George Rodriguez spent nearly two decades behind bars before a panel of forensic scientists determined that the analyst who testified at his trial was either incompetent or knowingly perjured himself. This revelation led to a 2004 audit of the Houston Police Crime Laboratory, which exposed a systemic pattern of poor training, data misinterpretation, and sample storage violations. In response, the Texas Legislature imposed an accreditation requirement onto Texas forensic science laboratories and created the Texas Forensic Science Commission (TFSC) to investigate allegations of negligence and misconduct.
The Commission is made of nine members appointed by the Governor of Texas – seven scientists, one prosecutor, and one defense attorney. The Commission, including TCDLA’s own Mark Daniel, are still today engaged in various forensic development initiatives, working collaboratively with stakeholders in the criminal justice system to improve education and training in forensic science and the law. Over time, the Texas Legislature has expanded and clarified the role ascribed to TFSC under TCCP 38.01. Currently, the Commission serves four main purposes: (1) investigate complaints of misconduct, (2) accredit crime laboratories, (3) adopt administrative rules for the use of certain disciplines in the courtroom, and, (4) as of 2019, license individual forensic analysts.
1. Licensing Requirement
Prior to 2019, the accreditation requirement was already implemented for laboratories conducting forensic testing in Texas. The new Forensic Analyst Licensing Program now requires each individual acting as a forensic analyst to have their own individual license on top of the already existing requirement that the laboratory for which they work be accredited. The statute lays out which disciplines are subject to the licensing requirement:
- Drug sample testing
- Forensic Biology (DNA)
- Firearm & Toolmarks (ballistics)
- Document comparison
- Trace comparison (gunshot residue, footprints)
No License Required:
- Latent fingerprint examination
- Intoxilyzer breath test
- Digital examination
- Text excluded under Article 38.01
- Presumptive tests (for parole or probation violations)
- Text done primarily for scientific research or medical practice
- Forensic Pathology
- SANE examination
- Forensic anthropology, entomology, or botany
- Environmental Testing
- Accident reconstruction
- Serial number restoration
- Polygraph examination
- Voice recognition
- Statement analysis
- Forensic odontology
- STI testing
- Arson investigation
- Forensic photography
- Non-criminal paternity testing and tissue testing
- Forensic Psychology
The new forensic licensing program brings with it a number of benefits to defendants and defense attorneys. One benefit is the ability of the Commission to reprimand individuals after a determination that misconduct has occurred. TFSC now has the authority to revoke or suspend such a person’s license, or refuse to renew their license once it expires. If an analyst’s license is suspended under this provision, the Commission can put that individual on probation, and impose conditions on that probation such as requiring they report regularly to TFSC or take classes to improve the areas that are the basis of the discipline. Additionally, this licensing requirement leaves open a new vehicle by which we can exclude expert testimony. Going forward, we must always check the license requirements and status for each expert noticed by the State.
2. Public Database
Given its vast regulatory functions involving forensic sciences, TFSC maintains a wealth of information and data on forensic laboratories and laboratory personnel, including applications and materials on accreditation of forensic laboratories, as well as records relating to complaints, disclosures, serial number discrepancies, mistakes, errors, spills, misplaced or lost samples, misconduct, false entries and other laboratory noncompliance issues. Texas law requires that all of these matters be reported to the Commission.
Much of this data and information has historically been available to the public through public information requests, which often involved a cumbersome and time-consuming process. However, TFSC announced this past April that it will be making all of this invaluable public information readily available through a public database hosted on its website. The database, which launched in June, is scheduled to be made accessible in November 2021. This database will be a vital resource for criminal defense attorneys across the state.
3. New Disciplines
The field of forensic science is ever evolving and growing, with new specialties and testing being developed continuously. Sometimes, this may lead to unreliable sciences being offered as proof in court. Some of the previously admitted sciences now determined to be unreliable include forensic odontology, hair microscopy, retrograde extrapolation, and arson investigation. There are two new areas that Texas criminal defense attorney must be aware of in the coming years: Rapid DNA Testing and Marijuana Testing.
Rapid DNA Testing: In 2018, the FBI approved Rapid DNA Identification – a DNA analysis developed by ANDE corporation which provides results in less than two hours. Such rapid testing would allow suspects to be swabbed at booking and their samples run through the database immediately. However, none of the entities performing this test are accredited by TFSC. Additionally, Rapid DNA Identification use at crime scenes also comes with its own limitations: crime scene DNA samples may be mixtures, or they may contain low quantity or quality DNA. Even if a quality sample is collected, there are currently no approved expert systems for crime scene samples, and law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results. As currently marketed, Rapid DNA analysis will become a law enforcement database with no restrictions, quality controls, or standards, making it largely unreliable.
Marijuana Testing: In December of 2018, the Texas Legislature passed the Agriculture Improvement Act, which legalized the industrial production of hemp. With the new law, THC concentrations under .3% are considered legal hemp, but the laboratories do not have the instrumentation to quantitate the amount of THC in a sample. In order to compensate for this lack of quantitation, some Texas laboratories have modified the DEA approach to cannabinoid testing, adding a visual examination for “cystolithic” or unicellular hairs. If the sample contains THC but the analyst cannot observe any hairs, the substance is reported as simply THC. If the sample contains THC and the analyst does observe hairs, the substance is reported as marijuana.
However, this method is tenuous under Texas law, which distinguishes between legal and illegal Cannabis products by the part of the plant the product is derived from. Since Texas law groups the derivatives of the plant with the portion of the plant it was derived from, the visual inspection component does not provide any meaningful information. This leaves the THC detection alone, without proper quantitation, as an insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.
Mark Daniel’s term as the TCDLA representative to the Commission ended on September 1, 2021. Mark was appointed to the Commission in November 2016. The Commission wouldn’t have been what is has been during his term and what it has grown to be without his participation and leadership. Mark has done an amazing job representing citizens accused, their counsel and thereby, all citizens of the State of Texas on the Commission. He used his special talents to move between the scientists and the representatives of legal interests to secure the implementation of many practices which make forensics in Texas more transparent than any other state in the union. Maybe the crowning jewel in Mark’s work at the Commission is the public data portal which is in the final days of beta-testing and modification. This portal will give practitioners access to the records of each licensed lab and lab worker along with any complaints self-disclosed or otherwise against a lab or an employee or associate thereof. The portal will also provide access to the disposition of the complaint. Counsel will have the information at her hand to confront witnesses who claim special forensic expertise in an efficient and effective fashion like never before. We couldn’t have been better served or more grateful as an association! Thank you, Mark!
Thank you to Bill Hines of Austin for serving us so well on the licensing advisory committee of the Texas Forensic Science Commission for the past three years. We are appreciative and grateful that he selflessly devoted his time in the pursuit of justice. He will be stepping away in January 2022, and will be replaced by Angelica Cogliano of Austin.