Troy McKinney

On January 1, 2014, discovery in criminal cases in Texas will enter a new era—one in which almost anything the defense wants to prepare its case must be produced by the State. Gone will be the days of dependence on the generosity and charity of the prosecutor. Gone will be the days when prosecutors leveraged discovery availability by requiring defendants to agree to waive other discovery and motion rights. Gone will be the days when prosecutors only allowed a visual inspection of offense reports and witness statements, requiring criminal defense lawyers to take often voluminous notes. Gone will be the days when prosecutors could hide impeaching information pretrial on the theory that disclosure of impeaching information was only required if the case proceeded to trial. The playing field in criminal cases in Texas will now be fairer and much more level as we truly enter the proverbial 21st century.

Senate Bill 1611 (SB 1611), named the “Michael Morton Act,” was sponsored jointly by Senators Rodney Ellis (D-Houston) and Robert Duncan (R-Lubbock). They and their staff (especially Brandon Dudley, chief of staff and general counsel, and Megan LaVoie, general counsel) are due much credit for shepherding this momentous legislation and dealing with all of the competing and often contentious interests involved. It unanimously passed both the House and Senate. It was quickly signed by Governor Perry in a public ceremony where it was once again praised as a mechanism to lessen the likelihood of convicting the innocent. Of course, as with most things, how effective its reforms ultimately becomes in lessening the likelihood of wrongful convictions will depend on defense lawyers understanding and taking advantage of it, prosecutors understanding the Act’s requirements and following its rules, and the courts enforcing both the letter of the law and the goals it sought to achieve.

The purpose of this article is to highlight the major changes and to provide guidance to lawyers and judges as they seek to understand and adapt to the changes made by SB 1611 to Tex. Code. Crim. Pro. 39.14.¹

Initiation of Discovery

A person charged with a crime² who wants discovery must ask for it. 39.14(a) provides “as soon as practicable after receiving a timely request from the defendant the state shall produce and permit [discovery]. . . .” By its terms, it requires a request from the defendant, but imposes no requirements on the form the request must take. The request must be directed to the prosecutor as the representative of the State. As a practical matter, these requests should be in writing. The last thing good lawyers want is an argument over the what was orally said, heard, or understood. The request need be nothing more than a letter, though it could also be in the form of a motion, much as many requests for notice of things like extraneous offenses occur today. Though neither permitted, prohibited, nor required by the statute, it would be wise for the request to also be filed with the court and contain a certificate of service. Memorializing the request in this way provides a record and eliminates arguments over whether and when it was received. It would also be wise for counsel to obtain an acknowledgment from the prosecutor that the request was received.

Unfortunately, the statute provides no precise deadline for the State to produce the requested discovery, except to require that it be produced “as soon as practicable.” What amounts to “as soon as practicable” will often depend on what is being requested. Some things like offense reports and witness statements should usually be produced rather quickly—because it is almost always practicable to do so. Other items that may require a prosecutor to obtain them from a law enforcement entity or third party may reasonably take longer. It is likely that most prosecutors will (and should) set up procedures to handle routine items.

It might be beneficial in some cases for criminal defense lawyers to split their requests into multiple requests—segregating the requests by a rough assessment of how quickly the prosecutor might be expected to produce the items requested. Those items likely to already be in a prosecutor’s file could go in one request and items from specific other entities (such as a lab) could be in separate requests.

If you do not ask, you likely will not get discovery, and without a request, the prosecutor has no obligation to produce anything other than items constitutionally required by Brady v. Maryland.

The Form of Discovery Production

Gone are the days of taking notes. 39.14(a) requires the State to “produce and permit the inspection and the electronic duplication, copying, and photographing” of the requested discovery. Defendants now have the right to a copy of the requested discovery and prosecutors are required to provide a copy when requested.

Of course, if all one requests is inspection, which will be appropriate in some circumstances, all one will get is an inspection. For example, if one wants to examine a piece of physical evidence, like a blood tube or a firearm, inspection and photographing may be appropriate while electronic duplication and copying are physically impossible. Lawyers should include in their requests the precise manner of production sought for each item requested. If you want electronic duplication and copying, then specifically ask for it. If you want inspection, then ask for inspection. If you want to photograph, then ask to do so. Lawyers should not, however, simply list every possible method as a preamble to a long list unless each method is appropriate. We should not make prosecutors guess at how the requested items should be produced.

39.14(a) specifically allows that “[t]he state may provide to the defendant electronic duplicates of any documents or other information described by this article.” Basically, this provision shifts the ultimate printing or copying costs to the defendant. It allows the State to scan items, rather than copy them. Though this portion of the statute is permissive, it was sought by prosecutors so that they could choose to provide electronic copies (scanned images) rather than printed copies. Though the costs of paper copies in any individual case are usually de minimus, when those small costs are multiplied thousands or tens of thousands of times, they can become substantial. It is no great burden on the criminal defense bar to print out scanned images. It also saves the time of having to scan them ourselves.

What Can Be Requested and What Must Be Produced

39.14(a) also sets out what can be requested, what must be produced, and the statutory exceptions. It provides for a request for and production of:

[A]ny offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

It is important to break this section down in order to understand each of its component parts. Specifically listed items include “offense reports,” “written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers,” and “any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action…”

Importantly, all written statements by a law enforcement officer are included within the statute. Thus, reports that are written wholly and only on internal law enforcement networks (like surveillance logs and reports in many narcotics cases) are specifically included in the definition of witness statements. This statute also puts law enforcement officers on notice that their written statements (like originally hand written notes) must be produced when requested. Gone are the days when one must get a court order compelling production of handwritten notes. It is also arguable that those who destroy their notes, knowing that they must be produced when requested, will have committed transgressions that will serve as the basis for litigation, not to mention comment at trial. Think about the folks at BP who are being prosecuted by the feds for destroying their original writings (text messages and emails), knowing that they might be required in the investigation and litigation.

Of particular importance is the portion of 39.14(a) that provides for production of “designated documents [and] papers…” The “designated” referred to in this language are items designated by the defendant. Thus, almost anything that constitutes a document or paper (and the words must mean something different from each other) is within the scope of 39.14. This includes as much as can be imagined and is specific to the case and will vary greatly from case to case. Common items may include MDT logs, dispatch tapes and logs, 911 tapes, training records, disciplinary records (at least of sustained complaints), personnel records, booking photos, payments to informants, and many more. This allows and requires the defense lawyer to tailor the requests to the specific needs of the case.

Discovery is not limited to what is in the prosecutor’s file. It includes items “in the possession, custody, or control of the state or any person under contract with the state.” Anything held by any law enforcement entity or other political subdivision of the State (basically, any non-federal government entity) is in the possession, custody or control of the State. It also includes items in “the possession, custody or control… of any person under contract with the State.” Thus, when the State contracts with a non-government third party, it remains obligated to produce items from that third party. This most commonly occurs when the State sends biological samples to non-government labs for testing. Bottom line—when the state contracts with a third party, material from the third party becomes discoverable.

Lawyers should not, however, have just one form discovery request that they use in all cases. Asking for DNA or lineup information in DWI cases will do nothing but make the lawyer look lazy and unprofessional. Discovery requests should be tailored to each case, though there are clearly some items that will be requested in almost every case.

Exempted from discovery by this section is the “work product of counsel for the state in the case and their investigators and their notes or report…” This exemption is limited. The item must constitute “work product.” The scope of what is work product is beyond the scope of this article, but notes by a prosecutor in preparation for the case are almost certainly work product.

This exemption is expanded in a later portion of 39.14(a), which provides that “[t]he rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state.” Nothing in the discovery statute, however, changes the requirements of the Rules of Evidence for production at trial of all statements of any testifying witness. See Tex. R. Evid. 612 (writing used to refresh memory) and 615 (statement of witnesses in criminal cases). Additionally, nothing in this statute affects a trial court’s power under Tex. R. Evid. 705(a) to require pretrial disclosure of the full underlying facts or data on which a testifying expert may rely. Bottom line—the Rules of Evidence still allow for discovery and disclosure of communications between a prosecutor and a testifying witness to the extent that it falls within the scope of the applicable Rule of Evidence.

There is one very significant exception to the work product and agent-communication exceptions. 39.14(h) provides that “[n]otwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”³ Thus, even work product and agent communications must be disclosed if it is exculpatory, impeaching, or mitigating. When a prosecutor or a prosecutor’s investigator takes notes of a witness interview, those notes will ordinarily be work product (unless the prosecutor or investigator may testify, in which case they become witness statements). However, to the extent that anything in those notes is impeaching, exculpatory, or mitigating to guilt or punishment, those portions of the notes must be disclosed. 39.14(h) trumps all other aspects of any limitation in the discovery statute.

Redaction of Material

Not everything is discoverable. 39.14(c) allows redaction in certain circumstances. It provides:

If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

39.14(c) only allows redaction of things that are not subject to discovery under 39.14 (“document, item, or information is [not] subject to discovery under this article.”), and 39.14 only permits a prosecutor not to disclose privileged material. On the other hand, 39.14(c) allows a court to determine “whether withholding or redaction is justified under this article or other law.” Accordingly, it is likely that if some other law completely prohibits disclosure of certain types of information, a prosecutor will be justified in redacting it even if it is not expressly prohibited by 39.14—at least absent some compelling argument by the defense specific to the case. As a practical matter, even if the initial redaction is not justified by the initial clause of 39.14(c), a court, though not required to do so, may be justified in upholding such a redaction.

It is seriously doubtful, however, that this statute will allow the continuation of the practice in some jurisdictions of rou­tinely redacting personally indefinable information such as addresses, phone numbers, driver’s license number, police payroll numbers, and the like. On the other hand, social security numbers are seldom needed by defense counsel and may likely be legitimately (though not required to be) redactable.

Other provisions of the statue dealing with the issue of confidentiality of some personal information make it implicit that such information is initially discoverable by defense counsel—even if there are limits of how and to whom else that information may be disclosed. There would be little point in providing limits on redistribution of such information if the information was not discoverable in the first instance.

Confidentiality of Discovery

Two sections of the new discovery rights create obligations and restrictions on dissemination of the material produced. 39.14(e) is a general provision that applies to any disclosure to third par­ties of the material received from the State. 39.14(f) governs restrictions on disclosure in some instances, of some material, and to some persons on the defense team or witnesses.

As a general rule, 39.14(e) restrictions apply to anyone who is part of the defense team and prohibit disclosure “to a third party [of] any documents, evidence, materials, or witness statements received from the state” unless authorized by court order or when the material has already been publicly disclosed. 39.14(e) provides:

(e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or

(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

Bottom line—if you get it from the State as part of discovery under 39.14, you cannot release it to anyone outside the defense team without court permission or unless the material is already public. Examples of material that may already be public includes booking photos and some 911 calls.

39.14(f) contains restrictions on the use and disclosure by the defense team within the case preparation context. It provides:

(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

Those on the defense team (excluding the defendant, who may not be an agent of the lawyer for this purpose) “may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.” In some instances, such as when a particular location or person’s identity may be a central defense issue, it may be necessary that some material be shared with witnesses in order to effectively prepare for trial. Nothing in 39.14 prohibits such basic case work.

Importantly, nothing in 39.14(f) restricts the dissemination of material to experts retained to consult or testify in the case (the statute distinguishes experts from other witnesses), but it does include such experts as persons subject to the restrictions of the statute. Defense counsel should always expressly inform, preferably in writing, any expert on the case of the terms of 39.14(e) and (f), as the law makes any such person subject to the statute’s restrictions.

On the other hand, 39.14(f) does prohibit some of the information contained in the documents from being shown or disclosed to the “defendant, witness, or prospective witness.” The restricted information under 39.14(f) includes “the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement.” The goal of this statute is to prevent such information from being accessible to persons who may use it for less than legitimate purposes related to the case. Normally, this restriction will not present any material difficulties in the handling of the vast majority of criminal cases.

There may, however, be some instances in which disclosure of this restricted information is necessary to fulfill a lawyer’s ethical and constitutional obligations—for example, disclosure of an address or date of birth to a witness to confirm or rebut the accuracy of some case-related issue. While 39.14 contains no specific remedy for such situations, no statute may abrogate the constitutional right to effective assistance of counsel. The instances in which this may occur and when such disclosure may be necessary to provide effective assistance of counsel will not be common.

When such situations do arise, however, lawyers ought to consider a sealed ex parte motion to the court seeking judicial authority to make the disclosure. Because the potential good cause for the disclosure will necessarily involve disclosure of case-related strategy issues, as it does with Ake motions, the motion should be ex parte and under seal. If the court grants permission, which it has the inherent authority to do—the statute notwithstanding—to ensure that the statute does not become unconstitutional as applied, the lawyer will have both legal and ethical protection.

Lawyers should be very reluctant to make the decision on their own and ought to seek advance court approval. Though a lawyer’s unilateral decision may ultimately prove defensible, it may also come with some serious pain in defending the decision. Caution is warranted.

Ethical Obligations Exception

Lawyers have certain ethical rights and restrictions on public communications concerning the facts of a case, as provided by the Texas Disciplinary Rules of Professional Conduct. 39.14(g) allows a lawyer to communicate in ways that are permitted by ethical rules, with restrictions intended to shield alleged victims and witnesses from excessive, unnecessary disclosure of their identities (except as allowed by subsections (e) and (f)) and iden­tifying information. Basically, it seeks to prevent a situation where prosecutors, law enforcement, or others have spoken publicly about a case and it is necessary, in the course of and to fulfill the goals of the representation, for a lawyer to respond to or rebut such public claims.

The statute strikes a balance by allowing disclosures in such circumstances, as permitted by the Disciplinary Rules, but prohibiting the disclosure of identities—that are not otherwise exempted from restriction by subsection (e) and (f)—and other identifying information. It provides:

(g) Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Pro­fessional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

This awkwardly written provision both gives and takes. On the one hand, it recognizes, as it must to pass constitutional muster, that lawyers have both ethical and constitutional duties that cannot be abrogated by statute. On the other hand, it then seems to exempt from the ability to fulfill those obligations the same kinds of information that may be necessary to fulfill a law­yer’s ethical and constitutional obligations.

This section is best viewed as a restriction on general, public communications of specific personal information not otherwise already public that may be allowed by the ethical rules.

Pro Se Defendants

The rules of discovery for pro se defendants are more limited and restrictive. 39.14(d) provides, “[i]n the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a).”

A pro se defendant may not obtain discovery by simply requesting it. It requires a court order. Even with a court order, the State is only required to let the pro se defendant view and examine the material. The State is not required to (though it may) provide electronic or other copies. With pro se defendants who are incarcerated, this is going to present some serious logistical problems, but they are ones that prosecutors and judges will have to work out. It may also have some equal protection issues, but those will have to be sorted out by the courts on a case-by-case basis.

Costs of Discovery

A prosecutor may not charge anything to produce the required discovery and nothing in the statute allows them to do so. However, under 39.14(l) “[a] court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.” This will require the State to file a motion and obtain an order before any payment for costs of the dis­covery may be imposed. Ordinarily, this should not occur as the cost in seeking a court order for a few dollars in copying costs will most often not warrant the work required to secure the payment. In those rare instances where payment of costs by the defense may be appropriate (a court is not required to order payment of costs—the permissive “may” allows a court to determine on a case-by-case basis whether it is appropriate), the court cannot order any amount in excess of what would be allowed under the Texas Public Information Act (TPIA). As a general rule, copy costs are limited to ten cents a page, though there may be other costs as well. The scope of costs allowable under the TPIA is beyond the scope of this article, but counsel faced with such a situation will need to closely examine the TPIA and the state agency rules (Attorney General) applicable to such costs.

Documenting Discovery

39.14 contains specific rules for documenting and memorializing discovery. The goal of these sections was to eliminate hindsight arguments over what was produced by the State or received by defense counsel. 39.14(i) and (j) provide:

(i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

39.14(i) is intended to require the State to contemporaneously (either electronically in those jurisdictions that have such systems or otherwise—typically in writing) record and document all discovery provided to the defense. 39.14(j) requires that in every case in which there is a plea or a trial, each party acknowledge disclosure and receipt of a list of the specific items provided. As document retention policies for both clerk’s and court reporters vary, it will be a better practice to have the disclosures made both in writing and on the record. Criminal defense organizations, prosecutors’ offices, and some courts are developing forms that will comply with this statute. Both prosecutors and defense lawyers should obtain and keep a copy of any written record of the discovery.

These requirements will take some getting used to, and are going to increase the paperwork burden, but they are designed to protect prosecutors (from claims of a lack of disclosure), defense lawyers (from claims of insufficient pretrial investigation), and defendants (from deficiencies of both prosecutors and defense lawyers) from fading memories that are the norm once cases are resolved. They are important for everyone, but will only be as effective as they are complete.

As with requests for discovery, no specific form is required, but it was intended to require sufficient detail to allow a third party looking at it (maybe years or decades later) to determine what was produced. For example, merely stating “offense report” is insufficient to protect anyone. A more appropriate description might be “offense report number x, dated y, authored by z and consisting of pages a through b and supplements c through d.” Witness statements should also contain more description than just “witness statements” or even “statement of John Doe.” At the very least, the date of the statement and the number of pages should be included. The degree of detail will depend on the specific item, but all need to keep in mind that if it ever gets looked at, the degree of detail will be directly proportional to the degree of protection provided to the party who needs the records. Lack of detail will make it difficult, if not impossible, for the party needing protection to achieve it. Last, but not least, if the writing is hand written, it needs to be legible.

Brady and the Statutory Brady-like Obligations

Lawyers must be familiar with the requirements of Brady v. Mary­land, which provides that due process requires the State to turn over any exculpatory, impeaching, and mitigating evidence. 39.14, however, goes beyond the requirements of Brady. First, under Brady and its progeny, impeaching material must only be turned over at a time and in a way that allows it to be used effectively at trial. In practice, this has resulted in far too many prosecutors failing to disclose information that is impeach­ing when there is not a trial—even though knowledge of this impeachment material would materially affect a defendant’s decision to accept a plea bargain offer or to proceed to trial. As many prosecutorial leaders have preached for many decades, a defendant is not entitled to a fair guilty plea, just a fair trial. Whatever the merits of that argument, 39.14 eliminates that line-parsing.

39.14(h) provides that “[n]otwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.” Imposed on this requirement is the basic requirement of 39.14(a) that disclosures shall be “as soon as practicable.” This requirement eliminates the game playing from withholding impeaching information unless and until a trial occurs. Importantly, impeaching information may include information or documents about an officer’s professional status, pending investigations, unavailability, and sustained grievances. It also clearly includes inconsistent statements from witnesses, at least to the extent that they go to a material issue, which includes credibility. Whether a particular inconsistency might tend to negate the guilt of the defendant will vary from case to case, but a prudent prosecutor should make disclosure of all inconsistencies, and let the chips fall where they may, lest they later be accused of hiding and failing to disclose information required to be disclosed under the statute. Given that the entire purpose of SB 1611 was to require complete dis­closure of anything even remotely favorable and to prevent hid­ing of such evidence, lawyers on both sides and the courts should remain acutely aware of the significant responsibilities of prosecutors to err on the side of disclosure.

39.14(k) also makes it clear that the obligation to make such disclosures in ongoing and is not extinguished by a plea or trial. It provides, “[i]f at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.” If a prosecutor chooses to make the disclosure only to a court, a curious anomaly in the statute, the court should ensure that the disclosure is also transmitted to the defendant and defense counsel. Anything less would likely render a disclosure to the court alone an ethically prohibited ex parte communication, something prosecutors should also keep in mind in choosing whether to report only to the court.

Discovery Agreements

39.14(n) allows the parties to agree to some discovery and documentation different than the statute requires. It provides, “[t]his article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.” Importantly, it does not allow for agreements that in any way lessen the statutory requirements— only those agreements “equal to or greater than those required” by the statute. Gone are the days when prosecutors could condition discovery on an agreement to forego other discovery or discovery motions.

As a practical matter, this statute allows for the defense to directly obtain discovery of some things independent of the prosecutor. In many jurisdictions, it is common practice for defense lawyers to obtain some governmental and third-party records by issuing a subpoena for those records. This portion of the statute allows for those practices to continue. In large part, this can result in an agreement, even implicitly, to shift the burden of obtaining some items by and from the prosecutor to the defendant. Often, with common items, such as dispatch logs, booking photos, and MDT logs, the work-load tradeoff is beneficial to all concerned and makes the system more efficient. Admittedly, some prosecutors may choose to assume the work-load on themselves.

Interaction with Public Information Act

Some prosecutors, and more frequently other government agency lawyers, assert claims that provision of the Texas Public In­for­ma­tion Act (TPIA) make information confidential and not subject to discovery. Aside from the fact that the TPIA expressly provides that its provisions only apply to public information act requests, 39.14(m) makes this argument untenable by expressly providing that “[t]o the extent of any conflict, this article prevails over Chapter 552, Government Code.”

Important Exemptions from 39.14 Discovery

There is one significant situation in which a copy of discovery may not be obtained. 39.14(a) expressly provides that the discovery rights under 39.14 are, “[s]ubject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code. . . .”

Article 39.15 provides that images of child pornography and material described by Article 38.071 (some pretrial recorded statements of children under 13 years of age in some circumstances) may only be viewed and inspected at a facility under the control of the State and mat not be copied. Tex. Fam. Code § 264.408 provides the same restrictions to child abuse videotape interviews. In such circumstances, 39.15(d) provides that “property or material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant’s attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial.”

In such circumstances, some courts have allowed transcripts of the videotapes to be prepared for use of the parties, usually with the restriction that they only be used for the purposes of the case and not otherwise. Given that lawyers could hand write every question and answer, verbatim, and thus produce a transcript, there is little practical reason not to allow a professional transcript to be prepared. It makes everything related to those videotapes far more useful for both sides during the course of a trial.

Sanctions for Violation of the State or Discovery Abuse

39.14 contains no express sanctions for the violation by any party of the provisions of the discovery statute. Though potential sanctions (against both sides) were proposed and discussed in the formulation of the legislation, it was ultimately decided that such matters were better not specifically addressed. Frankly, both prosecutors and defense lawyers were leery about the application of express sanction. In the end, the consensus was that since courts already possess the inherent power to order remedial and sometime punitive (non-monetary) sanctions, it was best left to the remedies that already existed rather than trying to write a set of rules or guidelines that could produce unintended consequences for both sides.

Effective Date and Applicability

SB 1611 becomes effective on January 1, 2014. By its express terms it only applies to alleged crimes committed on or after January 1, 2014. Thus, there will be a transition period during which we operate under two sets of discovery rules. Though efforts were made to have these new procedural rules apply to some or all pending cases, the Legislature ultimately decided to make them only prospective to offenses allegedly committed on or after the Act’s effective date.

Conclusion

The provisions of 39.14 are intended to minimize the horror and likelihood of another Michael Morton. They are intended to bring some basic fairness into criminal discovery and to make it less likely that there is ever again such a dehumanizing miscarriage of justice. If used appropriately and effectively, the Act will likely make resolution of criminal cases (either by plea or trial) less problematic and less a guessing game on the part of defendants and their lawyers. The changes usher in a new era that will better enable defense lawyers to provide meaningful advice to their clients and create an opportunity for defense lawyers to more effectively provide constitutionally guaranteed effective assistance of counsel. The system and all of its participants will benefit and be better off both in the short and long term.

Notes

1. References in this article to 39.14 are to the amended version that becomes effective January 1, 2014, unless specifically noted otherwise.

2. It is doubtful that those arrested but not yet formally charged have any discovery rights under the amended 39.14 because they are not yet defendants. By its terms, 39.14 only applies to defendants. Nonetheless, it never hurts to ask, and those wanting discovery before charges are filed lose nothing by asking for it.

3. All emphasis in quoted material is added unless expressly stated otherwise.

Though Texas has had a breath alcohol testing program for over 40 years, its program has only recently adopted formal written “Standard Operating Guidelines” (SOG) for technical supervisors to follow in the operation of some aspects of the breath test program. The lack of such guidelines (or almost any written policies) has long been problematic and has long been a source of valid criticism of the Texas program—from within Texas and elsewhere. Why it has taken this long to begin to try put anything resembling science into a program headed by a position named “Scientific Director” is, at least in part, due to the culture at DPS that believed that if it had written policies and standards, others might seek to hold those involved in the program accountable to the standards, both scientifically and legally. One can speculate why DPS would see the need to be concerned about those in the program living up to specified standards and policies, but, at least until they begin to water them down, the Texas Breath Alcohol Testing Program now has written standards that technical supervisors are required to follow with respect to some aspects of the breath testing program. It is a new paradigm in Texas—and one this article will explore, both from scientific and legal perspectives.

The new SOGs have fundamentally changed the way DPS regulates breath alcohol testing in Texas. Rather than regulating breath alcohol testing exclusively through formal adoption of administrative regulations in the Texas Administrative Code, DPS now also regulates breath testing through rules contained in its “Standard Operating Guidelines,”which the administrative regulations require to be followed both to have a program approved and to maintain continued approval and certification of the program.

DPS has long had the ability to promulgate and adopt administrative regulations governing breath alcohol testing.1 Such regulations have been and are contained in Title 37, Part 1, Chapter 19, Subchapter A of the Texas Administrative Code. 37 TAC § 19.1 et seq. Until recently, such administrative regulations were the beginning and end of formal policies by DPS concerning breath testing—at least so far as technical supervisors would admit.2 Instead of having requirements exclusively in the Texas Administrative Code, 37 TAC § 19.4(f) of the administrative regulations provides that approval of breath alcohol testing programs is contingent on each program agreeing “to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.”3 Thus, the administrative regulations incorporate a requirement that technical supervisors and breath test operators also comply with “any directives, orders, or policies issued or to be issued by the scientific director. . . .”

Most judges, prosecutors and defense lawyers are familiar with the requirement that to be admissible, a breath test cannot violate and must comply with the requirements of the Texas Administrative Code.4 In large part, this knowledge has been the byproduct of the administrative regulations being the only formal rules applicable to breath testing. Now, however, the SOGs, as well as other rules and directives of the department, govern the administration of breath alcohol tests in Texas.

Why the SOGs Matter to Breath Test Cases: Suppression for Failure to Follow

This article is, in part, the product of participants in the criminal justice system wanting to know more about the new SOGs, and about them asking whether a breath test result is subject to suppression if it does not comply with the SOGs. In answering this question it is necessary to recall that it is often amazing what one finds when actually reading statutes and other laws. Tex. Trans. Code § 724.016 provides:

(a) A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to per­form the analysis.

(b) The department may:

(1) adopt rules approving satisfactory analytical methods.5

Section 724.016 has long been held to set a statutory predicate for admissibility of breath tests in Texas. That is, a breath test must comply with § 724.016 before it is admissible, and a breath test that was not “taken and analyzed under the rules of the department” and that violated the rules of the department was not admissible.6

Notably, § 724.016 does not limit its applicability to regulations adopted under the Texas Administrative Code. It applies to all “rules” of the Department. The new SOGs constitute “rules” of the department. First, on their face, they are rules that must be followed by technical supervisors in administering some as­pects of a breath alcohol testing program. In the common understanding of the word “rules,” the SOGs are rules of the department that must be followed.

Second, and likely more importantly, § 19.4(f) of the administrative regulations expressly requires compliance with “any directives, orders, or policies issued or to be issued by the sci­entific director regarding any aspect of the breath alcohol testing program.” The SOGs clearly constitute “directives, orders, or policies issued . . . by the scientific director. . . .” Indeed, under § 19.4(g), approval of the program may be withdrawn if a program does not comply with all requirements of § 19.4, which includes the requirement to abide by “any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.”7 In this context, the SOGs expressly refer to the contents of the SOGs as “policies” of the department. Thus, regardless of whether the SOGs are independently “rules” within the meaning of § 724.016, they are incorporated into § 19.4 of the administrative regulations which have long been held to be within the scope of § 724.016.

Amend v. State, No. 05-08-01656-CR, 2010 Tex. App. LEXIS 3315 (Tex. App.—Dallas, Mar. 5, 2010, no pet.)(not designated for publication), presented a factual situation where what constituted a “rule” of the department under § 724.016 and whether an oral directive from the Scientific Director constituted “any directives, orders, or policies issued or to be issued by the scientific director” under § 19.4(f). In Amend, the defendant argued that an oral directive from the Scientific Director that the 15 minutes presence period contained in 37 TAC § 19.4(c)(1) was not satisfied during the time that the observing officer was in the front seat of a patrol car and the breath test subject was in the back seat, at least when they subsequently arrived at the station and the defendant was taken inside for a later breath test. Though the court ultimately resolved the issues on the basis that the oral directive was not in effect at the time of Amend’s breath test, the factual scenario repeats itself throughout the state on a regular basis and technical supervisors other than the one in Amend have given substantially similar testimony.8

There is no reason to limit the applicability of § 724.016 to only written “rules” when the statute contains no such limitation. Similarly, nothing in § 19.4(f) limits the “directives, orders, or policies . . . of the scientific directive” only to those issued in writing. Indeed, it is more likely that the use of the word “any” before “directives, orders, or policies” without any limiting language makes it clear that oral “directives, orders, or policies” are included. This would also be consistent with the long established DPS practice of often issuing “directives, orders, or policies” only in oral form.

The scope of § 724.016 and § 19.4(f) also makes it important for counsel to seek from the technical supervisor, via discovery in each case, all rules, directives, orders, and/or policies, other than anything contained in the Texas Administrative Code:

1. applicable at the time of the breath test in the case;
2. at the time of certification of the breath test machine in the case;
3. at the time of the last calibration, as defined by the SOGs, of the breath test machine in the case;
4. at the time of the last “Autocal”9 of the breath test machine in the case; and
5. at the time of the preparation of all solutions used to Autocal, calibrate, or in the reference simulator used at the time of the test in the case.

While some technical supervisors have testified that there are no rules, directives, orders, and/or policies other than what is contained in the Texas Administrative Code, other technical supervisors have testified differently, and some technical supervisors have produced documents purporting to be rules, directives, orders, and/or policies issued by the Scientific Director. Obviously, either not all are telling the truth or not all technical supervisors are aware of all of the rules, directives, orders, and/or policies issued by the Scientific Director: Either alternative has potentially adverse consequences for the State in the trial of a breath test case.

The minimization and elimination of details and specifics in § 19.4 of the administrative regulations was likely the product of a desire to have more flexibility in modifying breath alcohol testing program rules without having to go through the cumbersome and formal procedures of amending the administrative regulations. Without doubt, it has accomplished that goal. The changes have also made the requirements of the rules in the SOGs predicates to admissibility and a basis for suppression when they have been violated.

The elements of the rules, regulations, directives, order, and policies may only become part of the predicate for admissibility when an issue about a specific rule is expressly raised by the defense. In Gifford v. State, 793 S.W.2d 48, 49 (Tex. App.—Dallas 1990), pet dism’d improv granted, 810 S.W.2d 225 (Tex. Crim. App. 1991), the Court, relying on Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986), held that compliance with the 15-minute observation period was not part of the predicate for admissibility of the Intoxilyzer test result. Further, relying on Sims v. State, 735 S.W.2d 913 (Tex. App.—Dallas 1987, pet. ref’d), and Mosely v. State, 696 S.W.2d 934 (Tex. App.—Dallas 1985, pet. ref’d), the Court further held that the State was only required to prove compliance with DPS regulations when a defendant had “raised a fact issue” as to whether there had been compliance with a particular regulation.

Regrettably, the cases on which Gifford relied do not stand for the propositions for which they were cited and relied upon by the court. There is not now and never has been a rule in Texas that a statutorily required predicate is satisfied merely because a defendant does not offer evidence that it has not been satisfied, i.e., by creating a fact issue. Harrell does not expressly hold that the State need not show compliance with the 15-minute continuous observation period in order to admit an Intoxilyzer test result. Harrell does, however, hold that the predicate for admissibility of a breath test result is: (1) the use of properly com­pounded chemicals; (2) the existence of periodic supervision over the machine and operation of the machine by one who understands the scientific theory of the machine; and (3) proof of the result of the test by a witness qualified to translate and in­terpret such result so as to eliminate hearsay. Despite its apparent omission of the 15-minute observation period, the lack of discussion of it is easily explained.

First, the observation period was not a regulatory requirement when the three-prong test was first promulgated. See French v. State, 484 S.W.2d 716 (Tex. Crim. App. 1972); Hill v. State, 256 S.W.2d 93 (Tex. Crim. App. 1953). Since the 15-minute observation issue was not at issue in Harrell, it is neither surprising nor of any legal significance that the Court did not modify the long-standing three-part test. Second, and more importantly, the only issue in Harrell was whether the breath test at issue complied with DPS regulations. Thus, regardless of whether the compliance with the regulatory requirements was part of the formal three-part test, the Court implicitly recognized that compliance with DPS regulations was necessary for a breath test result to be admissible. Otherwise, the entire opinion was meaningless dicta.

Ultimately, the court held that the breath test was admissible because it complied with DPS regulations. Thus, while proof of the 15-minute observation period may not be part of the three-part test initially discussed in Harrell, it is not accurate to say that a breath test is admissible without regard to proof of compliance with DPS regulations. To the contrary, and consistent with the statute, the State must show that the breath test was conducted in accordance with applicable DPS regulations.

The Court’s reliance on Mosely is similarly misplaced and erroneous. While Mosely did hold that a defendant is not entitled to a jury instruction unless the evidence has raised a fact issue, Mosely did not hold that a fact issue was necessary before the State had to show compliance with DPS regulations for admissibility purposes. To the contrary, the court held that for admissibility purposes, the State had showed compliance with all applicable DPS regulations by virtue of undisputed, unobjected-to evidence of such compliance. Mosely, 696 S.W.2d at 936. Indeed, the court in Sims, 735 S.W.2d at 919, the final case erroneously relied on by the court in Gifford, expressly recognized that the “fact-issue” holding of Mosely applied only to whether a defendant was entitled to a jury instruction on compliance with DPS regulations.

What Gifford may have meant, but did not say, is that proof of compliance with every detailed regulation is not necessary in the absence of a specific objection pointing out the alleged failure to comply with the regulations. Indeed, this is suggested by Mosely. 696 S.W.2d at 936–937. Finally, as Mosely points out, the Court of Criminal Appeals has held that proper administration of the test, i.e., compliance with DPS regulatory requirements for administering the test, is “a necessary predicate to admissibility of the test result when lack of such a predicate is raised by a proper objection.” Mosely, 696 S.W.2d at 936. See Slagle v. State, 570 S.W.2d 916, 917–918 (Tex. Crim. App. 1978); Cody v. State, 548 S.W.2d 401, 404 (Tex. Crim. App. 1977). It is an objection that raises the prospect of the need for additional proof, not the creation of a fact issue, when admissibility is the issue.

Hawkins v. State, 865 S.W.2d 97 (Tex. App.—Corpus Christi 1993), also holds that the State was not required to prove compliance with the 15-minute observation period contained in the DPS regulations when the defendant had not “raised a fact issue” as to whether there had been compliance with the 15-minute observation requirement. Hawkins relied exclusively on the unsupported holding of Gifford. Thus, Hawkins is likewise suspect. Moreover, it appears that what really happened in Hawkins is that the defendant never objected to the lack of proof of the observation period. The court’s opinion couched the evidence in terms of Hawkins never having “averred” that the trooper did not follow the 15-minute observation period. Once again, it is the specificity of an objection that raises the issue, not the need for additional evidence to create a fact issue.

Counsel handling breath test cases need to ensure that they have a thorough knowledge of the “rules” as well as the “directives, orders, and/or policies” in effect at the time of various steps in the breath testing process. Once counsel knows the standards applicable to the case, counsel can determine whether the State can show compliance with the requisite standards. If the State cannot prove compliance, either because proof is not available to them or because there was not compliance, suppression of the breath test and a favorable resolution of the case become far more likely.

The SOGs: Scope, Details, and Opportunities

The SOGs contain six parts.

• Part One: “Instrument and Testing Location Management”
• Part Two: “Record Keeping: Instrument Certification File, Solution File, Subject File, and Maintenance File”
• Part Three: “Electronic Data Management”
• Part Four: “Record Retention and Release”
• Part Five: “Breath Alcohol Instrument Calibration”
• Part Six: “Thermometers Used in the Instrument Calibration Procedure.”

Part One: “Instrument and Testing Location Management”

This section governs the procedures that must be followed by the Technical Supervisor (TS) in inspecting and testing the machine. It describes what constitutes a “complete inspection.” Section 1.1 provides that an inspection of an evidential machine can only be conducted at the testing site. Thus, it would be improper to inspect and test a machine at any location other than the “evidential testing location.” Issues with respect to this requirement could arise when a machine that is normally at one location is moved to another location or to a mobile location or when a TS purports to have conducted an inspection at home or in a lab followed by a later transfer of the machine to a testing location.10

Section 1.1.1 states a specific requirement for a proper inspection: The “capability of the instrument to detect and subtract the effect of acetone shall be tested.” Though the rule requires the TS to test both the ability of the machine to detect and subtract acetone, subsection 1.1.1.1 provides a specific procedure only for detecting acetone. No procedure is specified for inspecting the “capability of the instrument to . . . subtract the effect of ace­tone. . . .” Practitioners will be unlikely to find any support for a claim that the machine’s ability to subtract acetone was tested. If this portion of the rules has not been followed, a breath test conducted after such a deficient inspection is not in compliance with the rules of the department and the requirement in Harrell for periodic inspection (in compliance with DPS rules) has not been satisfied. Counsel should seek discovery of documentation showing compliance with this rule.

Section 1.2 requires a complete inspection each time a machine is placed into or returned to service at a location. Section 1.2.1 requires that each time a machine is placed into or returned to service at a location the TS shall hand write on the INSP TS test record the date on which the machine was last calibrated and autocaled. Section 1.3 requires that if possible, a compete inspection shall be done each time a machine is removed from service at a testing location. Section 1.4 requires that every machine have a complete inspection at least once each calendar month.

Section 1.5 requires that at least once each calendar month, the reference solution should be replaced with a new solution and the lot number of the new solution recorded on the test record. Section 1.5.1 requires that the nominal value (the expected value) of the reference solution shall be set as the “predicted value.” Thus, if the TS thinks they have a 0.08 solution, 0.08 shall be set as the predicted value. Importantly, section 1.5.1.1 requires that the nominal value be within 0.003 or 3 percent, whichever is greater, of the unbiased estimate of the alcohol concentration.11 Thus, a 0.08 nominal solution value must actually be no less than 0.077 and no more than 0.083.

Most importantly, section 1.5.2 requires that the unbiased estimate and the uncertainty (plus or minus a specified amount) of the solution shall be established by an unspecified “procedure establishing traceability of measurement through an unbroken chain of comparisons to the National Institute of Standards and Technology (NIST) all having stated uncertainties.” Traceability to NIST is a common scientific requirement for assuring accurate measurement. NIST is a government organization that established the true values of various weights and measures. Think of it this way: What is really one gram? NIST answers that question by providing weights that are certified to be one gram plus or minus some degree of uncertainty. Traceability to NIST is a process that requires whatever is being measured to be compared against a known value from NIST. Thus, if a TS uses a solution prepared for the reference simulator solution, that solution must have been tested in comparison to a known standard from NIST. Often times, commercially prepared solutions represent their reported value (plus or minus uncertainty) to be traceable to (measured against) a NIST standard.

The requirement for NIST traceability in breath testing is new in Texas. Counsel should always seek discovery of documentation verifying NIST traceability. As a practical matter, a TS in Texas may have problems testifying to NIST traceability unless that TS has actually done the comparison. A TS who seeks to testify to traceability merely because someone else has told him that it is traceable may be offering no more than hearsay. Such testimony may also raise confrontation issues.

Part Two: “Record Keeping: Instrument Certification File, Solution File, Subject File, and Maintenance File”

This section contains requirements for documenting the certification and calibration of the machine. Technical Supervisors are required by section 2.1 to maintain an “Instrument Certification File,” which must contain “Evidential Breath Alcohol Testing Instrument Certificates” and “Letters of Certification.” Section 2.1.1 requires that prior to being placed into service an instrument must have either a current “Calibration Certificate” and an “Evidential Breath Alcohol Testing Instrument Certificate” or an instrument certification letter signed by the Scientific Director. Section 2.1.2 explains that when a TS provides the Office of the Scientific Director with an initial Calibration Certificate, the Scientific Director will issue an Evidential Breath Alcohol Testing Instrument Certificate. Though it might seem like these paperwork requirements would be routinely followed, hundreds of breath alcohol results in Polk County were invalidated a few years ago when similar documentation requirements had not been fulfilled. Counsel should always seek discovery of this documentation.

Section 2.2 provides that the “Solution File” maintained by the TS must contain the certificates of Analysis and documents necessary to establish NIST traceability, unbiased estimate, nominal value, and combined uncertainty of the reference sample solution used at evidential testing locations. Counsel should always seek discovery of this documentation.

Section 2.3 provides that a TS shall collect and maintain a copy of each breath alcohol test record produced by a machine in the “Subject File.” Section 2.3.1 provides that evidential subject test records may only be produced by a certified instrument in an approved evidential testing location, and that such records must be sequentially numbered. Section 2.3.2 provides that no alterations may be made to data on a printed subject test record. Thus, if the breath test operator has erred in entering information for a breath test, that data may not later be altered. Section 2.3.3 provides a procedure when a breath test slip is missing. Section 2.3.4 provides that test records produced in a laboratory are not evidential and must not be kept in the Subject File. Discovery requests should seek both test slips in the Subject File as well as any non-evidential slips not kept in the Subject File.

Section 2.4 governs records in the “Maintenance File” pertaining to instrument and simulator maintenance and repair and certificates of calibration for thermometers used in the calibration procedures. Calibration procedures are discussed later. Section 2.4.1 provides that maintenance records shall be organized and detailed enough to allow any other TS to render an opinion in litigation concerning the maintenance history of the machine. Thus, it is not enough that a TS claims to “know” what he or she has done on and to the machine; others must be able to also “know” it just from looking at the records. Section 2.4.2 requires that each INSP TS (see section1.1.2) record be kept in the Maintenance File. Section 2.4.3 requires that each ACA test record generated by an inspection “to demonstrate the ability the instrument to detect and subtract acetone,” as required by section 1.1.1.1, be kept in the Maintenance File.12

Section 2.4.4 provides that the Maintenance File shall contain notes “regarding the major components . . . that are replaced or repaired.” Section 2.4.4.1 provides that if abbreviations or codes are used to describe maintenance and repairs, there shall be a document clearly explaining the codes and abbreviations. Section 2.4.5 requires that the Maintenance File contain notes of major components of each simulator that is replaced or repaired. Section 2.4.6 requires that the Maintenance File contain documentation establishing the NIST traceability of thermometers used in the calibration procedures.

Every document in the Maintenance File should be sought in discovery. The necessary time frame for each type of document will vary from category to category. For example, the necessary time frame for records of major repairs should be substantially longer (perhaps even years) than the INSP TS and acetone ACA records.

Part Three: “Electronic Data Management”

DPS has begun taking a new position with respect to reports generated from its electronic data. For decades, TS’s provided and defendants regularly obtained reports created from the electronic data. These reports were basically printouts of spreadsheet data and included such useful information as actual measured values when the reference solution was out of tolerance and error codes for any test in which there was an error. For decades, TS’s preached that defendants did not need individual breath test slips because TS’s preferred just to provide the breath test log generated from the electronic data. These logs allowed voluminous data to be viewed in a summary fashion that made it more useful and user friendly. DPS has now done an about-face and is instructing TS’s not to produce the breath test logs that they have long represented was all the defendants really needed in discovery. The new desire to only provide test slips is nothing more than an effort to limit information dissemination that could be useful in the defense of a breath test case.13

Section 3.1 sets out how useful the electronic data can be. Section 3.1.2 governs when a TS may manually enter data into the database in place of electronic data. The ability to manually enter data is part of what allowed Dee Wallace (a former technical supervisor) to fabricate on-site inspection records.14 Following this debacle, DPS required specific and explicit permission before any TS could manually enter or change data. Regrettably, the SOGs have eliminated the protections put in place to prevent the manual fabrication of records.

Section 3.2 governs TS monthly reports. Section 3.2.1 and its subsections govern the processing of complete and incomplete monthly TS reports. Counsel should seek discovery of these reports—both complete and incomplete.

Part Four: “Record Retention and Release”

Part Four governs record retention and release. Section 4.1 provides that test records produced at evidential testing location shall be kept for five years plus the current year. Section 4.2 provides that records “shall be provided by the Technical Supervisor when requested through open records requests, discovery motions, and subpoenas.” Section 4.2.1 provides that “any document held in the possession of the technical supervisor is considered to be a government document as defined by Texas Government Code § 552.002,” and that records can be either electronic or paper. Texas Penal Code § 37.10 makes it a felony when a person “intentionally destroys . . . a government record.” Counsel should investigate whether a crime has occurred any time a TS destroys the records created by the Intoxilyzer each time an “Autocal” is performed on the machine. (See the discussion below regarding calibration and “Autocal” records.)

Section 4.3 provides that “[e]lectronic data is important . . .” Section 4.3.1 seeks to implement DPS’s change of heart regarding breath test logs. In doing so, however, it established that there is meaningful data in the electronic records that does not appear on breath test slips. Although this section “recommends” that only printed test records be submitted to comply with open records requests, discovery motions, and subpoenas. This section further expressly recognizes that documents generated from the database are “summaries or reports.” This section should be used by lawyers when a TS claims that they cannot produce such summaries or reports—especially since they have been doing so for decades and have long claimed that these reports were the only information we really needed.

The reality is that these database summaries and reports contain information that does not appear on breath test slips and can form the basis for arguments that individual machines and tests have problems. DPS should not be allowed or permitted to dictate the form of court-ordered discovery contained in their database, especially when that information does not otherwise appear on breath test slips. Sections 4.4 and 4.5 go further and expressly recognize that database printouts do not always match the data on breath test slips, and that database reports can be generated to comply with open records requests and court orders. Section 4.6 contains a disclaimer that a TS is required to attach to database reports.

Part Five: “Breath Alcohol Instrument Calibration”

In common parlance, “calibration” is understood to be the process of programming a machine to accurately and precisely conduct its measurement function. Thus, for example, one could (at least partially) “calibrate” a bathroom scale by using the zero set knob to cause the weight designator needle to point directly at zero, as opposed to say the line for 10 pounds. While this would calibrate the machine to accurately reflect a result of zero when no weight was on the scale, true calibration of the scale would also require placing a known weight of say 100, 200, and 300 pounds on the scale and adjusting the scale so that it read 100, 200, or 300 pounds when that amount of weight was placed on it. In the scientific and metrology world, “calibration” encompasses not only the process of setting or adjusting the machine’s measurement function; it also includes a verification process: That is, once the machine has been programmed to “know” what amounts to 0, 100, 200, or 300 pounds, it is then necessary to determine how accurately and precisely the machine can measure other known weights within the zero to 300-pound range.15

In the Texas breath alcohol testing world, however, section 5.1 provides that “calibration” is used only to indicate the process of testing the accuracy, precision, uncertainty of measurement, and linear response of the machine’s measurements of known standards, and does not include the process of setting or adjusting how the machine determines its measurements. While this seems at least a bit peculiar, it is the product not only of misunderstanding, but also, and more directly, of a process built into the Intoxilyzer by its maker, CMI. CMI’s name for the process of programming or adjusting the Intoxilyzer to conduct its measurement function is called “Autocal.” Thus, the SOGs refer to an “Autocal” as the process by which the machine is taught what electrical response corresponds to various solutions, ranging from 0.00 to 0.40.

Section 5.2 provides that the “calibration” shall be performed prior to a machine being placed in service for the first time, any time the machine has undergone a calibration adjustment (an “Autocal” discussed below), or any other time as determined by the TS. Section 5.3 provides that a “calibration” shall be accompanied by the completion of the “Calibration Analyst Worksheet.” Section 5.3.1 provides that the “calibration” shall be accomplished with nominal reference values of 0.00, 0.04, 0.08, 0.16, and 0.40, in order (section 5.3.2), and that the solutions used for the process must be supplied by the Office of the Scientific Director. Section 5.3.1.1 provides that the Office of the Scientific Director shall make available in digital format the documents necessary to establish NIST traceability, unbiased estimate, nominal value, and combined uncertainty of the reference sample solutions.

Section 5.3.3 provides detailed instructions on how to perform the “calibration.” This procedure requires each simulator to be at 34.0 degrees centigrade 6.2 degrees centigrade and that the temperature be confirmed with a NIST traceable thermometer (5.3.3.3). The head space gas for each solution is tested 20 times (5.3.3.7), and each calibration check must be printed (5.3.3.6). The label from the nominal reference standard bottle must be affixed to the printed calibration check (5.3.3.7). The printed calibration checks must be signed or initialed and scanned into digital format (5.3.3.8). Only the final 15 calibration checks are recorded in the Calibration Analyst Worksheet (5.3.3.9). All results for the 0.00 solution must be 0.00 (5.3.3.9.a). The mean of the 15 analyses of the ethanol solutions must be within 0.003, or three percent, of the unbiased estimate of the standard (5.3.3.9.b). The standard deviation of the nominal 0.04. 0.08, and 0.16 solutions must be less than 0.001 (5.3.3.9.c). The standard deviation of the nominal 0.40 solution must be less than 0.002 (5.3.3.9.d).

Section 5.3.4 provides that if the process must be terminated before completion, all records will be maintained, and that a complete calibration procedure must be accomplished—i.e., they must start over, before a calibration Certificate is issued. Section 5.3.5 and 5.4 provide that once the calibration procedure is complete, all documents must be completed and signed and submitted for technical and administrative review by another technical supervisor using the Technical and Administrative Review Checklist. Once the process is complete and the calibration certificate is completed, all paper and electronic documents and files will be sent to and maintained by the Office of the Scientific Director (5.6).

Though the SOGs do not contain any specific requirements for the “Autocal” function, an understanding of it is necessary. The Intoxilyzer “Autocal” function is really quite simple. In order to “Autocal” the machine—i.e., adjust the prior calibrated values—the TS enters the password protected “Autocal” function on the Intoxilyzer. In preparation for the process, the TS will have prepared simulator jars with solutions ranging from 0.00 to 0.40 grams of alcohol per 210 liters of air at 34 degrees centigrade. There must be at least three different solutions and more is usually better. Four to five solutions are common. Once in the “Autocal” function, the machine will call for the TS to connect the jar containing only water, i.e., a 0.00 solution. The machine will sample the head space from this solution four times. The machine will exclude the first test result and will calculate an average of the electrical responses of the final three solutions’ measurements.

Basically, the machine has now been taught what electrical responses correspond to 0.00 grams of alcohol per 210 liters of air. This process is repeated with solutions that may include 0.02, 0.04, 0.05, 0.08, 0.10, 0.20, 0.30, and 0.40 grams of alcohol per 210 liters at 34 degrees centigrade, when prompted by the machine to connect that solution. Whatever quantity and values of solutions are used, the TS must use a 0.00 solution and a 0.40 solution. How many solutions between those values is left to the TS’s discretion, but two to three additional solutions are normal, and a 0.08 solution is most common simply because that is the threshold for per se intoxication. In each instance, the machine again samples the head space gas of each solution four times, excludes the first value, and calculates the average of the final three solutions. This “teaches” the machine what electrical response corresponds to the solution used.

The Intoxilyzers used in Texas also have a function that reports the results of the “Autocal” process. Almost all TS’s either turn off the function that causes this report to print or if the report is printed, destroy it. If the report is not printed, the machine destroys the underlying data and saves only a summary. Conceptually, one might reasonably question why a TS, with at least the tacit—if not express—approval of the DPS Scientific Director, would fail to print or would destroy the report produced by the machine. Though DPS posits other explanations, this author believes that these reports are not printed or are destroyed because the TS does not have the knowledge or expertise to explain these reports to a jury. In the 25-plus years I have been doing this, I have only had one TS actually turn over such reports. Copies of those reports are available on request. To make a very long story short, there is a great deal of data in these reports that appears to raise serious questions about the ability of this machine to consistently obtain similar results during the “Autocal” process: That is, the allegedly measured values often differ dramatically from the other results obtained by the machine. In any event, TS’s lack the knowledge and expertise to explain to a jury how—or even if—this report shows that the “Autocal” was successful or flawed.

Once the machine’s settings have been adjusted in accordance with the “Autocal” process, the value of an unknown solution introduced into the machine is determined by locating the point on the “line” where the unknown solution falls.

True calibration of the machine is not complete until the accuracy of the settings has been tested and confirmed. DPS and the SOGs refer to this verification process in part five of the SOGs as “calibration,” though, in reality, it is a check or confirmation of the calibration—i.e., the just-completed adjustment of the settings. This process involves again taking a variety of known and NIST traceable solutions and having the machine measure them. The goal is to see how accurately and precisely the machine will now measure a “known” solution. To test the accuracy and precision of the previously made adjustments (calibration or “Autocal”), the TS must again connect all the samples previously described, measure them repeatedly, and calculate the accuracy and precision of the results.

Some Ts’s use the same solutions to test the calibration as they used to calibrate or “Autocal” the machine. Doing so is fundamentally unsound, unscientific, and forensically indefensible. A simple example demonstrates the fallacy of using the same solution to calibrate and test the calibration. To teach (calibrate) my bathroom scale to accurately measure 250 pounds, I stand on it and adjust the measurement until it reads 250 pounds. Having done so, I then want to know how much I weigh, so I get back on the scale and see that it reads 250 pounds and conclude that I must therefore weigh 250 pounds. Of course, I have not proven that I weigh 250 pounds, just that the machine will repeat back what it was taught. If I want to know that the scale can truly measure 250 pounds, I have to use something different than what I used to calibrate it, and must know that the verification weight is truly 250 pounds. The same thing applies to checking the calibration on an Intoxilyzer.

Once the values from 0.00 to 0.40 are established, they are (conceptually) plotted on a graph in a way that establishes what is known as a linearity curve. Thinking graphically, a line is drawn through all of the plotted points, beginning at the 0.00 value and ending at the 0.40 value. Ideally, this should be a perfectly straight line. How close this line comes to actually being straight is called the “correlation coefficient.” Ideally, the correlation coefficient should be a value of 1.0, which would represent a perfectly straight line. As a practical matter, for various reasons, this “line” is never really completely straight (and is why it is called a curve not a line). To be clear, the “straightness” of the line should, however, result in a value that is very close to 1.0, with most scientific standards requiring a correlation coefficient of at least 0.999.

DPS does not, however, require any minimum correlation coefficient. One might speculate that no standard is set because it is doubtful that the Intoxilyzer could meet typical scientific standards under these circumstances. Indeed if the correlation coefficients that appear to be produced by the “Autocal” process are any indication, this machine does not have ability to consistently produce correlation coefficients of at least .999.

It goes without saying that all documents related to the “Autocal” and calibration verification process should be requested and obtained in discovery.

Part Six: “Thermometers Used in the Instrument Calibration Procedure”

Part Six establishes quality assurance guidelines for NIST traceable thermometers used in the calibration process of Part Five. In short, it is not enough that a thermometer (or any other device or solution) be NIST traceable at the time it was made. It is also necessary to ensure that the quality of the measurements remain valid over time.

Sections 6.1.1 and 6.1.2 provide that NIST traceable thermometers must be used in the calibration procedures and must be maintained in the TS’s calibration laboratory “which has limited access.” Section 6.1.3 provides that NIST traceable thermometers may only be calibrated by an approved vendor and once calibrated are suitable for use for one year. Section 6.1.3.1 requires that the vendor must be an ISO 17025 accredited laboratory capable of issuing a calibration certificate establishing traceability to a NIST reference standard.16

In essence, DPS has decreed that once a thermometer is calibrated, it needs no other attention or internal quality control testing for one year. This portion of the SOGs provides no internal method of measured quality control—that is, testing internally to ensure that at the time of use, the thermometer remains capable of accurately measuring the temperature. The SOGs also provide no requirement for the outside laboratory to report whether the thermometer was functioning properly when they received it at the end of the year. Without knowing that the thermometer was accurately and precisely measuring temperature both at the beginning and the end of the year, there can be no assurance that it was doing so at any time during the year.

Conclusion

DPS’s adoption of the SOGs is a good start. It begins to put “science” into a program that it has long touted as scientific but that has just as long lacked almost anything close to real science. But, it is just a start. DPS needs to beef up the SOGs standards, particularly where they are below industry standards, needs to stop the practice of destroying “Autocal” records, and needs to adopt similar standards for the many other aspects of the breath alcohol testing program. DPS also needs to change the culture that seeks to limit documentary paper trails. If they are practicing good science and following the rules, they have nothing to fear from a paper trail.

Defense lawyers need to obtain, read, and understand the SOGs. They also need to seek and obtain the documentary evidence necessary to confirm or rebut the proper operation of all aspects of the breath alcohol testing program. Judges need to understand that unless and until any laboratory, including a breath test lab, can document its claims of valid results and procedures, there is no validity. That documentation and verification are necessary components not only of good science but of the adversarial system is inherent in the documentation required by the SOGs. The SOGs require documentation and proof because there is no other way to prove valid results. That DPS seeks to do so in these new SOGs validates the decades of claims that they should have been doing so all along.

Ronald Reagan got it right when he said, “trust but verify.” This concept is as applicable to the legal process and forensic laboratories as it is to issues in everyday life in the rest of the world. Part of the inherent cost in running any type of forensic program is the cost required to verify to the outside world compliance with required standards. Anything less does a disservice to the pursuit of justice. All sides of the bench and bar should at least be able to agree that justice is only served with verified reliable science that we all can be confident in, and that the risk of injustice is substantial when any participant shirks the responsibilities to verify.

Notes

1. See Stevenson v. State, 895 S.W.2d 894 (Tex. Crim. App. 1995) (citing and discussing the pre-1994 version of Tex. Rev. Civ. Stat. Ann art. 6701l-5 § 3, which provided:

(b) Analysis of a specimen of the person’s breath, to be considered valid under the provisions of this section, must be performed according to rules of the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to establish rules approving satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety.

This portion of article 6701l-5 § 3(b) was later codified in § 724.016 of the Transportation Code. Though the exact language of § 3(b) does not presently appear in § 724.016, all codifications of prior revised civil statutes were adopted without any substantive change, even when different or less language was used. Tex. Trans. Code § 1.001 (“The program [codification of statutes] contemplates a topic-by-topic revision of the state’s general and permanent statute law without substantive change”).

2. Prior to the adoption and release of the SOGs, though every technical supervisor I have asked under oath about the existence of a rules or policy manual applicable to breath testing—apart from what is contained in the administrative regulations—has testified that no such document or compilation of documents exists, one prosecutor has produced such a document that purports on its face to be “Forensic Breath Alcohol Laboratory: Office of the Scientific Director Policy Statements.” Resolution of what appears to be a conflict between the sworn testimony and the document I was given will have to occur in the cases still pending in which such testimony was given.

3. 37 TAC § 19.4(f). Approval of any breath alcohol testing program is contingent upon the applying agency or laboratory’s agreement to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.

4. See Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986); May v. State, 784 S.W.2d 494 (Tex. App.—Dallas 1990, pet. ref’d).

5. All emphasis is added unless otherwise noted.

6. Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986); Davis v. State, 949 S.W.2d 28 (Tex. App.—San Antonio 1997, no pet.). See also Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996).

7. 37 TAC § 19.4(g). Approval of a breath alcohol testing program may be denied or withdrawn by the scientific director if, based on information obtained by the scientific director, a designated representative of the scientific director, or a technical supervisor, the approved agency or laboratory fails to meet all criteria stated in this section.

8. In the words of the court, “Thus, assuming without deciding that the oral directive could qualify as a rule of the DPS in addition to the requirements of section 19.4(c), the terms of the directive as described by Finkley did not apply to Amend’s test.” It does not appear that Amend argued or that the court reached the issue of whether the oral directive constituted “any directives, orders, or policies” under 19.4(f).

9. “Autocal” is a function on the Intoxilyzer that sets and adjusts the calibration. The “Autocal” process is more thoroughly discussed below. On some occasions it is shown as “AutoCal.”

10. While it might seem strange to think that a TS would conduct business regarding an evidential machine at the TS’s home, some contract TS’s do just that.

11. The Texas standard of three percent is less demanding than the two percent standard required by the National Safety Council Committee on Alcohol and Other Drugs. The National Safety Council Committee on Alcohol and Other Drugs is an organization that sets industry standards for simulator solutions used in evidential breath testing. Interestingly, Mack Cowan, the Scientific Director of Texas’ breath alcohol testing program, was recently Chair of this committee. These standards may be found online at: http://www.nsc.org/get_involved/divisions/Documents/Handbook%20NSChistoryofCAOD.pdf. The two percent requirement is on page 99 of the document. Under this standard, a nominal 0.08 solution must measure to no less than .0784 and no more than .0816, meaningfully different than Texas’ lesser standard of no less than 0.077 and no more than 0.083.

12. ACA records are records reflecting an Air Blank, a Calibration Check, and then an Air Blank, hence ACA. The nomenclature “ACA” reflects the sequencing of the testing on those test slips, as opposed to the sequencing that appears on normal breath test slips.

13. Despite this new directive, DPS can and does still produce such reports when ordered by the court. This author received one on April 24, 2012.

14. Dee Wallace was a technical supervisor covering several small cities between Houston and Galveston. To make a long story short, over the course of several years, she routinely altered records to make it appear as though she had performed maintenance and changed solution when in fact she had not done so. Following discovery of her fraud, she was prosecuted and convicted. DPS invalidated several thousand breath test results as a result of her activity. More information about her can be found with a simple Google search.

15. It would never be scientifically proper to use the same items that were used to calibrate the machine to test the calibration. In the breath testing context, whatever solutions are used to “calibrate” the machine should not then be used to test or confirm the accuracy and precision of the machine’s ability to measure unknown values. Instead, other solutions of known (and confirmed) values should be used.

16. ISO 17025 is the global quality standard for testing and calibration laboratories issued by the International Organization for Standardization (ISO). This standard is what controls and forms the basis for ASCLD-LAB’s (American Society of Crime Lab Directors—Laboratory Accreditation Board) current “International” accreditation of forensic laboratories.