ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Nizam Peerwani Presiding Officer Texas Forensic Science Commission Post Office Box 2296 Huntsville, Texas 77341-2296
Dear Mr. Peerwani: July 29,2011
Opinion No. GA-0866 Re: Investigative Authority ofthe Texas Forensic Science Commission (RQ-0943-GA)

Your predecessor asked three questions about the investigative authority of the Texas Forensic Science Commission (the "FSC").' Before addressing the specific questions, we note that the FSC was created in 2005 with the addition of article 38.01 to the Code ofCriminal Procedure. See Act ofMay 30, 2005, 79th Leg., R.S., ch. 1224, § 1,2005 Tex. Gen. Laws 3952, 3952-53 (the "2005 Act"). Under article 38.01(4), the FSC has three purposes. See TEX. CODE CRIM. PROC. ANN. art. 38.01(4) (West Supp. 2010). For the present inquiry, the most relevant ofthe FSC's purposes is found in article 38.01(4)(a)(3), which authorizes the FSC to: investigate, in a timely manner, any allegation of professional negligence or misconduct thatwould substantiallyaffectthe integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity. [d. art. 38.01, § 4(a)(3). We now address the first question: Does the Act's effective date provision restrict the FSC's investigative authority to cases in which the requirements set forth in that provision are met?

lLetterfrom HonorableJohnM. Bradley, PresidingOfficer, TexasForensic ScienceCommission, to Honorable GregAbbott, AttorneyGeneral ofTexas at I (Jan. 28, 2011), https:llwww.oag.state.tx.us/opinlindex_rq.shtml(

..Request Letter").The Honorable Nizam Peerwani

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Request Letter at 3. As noted above, section 4(a)(3) grants general investigative authority to the FSC. However, the 2005 Actalsocontains specificprovisions restrictingthatgeneral authority. One such provision is section 22 ofthe Act, the "effective date provision" to which the request letter refers, See 2005 Act, § 22, at 3964-65. Section 22 is not codified in article 38.01, but it is nonetheless governinglaw. Baldridge v. Howard, 708 S.W.2d 62, 63-64(Tex. App.-Dallas 1986, writref'dn.r.e.) (discussinglegislative intent and validityofuncodified sessionlaw). Under section 22, "[t]he changein law made bythis Act applies to
... evidence tested or offered into evidence on or after the effective date ofthis Act." 2005 Act, § 22(a)(I), at 3964-65. The effective date ofthe 2005 Act is September 1,2005. Id. § 23, at 3965. Thus, section 22 provides that "[t]he change in law made by this Act applies to
...'evidence tested or offered into evidence" after September 1, 2005. 2005 Act, §§ 22-23, at 3964-65. Byits plain terms, the Actdoes not apply to evidencetested or offered into evidence before September 1, 2005. The FSC therefore lacks authority to take any action with respect to such evidence. Some ofthe briefs submitted to this office contend that the law's effective date limitations willforeclose FSC review of important matters that may meritfurther investigation. 2 As theTexas Supreme Court has observed, "[T]he truest manifestation of what legislators intended is what lawmakers enacted, theliteral texttheyvotedon. [The] enactedlanguageis whatconstitutesthelaw, and when a statute's words are unambiguous and yield a single inescapable interpretation, the judge's inquiry is at an end." AlexSheshunoffMgmt. Servs. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006). Some briefers have also argued that pre- and post-enactment statements by certain legislators support an outcome that diverges from this opinion's application ofthe statute's plain language. 3 Again, the Texas Supreme Court has warned against such arguments: "[The court is] mindful that over-reliance on secondary materials shouldbe avoided, particularly where a statute's language is clear. If the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae." Id. at 652 n.4. Finally, the court has noted that "the statement ofa single legislator, even the author and sponsor ofthe legislation, does not determine legislative intent." AT& T Commc'ns ofTex. v. Sw. Bell Tel. Co., 186 S.W.3d 517,528-29 (Tex. 2006). Thus, as directed by the Texas Supreme Court, our analysis ofthe first question is limited to the clear language ofthe statutory text and is not influenced by public policy considerations or legislative history. While section 22's time limitation prohibits the FSC from taking any action with respect to evidence that was tested orofferedinto evidencebefore September 1, 2005, theActcontains no time limitation on the FSC's general authority under section 4(a)(3) to "investigate in a timely manner, any allegation ofprofessional negligence ormisconduct." 2005 Act, §§ 22-23, at 3964-65. Thus, although theFSC mayinvestigate allegations arisingfromincidents thatoccurredpriorto September

'See Brieffrom Ms. Lisa Graybill, American Civil Liberties Union ofTex. at 10-13 (Mar. 14,2011) (Graybill Brief); Brieffrom Mr. Stephen Saloom, Innocence Project ofNew York at7-10 (Mar. 7, 2011) (Saloom Brief); Brief from Mr. Gary Udashen, Innocence Project ofTexas at 2-14 (Mar. 3, 2011) (Udashen Brief). 3See Graybill Brief, supra note 2, at 7-11; Saloom Brief, supra note 2, at 3-6; Udashen Brief, supra note 2, at 7 nn.2-3, 10-12.The Honorable Nizam Peerwani

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1, 2005, it is prohibited, in the course of any such investigation, from considering or evaluating specific items ofevidence that were tested or offered into evidence prior to that date. The second question is as follows: Does the Act limit the investigative scope of the FSC to allegations ofnegligence and misconductinvolvingforensic analyses conducted only by laboratories, facilities or entities that were 

### accredited by the Department of Public Safety ("DPS") when the analyses took place? Request Letter at 3 (emphasis added). Section 4(a)(3) of article 38.01 restricts the FSC's investigative authorityto acts "thatwould substantially affect the integrity oftheresults ofa forensic analysis conducted by an accredited laboratory, facility, or entity." TEX. CODE CRlM. PROC. ANN. art. 38.01, § 4(a)(3) (West Supp. 2010). While article 38.01 itself does not define the term "accredited," otherprovisions in the Act clarify its meaning. The 2005 Actcreates an accreditation process applicableto a "crimelaboratory" orotherentitythatconducts "forensic analyses ofphysical evidence for use in criminal proceedings." 

### See 2005 Act, § 3, at 3954-55; TEX. GOV'T CODEANN. § 411.0205(b)(l) (West Supp. 2010). Under this provision, the DPS director i's instructed to establish the accreditation process. Considered in context, the term "accredited" in section 4(a)(3) refers to the statutory accreditation process established by the DPS director. Readinisolation, section4(a)(3) does notprovidepreciseclarity aboutthe question regarding the timing ofa laboratory, facility, orentity's accreditation relative to when the analysis tookplace. The most natural reading ofsection 4(a)(3) limits the FSC's investigative authority to laboratories, facilities, or entities that were accredited by the DPS at the time the forensic analysis took place. However, section 4(a)(3) could also potentiallybe read to limit the FSC's investigative authority to laboratories, facilities, or entities that were accredited when the FSC investigation took place. While our conclusion regarding the second question is basedprimarily on a natural reading of the text of section 4(a)(3), we are aided in resolving any potential ambiguity by the canon of statutory construction known as 

### in pari materia, under which statutes on the same subject matter mustbe read consistently, especially those statutes enacted as part ofthe samebill.4 Guided by the principle of 

### in pari materia, we turn to section 38.35(d)(l) of the Code of Criminal Procedure, which, like section 4(a)(3), was added to the Code by the 2005 Act. Section 38.35(d)(l) provides that a forensic analysis ofphysical evidence is not admissible if, 

### "at the time ofthe analysis, the

'''Itis a settled rule ofstatutory interpretation that statutes thatdeal withthe same general subject, have the same general purpose, or relate to the same person or thing or class ofpersons or things, are considered as being in pari materia

...." State v. Vasilas, 253 S.W.3d268, 271 (Tex. Crim. App. 2008); In reJ.M. R., 149 S.W.3d 289, 292 (Tex. App.-Austin 2004, no pet.) (observing that when determining whether in pari materia analysis is appropriate, an importantfactor is whether the two provisions in question are containedinthe same legislative act). See also Tex. Att'y Gen. Op. No. GA-0l19 (2003) at 3-4 (discussing rule of inpari materia as means of statutory construction).The Honorable Nizam Peerwani

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crime laboratory conducting the analysis was not accredited by the [DPS] director." TEX. CODE CRIM. PROC. ANN. art. 38.35(d)(l) (West Supp. 2010) (emphasis added). Thus, under section 38.35(d)(l), the relevant inquiry is whether the crime laboratory was accredited when the forensic analysis took place. Likewise, under section 4(a)(3), when determining whether a laboratory, facility, orentityis subjectto FSC investigation, the relevant test is whether the laboratory, facility, or entity was accredited when the forensic analysis took place. In sum, the most natural reading of the statutory text is also supported by the principle of inpari materia. Accordingly, we conclude that section4(a)(3) limits theFSC'sinvestigative authorityto thoselaboratories, facilities, orentities accredited by the DPS at the time the forensic analysis took place. The final question follows: Does the Act prohibit the FSC from investigating fields offorensic analysis that have been expressly excluded by DPS pursuant to its rulemaking authority under Section 4l1.0205(c) of the Texas Government Code? When theFSC receives a complaint involving forensic analysis that is neither expressly included nor expressly excluded by the Act or DPS rule, does the FSC have authority to investigate such a complaint? Request Letter at 3. Article 38.01 expressly incorporates the definition of "forensic analysis" from article 38.35(a) ofthe Code ofCriminal Procedure: (4) "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection ofthe evidence to a criminal action. The term includes an examination ortest requestedby a law enforcement agency, prosecutor, criminal suspect or defendant, or court. TEX. CODECRIM. PROC. ANN. art. 38.35(a)(4), id. art. 38.01, § 2 (West Supp. 2010). This statutory definition is not limited to specifically enumerated types offorensic analysis but encompasses any "medical, chemical, toxicologic, ballistic, or otherexpertexamination ortestperformed on physical evidence

... for the purpose of determining the connection ofthe evidence to a criminal action." Notwithstanding that broad definition, the Act specifically excludes the following items from its generic definition of "forensic analysis:" (A) latent print examination; (B) . a test of a specimen of breath under Chapter 724, Transportation Code; (C) digital evidence;The Honorable Nizam Peerwani

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(D) an examination or test excluded by rule under Section 411.0205(c), Government Code; (E) 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 oftheTexas DepartmentofCriminalJustice, orthe Boardof Pardons and Paroles; or (F) an expert examination ortest conductedprincipally for the purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection ofphysical evidence to a criminal action. [d. § 38.35(a)(4)(A-F). In answer to the first part of this question, the Act, by its plain terms, prohibitstheFSCfrom investigatingfields offorensic analysis expresslyexcludedfrom the statutory definition of "forensic analysis." [d. art. 38.01, § 4(a)(3). As for the second part ofthis question, forensic analysis that is neither expressly included nor expressly excluded by the Act or DPS rule, butfalls underthe generic definition of"forensic analysis" found in section 38.35(a)(4), is generally subject to the FSC's investigative authority, assuming all other statutoryrequirements are satisfied.

I.The Honorable Nizam Peerwani

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### SUMMARY Although the Forensic Science Commission may conduct investigations ofincidents that occurred before September I, 2005, the law that created the Commission prohibits the FSC from considering evidencethatwas tested or offered into evidencepriorto
. thatdate. TheForensicScience Commission'sinvestigativeauthority is limited to those laboratories, facilities, or entities that were accreditedby theDepartment ofPublic Safety atthe timetheforensic analyses took place. The FSC may not investigate fields offorensic analysis expressly excluded from the statutory definition of"forensic analysis." Forensic analysis that is neither expressly included nor excluded by the Act or DPS rule, but that falls under the generic definition of "forensic analysis" found in section 38.35(a)(4), is generally subject to FSC investigation, assuming all other statutory requirements are satisfied. Very truly yours,

Attorney General ofTexas

DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee