### KEN PAXTON ATTORNEY GENERAL OF TEXAS

Jeffrey Barnard, M.D. Chair Texas Forensic Science Commission 1700 North Congress Avenue, Suite 445 Austin, Texas 78701

Dear Dr. Barnard: March 21, 2018
OpinionNo. KP-0188 Re: Whether postmortem toxicological analysis conducted pursuant to the request of a medical examiner or forensic pathologist is subject to accreditation requirements of the Forensic Science Commission (RQ-0183-KP)

You ask about the accreditation authority ofthe Texas Forensic Science Commission (the "Commission") concerning postmortem toxicological analysis conducted pursuant to the request of a medical examiner or forensic pathologist. 1 The Commission administers forensic science accreditation and licensingprograms under article 38.01 ofthe Code ofCriminal Procedure. TEX. CODE CRIM. PROC. art. 38.01, §4-d. You state that "[t]oxicologyis the science ofidentifying and understanding the adverse effects ofexternal chemical andphysical agents onbiological systems." Request Letter at 2; see MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1323 (11th ed. 2004) (defining "toxicology" as "ascience that deals withpoisons and their effect and withtheproblems involved"). You explain that medical examiners and forensic pathologists typically request postmortem toxicologyto determine an individual's cause and manner ofdeath. Request Letter at 2-3. You askgenerally "whetherpostmortemtoxicological analysis

... conductedpursuantto the request of a medical examiner or forensic pathologist is subject to Commission accreditation requirements." Id. at 1: Article 38.01 creates the Commission and assigns its duties and authority. TEX. CODE CRIM. PROC. art. 38.01. The statute does not require accreditation ofparticular types ofanalysis or testing such as postmortem toxicology. Rather, article 38.01, section 4-a requires the Commissionto license certainpersons as forensic analysts. 

### Id. art. 38.01, §4-a. Also, section4-d requires the Commission to accredit "crime laboratories and other,entities conducting forensic analyses ofphysical evidence for use incriminal proceedings." 

### Id. art. 38.01, §4-d(b)(l). As you askonly aboutaccreditation, we limitourreviewto the Commission's authorityto accreditentities under article 38.01.

1See Letter from Jeffrey Barnard, M.D., Chair, Tex. Forensic Sci. Comm'n, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 3 (Sept. 22, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").Jeffrey Barnard, M.D.

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The Co;mmission's accreditation authority under article 38.01 depends on the meaning of several key terms that article 38.01 defines byreference to article 38.35. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 478 (Tex. 2009) (holding that "[i]fa statute defines a term, a court is bound to construe that term by its statutory definition only" (internal quotation marks omitted)). As defined, a "'crime laboratory' includes apublic orprivate laboratory orother entity that conducts a forensic analysis subject to [article 38.35]." TEX. CODE CRIM. PROC. art. 38.35(a)(l) (emphasis added); see also id. art. 38.01, § 2(3) (stating that the term "'[c]rime laboratory' has the meaning assigned by Article 38.35"). For accreditation purposes, "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed onphysical evidence, including DNA evidence,for thepurpose of determining the connection ofthe evidence to a criminal action. The term includes an examination or test requested by a law enforcement agency, prosecutor, criminal suspect or defendant, or court. The term does not include:

(F) an expert examination or test conducted principally for the purpose ofscientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection ofphysical evidence to a criminal action. Id. art. 38.35(a)(4)(F) (emphases added); see also id. art. 38.01, 

### § 4-d(a) (adopting the definition of"forensic analysis" from article 38.35).2 Additionally, article 38.35 defines "physical evidence" as "anytangible object, thing, or substance relating to a criminal action," and "criminal action" as "includ[ing] an investigation, complaint, arrest, bail, bond, trial, appeal, punishment, or other matter related to conduct proscribedby a criminal offense." Id. art. 38.35(a)(2), (5). You ask whether postmortem toxicology conducted pursuant to the request ofa medical examiner or forensic pathologist falls within the "medical practice" exception from the definition of"forensic analysis" in article 38.35(a)(4)(F). Request Letter at 3. You ask further ifthe answer depends onwhetherthepostmortemtoxicologyresults are used for the purpose ofdeterminingthe connection ofevidence to a criminal action. Id. Neither article 38.01 nor article 38.35 addresses whetherthe laboratory ofamedical examiner orforensic pathologistmust be accredited. See TEX. CODE CRIM. PROC. arts. 38.01, .35. However, a laboratory of a medical examiner or forensic pathologist canbe a "crime laboratory" subjectto the Commission's accreditation requirements if it performs 

# a "forensic analysis subject to" article 38.35. Id. art. 38.35(a)(l). Toxicologic examinations or testing performed on physical evidence are subject to article 38.35 ifthey are performed "forthe purpose ofdetermining the connection ofthe evidence to a criminal action."

2Article 38.01, section 2 also provides a definition of "forensic analysis." TEX. CODE CRIM. PROC. art. 38.01, § 2(4). However, sections 4-a and 4-d specifically adopt the definition located in article 38.35 for licensing and credentialing purposes. Id. art. 38.01, §§ 4-a(a)(I), 4-d(a).Jeffrey Barnard, M.D.

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### Id. art. 38.35(a)(4). The exclusion for examinations or tests conducted principally for medical practice purposes is limited to purposes "unrelated to determining the connection of physical evidence to a criminal action." 

### Id. art. 38.35(a)(4)(F). Harmonizing the definition offorensic analysis with its exceptions, a court would likely conclude that testing constituting medical practice is excluded only ifits principal purpose is "unrelated to determining the connection of physical evidenceto a criminal action." 

### Id. Thus, a laboratoryperformingpostmortemtoxicology analysis is a crime laboratory subject to accreditation requirements if, and only if, the purpose of the analysis is to determine the connection ofthe evidence to a criminal action. 

### Id. Under article 38.35, the purpose ofthe examination or testing, not how the results are ultimatelyused, determineswhetherthe laboratoryperformingthepostmortemtoxicology analysis is subject to accreditation. 

### Id. Further, the purpose ofthe toxicology depends on why a medical examiner or forensic pathologist requests the analysis. Cf id art. 38.35(a)(4)(F) (stating that for forensic accreditation purposes, the term '"forensic analysis'

... includes an examination or test requested by" law enforcement, prosecutors, suspects, defendants, or a court). You acknowledge that "[p]ostmortemtoxicology maybutdoes not necessarily involve a criminal action," butyou do not provide us with information about circumstances when a request for postmortem toxicology analysis is oris not related to a criminal action. Request Letter at 3. The facts and circumstances concerning a particular request by a medical examiner or forensic pathologist for postmortem toxicology testing and examination will likely determine whether the laboratory that performs the analysis is subjectto accreditation requirements. 3 Moreover, even if statutory definitions could encompass a particular type of analysis, article 38.01 authorizesthe Commissionto further refine byrule the scope and applicability ofthe accreditation process requirements to comport with certain practical considerations. See TEX. CODE CRIM. PROC. art. 38.01, §4-d(b); see also 37 TEX. ADMIN. CODE§ 651.5 (Tex. Forensic Sci. Comm'n, Forensic Disciplines and Procedures Subject to Commission Accreditation). Specifically, the Commission may create exemptions from the accreditation process for an entity conducting a particular type offorensic analysis examination or test that is admissible under a statute or well-established rule of evidence, or if it is "routinely conducted outside of a crime laboratoryby apersonotherthanan employee ofthe crime laboratory." 

### Id. art. 38.01, §4-d(c)(2)- (3). Nevertheless, the Commission's duty to establish an accreditation process for crime laboratories andother specified entitiesrequires the Commissionto determine inthe first instance, subject tojudicial review, whether particular postmortem toxicological analysis is performed for the purpose ofdetermining the connection ofphysical evidence to a criminal action and therefore subject to accreditation requirements.

3As discussed above, whether a laboratory or division is subject to accreditation does not resolve whether individual forensic analysts are subject to licensingrequirements.Jeffrey Barnard, M.D.

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SUMMARY Postmortem toxicological analysis requested by a medical examiner or forensic pathologist is subjectto the Forensic Science Commission's accreditation authority only ifit is performed for the purpose of determining the connection of physical evidence to a criminal action. Suchpurpose depends onwhy a medical examiner or forensic pathologist requests the analysis, not howthe results are ultimately used. Whether any particular postmortem toxicological analysis is performed for the purpose ofdetermining the connection ofphysical evidence to a criminal action is for the Commission to
·determine inthe first instance, subjecttojudicial review.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee