KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

Jeffrey Barnard, M.D. 

Chair 

Texas Forensic Science Commission 

1700 North Congress A venue, Suite 445 

Austin, Texas 78701 

Dear Dr. Barnard: 

March 21, 2018 

Opinion No. 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 of the 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 licensing programs under article 38.01 of the Code of Criminal Procedure. TEX. 

CODE CRIM. PROC. art. 38.01, § 4-d. You state that "[t]oxicology is the science of identifying and 

understanding the adverse effects of external chemical and physical agents on biological systems." 

Request Letter at 2; see MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1323 (11th ed. 2004) 

( defining "toxicology" as "a science that deals with poisons and their effect and with the problems 

involved"). You explain that medical examiners and forensic pathologists typically request 

postmortem toxicology to determine an individual's cause and manner of death. Request Letter at 

2-3. You ask generally "whether postmortem toxicological analysis ... conducted pursuant to 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 of particular types of analysis 

or testing such as postmortem toxicology. Rather, article 38.01, section 4-a requires the 

Commission to license certain persons as forensic analysts. Id. art. 38.01, § 4-a. Also, section 4-d 

requires the Commission to accredit "crime laboratories and other,entities conducting forensic 

analyses of physical evidence for use in criminal proceedings." Id. art. 38.01, § 4-d(b)(l). As you 

ask only about accreditation, we limit our review to the Commission's authority to accredit entities 

under article 38.01. 

1

See 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. - Page 2 (KP-0188) 

The Co;mmission's accreditation authority under article 38.01 depends on the meaning of 

several key terms that article 38.01 defines by reference to article 38.35. See Entergy Gulf States, 

Inc. v. Summers, 282 S.W.3d 433, 478 (Tex. 2009) (holding that "[i]f a 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 a public or private laboratory or other 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 on physical 

evidence, including DNA evidence,for the purpose of determining 

the connection of the 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 of scientific research, medical practice, civil or 

administrative litigation, or other purpose unrelated to 

determining the connection of physical 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 "any tangible 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 proscribed by a criminal offense." Id. art. 38.35(a)(2), (5). 

You ask whether postmortem toxicology conducted pursuant to the request of a 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 if the answer 

depends on whether the postmortem toxicology results are used for the purpose of determining the 

connection of evidence to a criminal action. Id. Neither article 38.01 nor article 38.35 addresses 

whether the laboratory of a medical examiner or forensic pathologist must be accredited. See TEX. 

CODE CRIM. PROC. arts. 38.01, .35. However, a laboratory of a medical examiner or forensic 

pathologist can be a "crime laboratory" subject to 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 if they are 

performed "for the purpose of determining the connection of the 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. - Page 3 (KP-0188) 

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 of forensic 

analysis with its exceptions, a court would likely conclude that testing constituting medical 

practice is excluded only if its principal purpose is "unrelated to determining the connection of 

physical evidence to a criminal action." Id. Thus, a laboratory performing postmortem toxicology 

analysis is a crime laboratory subject to accreditation requirements if, and only if, the purpose of 

the analysis is to determine the connection of the evidence to a criminal action. Id. 

Under article 38.35, the purpose of the examination or testing, not how the results are 

ultimately used, determines whether the laboratory performing the postmortem toxicology analysis 

is subject to accreditation. Id. Further, the purpose of the 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]ostmortem toxicology may but does not necessarily involve a criminal action," but you do 

not provide us with information about circumstances when a request for postmortem toxicology 

analysis is or is 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 subject to accreditation requirements.3 

Moreover, even if statutory definitions could encompass a particular type of analysis, 

article 38.01 authorizes the Commission to further refine by rule the scope and applicability of the 

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 of forensic 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 

laboratory by a person other than an employee of the crime laboratory." Id. art. 38.01, § 4-d(c)(2)-

(3). Nevertheless, the Commission's duty to establish an accreditation process for crime 

laboratories and other specified entities requires the Commission to determine in the first instance, 

subject to judicial review, whether particular postmortem toxicological analysis is performed for 

the purpose of determining the connection of physical evidence to a criminal action and therefore 

subject to accreditation requirements. 

3 As discussed above, whether a laboratory or division is subject to accreditation does not resolve whether 

individual forensic analysts are subject to licensing requirements. 
Jeffrey Barnard, M.D. - Page 4 (KP-0188) 

SUMMARY 

Postmortem toxicological analysis requested by a medical 

examiner or forensic pathologist is subject to the Forensic Science 

Commission's accreditation authority only if it is performed for the 

purpose of determining the connection of physical evidence to a 

criminal action. Such purpose depends on why a medical examiner 

or forensic pathologist requests the analysis, not how the results are 

ultimately used. Whether any particular postmortem toxicological 

analysis is performed for the purpose of determining the connection 

of physical evidence to a criminal action is for the Commission to 

· determine in the first instance, subject to judicial 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 of Texas 

Assistant Attorney General, Opinion Committee