SECTION 651.220. Laboratory License for De Minimis Texas Casework

(a) A laboratory may apply to the Commission for a De Minimis Texas Casework License on behalf of its laboratory personnel. The Licensing Advisory Committee and/or the Commission Director or Designee shall review each application and make a determination regarding whether to grant a license under this section based on the criteria set forth in subsection (c) of this section. Any laboratory that is denied a request for a license under this section may appeal the decision to the full Commission.

(b) Laboratory De Minimis Texas Casework License Term. A laboratory De Minimis Texas Casework License and corresponding licenses granted under this section shall expire two (2) years from the date of issuance.

(c) Texas Casework Threshold. The Commission may grant a De Minimis Texas Casework License to a laboratory that demonstrates in an application published by the Commission that the laboratory's Texas casework constitutes less than 10% of its overall volume of casework during the five calendar years preceding the application (calculated as a rolling average for each individual laboratory site or location) to be re-evaluated at each expiration of the two-year license term. In the absence of historical data, the best available data shall be used to determine whether a laboratory has exceeded or is expected to exceed the 10% threshold.

(d) De Minimis License for Individual Non-Interpreting Analysts and Technicians. With the exception of any "interpreting analysts" as defined in subsection (g)(1) of this section, all analysts and technicians employed by a laboratory determined by the Commission to meet the criteria for a De Minimis Texas Casework License shall be licensed upon fulfillment of the following requirements of the employing laboratory:

(1) submit to Commission staff a list of the names of each individual analyst or technician who is licensed under the De Minimis provision indicating the forensic discipline(s) for which each analyst or technician is qualified to perform independent casework; and

(2) certify on a form provided by the Commission that each individual named:

(A) works under the supervision of a fully licensed forensic analyst when performing work for Texas criminal cases;

(B) has read and understands the Code of Professional Responsibility in this subchapter;

(C) has completed all training materials related to Brady v. Maryland discovery obligations and the Michael Morton Act (Code of Criminal Procedure, Article 39.14) as provided by the Commission; and

(D) has participated in the Mandatory Legal and Professional Responsibility Training described in §651.208(e)(1) - (2) of this subchapter (relating to Forensic Analyst and Forensic Technician License Renewal).

(e) Disclosures Required by De Minimis Texas Casework Licensed Laboratories. Laboratories licensed under this section must comply with all disclosure obligations required under this chapter.

(f) Change in Scope of De Minimis Licensee Work. Where the scope of an individual licensed under the De Minimis provision changes to include interpreting analyst activities as defined in subsection (g)(1) of this section, the employing laboratory must notify the Commission within seven (7) days of the change, and the licensee must apply to become fully licensed before performing interpreting analyst activities.

(g) Interpreting Analysts. Laboratories granted a De Minimis Texas Casework License shall fully license all "interpreting analysts" as defined in paragraph (1) of this subsection pursuant to the components described in §651.207 of this subchapter (relating to Forensic Analyst Licensing Requirements, Including License Term, Fee and Procedure for Denial of Application and Reconsideration).

(1) Interpreting Analyst Definition. However named, an "interpreting analyst" uses his or her scientific expertise and judgment to interpret data resulting from an expert examination or test and provides information to the trier of fact either by signing a report or testifying in a criminal action. Interpreting analysts have significant decision-making authority regarding the progress, evaluation, and conclusion of forensic analyses and are qualified to both perform independent casework and technically review the work of other analysts. An interpreting analyst exercises judgment in casework and may be called to testify regarding the results of forensic analysis, including not only the steps involved in the physical processing of the evidence, but also the potential significance of information obtained from the examination or test.

(2) Technical Reviewers. Technical reviewers who perform technical reviews of an interpreting analyst's casework are considered interpreting analysts.

(3) Requirements for Interpreting Analysts Previously Licensed under the Blanket Provision. An interpreting analyst licensed prior to August 24, 2020, under the original out-of-state crime laboratory blanket licensing program, must comply with the specific coursework and minimum education requirements that were in effect prior to January 1, 2019.

(h) Licensee Transfers to Laboratories Physically Located in Texas. An individual forensic analyst or technician licensed prior to August 24, 2020, under the original out-of-state crime laboratory blanket license program or the superseding De Minimis Texas casework license program who transfers employment to an accredited crime laboratory physically located in Texas within one year of departing employment from the laboratory through which the licensee originally obtained his or her blanket or De Minimis license shall comply with the requirements in place at the time the analyst's initial license was granted.

(i) Fees. A laboratory with analysts and/or technicians licensed under the De Minimis Texas casework program shall pay the requisite license fee for each of the laboratory's forensic analysts and technicians licensed under the De Minimis program and the full forensic analyst or technician license fees for each of the laboratory's interpreting analysts as set forth in this subchapter.

Source Note: The provisions of this §651.220 adopted to be effective December 16, 2018, 43 TexReg 7911; amended to be effective August 26, 2020, 45 TexReg 5931