander personnel. The following general position description for Hazardous Materials Incident Commander serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Hazardous Materials Incident Commander operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for awareness and operations level personnel, the Hazardous Materials Incident Commander is an individual who has met all the job performance requirements of Hazardous Materials Incident Commander as defined in Chapter 8 of NFPA 472, Competence of Responders to Hazardous Materials Incidents/Weapons of Mass Destruction. The individual should demonstrate knowledge in the policies, plans, and procedures regarding hazardous materials response as adopted by the local jurisdiction; and all components of the incident command system and their proper utilization.

(B) Competency. In addition to the competencies of awareness and operations level personnel, a Hazardous Materials Incident Commander must demonstrate competency in such areas as: analyzing an incident via the collection of information and an estimation of potential outcomes; planning appropriate response operations; implementing a planned response; evaluating the progress of a planned response and revising as necessary; terminating an incident; conducting a post-incident critique; and reporting and documenting an incident in a manner consistent with local, state, and federal requirements.

(8) Driver/Operator-Pumper personnel. The following general position description for driver/operator-pumper personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the driver/operator-pumper of a fire department pumper operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for basic structural fire protection personnel: ability to perform specified routine test, inspection, and maintenance functions; ability to perform practical driving exercises; ascertain the expected fire flow; ability to position a fire department pumper to operate at a fire hydrant; ability to produce effective streams; and supply sprinkler and standpipe systems.

(B) Competency. A driver/operator-pumper must demonstrate competency operating a fire department pumper in accordance with the objectives in Chapter 7 of the commission's Certification Curriculum Manual.

(9) Fire Officer I personnel. The following general position description for Fire Officer I personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Officer I operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for basic structural fire protection and Fire Instructor I personnel: the ability to supervise personnel, and assign tasks at emergency operations; the ability to direct personnel during training activities; the ability to recommend action for member-related problems; the ability to coordinate assigned tasks and projects, and deal with inquiries and concerns from members of the community; the ability to implement policies; the ability to perform routine administrative functions, perform preliminary fire investigation, secure an incident scene and preserve evidence; the ability to develop pre-incident plans, supervise emergency operations, and develop and implement action plans; the ability to deploy assigned resources to ensure a safe work environment for personnel, conduct initial accident investigation, and document an incident.

(B) Competency. A Fire Officer I must demonstrate competency in handling emergencies and supervising personnel utilizing skills in accordance with the objectives in Chapter 9 of the commission's Certification Curriculum Manual.

(10) Fire Officer II personnel. The following general position description for Fire Officer II personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Officer II operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications for Fire Officer I and Fire Instructor I personnel: the ability to motivate members for maximum job performance; the ability to evaluate job performance; the ability to deliver life safety and fire prevention education programs; the ability to prepare budget requests, news releases, and policy changes; the ability to conduct pre-incident planning, fire inspections, and fire investigations; the ability to supervise multi-unit emergency operations, identify unsafe work environments or behaviors, review injury, accident, and exposure reports.

(B) Competency. A Fire Officer II must demonstrate competency in supervising personnel and coordinating multi-unit emergency operations utilizing skills in accordance with the objectives in Chapter 9 of the commission's Certification Curriculum Manual.

(11) Fire Officer III personnel. The following general position description for Fire Officer III personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Officer III operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. A Fire Officer III is a midlevel supervisor who performs both supervisory and first-line managerial functions. In addition to the qualifications and competency for Fire Officer II, the Fire Officer III is an individual who has met all the job performance requirements of Fire Officer III as defined in Chapter 6 of NFPA 1021, Standard for Fire Officer Professional Qualifications. Typical duties of an individual at the Fire Officer III level include: establishing procedures for hiring, assignment, and professional development of personnel; developing public service/partnership and programs; preparing budgets and budget management systems; planning for organizational resource management; evaluating inspection and public safety programs and plans; managing multi-agency plans and operations; serving as Incident Commander at expanding emergency incidents for all hazard types; and developing and managing a departmental safety program.

(B) Competency. A Fire Officer III must demonstrate competency doing research; analyzing data and using evaluative techniques; developing proposals; developing, preparing, and implementing various procedures and programs within an organization; managing personnel resources; preparing and managing budgets; utilizing techniques to encourage personnel participation and development; and working in top-level positions within the incident command system.

(12) Fire Officer IV personnel. The following general position description for Fire Officer IV personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Officer IV operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. A Fire Officer IV is an upper level supervisor who performs both supervisory and managerial functions. In addition to the qualifications and competency for Fire Officer III, the Fire Officer IV is an individual who has met all the job performance requirements of Fire Officer IV as defined in Chapter 7 of NFPA 1021, Standard for Fire Officer Professional Qualifications. Typical duties of an individual at the Fire Officer IV level include: administering job performance requirements; evaluating and making improvements to department operations; developing long-range plans and fiscal projections; developing plans for major disasters; serving as Incident Commander at major incidents for all hazard types; and administering comprehensive risk management programs.

(B) Competency. A Fire Officer IV must demonstrate competency in appraising and evaluating departmental programs to ensure adherence to current laws and best practices; developing medium and long-range plans for organizations; and assuming a top-level leadership role in both the organization and community.

(13) Fire Service Instructor I personnel. The following general position description for Fire Service Instructor I personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Service Instructor I operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to successfully completing a commission approved course and achieving a passing score on the certification examination: must have the ability to deliver instructions effectively from a prepared lesson plan; the ability to use instructional aids and evaluation instruments; the ability to adapt to lesson plans to the unique requirements of both student and the jurisdictional authority; the ability to organize the learning environment to its maximum potential; the ability to meet the record-keeping requirements of the jurisdictional authority.

(B) Competency. A Fire Service Instructor I must demonstrate competency in delivering instruction in an environment organized for efficient learning while meeting the record-keeping needs of the authority having jurisdiction, utilizing skills in accordance with the objectives in Chapter 8 of the commission's Certification Curriculum Manual.

(14) Fire Service Instructor II personnel. The following general position description for Fire Service Instructor II personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Service Instructor II operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to successfully completing a commission approved course, achieving a passing score on the certification examination, and meeting the qualifications for Fire Service Instructor I: the ability to develop individual lesson plans for a specific topic, including learning objectives, instructional aids, and evaluation instruments; the ability to schedule training sessions based on the overall training plan of the jurisdictional authority; the ability to supervise and coordinate the activities of other instructors.

(B) Competency. A Fire Service Instructor II must demonstrate competency in developing individual lesson plans; scheduling training sessions; and supervising other instructors, utilizing skills in accordance with the objectives in Chapter 8 of the commission's Certification Curriculum Manual.

(15) Fire Service Instructor III personnel. The following general position description for Fire Service Instructor III personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Service Instructor III operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to successfully completing a commission approved course, achieving a passing score on the certification examination, and meeting the qualifications for Fire Service Instructor II: the ability to develop comprehensive training curricula and programs for use by single or multiple organizations; the ability to conduct organizational needs analysis; and the ability to develop training goals and implementation strategies.

(B) Competency. A Fire Service Instructor III must demonstrate competency in developing comprehensive training curricula and programs; conducting organizational needs analysis; and developing training goals and implementation strategies, utilizing skills in accordance with the objectives in Chapter 8 of the commission's Certification Curriculum Manual.

(16) Incident Safety Officer personnel. The following general position description for Incident Safety Officer personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Incident Safety Officer operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. An Incident Safety Officer is an individual who has met the requirements of Fire Officer Level I specified in NFPA 1021, Standard for Fire Officer Professional Qualifications and Chapter 6 of NFPA 1521, Standard for Fire Department Safety Officer and has the knowledge, skill, and abilities to manage incident scene safety. Typical Incident Safety Officer duties include risk and resource evaluation; hazard identification and communication; action plan reviews; safety briefings; accident investigation; post incident analysis; and participation in safety committee activities.

(B) Competency. An Incident Safety Officer must demonstrate competency in management of incident scene safety through a working knowledge of the various emergency operations as prescribed by the local jurisdiction; an understanding of building construction; fire science and fire behavior; managing an organization's personnel accountability system; and incident scene rehabilitation methodology.

(17) Basic Wildland Fire Protection personnel. The following general position description for Basic Wildland Fire Protection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Basic Wildland Fire Fighter operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. A Basic Wildland Fire Fighter is an individual who has met the requirements of Chapter 5 of NFPA 1051, Standard for Wildland Fire Fighter Professional qualifications, and should demonstrate knowledge in: wildland fire behavior; fireline safety and use; limitations of personal protective equipment; fire shelter use; fire suppression tactics and techniques in wildland settings; and have an understanding of the fire fighter's role within the local incident management system.

(B) Competency. A Basic Wildland Fire Fighter must demonstrate competency in such areas as: maintaining personal protective equipment and assigned fire suppression tools and equipment; the ability to quickly prepare for a response when notified; recognizing hazards and unsafe situations in a wildland fire; securing a fire line; mopping up a fire area; and patrolling a fire area so as to ensure fire control.

(18) Intermediate Wildland Fire Protection personnel. The following general position description for Intermediate Wildland Fire Protection personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Intermediate Wildland Fire Fighter operating in the State of Texas. It is ultimately the responsibility of an employer to define specific job descriptions within each jurisdiction.

(A) Qualifications. In addition to the qualifications and competency for the Basic Wildland Fire Fighter, the Intermediate Wildland Fire Fighter is an individual who has met the requirements of Chapter 6 of NFPA 1051, Standard for Wildland Fire Fighter Professional qualifications, and should demonstrate knowledge in: basic map reading; use of a locating device such as a compass; radio procedures as adopted by the local jurisdiction; and record keeping.

(B) Competency. An Intermediate Wildland Fire Fighter must demonstrate competency in such areas as: the ability to lead a team of fire fighters in the performance of assigned tasks while maintaining the safety of personnel; implementing appropriate fireline construction methods and other techniques for protection of exposed property; operation of water delivery equipment; securing an area of suspected fire origin and associated evidence; and serving as a lookout in a wildland fire.

(19) Plans Examiner personnel. The following general position description for Plans Examiner personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Plans Examiner operating in the State of Texas.

(A) Qualifications. A Plans Examiner is an individual who has met the requirements of Plans Examiner specified in NFPA 1030 (1031) Chapter 8, Standard for Professional Qualifications for Fire Prevention Program Positions.

(B) Competency. A Plans Examiner analyzes building construction, hazardous processes, and architectural drawings or plans to ensure compliance with building and fire codes. This individual is also charged with reviewing plans for new construction as well as modifications to existing structures to ensure that applicable fire and life safety codes are followed.

(20) Fire and Life Safety Educator I personnel. The following general position description for Fire and Life Safety Educator I personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire and Life Safety Educator I, operating in the State of Texas.

(A) Qualifications. A Fire and Life Safety Educator I is an individual who has met the requirements of Fire and Life Safety Educator I specified in NFPA 1030 (1035) Chapter 9, Standard for Professional Qualifications for Fire Prevention Program Positions.

(B) Competency. A Fire and Life Safety Educator I must demonstrate competency in the ability to coordinate and deliver existing educational programs and information designed to reduce risks within the community.

(21) Fire and Life Safety Educator II personnel. The following general position description for Fire and Life Safety Educator II personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire and Life Safety Educator II operating in the State of Texas.

(A) Qualifications. A Fire and Life Safety Educator II is an individual who has met the requirements of Fire and Life Safety Educator II specified in NFPA 1030 (1035) Chapter 10, Standard for Professional Qualifications for Fire Prevention Program Positions.

(B) Competency. A Fire and Life Safety Educator II must demonstrate competency in the ability to prepare educational programs and information to meet identified needs to reduce risks within the community.

(22) Fire Marshal personnel. The following general position description for Fire Marshal personnel serves as a guide for anyone interested in understanding the qualifications, competencies, and tasks required of the Fire Marshal operating in the State of Texas.

(A) Qualifications. A Fire Marshal is an individual who has met the requirements of Fire Marshal specified in NFPA 1030 (1037) Chapter 4 & 5, Standard for Professional Qualifications for Fire Prevention Program Positions.

(B) Competency. A person designated to provide delivery, management, or administration of fire-protection- and life-safety-related codes and standards, investigations, community risk reduction, education, or prevention services for local, county, state, provincial, federal, tribal, or private sector jurisdictions as adopted or determined by that entity.

§421.17.Requirement to Maintain Certification.

(a) All full-time or part-time employees of a fire department or local government assigned duties identified as fire protection personnel duties must maintain certification by the commission in the discipline(s) to which they are assigned for the duration of their assignment.

(b) In order to maintain the certification required by this section, the certificate(s) of the employees must be renewed annually by complying with §437.5 of this title (relating to Renewal Fees) and Chapter 441 of this title (relating to Continuing Education) of the commission standards manual.

(c) Except for subsection (d) of this section, or upon determination by the Agency Chief when special circumstances are presented, an individual whose certificate has been expired for greater than one year but no longer than five years, may renew their certification once they comply with the CE requirements for the period of time their certification was inactive, as outlines in 37 TAC, Chapter 441, Continuing Education, and they pay all applicable certification renewal fees for the period of time that their certification was inactive, as required in 37 TAC, Chapter 437, Fees [~~or longer may not renew the certificate previously held~~]. Individuals whose certification has been expired longer than five years, may not renew the certificate previously held. To obtain a new certification, an individual must meet the requirements in Chapter 439 of this title (relating to Examinations for Certification).

(d) A military service member whose certificate has been expired for three years or longer may not renew the certificate previously held. To obtain a new certification, the person must meet the requirements in Chapter 439 of this title. In order to qualify for this provision, the individual must have been a military service member at the time the certificate expired and continued in that status for the duration of the three-year period.

(e) The commission will provide proof of current certification to individuals whose certification has been renewed.

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 November 16, 2023.

TRD-202304303

Mike Wisko

Agency Chief

Texas Commission on Fire Protection

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 936-3841

CHAPTER 467. FIRE MARSHAL

SUBCHAPTER A. MINIMUM STANDARDS FOR BASIC FIRE MARSHAL CERTIFICATION

37 TAC §467.3, §467.5

The Texas Commission on Fire Protection (commission) proposes amendments to 37 Texas Administrative Code Chapter 467, Fire Marshal, §467.3, Minimum Standards for Basic Fire Marshal Certification, and §467.5, Examination Requirement.

BACKGROUND AND PURPOSE

The proposed amendments are initiated because of a change in the examination requirements for Basic Fire Marshal as reflected in the proposed §467.5. Proposed changes in §467.3 correct grammatical errors.

FISCAL NOTE IMPACT ON STATE AND LOCAL GOVERNMENT

Michael Wisko, Agency Chief, has determined that for each year of the first five-year period, the proposed amendments are in effect, there will be no significant fiscal impact to state government or local governments as a result of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4).

PUBLIC BENEFIT AND COST NOTE

Mr. Wisko has also determined under Texas Government Code §2001.024(a)(5) that for each year of the first five years the amendments are in effect the public benefit will be accurate, clear, and concise rules.

LOCAL ECONOMY IMPACT STATEMENT

There is no anticipated effect on the local economy for the first five years that the proposed amendments are is in effect; therefore, no local employment impact statement is required under Texas Government Code §2001.022 and 2001.024(a)(6).

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2006.0221 that during the first five years the amendments are in effect:

(1) the rules will not create or eliminate a government program;

(2) the rules will not create or eliminate any existing employee positions;

(3) the rules will not require an increase or decrease in future legislative appropriation;

(4) the rules will not result in a decrease in fees paid to the agency;

(5) the rules will not create a new regulation;

(6) the rules will not expand a regulation;

(7) the rules will not increase the number of individuals subject to the rule; and

(8) the rules are not anticipated to have an adverse impact on the state's economy.

TAKINGS IMPACT ASSESSMENT

COSTS TO REGULATED PERSONS

The proposed amendments do not impose a cost on regulated persons, including another state agency, a special district, or a local government, and, therefore, is not subject to Texas Government Code §2001.0045.

ENVIRONMENTAL IMPACT STATEMENT

REQUEST FOR PUBLIC COMMENT

STATUTORY AUTHORITY

The amended rule is proposed under Texas Government Code §419.008, which authorizes the commission to adopt or amend rules to perform the duties assigned to the commission. The rule is also proposed under Texas Government Code §419.032, which authorizes the commission to adopt rules establishing the requirements for certification; and §419.036, which authorizes the commission to adopt rules establishing the requirements for certification.

CROSS-REFERENCE TO STATUTE

No other statutes, articles, or codes are affected by these amendments.

§467.3.Minimum Standards for Basic Fire Marshal Certification.

In order to be certified as a Basic Fire Marshal, an individual must:

(1) hold Basic Fire Inspector certification through the Commission [~~commission~~]; and

(2) hold Basic Fire Investigator or Basic Arson Investigator certification through the Commission [~~commission~~]; and

(3) hold Fire and Life Safety Educator I certification through the Commission [~~commission~~]; and

(4) complete a Commission-approved [~~commission-approved~~ ] Fire Marshal program and successfully pass the Commission [~~commission~~] examination as specified in Chapter 439 of this title (relating to Examinations for Certification); and An approved Fire Marshal program must consist of the following:

(5) [~~An approved Fire Marshal program must consist of the~~] completion of a Commission-approved [~~commission-approved~~ ] Fire Marshal Curriculum as specified in Chapter 15 of the Commission's [~~commission’s~~] Certification Curriculum Manual.

§467.5.Examination Requirements [~~Requirement~~].

(a) Examination requirements in Chapter 439 of this title (relating to Examinations for Certification) must be met to receive Basic Fire Marshal certification.

(b) Individuals will be permitted to take the Commission examination for Basic Fire Marshal certification by documenting the following:

(1) Basic Inspector certification through the Commission [~~and Basic Fire Investigator~~]; and

(2) Basic Fire Investigator or Basic Arson Investigator certification through the Commission; and

(3) Fire and Life Safety Educator I certification through the Commission; or

(4) the equivalent IFSAC seals and completing a Commission-approved Basic Fire Marshal curriculum.

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 November 17, 2023.

TRD-202304310

Mike Wisko

Agency Chief

Texas Commission on Fire Protection

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 936-3841

PART 15. TEXAS FORENSIC SCIENCE COMMISSION

CHAPTER 651. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

The Texas Forensic Science Commission (Commission) proposes rulemaking to 37 Texas Administrative Code Chapter 651 DNA, CODIS, Forensic Analysis, and Crime Laboratories, Subchapter A, Accreditation, amendments to §§651.3, 651.8 and 651.11; Subchapter B, Accreditation-Related Actions, amendments to §§651.101 - 651.104; new §651.105; and the repeal of Subchapter B, Accreditation-Related Actions and Procedure for Hearing Appeal, §651.105 and §651.106, Subchapter C, Forensic Analyst Licensing Program, repeal of §651.216; Subchapter D, Procedure for Processing Complaints and Laboratory Self-Disclosures, amendments to §§651.305 - 651.308, the repeal of §651.309 and proposes new Subchapter E, Appeals, §651.402. Some changes are responsive to the 88th Texas Legislature's passage of SB 991 and HB 3474, which clarify the Commission's existing appeals process to allow a crime laboratory to appeal to the Judicial Branch Certification Commission any determination that the laboratory has committed professional negligence or professional misconduct, or otherwise violated a rule or order of the Commission.

Background and Justification. Under the revised rules, both forensic analyst licensees and crime laboratories subject to the Commission's jurisdiction may appeal disciplinary actions, findings of professional negligence or professional misconduct or violations of the code of professional responsibility, or other rules or orders of the Commission to the Judicial Branch Certification Commission. Before the passage of SB 991 and HB 3474, the Code of Criminal Procedure only provided an appeals process for forensic analyst licensing disciplinary actions. The Commission also makes other non-substantive edits to its accreditation rules that provide clarity to the Commission's process for initiating accreditation-related actions and that correspond with the changes to its appeals process, including clarification that the Commission may suspend the accreditation of a crime laboratory. The rulemaking also provides that in investigations in which an investigative panel are deemed unnecessary, the Commission must instruct staff to conduct the investigation, a practice already in place by the Commission but clarified in the rule proposal. The rulemaking further clarifies the Commission's General Counsel may make recommendations to the Commission on the dismissal of certain complaints that fall outside of the Commission's jurisdiction. Finally, the rulemaking replaces the former process for stipulated agreements of appeals with a similar process for disposition by agreement. These amendments are necessary to reflect adoptions made by the Commission at its July 21, 2023, quarterly meeting at which the Commission voted to incorporate changes to its administrative rules responsive to the legislative changes.

Fiscal Note. Leigh M. Tomlin, Associate General Counsel of the Commission, has determined that for each year of the first five years the proposal is in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. There is no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the proposed rulemaking. The rules effectuate revisions to the Commission's appeals process responsive to legislative changes applicable to the Commission's enabling act, Code of Criminal Procedure, Article 38.01.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the rules do not impose any direct costs or fees on municipalities in rural communities.

Public Benefit/Cost Note. Ms. Tomlin has also determined that for each year of the first five years the proposal is in effect, the anticipated public benefit is a uniform and clear appeals process for crime laboratories and forensic analyst licensees subject to the Commission's jurisdiction. There is no economic cost to persons required to comply with the rules in response to the changes proposed by the rulemaking.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code § 2006.002(c) and (f), Ms. Tomlin has determined that the proposal will not have an adverse economic effect on any small or micro-business because there are no anticipated economic costs to any person or crime laboratory. The revised rules provide a process for crime laboratories to appeal determinations of professional negligence or misconduct, violations of the code of professional responsibility or other rules or orders issued by the Commission to the Judicial Branch Certification Commission.

The Takings Impact Assessment. Ms. Tomlin has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Government Growth Impact Statement. Ms. Tomlin has determined that for the first five-year period, implementation of the proposal will have no government growth impact. Pursuant to the analysis required by Government Code 2001.0221(b), 1) the proposed rules do not create or eliminate a government program; 2) implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions; 3) implementation of the proposed rules does not increase or decrease future legislative appropriations to the agency; 4) the proposed rules do not require a fee; 5) the proposed rules do not create a new regulation; 6) the proposed rules do not expand, limit, or repeal an existing regulation; 7) the proposed rules do not increase or decrease the number of individuals subject to the rule's applicability; and 8) the proposed rules have no effect on the state's economy.

Environmental Rule Analysis. The Commission has determined that the proposed rules are not brought with specific intent to protect the environment or reduce risks to human health from environmental exposure; thus, the Commission asserts that the proposed rules are not a "major environmental rule," as defined in Government Code §2001.0225. As a result, the Commission asserts the preparation of an environmental impact analysis, as provided by §2001.0225, is not required.

Request for Public Comment. The Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Tomlin, 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by January 5, 2023, to be considered by the Commission.

SUBCHAPTER A. ACCREDITATION

37 TAC §§651.3, 651.8, 651.11

Statutory Authority. The rules are proposed under the Commission's general rulemaking authority provided in Code of Criminal Procedure, Article 38.01 § 3-a and its authority to investigate and regulate crime laboratories and forensic analysts under Article 38.01 §§ 4, 4-a, and 4-d. It also conforms to changes made by SB 991 and HB 3474.

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.3.Recognition Process.

The Commission must [~~shall~~] recognize an accrediting body under this section if the Commission determines that the accrediting body:

(1) issues an accreditation that is accepted throughout the relevant scientific community and appropriate or available to a crime laboratory or other entity that conducts forensic analyses of physical evidence for use in criminal proceedings;

(2) has established adequate accreditation criteria reasonably likely to facilitate [~~ensure~~] trustworthy forensic analysis;

(3) requires a periodic competency audit or review of the personnel, facilities, and procedures employed by a crime laboratory or other entity to conduct a forensic analysis; and

(4) withholds, grants, or withdraws its accreditation of a crime laboratory or other entity based on its own determination of a reasonable likelihood of meaningful corrective action for each deficiency noted during the periodic audit or review.

§651.8.Full Commission Accreditation.

(a) Issuance and renewal. The Commission may issue or renew accreditation under this section.

(b) Application. An applicant for full Commission accreditation must [~~shall~~] complete and submit to the Commission a current Laboratory Accreditation Form and attach copies of the following:

(1) an accreditation certificate and letter of notification of accreditation from a recognized accrediting body; and

(2) each document provided by the recognized accrediting body that identifies the discipline or category of analysis for which the laboratory has received accreditation and any limitation or restriction regarding that accreditation.

(c) Additional information. The Commission may require additional information to properly evaluate the application either as part of the original application or as supplemental information.

(d) Reports to the Commission:[;]

(1) If accredited by ANAB, a laboratory must [~~shall~~] provide the Commission with a copy of each accreditation assessment report, including but not limited to any on-site surveillance assessment report, off-site surveillance assessment report, scope extension assessment report, Federal Bureau of Investigation Quality Assurance Standards Audit for Forensic DNA Testing Laboratories report, ABFT Checklist report, as well as any management system's internal or external audit report,or any other reports required pursuant to compliance with accreditation by the laboratory within 5 days of completion or receipt of the report [~~Annual Accreditation Review Report~~]. If accredited by A2LA[~~another recognized accrediting body~~], a laboratory must [~~shall~~] provide the Commission with a copy of each equivalent report within 5 days of completion or receipt of the report[~~annual accreditation assessment~~].

(2) A laboratory must [~~shall~~] provide the Commission with a copy of all substantive communications [~~correspondence and each report or communication~~] between the laboratory and the recognized accrediting body. The laboratory must [~~shall~~] submit the copy to the Commission no later than 10 [30] days after the date the laboratory receives or transmits the correspondence, report, or communication.

(3) A laboratory that either voluntarily makes a decision to discontinue accreditation or is informed by its accrediting body of the accrediting body's decision to discontinue its accreditation in[~~discontinues~~] a specific forensic discipline or category of analysis[:]

[~~(A)~~] [~~if known beforehand,~~] must [~~should~~] submit written notification to the Commission no later than [~~at least 30 days before the effective date of the discontinuation; or~~]

[~~(B)~~] 5 business days after [~~if unknown beforehand, shall submit written notification to the Commission at least~~] the effective date of the discontinuation.

(e) Federal forensic laboratories. A federal forensic laboratory is deemed to be accredited by the Commission without application provided that the laboratory is accredited by a recognized accrediting body as provided under §651.4 of this subchapter (relating to List of Recognized Accrediting Bodies). A laboratory deemed accredited is not subject to the reporting requirements of this subchapter or the processes provided under Subchapter B of this chapter (relating to Complaints, Special Review, and Administrative Action).

§651.11.Automatic Withdrawal or Suspension of Commission Accreditation.

The Commission must [~~shall~~] automatically withdraw, suspend, or designate as inactive:

(1) the full Commission accreditation for a laboratory, discipline, or subdiscipline at the date and time that the recognized accrediting body withdraws, suspends, or designates as inactive the [~~its relevant~~] laboratory, discipline, or subdiscipline accreditation; or

(2) the provisional Commission accreditation for a laboratory, discipline, or subdiscipline at the date and time that the recognized accrediting body notifies the Commission that the laboratory has withdrawn its application for the relevant laboratory, discipline, or subdiscipline accreditation.

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 November 13, 2023.

TRD-202304213

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

SUBCHAPTER B. ACCREDITATION-RELATED ACTIONS [~~AND PROCEDURE FOR HEARING AND APPEAL~~]

37 TAC §§651.101 - 651.105

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.101.[~~Complaint~~] Process for Initiating Accreditation-Related Actions.

(a) [~~Question or complaint.~~] If the Commission learns of a fact or circumstance from a laboratory's recognized accrediting body, or receives a third-party complaint regarding the reliability of a laboratory, or the validity of a procedure, examination, or test conducted by the laboratory since the date of application for Commission accreditation, the Commission may take any of the following actions:

(1) coordinate with the laboratory's recognized accrediting body regarding information needed to address the issue(s) and any additional steps to facilitate resolution of the issue(s); [~~if a complaint has been filed, communicate further with the complainant to assess if further action is merited;~~]

(2) refer the matter to the laboratory's director for evaluation, audit, correction, or other appropriate action;

(3) initiate an audit under §651.102 of this title (relating to [~~Commission~~] Audit);

(4) issue a letter to the laboratory:

(A) requesting an immediate response and explanation of the matter;

(B) requiring the laboratory permit or arrange for an immediate inspection or audit of the matter; or

(5) notify [~~or refer the matter to~~] a law enforcement agency or prosecutor with jurisdiction [~~and recommend appropriate criminal action~~]; and

~~[(6) refer the matter to a district judge and recommend appropriate action to convene a court of inquiry under Code of Criminal Procedure, Chapter 52; and]~~

(6) [~~(7)~~] any other actions deemed appropriate by the Commission.

[(b) Source and scope. A question or complaint may be raised by any source, including an individual, entity, or audit or an investigation by the Commission pursuant to §651.301(a)(3) or (b) of this chapter. The scope of any action taken or proposed by the Commission under this section shall be determined by the Commission, based on the nature of the question or complaint.]

(b) [~~(c)~~] Records. The Commission may maintain a public record of a laboratory's accreditation or approval status.

(1) The Commission may maintain in [on] the public record a notation of an action taken under this subchapter, including a question, complaint or audit.

(2) A question, complaint, or audit is public information when in the possession of the Commission, except as provided by the Code of Criminal Procedure Article 38.01 §10 or other applicable law.

§651.102.[~~Commission~~] Audit of Quality Assurance Matters.

(a) The Commission may, at any reasonable time, enter the premises or audit the records, reports, procedures, or other quality assurance matters of a crime laboratory that is accredited or seeking accreditation under this chapter.

(b) [~~(a)~~] If the Commission determines there is reasonable cause to believe a laboratory has failed to maintain quality assurance standards as [~~provided under the laboratory's specific policy~~] required by its recognized accrediting body [~~or the FBI DNA Quality Assurance Audit Document~~], or has otherwise engaged in acts or omissions [~~conduct~~] raising questions about the reliability or validity of the forensic analysis performed in the laboratory, or has violated any rule in this chapter, the Commission may take appropriate action, including one or more of the following:

(1) direct the laboratory to conduct an internal audit and implement appropriate corrective action;

(2) order the laboratory to obtain, at its own expense, an [~~a special~~] external audit by a a subject matter expert [~~an auditor~~] approved by the Commission and the laboratory's recognized accrediting body and provide the expert's [~~that~~] report to the Commission within a reasonable time frame determined by the Commission;

~~[(3) notify the laboratory that further forensic analysis is not approved by Commission;]~~

(3) [~~(4)~~] initiate an evaluation of continued accreditation [~~under Subchapter A of this chapter (relating to Accreditation)~~]; or

(4) [~~(5)~~] any other actions deemed appropriate by the Commission.

(c) [~~(b)~~] An audit under this subchapter must [~~shall~~] comply with minimum standards for audits or inspections as established by the Commission.

[(c) The Commission may at any reasonable time enter the premises or audit the records, reports, procedures, or other quality assurance matters of a crime laboratory that is accredited or seeking accreditation under this chapter.]

(d) A laboratory, facility, or entity that must be accredited under Code of Criminal Procedure, Article 38.01 §4-d must [~~shall~~], as part of the accreditation process, agree to consent to any request for cooperation by the Commission that is made as part of the exercise of the Commission's duties under this subchapter.

(e) The Commission may require a laboratory, facility, or entity required to be accredited under Code of Criminal Procedure, Article 38.01 §4-d to pay any costs incurred for accrediting, inspecting, or auditing to ensure compliance with the accreditation process.

§651.103.Corrective Action Plan.

(a) If a laboratory is subject to an [~~a Commission~~] audit that resulted in a determination that corrective action is needed [~~an adverse finding by the Commission~~], the laboratory shall propose a corrective action plan and submit the plan to the Commission within 30 days from the date [~~that~~] the laboratory receives the subject matter expert's report[~~audit~~]. [~~If the laboratory has been notified that further forensic analysis is suspended, the plan should identify the date that the laboratory intends to reinstate approved forensic analysis.~~]

(b) A proposed corrective action plan under this section must fully address each adverse finding and identify appropriate corrective action.

(1) approve the corrective action plan; or

(2) decline to approve the corrective plan and identify necessary revisions to the plan.

(d) The Commission must [~~shall~~] notify the laboratory in writing of approval or disapproval of the audit response. If not approved, the Commission must [~~shall~~ ] notify the laboratory of required corrective action, and the laboratory must [~~shall~~] implement the corrective action in a timely manner specified in the notification, except as provided by subsection (e) of this section.

(e) A laboratory must [~~shall~~] implement and complete an approved corrective action plan described in subsection (d) of this section, unless the laboratory demonstrates good cause for extension to the Commission before the due date for completion.

§651.104.Withdrawal or Suspension of Commission Accreditation for Statute or Rule Violation.

(a) Withdrawal or Suspension for Violation. The Commission by a majority vote of a quorum of Commission members may withdraw or suspend accreditation of [~~for~~] a laboratory, discipline, or subdiscipline if the laboratory:

(1) violates article 38.01 of the Code of Criminal Procedure;

(2) fails to respond meaningfully within five business days to a letter issued by the Commission under this subchapter;

(3) fails to timely submit to an audit or other internal or external review required under this subchapter; [or]

(4) fails to allow or substantially interferes with an inspection or audit conducted under this subchapter; or

(5) violates the code of professional responsibility set forth in subchapter C, §651.219.

(b) Withdrawal or Suspension Pursuant to a Finding or Recommendation from an Audit or Commission Investigation. The Commission by a majority vote of a quorum of Commission members, may withdraw or suspend the accreditation for a laboratory, discipline, or subdiscipline if the Commission determines the integrity, reliability, or validity of the laboratory, discipline, or forensic analysis can no longer be ensured pursuant to a finding or recommendation that resulted from:

(1) an audit by a subject matter expert conducted under §651.102 of this subchapter (relating to [~~Commission~~] Audit of Quality Assurance Matters); or

(2) any other [an] investigation by the Commission pursuant to this chapter or the Code of Criminal Procedure, Article 38.01 §4.

§651.105.Reinstatement of Commission Accreditation.

(a) An accredited laboratory that has had Commission accreditation withdrawn, suspended, or designated as inactive automatically under §651.11 of this title based on the actions of the laboratory's recognized accrediting body (relating to Automatic Withdrawal or Suspension of Commission Accreditation) may have its accreditation reinstated by the Commission, if the laboratory shows that it presently meets or exceeds the quality assurance standards required by the laboratory's recognized accrediting body.

(b) An accredited laboratory that has had Commission accreditation withdrawn or suspended under §651.104 of this title (relating to Withdrawal or Suspension of Commission Accreditation) may have its accreditation reinstated by the Commission. If the laboratory:

(1) shows that it presently meets or exceeds the quality assurance standards required by the laboratory's recognized accrediting body;

(2) demonstrates resolution or pending resolution of all non-conformities or other issues identified by the Commission; and

(3) the Commission or its Designee determines that issues identified with respect to the integrity, reliability, or validity of the forensic analysis, discipline, or subdiscipline for which accreditation was withdrawn or suspended were resolved by the laboratory to the extent possible.

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 November 13, 2023.

TRD-202304215

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

SUBCHAPTER B. ACCREDITATION-RELATED ACTIONS AND PROCEDURE FOR HEARING AND APPEAL

37 TAC §651.105, §651.106

Statutory Authority. The repeals are proposed under the Commission’s general rulemaking authority provided in Code of Criminal Procedure, Article 38.01 § 3-a and its authority to investigate and regulate crime laboratories and forensic analysts under Article 38.01 §§ 4, 4-a, and 4-d. It also conforms to changes made by SB 991 and HB 3474.

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.105.Procedure for Hearing on and Appeal of an Adverse Final Accreditation Decision or Final Accreditation Action by the Commission.

§651.106.Reinstatement of Commission Accreditation.

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 November 13, 2023.

TRD-202304214

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §651.216

Statutory Authority. The rule is proposed under the Commission's general rulemaking authority provided in Code of Criminal Procedure, Article 38.01 § 3-a and its authority to investigate and regulate crime laboratories and forensic analysts under Article 38.01 §§ 4, 4-a, and 4-d. It also conforms to changes made by SB 991 and HB 3474.

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.216.Disciplinary Action.

~~[(a) The Commission may take disciplinary action against a license holder or applicant for a license under certain limited circumstances as set forth in Article 38.01, Code of Criminal Procedure.]~~

(a) [~~(b)~~] Professional Misconduct Finding. On a determination by the Commission that a license holder or applicant for a license has committed professional misconduct in accordance with the definition provided in §651.202 of this subchapter (relating to Definitions) and under Article 38.01, Code of Criminal Procedure or violated Article 38.01, Code of Criminal Procedure, or a rule or order of the Commission, the Commission may:

(1) revoke or suspend the person's license;

(2) refuse to renew the person's license;

(3) reprimand the license holder; or

(4) deny the person a license.

(b) [~~(c)~~] Probation. The Commission may place on probation a person whose license is suspended. If a license suspension is probated, the Commission may require the license holder to:

(1) report regularly to the Commission on matters that are the basis of the probation; or

(2) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the Commission in those areas that are the basis of the probation.

(1) In determining the appropriate disciplinary action against a license holder or in assessing whether a prospective applicant must [~~shall~~] be granted a license, the Commission may consider the following factors:

(A) the seriousness of the violation;

~~[(B) the prevalence of misconduct by the individual;]~~

(B) [~~(C)~~] the individual's disciplinary [~~conduct~~] history[~~, including any investigative history by the Commission~~];

(D) [~~(E)~~] attempted concealment of the act by the individual;

(E) [~~(F)~~] any other relevant factors.

(2) The Commission considers the following factors in determining whether a less severe or less restrictive disciplinary action is warranted:

(A) candor in addressing the violation, including self-reported and voluntary admissions of the misconduct or violation;

(B) acknowledgement of wrongdoing and willingness to cooperate with the Commission;

(D) rehabilitative potential;

(E) other relevant circumstances reducing the seriousness of the misconduct; or

(F) other relevant circumstances lessening responsibility for the misconduct.

(3) The license holder or license applicant will [~~shall~~] have the burden to present evidence regarding any mitigating factors that may apply.

(4) This rule will [~~shall~~] not be construed to deny any licensee or applicant subject to disciplinary action by the Commission the right to introduce mitigating evidence in a hearing before the Judicial Branch Certification Commission. This rule also will [~~shall~~] not be construed to deny the Texas Forensic Science Commission the right to introduce any evidence supporting any of the factors described above in a hearing before the Judicial Branch Certification Commission.

(d) A license holder has a right to notice and appeal to the Judicial Branch Certification Commission as described in Subchapter E of this chapter.

[(e) Disciplinary Proceedings by the Judicial Branch Certification Commission. The Commission shall give written notice by certified mail of a determination described by subsection (a) of this section to a license holder who is the subject of the determination. The notice must:]

~~[(1) include a brief summary of the alleged misconduct or violation;]~~

~~[(2) state the disciplinary action taken by the Commission; and]~~

[(3) inform the license holder of the license holder's right to a hearing before the Judicial Branch Certification Commission on the occurrence of the misconduct or violation, the imposition of the disciplinary action, or both.]

[(f) Hearing Request. Not later than the 20th day after the date the license holder receives the notice under subsection (d) of this section, the license holder may request a hearing by submitting a written request to the Judicial Branch Certification Commission. If the license holder fails to timely submit a request, the Commission's disciplinary action becomes final and is not subject to review by the Judicial Branch Certification Commission.]

[(g) Judicial Branch Certification Commission Hearing. If the license holder requests a hearing, the Judicial Branch Certification Commission shall conduct a hearing to determine whether there is substantial evidence to support the determination under subsection (a) of this section that the license holder committed professional misconduct or violated this subchapter or a Commission rule or order under this subchapter. If the Judicial Branch Certification Commission upholds the determination, the Judicial Branch Certification Commission shall determine the type of disciplinary action to be taken. The Judicial Branch Certification Commission shall conduct the hearing in accordance with the procedures provided by Subchapter B, Chapter 153, Government Code, as applicable, and the rules of the Judicial Branch Certification Commission.]

~~[(h) License Status.]~~

[(1) If a license holder makes timely and sufficient application for the renewal of a license, the existing license does not expire until the application has been finally determined by the Commission. If the application is denied or the terms of the new license are limited, the existing license does not expire until the last day for seeking review of a Commission decision or a later date fixed by order of the Judicial Branch Certification Commission or Administrative Regional Presiding Judges.]

~~[(2) A revocation, suspension, annulment, or withdrawal of a license is not effective unless, before institution of Commission proceedings:]~~

~~[(A) the Commission gives notice by personal service or by registered or certified mail to the license holder of facts or conduct alleged to warrant the intended action; and]~~

~~[(B) the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license.]~~

[(3) A Forensic Analyst License remains valid unless it expires without timely application for renewal, is amended, revoked, suspended, annulled or withdrawn, or the denial of a renewal application becomes final. The term or duration of a license is tolled during the period the license is subjected to review by the Judicial Branch Certification Commission or Administrative Regional Presiding Judges. However, the term or duration of a license is not tolled if, during review by the Judicial Branch Certification Commission or Administrative Regional Presiding Judges, the licensee engages in the activity for which the license was issued.]

~~[(i) Interpreters for Deaf or Hearing Impaired Parties and Witnesses.]~~

[(1) In an appeal of a disciplinary action by the Commission, the Commission shall provide an interpreter whose qualifications are approved by the Texas Department of Assistive and Rehabilitative Services to interpret the proceedings for a party or subpoenaed witness who is deaf or hearing impaired.]

[(2) In this section, "deaf or hearing impaired" means having a hearing impairment, whether or not accompanied by a speech impairment, that inhibits comprehension of the proceedings or communication with others.]

~~[(j) Informal Disposition of Disciplinary Action Appeals. Unless precluded by law, an informal disposition may be made of an appeal of a disciplinary action by the Commission by:]~~

~~[(1) stipulation;]~~

~~[(2) agreed settlement;]~~

~~[(3) consent order; or]~~

~~[(4) default.]~~

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 November 13, 2023.

TRD-202304216

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

SUBCHAPTER D. PROCEDURE FOR PROCESSING COMPLAINTS AND LABORATORY SELF-DISCLOSURES

37 TAC §§651.305 - 651.308

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.305.Complaint and Self-disclosure Screening.

(a) Complaints and self-disclosures will [~~shall~~] be considered initially through the CSC [~~CDSC~~ ]. The chair of the CSC [~~CDSC~~] must [~~shall~~] present the complaints and disclosures before the Commission with a recommendation for disposition. The CSC [~~CDSC~~] may recommend the following dispositions:

(1) dismiss the complaint or disclosure;

(2) accept the complaint or disclosure [~~and submit for action by an Investigation Panel~~];

(3) recommend the Commission use its discretion to review the matter for educational purposes;

(4) recommend no further action by the laboratory is necessary at this time; or

(5) take such other action as appropriate.

(b) The CSC [~~CDSC~~] may assign staff to collect preliminary information related to a complaint or self-disclosure, including research into the status of any underlying criminal or civil case and whether the complaint or self-disclosure addresses a forensic analysis subject to investigation by the Commission.

(c) An actor named in a complaint or self-disclosure and the involved accredited laboratory, facility or entity may be given an opportunity but is not required to provide a written reply, offering any reasons for or against accepting the complaint or disclosure for investigation.

(d) The following factors may be considered when a complaint or self-disclosure is screened by the CSC [~~CDSC~~ ] and considered by the Commission:

(1) whether the Commission has investigative jurisdiction;

~~[(2) the availability of the person who was the defendant in the criminal action associated with the forensic evidence;]~~

(2) [~~(3)~~] the availability of any actor who conducted any part of the forensic analysis;

(3) [~~(4)~~] the length of time between the forensic analysis and the complaint or disclosure;

(4) [~~(5)~~] the availability of records in connection with the forensic analysis and any associated litigation;

(5) [~~(6)~~] the status of any criminal case or civil litigation associated with the forensic analysis;

(6) [~~(7)~~] the potential for additional relevant forensic analysis;

(7) [~~(8)~~] any other factor that would enhance or detract from a complete and accurate investigation of the forensic analysis and any alleged negligence or misconduct;

(8) [~~(9)~~] the availability of funds to complete an investigation; and

(9) [~~(10)~~] the opportunity for the investigation and report to educate the forensic science community, advance the standards and training associated with such a forensic analysis or identify legislative recommendations for strengthening a field of forensic science.

(e) Upon reaching a recommended initial disposition for a complaint or self-disclosure, the CSC [~~CDSC~~] shall provide a summary of the recommendation to the Commission's presiding officer for presentation to a quorum of Commissioners.

(f) Following action by the Commission [~~a quorum of Commissioners~~] regarding the disposition of any complaint or self-disclosure, the Commission must [~~shall~~] notify the complainant, actor involved in the forensic analysis and the laboratory, facility, or entity of the disposition.

(g) To ensure thorough consideration of all complaints and self-disclosures, complainants and laboratories submitting self-disclosures should make such submissions at least fifteen (15) business days before a particular quarterly Commission meeting to have the complaint or self-disclosure considered at that meeting. The Commission reserves the right to consider any complaint or disclosure that does not meet the 15-day deadline at the next quarterly meeting.

(h) A Commission member may, by formal motion, request that the full Commission reconsider a dismissed complaint or disclosure if the member identifies new evidence of professional negligence or professional misconduct that was not previously considered by the Commission. The new evidence may be derived from either:

(1) information in the existing record that the complainant believes was not considered by the Commission previously; or

(2) new information brought to the Commission's attention that was not previously considered by the Commission.

(i) A motion described under subsection (h) of this section may be made only if the Commissioner believes in good faith that the information will have a material impact on the Commission's analysis of the complaint or disclosure pursuant to its screening criteria.

(j) After considering the member's motion, the Commission must [~~shall~~] vote to:

(1) affirm the original decision to dismiss the complaint or self-disclosure; or

(2) re-open the complaint or disclosure.

(k) The Commission must [~~shall~~] notify the complainant and the appropriate laboratory, facility or entity in writing of the results of the Commission's vote under subsection (h) of this section.

(l) The Commission must [~~shall~~] conduct an appropriate investigation of a complaint or disclosure reopened under subsection (j)(2) of this section.

§651.306.Dismissal for Lack of Jurisdiction.

(a) Autopsy-related complaints. The Commission's General Counsel may make a recommendation that the Commission dismiss complaints related to the portion of an autopsy conducted by a medical examiner or licensed physician as falling outside the Commission's statutory jurisdiction [~~without bringing the complaint before the Complaint Screening Committee or a quorum of Commissioners for consideration~~].

(b) DNA mixture complaints. The General Counsel may recommend that the Commission refer complaints and requests involving DNA mixtures to the statewide DNA Mixture Triage Team or other responsible entity [~~without bringing the complaints and requests before the Complaint Screening Committee or a quorum of Commissioners for consideration~~ ]. The General Counsel must [~~shall~~] provide the total number of complaints and inquiries referred to the statewide DNA Mixture Triage Team to the Commission at each quarterly meeting during which such referrals are made.

(c) Non-forensic analysis complaints. The General Counsel may recommend that the Commission dismiss the following categories of complaints [~~without bringing the complaints before the Complaint Screening Committee or a quorum of Commissioners for consideration~~]:

(1) those the General Counsel does not consider to include 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;

(2) those the General Counsel believes constitute a presumptive test performed for the purpose of determining compliance with a term or condition of community supervision or parole and conducted by or under contract with a community supervision and corrections department, the parole division of the Texas Department of Criminal Justice, or the Board of Pardons and Paroles; or

(3) those the General Counsel believes constitute 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 the evidence to a criminal action.

(d) Right to re-open. Any Commission member has a right to reopen cases dismissed pursuant to subsections (a) - (c) of this section. Commission staff must present a summary [~~maintain a list~~] of complaints dismissed under this subsection to the Commission for approval by a majority of a quorum of commissioners at each quarterly meeting [~~a quorum of commissioners~~].

§651.307.Investigative Panels.

(a) Panel procedure. After the Commission votes [~~a quorum of Commissioners vote~~] to conduct an investigation, for complex investigations, the Commission's presiding officer may [~~shall~~] nominate at least three members of the Commission to an Investigation Panel ("Panel") subject to the approval of a majority of a quorum of Commissioners. [~~, and the Investigation Panel shall elect one of the members as chair of the Panel~~].

(b) Panel investigation. [~~A Panel shall coordinate any investigation voted upon by the Commission.~~] For investigations in which a Panel is created, the [~~, The~~] Panel initially must [~~shall~~] specify the focus of the investigation, communicate with the entities or individuals involved in the investigation, and collect any appropriate records. The Panel also may initiate contact with any governmental agency, individual, or entity to inquire about assistance in a full investigation. The Panel may:

(1) collect and review appropriate documents as necessary;

(2) conduct interviews with appropriate individuals;

(3) issue notification of results or refer the case to a governmental or other relevant agency or accrediting body, pursuant to a written communication, memorandum of understanding, or other appropriate agreement between the agencies;

(4) contract with a subject matter expert if needed; or

(5) take such other action as appropriate.

(c) All Panel meetings [~~Limitation on panel meetings held by telephone. Commission Panels may meet by telephone for information-gathering purposes only. However, all deliberative discussions by Panels~~] must [~~shall~~] be held in in-person meetings or by videoconference, in accordance with the Texas Open Meetings Act.

(d) Investigations Facilitated by Staff. For investigations in which an Investigative Panel is deemed unnecessary, the Commission must instruct staff to conduct the investigation, which must include the same activities described in §651.307(b).

(e) [~~(d)~~] Referral of investigative cases to the Office of Capital and Forensic Writs. The Commission may review and refer cases that are the subject of an investigation under §651.301(a) or (b) of this subchapter to the Office of Capital and Forensic Writs in accordance with Section 78.054(b), Government Code.

(1) General procedure for referral to the Office of Capital and Forensic Writs. A majority of a quorum of Commissioners may recommend referral of a case accepted for investigation by the Commission under §651.301(a) or (b) of this subchapter (relating to Purpose) to the Office of Capital and Forensic Writs.

(2) Written referral and corresponding documents. The Commission Presiding Officer or Designee must [~~shall~~] provide each recommended case referral in writing, including all documents in the Commission's possession related to the case and any investigative report issued, to the Office of Capital and Forensic Writs Director or Designee for determination regarding potential legal representation no later than ten (10) business days from the date the Commission recommends referral.

§651.308.Investigative Reports.

(a) Written report requirements. If the Commission approves a full investigation, the Panel or Staff shall coordinate the completion of the investigation and draft a written report, including a recommendation for final disposition to the Commission. [~~a quorum of Commissioners. The Panel may delegate the initial draft of the report to Commission staff.~~]. An investigative report or recommendation is not final and does not represent the conclusions of the Commission until a final report is adopted and issued by a majority of a [~~the~~] quorum of Commissioners. [~~Following consideration of the recommendation for final disposition from the Investigation Panel, the~~] The Commission must [~~shall~~] issue a report using the criteria set forth in Article 38.01, Code of Criminal Procedure.

(b) Investigations of accredited crime laboratories and accredited forensic disciplines only. For investigations involving accredited crime laboratories and accredited forensic disciplines, the Commission may:

(1) find there is insufficient credible information to conclude that professional negligence or professional misconduct occurred in the forensic analysis;

(2) find there is sufficient evidence to conclude that professional negligence or professional misconduct occurred in the forensic analysis;

(3) require retrospective re-examination of evidence as appropriate;

(4) require corrective action and follow-up as appropriate.

(c) All Commission investigations. For all Commission investigations, regardless of whether they involve accredited crime laboratories and accredited forensic disciplines, the Commission's report may:

(1) make observations regarding the integrity and reliability of the forensic analysis conducted;

(2) identify applicable best practices; and

(3) make other relevant recommendations.

(d) Any finding by the Commission is not a comment upon the guilt or innocence of any individual and is not necessarily a basis for relief in litigation or in any other forum. Reports of the Commission are not admissible in a civil or criminal action.

(e) The Commission must [~~shall~~] make the final report available to the public on the Commission's website and provide a copy, as applicable, to the:

(1) prosecutor, judge, defendant and defense attorney involved in the underlying criminal case, if any;

(2) Board of Pardons and Paroles;

(3) Director of the Department of Public Safety;

(4) Governor;

(5) Lieutenant Governor;

(6) Speaker of the House of Representatives;

(7) complainant; and

(8) actor(s) and accredited laboratory, facility, or entity involved in any part of the forensic analysis.

(f) Open records limitation. Pursuant to Code of Criminal Procedure, Article 38.01 §10, information that is filed as part of an allegation of professional misconduct or professional negligence or that is obtained during an investigation of an allegation of professional misconduct or professional negligence is not subject to release until the conclusion of an investigation by the Commission.

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 November 13, 2023.

TRD-202304217

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

37 TAC §651.309

Statutory Authority. The repeal is proposed under the Commission's general rulemaking authority provided in Code of Criminal Procedure, Article 38.01 § 3-a and its authority to investigate and regulate crime laboratories and forensic analysts under Article 38.01 §§ 4, 4-a, and 4-d. It also conforms to changes made by SB 991 and HB 3474.

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.309.Procedure for Hearing on and Appeal of a Final Investigative Report by the Commission Regarding an Individual Not Licensed Under this Chapter or an Entity that Performs Forensic Analysis as the Term is Defined in Article 38.01, Code of Criminal Procedure.

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 November 13, 2023.

TRD-202304239

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

SUBCHAPTER E. NOTICE TO AND APPEALS BY LICENSE HOLDERS AND CRIME LABORATORIES

37 TAC §651.402

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.402.Notice and Hearing Request.

(a) The Commission must give written notice by certified mail to a license holder or crime laboratory that is the subject of any disciplinary action, finding of professional negligence or professional misconduct, violation of the code of professional responsibility, or violation of another rule or order of the Commission. The notice must:

(1) include a brief summary of the professional negligence, professional misconduct, violation of the code of professional responsibility, or other rule or statutory violation;

(2) state the disciplinary action taken by the Commission; and

(3) inform the license holder or crime laboratory of their right to a hearing before the Judicial Branch Certification Commission on the occurrence of the professional negligence or misconduct or rule violation, or the imposition of a disciplinary action.

(b) for purposes of this subchapter, "disciplinary action" against a license holder or crime laboratory includes any of the following actions: revocation or suspension of an individual's license or a crime laboratory's accreditation; refusal to renew an individual's license or a crime laboratory's accreditation; or formal reprimand of a license holder or crime laboratory.

(c) Hearing Request. Not later than the 20th day after the date the license holder or crime laboratory receives the notice under subsection (a) of this section, the license holder or crime laboratory may accept the Commission determination or disciplinary action or request a hearing by submitting a written request to the Judicial Branch Certification Commission. If the license holder or crime laboratory fails to timely submit a request, the Commission's action becomes final and is not subject to review by the Judicial Branch Certification Commission. Hearing requests may be submitted via email to info@fsc.texas.gov.

(d) Judicial Branch Certification Commission Hearing. If the license holder or crime laboratory requests a hearing, the Judicial Branch Certification Commission must conduct a hearing to determine whether there is substantial evidence to support the determination under subsection (a) of this section that the negligence, misconduct, or violation occurred. If the Judicial Branch Certification Commission upholds the determination, the Judicial Branch Certification Commission shall determine the type of disciplinary action to be taken. The Judicial Branch Certification Commission must conduct the hearing and any appeal of that Commission's decision, in accordance with the procedures provided by Subchapter B, Chapter 153, Government Code, as applicable, and the rules of the Judicial Branch Certification Commission.

(e) Disposition by Agreement. Any disciplinary matter may be disposed of by agreement, unless precluded by law. The agreement must be in writing and may be in the form of a stipulation, a settlement agreement, or a consent order. The Commission may approve or reject the agreement. If the Commission rejects the agreement, the respondent has a right to a hearing on the disciplinary matter before the Judicial Branch Certification Commission per subsection (d) of this section.

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 November 13, 2023.

TRD-202304218

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

CHAPTER 651. DNA, CODIS, FORENSIC ANALYSIS, AND CRIME LABORATORIES

SUBCHAPTER C. FORENSIC ANALYST LICENSING PROGRAM

37 TAC §§651.207 - 651.209

The Texas Forensic Science Commission ("Commission") proposes amendments to 37 Texas Administrative Code Chapter §651.207 Forensic Analyst Licensing Requirements, Including License Term, Fee, and Procedure for Denial of Application and Reconsideration, §651.208 Forensic Analyst and Technician License Renewal, and §651.209 Forensic Analyst and Forensic Technician License Expiration and Reinstatement. The amendments change the Commission's forensic analyst and forensic technician license expiration dates to expire on the licensee's birthdate.

Background and Justification. Under the revised rules, forensic analyst and forensic technician licenses will expire on the last day of the licensee's birth month after each two-year license cycle, rather than every two years from their initial application. Prior to these changes and the inception of the Commission's forensic analyst licensing program on January 1, 2019, a majority of the Commission's licenses expired at the same time in the even-numbered years in the Fall, placing a heavy administrative burden both on Commission staff and licensees waiting on their licenses to be renewed at the same time. The proposed changes also include a monthly proration of the required fees and continuing forensic education requirements for current and first-time license applicants depending on the number of months in the applicant's first license term. The proposed changes also require all new license applicants to complete the Commission's Mandatory Legal and Professional Responsibility Course. These amendments are necessary to reflect adoptions made by the Commission at its July 21, 2023, quarterly meeting at which the Commission voted to transition to licenses expiring on licensees' birthdates to ease the administrative burden on Commission staff and to require all new license applicants to complete the Commission's Mandatory Legal and Professional Responsibility Course.

Fiscal Note. Leigh M. Tomlin, Associate General Counsel of the Commission, has determined that for each year of the first five years the new rules are in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. There is no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the proposed rule amendments. The amendments change the expiration dates of forensic analyst and forensic technician licensees. The proposal includes a provision addressing the proration of licensing fees for renewing and new applicants for licensure in accordance with the new birthdate expiration schedule, so that the Commission incurs no loss or increase in revenue during the transition to birthdate expirations.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the proposal does not impose any direct costs or fees on municipalities in rural communities.

Public Benefit/Cost Note. Ms. Tomlin has also determined that for each year of the first five years the rules are in effect, the anticipated public benefit is a more efficient renewal process for forensic analysts and forensic technicians in the State of Texas. There is no economic cost to persons required to comply with the rule in response to the changes proposed by the rulemaking.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code § 2006.002(c) and (f), Ms. Tomlin has determined that the proposed amendments will not have an adverse economic effect on any small or micro business because there are no anticipated economic costs to any person or crime laboratory. The revised rules provide a new expiration policy for forensic analysts and forensic technicians in the State of Texas so that licenses expire on the licensees' birthdates rather than two years from the date of their initial licensure.

Government Growth Impact Statement. Ms. Tomlin has determined that for the first five-year period, implementation of the proposed amendments will have no government growth impact. Pursuant to the analysis required by Government Code 2001.221(b): 1) the proposed rules do not create or eliminate a government program; 2) implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions; 3) implementation of the proposed rules does not increase or decrease future legislative appropriations to the agency; 4) the proposed rules requires payment of prorated licensing fees by current licensees adjusted to equal the amount a forensic analyst or technician would pay over a four-year period for renewal of their forensic analyst or forensic technician license under the current license renewal fees; 5) the proposed rules do not create a new regulation; 6) the proposed rules do not expand, limit, or repeal an existing regulation; 7) the proposed rules do not increase or decrease the number of individuals subject to the rule's applicability; and 8) the proposed rules have no effect on the state's economy.

Request for Public Comment. The Commission invites comments on the proposal from any member of the public. Please submit comments to Leigh M. Tomlin 1700 North Congress Avenue, Suite 445, Austin, Texas 78701 or leigh@fsc.texas.gov. Comments must be received by January 5, 2023, to be considered by the Commission.

Statutory Authority. The rules are proposed under the general rulemaking authority provided in Code of Criminal Procedure, Article 38.01 §§ 3-a and its authority to license forensic analysts under 4-a(b).

Cross reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01.

§651.207.Forensic Analyst and Forensic Technician Licensing Requirements, Including Initial License Term[,] and Fee, Minimum Education and Coursework, General Forensic Examination, Proficiency Monitoring and Mandatory Legal and Professional Responsibility Training [~~and Procedure for Denial of Application and Reconsideration~~].

(a) Issuance. The Commission may issue an individual's Forensic Analyst or Forensic Technician License under this section.

(b) Initial License Term. A Forensic Analyst or Forensic Technician license holder must renew the license holder's license on the last day of the license holder's birth month in the second year after issuance of the initial license.

(c) [~~(b)~~] Application. Before being issued a Forensic Analyst or Forensic Technician License, an applicant must [~~shall~~]:

(1) demonstrate that he or she meets the definition of Forensic Analyst or Forensic Technician set forth in this subchapter;

(2) complete and submit to the Commission a current Forensic Analyst or Forensic Technician License Application form;

(3) pay the required fee(s) as applicable:

(A) Initial Application fee of $220 for Analysts and $150 for Technicians [~~/Screeners~~] for the twenty-four months of the Initial License Term. If the Analyst or Technician's Initial License Term under subsection (b) of this section exceeds twenty-four months, the Analyst or Technician shall pay an additional prorated amount of $8.33 per month (for Analysts) and $5.42 per month (for Technicians) for each month exceeding two years. If the Analyst or Technician's Initial License Term under subsection (b) of this section is less than twenty-four months, the Analyst or Technician shall pay a prorated amount of $8.33 per month (for Analysts) and $5.42 per month (for Technicians) for each month in the Initial License Term;

~~[(B) Biennial renewal fee of $200 for Analyst and $130 for Technicians/Screeners.]~~

(B) [~~(C)~~] Temporary License fee of $100;

(C) [~~(D)~~] Provisional License fee of $110 for Analysts and $75 for Technicians;[.] An applicant who is granted a provisional license and has paid the required fee will not be required to pay an additional initial application fee if the provisional status is removed within one year of the date the provisional license is granted;

(D) [~~(E)~~] License Reinstatement fee of $220;

(E) [~~(F)~~] De Minimis License fee of $200 per ten (10) licenses;

(F) [~~(G)~~] Uncommon Forensic Analysis License fee of $200 per ten (10) licenses; and/or

(G) [~~(H)~~] Special Exam Fee of $50 for General Forensic Analyst Licensing Exam, required only if testing beyond the three initial attempts or voluntarily taking the exam under the Unaccredited Forensic Discipline Exception described in subsection (g)(5)(C) of this section;

(4) provide accurate and current address and employment information to the Commission and update the Commission within five (5) business days of any change in address or change of employment. Licensees are required to provide a home address, email address, and employer name and address on an application for a license; and

(5) provide documentation that he or she has satisfied all applicable requirements set forth under this section.

(d) [~~(c)~~] Minimum Education Requirements.

(1) Seized Drugs Analyst. An applicant for a Forensic Analyst License in seized drugs must have a baccalaureate or advanced degree in chemical, physical, biological science, chemical engineering or forensic science from an accredited university.

(2) Seized Drugs Technician. An applicant for a Forensic Analyst License limited to the seized drug technician category must have a minimum of an associate's degree or equivalent.

(3) Toxicology (Toxicology Analyst (Alcohol Only, Non-interpretive), Toxicology Analyst (General, Non-interpretive), Toxicologist (Interpretive)). An applicant for a Forensic Analyst License in toxicology must have a baccalaureate or advanced degree in a chemical, physical, biological science, chemical engineering or forensic science from an accredited university.

(4) Toxicology Technician. An applicant for a Forensic Analyst License limited to the toxicology technician category must have a minimum of an associate's degree or equivalent.

(5) Forensic Biology (DNA Analyst, Forensic Biology Screener, Nucleic Acids other than Human DNA Analyst, Forensic Biology Technician). An applicant for any category of forensic biology license must have a baccalaureate or advanced degree in a chemical, physical, biological science or forensic science from an accredited university.

(6) Firearm/Toolmark Analyst. An applicant for a Forensic Analyst License in firearm/toolmark analysis must have a baccalaureate or advanced degree in a chemical, physical, biological science, engineering or forensic science from an accredited university.

(7) Firearm/Toolmark Technician. An applicant for a Forensic Analyst License limited to firearm/toolmark technician must have a minimum of a high school diploma or equivalent degree.

(8) Materials (Trace) Analyst. An applicant for a Forensic Analyst License in materials (trace) must have a baccalaureate or advanced degree in a chemical, physical, biological science, chemical engineering or forensic science from an accredited university. A Materials (Trace) Analyst performing only impression evidence analyses must have a minimum of a high school diploma or equivalent degree.

(9) Materials (Trace) Technician. An applicant for a Forensic Analyst License limited to materials (trace) technician must have a minimum of a high school diploma or equivalent degree.

(10) Foreign/Non-U.S. degrees. The Commission shall recognize equivalent foreign, non-U.S. baccalaureate or advanced degrees. The Commission reserves the right to charge licensees a reasonable fee for credential evaluation services to assess how a particular foreign degree compares to a similar degree in the United States. The Commission may accept a previously obtained credential evaluation report from an applicant or licensee in fulfillment of the degree comparison assessment.

(11) If an applicant does not meet the minimum education qualifications outlined in this section, the procedure in subsection (f) or (j) of this section applies.

(e) [~~(d)~~] Specific Coursework Requirements.

(1) Seized Drugs Analyst. An applicant for a Forensic Analyst License in seized drugs must have a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university. In addition to the chemistry coursework, an applicant must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(2) Toxicology. An applicant for a Forensic Analyst License in toxicology must fulfill required courses as appropriate to the analyst's role and training program as described in the categories below:

(A) Toxicology Analyst (Alcohol Only, Non-interpretive). A toxicology analyst who conducts, directs or reviews the alcohol analysis of forensic toxicology samples, evaluates data, reaches conclusions and may sign a report for court or investigative purposes, but does not provide interpretive opinions regarding human performance must complete a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university.

(B) Toxicology Analyst (General, Non-interpretive). A toxicology analyst who conducts, directs or reviews the analysis of forensic toxicology samples, evaluates data, reaches conclusions and may sign a report for court or investigative purposes, but does not provide interpretive opinions regarding human performance must complete a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework that includes organic chemistry and two three-semester credit hour (or equivalent) college-level courses in analytical chemistry and/or interpretive science courses that may include Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science, Spectroscopic Analysis, Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology.

(C) Toxicologist (Interpretive). A toxicologist who provides interpretive opinions regarding human performance related to the results of toxicological tests (alcohol and general) for court or investigative purposes must complete a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework that includes organic chemistry, one three-semester credit hour (or equivalent) course in college-level analytical chemistry (Analytical Chemistry, Chemical Informatics, Instrumental Analysis, Mass Spectrometry, Quantitative Analysis, Separation Science or Spectroscopic Analysis) and one three-semester credit hour (or equivalent) college-level courses in interpretive science (Biochemistry, Drug Metabolism, Forensic Toxicology, Medicinal Chemistry, Pharmacology, Physiology, or Toxicology).

(D) An applicant for a toxicology license for any of the categories outlined in subparagraphs (A) - (C) of this paragraph must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(3) DNA Analyst. An applicant for a Forensic Analyst License in DNA analysis must demonstrate he/she has fulfilled the specific requirements of the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing effective September 1, 2011. An applicant must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission.

(4) Firearm/Toolmark Analyst. An applicant must have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. No other specific college-level coursework is required.

(5) Materials (Trace) Analyst. An applicant for a Forensic Analyst License in materials (trace) for one or more of the chemical analysis categories of analysis (chemical determination, physical/chemical comparison, gunshot residue analysis, and fire debris and explosives analysis) must have a minimum of sixteen-semester credit hours (or equivalent) in college-level chemistry coursework above general coursework from an accredited university. In addition to chemistry coursework for the chemical analysis categories, all materials (trace) license applicants must also have a three-semester credit hour (or equivalent) college-level statistics course from an accredited university or a program approved by the Commission. An applicant for a Forensic Analyst License in materials (trace) limited to impression evidence is not required to fulfill any specific college-level coursework requirements other than the statistics requirement.

(6) Exemptions from specific coursework requirements. The following categories of licenses are exempted from coursework requirements:

(A) An applicant for the technician license category of any forensic discipline set forth in this subchapter is not required to fulfill any specific college-level coursework requirements.

(B) An applicant for a Forensic Analyst License limited to forensic biology screening, nucleic acids other than human DNA and/or Forensic Biology Technician is not required to fulfill the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing or any other specific college-level coursework requirements.

(f) [~~(e)~~] Requirements Specific to Forensic Science Degree Programs. For a forensic science degree to meet the Minimum Education Requirements set forth in this section, the forensic science degree program must be either accredited by the Forensic Science Education Programs Accreditation Commission (FEPAC) or if not accredited by FEPAC, it must meet the minimum curriculum requirements pertaining to natural science core courses and specialized science courses set forth in the FEPAC Accreditation Standards.

(g) [~~(f)~~] Waiver of Specific Coursework Requirements and/or Minimum Education Requirements for Lateral Hires, Promoting Analysts and Current Employees. Specific coursework requirements and minimum education requirements are considered an integral part of the licensing process; all applicants are expected to meet the requirements of the forensic discipline(s) for which they are applying or to offer sufficient evidence of their qualifications as described below in the absence of specific coursework requirements or minimum education requirements. The Commission Director or Designee may waive one or more of the specific coursework requirements or minimum education requirements outlined in this section for an applicant who:

(1) has five or more years of credible experience in an accredited laboratory in the forensic discipline for which he or she seeks licensure; or

(2) is certified by one or more of the following nationally recognized certification bodies in the forensic discipline for which he or she seeks licensure;

(A) The American Board of Forensic Toxicology;

(B) The American Board of Clinical Chemistry;

(D) The International Association for Identification; or

(E) The Association of Firearm and Toolmark Examiners; and

(3) provides written documentation of laboratory-sponsored training in the subject matter areas addressed by the specific coursework requirements.

(4) An applicant must request a waiver of specific coursework requirements and/or minimum education requirements at the time the application is filed.

(5) An applicant requesting a waiver from specific coursework requirements and/or minimum education requirements shall file any additional information needed to substantiate the eligibility for the waiver with the application. The Commission Director or Designee shall review all elements of the application to evaluate waiver request(s) and shall grant a waiver(s) to qualified applicants.

(h) [~~(g)~~] General Forensic Analyst Licensing Exam Requirement.

(1) Exam Requirement. An applicant for a Forensic Analyst License must pass the General Forensic Analyst Licensing Exam administered by the Commission.

(A) An applicant is required to take and pass the General Forensic Analyst Licensing Exam one time.

(B) An applicant may take the General Forensic Analyst Licensing Exam no more than three times. If an applicant fails the General Forensic Analyst Licensing Exam or the Modified General Forensic Analyst Licensing Exam three times, the applicant has thirty (30) days from the date the applicant receives notice of the failure to request special dispensation from the Commission as described in subparagraph (C) of this paragraph. Where special dispensation is granted, the applicant has 90 days from the date he or she receives notice the request for exam is granted to successfully complete the exam requirement. However, for good cause shown, the Commission or its Designee at its discretion may waive this limitation.

(C) Requests for Exam. If an applicant fails the General Forensic Analyst Licensing Exam or Modified General Forensic Analyst Licensing Exam three times, the applicant must request in writing special dispensation from the Commission to take the exam more than three times. Applicants may submit a letter of support from their laboratory director or licensing representative and any other supporting documentation supplemental to the written request.

(D) If an applicant sits for the General Forensic Analyst Licensing Exam or the Modified General Forensic Analyst Licensing Exam more than three times, the applicant must pay a $50 exam fee each additional time the applicant sits for the exam beyond the three initial attempts.

(E) Expiration of Provisional License if Special Dispensation Exam Unsuccessful. If the 90-day period during which special dispensation is granted expires before the applicant successfully completes the exam requirement, the applicant's provisional license expires.

(2) Modified General Forensic Analyst Licensing Exam. Technicians in any discipline set forth in this subchapter may fulfill the General Forensic Analyst Licensing Exam requirement by taking a modified exam administered by the Commission.

(3) Examination Requirements for Promoting Technicians. If a technician passes the modified General Forensic Analyst Licensing Exam and later seeks a full Forensic Analyst License, the applicant must complete the portions of the General Forensic Analyst Exam that were not tested on the modified exam.

(4) Credit for Pilot Exam. If an individual passes the Pilot General Forensic Analyst Licensing Exam, regardless of his or her eligibility status for a Forensic Analyst License at the time the exam is taken, the candidate has fulfilled the General Forensic Analyst Licensing Exam Requirement of this section should he or she later become subject to the licensing requirements and eligible for a Forensic Analyst License.

(5) Eligibility for General Forensic Analyst Licensing Exam and Modified General Forensic Analyst Licensing Exam.

(A) Candidates for the General Forensic Analyst Licensing Exam and Modified General Forensic Analyst Licensing Exam must be employees of a crime laboratory accredited under Texas law to be eligible to take the exam.

(B) Student Examinee Exception. A student is eligible for the General Forensic Analyst Licensing Exam one time if the student:

(i) is currently enrolled in an accredited university as defined in §651.202 of this subchapter (relating to Definitions);

(ii) has completed sufficient coursework to be within 24 semester hours of completing the requirements for graduation at the accredited university at which the student is enrolled; and

(iii) designates an official university representative who will proctor and administer the exam at the university for the student.

(C) Crime Laboratory Management and Unaccredited Forensic Discipline Exception. An Employee of a crime laboratory accredited under Texas law who is either part of the crime laboratory's administration or management team or authorized for independent casework in a forensic discipline listed below is eligible for the General Forensic Analyst Licensing Exam and Modified General Forensic Analyst Licensing Exam:

(i) forensic anthropology;

(ii) the location, identification, collection or preservation of physical evidence at a crime scene;

(iii) crime scene reconstruction;

(iv) latent print processing or examination;

(v) digital evidence (including computer forensics, audio, or imaging);

(vi) breath specimen testing under Transportation Code, Chapter 724, limited to analysts who perform breath alcohol calibrations; and

(vii) document examination, including document authentication, physical comparison, and product determination.

(i) [~~(h)~~] Proficiency Monitoring Requirement.

(1) An applicant must demonstrate participation in the employing laboratory's process for intra-laboratory comparison, inter-laboratory comparison, proficiency testing, or observation-based performance monitoring requirements in compliance with and on the timeline set forth by the laboratory's accrediting body's proficiency monitoring requirements as applicable to the Forensic Analyst or Forensic Technician's specific forensic discipline and job duties.

(2) A signed certification by the laboratory's authorized representative that the applicant has satisfied the applicable proficiency monitoring requirements, including any intra-laboratory comparison, inter-laboratory comparison, proficiency testing, or observation-based performance monitoring requirements of the laboratory's accrediting body as of the date of the analyst's application, must be provided on the Proficiency Monitoring Certification form provided by the Commission. The licensee's authorized representative must designate the specific forensic discipline in which the Forensic Analyst or Forensic Technician actively performs forensic casework or is currently authorized to perform supervised or independent casework by the laboratory or employing entity.

~~[(i) License Term and Fee.]~~

~~[(1) A Forensic Analyst License shall expire two years from the date the applicant is granted a license.]~~

~~[(2) Application Fee. An applicant or licensee shall pay the following fee(s) as applicable:]~~

~~[(A) Initial Application fee of $220 for Analysts and $150 for Technicians/Screeners;]~~

~~[(B) Biennial renewal fee of $200 for Analysts and $130 for Technicians/Screeners;]~~

~~[(C) Provisional License fee of $110 for Analysts and $75 for Technicians/Screeners;]~~

~~[(D) License Reinstatement fee of $220;]~~

~~[(E) De Minimis License fee of $200 per ten (10) licenses; or]~~

~~[(F) Uncommon Forensic Analysis License fee of $200 per ten (10) licenses.]~~

[(3) An applicant who is granted a provisional license and has paid the required fee will not be required to pay an additional initial application fee if the provisional status is removed within one year of the date the provisional license is granted.]

(j) Mandatory Legal and Professional Responsibility Course:

(1) All Forensic Analyst and Forensic Technician License applicants must complete the current Commission-sponsored mandatory legal and professional responsibility update at the time of their application or demonstrate that they have taken the training within the 12-month period preceding the date of their application.

(2) Mandatory legal and professional responsibility training topics may include training on current and past criminal forensic legal issues, professional responsibility and human factors, courtroom testimony, disclosure and discovery requirements under state and federal law, and other relevant topics as designated by the Commission.

~~[(j) Procedure for Denial of Application and Reconsideration.]~~

[(1) Application Review. The Commission Director or Designee must review each completed application and determine whether the applicant meets the qualifications and requirements set forth in this subchapter.]

[(2) Denial of Application. The Commission, through its Director or Designee, may deny an application if the applicant fails to meet any of the qualifications or requirements set forth in this subchapter.]

~~[(3) Notice of Denial. The Commission, through its Director or Designee, shall provide the applicant a written statement of the reason(s) for denial of the application.]~~

[(4) Request for Reconsideration. Within twenty (20) days of the date of the notice that the Commission has denied the application, the applicant may request that the Commission reconsider the denial. The request must be in writing, identify each point or matter about which reconsideration is requested, and set forth the grounds for the request for reconsideration.]

~~[(5) Reconsideration Procedure. The Commission must consider a request for reconsideration at its next meeting where the applicant may appear and present testimony.]~~

~~[(6) Commission Action on Request. After reconsidering its decision, the Commission may either affirm or reverse its original decision.]~~

[(7) Final Decision. The Commission, through its Director or Designee, must notify the applicant in writing of its decision on reconsideration within fifteen (15) business days of the date of its meeting where the final decision was rendered.]

§651.208.Forensic Analyst and Forensic Technician License Renewal.

(a) Timing of Application for Renewal. The Commission may renew an individual's Forensic Analyst or Forensic Technician License up to 60 days before the expiration of the individual's license term.

(b) Renewal Term. The renewal date of a Forensic Analyst or Forensic Technician License will be every two years on the last day of the license holder's birth month [~~expires two years from the date the initial application was granted~~].

(c) Renewal Fees. The biennial renewal fee is $200 for Forensic Analysts and $130 for Forensic Technicians. Fees for Forensic Analysts and Forensic Technicians seeking to renew their licenses between January 1, 2024 and December 31, 2025, will be pro-rated on a monthly basis depending upon the birth month of the renewing license holder and the number of months in the renewal term as describe in subsection (b) of this section. The pro-rated fee will be assessed at $8.33 per month (for Forensic Analysts) and $5.42 per month (for Forensic Technicians).

~~[(c) Effective date. A renewed Forensic Analyst or Forensic Technician License takes effect on the date the licensee's previous license expires.]~~

(d) Application. An applicant for a Forensic Analyst or Forensic Technician License renewal shall complete and submit to the Commission a current Forensic Analyst or Forensic Technician License Renewal Application provided by the Commission, pay the required fee, attach documentation of fulfillment of Continuing Forensic Education and other requirements set forth in this section.

(e) Proficiency Monitoring Certification Form for Renewal Applicants Employed by an Accredited Laboratory. An applicant for a Forensic Analyst or Forensic Technician License renewal must provide an updated copy of the Commission's Proficiency Monitoring Certification form demonstrating the applicant participates in the laboratory's process for intra-laboratory comparison, inter-laboratory comparison, proficiency testing, or observation-based performance monitoring requirements in compliance with and on the timeline set forth by the laboratory's accrediting body's requirements as applicable to the Forensic Analyst or Forensic Technician's specific forensic discipline and job duties. The form must be:

(1) signed by the licensee's authorized laboratory representative; and

(2) designate the specific forensic discipline in which the Forensic Analyst or Forensic Technician actively performs forensic casework or is currently authorized or currently participating in a training program to become authorized to perform supervised or independent forensic casework.

(f) Proficiency Monitoring Certification Form for Renewal Applicants Not Employed at an Accredited Laboratory or at an Accredited Laboratory in a Forensic Discipline Not Covered by the Scope of the Laboratory's Accreditation.

(1) An applicant for a Forensic Analyst or Forensic Technician license renewal who is employed by an entity other than an accredited laboratory or performs a forensic examination or test at an accredited laboratory in a forensic discipline not covered by the scope of the laboratory's accreditation must provide:

(A) an updated copy of the Commission's Proficiency Monitoring Certification form demonstrating the applicant participates in the laboratory or employing entity's process for intra-laboratory comparison, inter-laboratory comparison, proficiency testing, or observation-based performance monitoring requirements in compliance with and on the timeline set forth by the laboratory or employing entity's Commission-approved process for proficiency monitoring as applicable to the Forensic Analyst or Forensic Technician's specific forensic discipline and job duties:

(i) signed by the licensee's authorized laboratory representative; and

(ii) designating the specific forensic discipline in which the Forensic Analyst or Forensic Technician actively performs forensic casework or is currently authorized to perform supervised or independent forensic casework;

(B) written proof of the Forensic Science Commission's approval of the laboratory or employing entity's proficiency monitoring activities or exercise(s) as applicable to the applicant's specific forensic discipline and job duties; and

(C) written documentation of performance in conformance with expected consensus results in compliance with and on the timeline set forth by the laboratory or employing entity's Commission-approved proficiency monitoring activities or exercise(s) as applicable to the applicant's specific forensic discipline and job duties.

(g) Continuing Forensic Education Including Mandatory Legal and Professional Responsibility [~~Update~~]:

(1) Forensic Analyst and Forensic Technician Licensees must complete a Commission-sponsored mandatory legal and professional responsibility update by the expiration of each two-year license cycle as provided by the Commission. Forensic Technicians are not required to complete any other continuing forensic education requirements listed in this section.

(3) All forensic analysts shall be required to satisfy the following Continuing Forensic Education Requirements by the expiration of each two-year license cycle:

(A) Completion of thirty-two (32) continuing forensic education hours per 2-year license cycle.

(B) Sixteen (16) hours of the thirty-two (32) must be discipline-specific training, peer-reviewed journal articles, and/or conference education hours. If a licensee is licensed in multiple forensic disciplines, at least eight (8) hours of discipline-specific training in each forensic discipline are required, subject to the provisions set forth in subsection (f) of this section.

(C) The remaining sixteen (16) hours may be general forensic training, peer-reviewed journal articles, and/or conference education hours that include hours credited for the mandatory legal and professional responsibility training.

(4) Continuing forensic education programs will be offered and/or designated by the Commission and will consist of independent, online trainings, readings, and participation in recognized state, regional, and national forensic conferences and workshops.

(5) Approved continuing forensic education hours are applied for credit on the date the program and/or training is delivered.

(h) Timeline for Exemption from Supplemental Continuing Forensic Education Requirements. Where a current licensee adds a forensic discipline to the scope of his or her license, the following continuing forensic education requirements apply for the supplemental forensic discipline:

(1) If the supplemental forensic discipline is added less than six (6) months prior to the expiration of the analyst's current license, no additional discipline-specific training is required for the supplemental forensic discipline.

(2) If the supplemental forensic discipline is added six (6) months or more but less than eighteen (18) months prior to the expiration of the analyst's current license, four (4) additional discipline-specific training hours are required for the supplemental forensic discipline.

(3) If the supplemental forensic discipline is added eighteen (18) months or more prior to the expiration of the analyst's current license, eight (8) additional discipline-specific training hours are required for the supplemental forensic discipline.

(i) If an applicant fails to fulfill any or all of the requirements pertaining to license renewal, continuing forensic education and the mandatory legal and professional responsibility update, the applicant may apply to the Commission for special dispensation on a form to be provided on the Commission's website. Upon approval by the Commission, the applicant may be allowed an extension of time to fulfill remaining continuing forensic education requirements.

(j) Temporary Exception to Continuing Forensic Education Requirements During January 2024 to December 2026 Transition from Application to Birthdate-Based Renewal Terms. For any licensee who has less than two years to complete the continuing forensic education requirements in (g) of this section as a result of the transition from application-based renewal to birthdate-based renewal, the number of required continuing education hours in (g)(3)(A) (B) for license renewal shall be pro-rated based on the number of months in the renewal term.

(k) Subsections (j) and (k) of this section expire on December 31, 2026.

§651.209.Forensic Analyst and Forensic Technician License Expiration, [~~and~~] Reinstatement, and Procedure for Denial of Initial Application and Reconsideration.

(a) Forensic Analyst and Forensic Technician License Expiration.

(1) When a Forensic Analyst or a Forensic Technician fails to renew his or her license on or before the last day of the license term, the license is considered inactive. The inactive status shall begin on the day immediately following the last day of the license term.

(2) A license that is deemed inactive based on failure to renew may be reinstated within the ninety (90) day period following the last day of the license term. When a Forensic Analyst or Technician fails to renew by the 90th day after the last day of the license term, the license status shall change from inactive to expired.

(b) Notice of License Status Based on Failure to Renew. Within fifteen (15) days of the last day of the license term when the license has not been renewed, the Commission shall notify the licensee in writing of the change in license status to inactive. If the inactive license is not renewed within ninety (90) days of the last day of the license term and is therefore deemed expired, the Commission shall notify the licensee in writing of the change in license status from inactive to expired. Notice is not required where the Commission obtains confirmation in writing from the Forensic Analyst or Technician that he or she does not intend to renew his or her license.

(c) The Commission may reinstate an inactive or expired Forensic Analyst or Technician License upon fulfillment of the following requirements by the licensee:

(1) payment of a $220 license reinstatement fee;

(2) updating of current continuing forensic education requirements status with the Commission; and

(3) completion of a form demonstrating that except for making proper application, the Forensic Analyst or Technician was eligible for licensure by the Commission during the period the license was inactive due to failure to renew.

(d) Additional Requirements for Expired Licenses. Once a license has expired, the following requirements must be fulfilled before the license is reinstated:

(1) Successful completion of the General Forensic Analyst Licensing Exam Requirement as described in §651.207(g) of this subchapter (relating to Forensic Analyst Licensing Requirements Including License Term, Fee and Procedure for Denial of Application and Reconsideration).

(2) Fulfillment of current specific coursework requirements applicable to the forensic discipline as described in §651.207(d) of this subchapter.

(e) Exception for Licensees Who Change Roles or Experience a Gap in Employment by an Accredited Laboratory. A licensee who changes roles to a position that does not require a license or who experiences a gap in employment at an accredited laboratory for reasons other than professional misconduct, may notify the Commission by submitting a Declaration of Inactivity form; a licensee whose license is inactive due to a role change or gap in employment shall not be subject to the reinstatement requirements of this section should the licensee seek to reestablish licensure in the future.

(f) Specific Coursework and Minimum Education Requirements to Reinstate an Inactive License. A Forensic Analyst or Technician reinstating an inactive license under this section is subject to specific coursework and minimum education requirements in place at the time the Commission initially granted his or her license.

(1) Application Review. The Commission Director or Designee must review each completed application and determine whether the applicant meets the qualifications and requirements set forth in this subchapter.

(2) Denial of Application. The Commission, through its Director or Designee, may deny an application if the applicant fails to meet any of the qualifications or requirements set forth in this subchapter.

(3) Notice of Denial. The Commission, through its Director or Designee, shall provide the applicant a written statement of the reason(s) for denial of the application.

(4) Request for Reconsideration. Within twenty (20) days of the date of the notice that the Commission has denied the application, the applicant may request that the Commission reconsider the denial. The request must be in writing, identify each point or matter about which reconsideration is requested, and set forth the grounds for the request for reconsideration.

(5) Reconsideration Procedure. The Commission must consider a request for reconsideration at its next meeting where the applicant may appear and present testimony.

(6) Commission Action on Request. After reconsidering its decision, the Commission may either affirm or reverse its original decision.

(7) Final Decision. The Commission, through its Director or Designee, must notify the applicant in writing of its decision on reconsideration within fifteen (15) business days of the date of its meeting where the final decision was rendered.

(g) Procedure for Denial of Application and Reconsideration.

(3) Notice of Denial. The Commission, through its Director or Designee, shall provide the applicant a written statement of the reason(s) for denial of the application.

(4) Request for Reconsideration. The applicant may request that the Commission reconsider the denial on or before the 20th day after the applicant receives notice from the Commission. The request must be in writing, identify each point or matter about which reconsideration is requested, and set forth the grounds for the request for reconsideration.

(5) Reconsideration Procedure. The Commission must consider a written request for reconsideration where the applicant may appear and present testimony at its next meeting following the request if the requests is received at least 15 business days prior to the Commission's next scheduled quarterly meeting. Otherwise, the Commission must consider a written request for reconsideration at its second quarterly meeting following the request.

(6) Commission Action on Request. After reconsidering its decision, the Commission may either affirm or reverse its original decision.

(7) Final Decision. The Commission, through its Director or Designee, must notify the applicant in writing of its decision on reconsideration on or before the fifteenth day after the meeting in which the Commission rendered its final decision.

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 November 13, 2023.

TRD-202304219

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037

SUBCHAPTER F. DNA QA DATABASE; STORAGE AND REMOVAL OF CERTAIN DNA RECORDS

37 TAC §§651.501 - 651.503

The Texas Forensic Science Commission (Commission) proposes new Subchapter F DNA QA Database; Storage and Removal of Certain DNA Records to 37 Texas Administrative Code Chapter 651. The amendments are responsive to the 88th Texas Legislature's passage of HB 3506, which requires the Commission to adopt prescribed rules for the removal of elimination sample DNA records from a crime laboratory's deoxyribonucleic acid (DNA) Quality Assurance (QA) database, a database maintained by a crime laboratory and used to identify possible contamination or other quality assurance events with respect to a DNA sample.

Background and Justification. Under the new rules, the Commission, in accordance with HB 3506: (1) requires all crime laboratories that maintain a DNA QA database to maintain the database separately from any other local, state, or federal database, including the CODIS DNA database established by the Federal Bureau of Investigation; (2) prohibits crime laboratories from uploading or storing a DNA record created from an elimination sample, or any other information derived from that record, in any database other than the DNA QA database maintained by the crime laboratory; and (3) requires each crime laboratory that maintains a DNA QA database to, not later than three months after the date on which a forensic DNA analysis of an elimination sample is completed, remove from the DNA QA database the DNA record created from the elimination sample and any other information derived from that record that is contained in the database. The new rules are necessary to reflect the proposals made by the Commission at its October 20, 2023, quarterly meeting at which the Commission voted to propose new rules responsive to the 88th Texas Legislature's passage of HB 3506.

Fiscal Note. Leigh M. Tomlin, Associate General Counsel of the Commission, has determined that for each year of the first five years the new rule is in effect, there will be no fiscal impact to state or local governments as a result of the enforcement or administration of the proposal. There is no anticipated effect on local employment or the local economy as a result of the proposal. There is no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the proposed new rule.

One-for-One Rule Requirement for Rules with a Fiscal Impact. Because Ms. Tomlin has determined that the rules do not have a fiscal impact that imposes a cost on a regulated person, including another state agency, a special district, or a local government, the agency is not required to take further action under Government Code § 2001.0045.

Rural Impact Statement. The Commission expects no adverse economic effect on rural communities as the new rule does not impose any direct costs or fees on municipalities in rural communities.

Public Benefit/Cost Note. Ms. Tomlin has also determined that for each year of the first five years the new rule is in effect, the anticipated public benefit is a clearer and more efficient timeline and rules for crime laboratories maintaining and storing sensitive genetic information related to elimination samples, which are blood samples or other biological samples or specimens voluntarily provided victims of an offense or another individual not involved in the alleged offense whose DNA is likely to be present at the scene of the crime often used by investigators or analysts to isolate and identify the DNA of a potential perpetrator.

Government Growth Impact Statement. Ms. Tomlin has determined that for the first five-year period, implementation of the proposed new rules will have no government growth impact. Pursuant to the analysis required by Government Code 2001.0221(b): (1) the proposed rule does not create or eliminate a government program; (2) implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions; (3) implementation of the proposed rule does not increase or decrease future legislative appropriations to the agency; (4) the proposed rule does not require any change in fees; (5) the proposed rule does not create a new regulation; (6) the proposed rule does not expand, limit, or repeal an existing regulation; (7) the proposed rule does not increase or decrease the number of individuals subject to the rule's applicability; and (8) the proposed rule has no effect on the state's economy.

Probable Economic Costs to Persons Required to Comply with Proposal. Ms. Tomlin has determined for the first five-year period that the rules are in effect, there is no anticipated economic cost to persons who are required to comply with the proposed rules.

Environmental Rule Analysis. Ms. Tomlin has determined that the proposed rules are not brought with the specific intent to protect the environment or reduce risks to human health from environmental exposure; thus, the Commission asserts that this proposed rule is not a "major environmental rule," and defined by Government Code § 2001.0225. As a result, the Commission asserts that the preparation of an environmental impact analysis, as provided by Government Code §2001.0225, is not required.

Statutory Authority. The new rule is proposed under the Commission's general rulemaking authority provided in Code of Criminal Procedure, Article 38.01 § 3-a and its authority to regulate crime laboratories under Article 38.01 § 3-b(a). It also conforms to changes made by HB 3506. This proposal has been reviewed by legal counsel and found to be within the state agency's authority to adopt.

Cross-reference to statute. The proposal affects Tex. Code Crim. Proc. art. 38.01. No other codes, articles, or statutes are affected by this proposal.

§651.501.Purpose.

Generally. This subchapter contains the Texas Forensic Science Commission (Commission) rules adopted under Code of Criminal Procedure, Article 38.01 § 4-e that govern the storage and removal of certain DNA records maintained in a crime laboratory's DNA QA database.

§651.502.Definitions.

The following words and terms, when used in this subchapter, shall have the following means, unless the context clearly indicates otherwise.

(1) DNA--deoxyribonucleic acid.

(2) DNA QA Database--a database maintained by a crime laboratory and used to identify possible contamination or other quality assurance events with respect to a DNA sample.

(3) Elimination sample--a blood sample or other biological sample or specimen voluntarily provided by the victim of an offense or another individual not involved in the alleged offense whose DNA is likely to be present at the scene of the crime to isolate and identify the DNA of a potential perpetrator.

(A) The designation of any sample as an "elimination sample" is based upon factual information provided by the submitting law enforcement or other investigative agency.

(B) Samples maintained by a crime laboratory for the purpose of administering a blind proficiency testing program are not considered elimination samples subject to this subchapter.

(4) QA--quality assurance system in a crime laboratory.

§651.503.DNA QA Database; Storage and Removal of Certain DNA Records.

(a) Requirement to Maintain DNA QA Database Separately. A crime laboratory's DNA QA database must be maintained separately from any other local, state, or federal database, including the CODIS DNA database established by the Federal Bureau of Investigation.

(b) Prohibited Upload of Elimination Samples. Crime laboratories are prohibited from uploading or storing a DNA record created from an elimination sample, or any other information derived from that record, in any database other than the DNA QA database maintained by the crime laboratory. Nothing in this subchapter prohibits a crime laboratory from maintaining case information, including DNA records, as required to comply with accrediting body standards or applicable law, including but not limited to article 39.14, Code of Criminal Procedure.

(c) Prohibited Access to DNA QA Database Records. Crime laboratories are prohibited from allowing any other person, other than authorized users, access to the crime laboratory's DNA QA database.

(d) Timeline for Removal of Elimination Samples. Crime laboratories that maintain a DNA QA database must, not later than three months after the date on which a forensic DNA analysis of an elimination sample is completed, remove from the DNA QA database the DNA record created from the elimination sample and any other information derived from that record that is contained in the database.

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 November 16, 2023.

TRD-202304296

Leigh Tomlin

Associate General Counsel

Texas Forensic Science Commission

Earliest possible date of adoption: December 31, 2023

For further information, please call: (512) 784-0037