§ 38.35 — FORENSIC ANALYSIS OF EVIDENCE; ADMISSIBILITY.

Texas § 38.35

• Jurisdiction: Texas
• Code CR: Code of Criminal Procedure

Text

Art. 38.35. FORENSIC ANALYSIS OF EVIDENCE; ADMISSIBILITY. (a) In this article:
(1) "Crime laboratory" includes a public or private laboratory or other entity that conducts a forensic analysis subject to this article.
(2) "Criminal action" includes an investigation, complaint, arrest, bail, bond, trial, appeal, punishment, or other matter related to conduct proscribed by a criminal offense.
(3) "Commission" means the Texas Forensic Science Commission established under Article 38.01 .
(4) "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term includes an examination or test requested by a law enforcement agency, prosecutor, criminal suspect or defendant, or court. The term does not include:
(A) latent print examination;
(B) a test of a specimen of breath under Chapter 724 , Transportation Code;
(C) digital evidence;
(D) an examination or test excluded by rule under Article 38.01 ;
(E) a presumptive test performed for the purpose of determining compliance with a term or condition of community supervision or parole and conducted by or under contract with a community supervision and corrections department, the parole division of the Texas Department of Criminal Justice, or the Board of Pardons and Paroles; or
(F) an expert examination or test conducted principally for the purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.
(5) "Physical evidence" means any tangible object, thing, or substance relating to a criminal action.
(b) A law enforcement agency, prosecutor, or court may request a forensic analysis by a crime laboratory of physical evidence if the evidence was obtained in connection with the requesting entity's investigation or disposition of a criminal action and the requesting entity:
(1) controls the evidence;
(2) submits the evidence to the laboratory; or
(3) consents to the analysis.
(c) A law enforcement agency, other governmental agency, or private entity performing a forensic analysis of physical evidence may require the requesting law enforcement agency to pay a fee for such analysis.
(d)(1) Except as provided by Subsection (e), a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the commission under Article 38.01 .
(2) If before the date of the analysis the commission issues a certificate of accreditation under Article 38.01 to a crime laboratory conducting the analysis, the certificate is prima facie evidence that the laboratory was accredited by the commission at the time of the analysis.
(e) A forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not inadmissible in a criminal action based solely on the accreditation status of the crime laboratory conducting the analysis if the laboratory:
(A) except for making proper application, was eligible for accreditation by the commission at the time of the examination or test; and
(B) obtains accreditation from the commission before the time of testimony about the examination or test.
(f) This article does not apply to the portion of an autopsy conducted by a medical examiner or other forensic pathologist who is a licensed physician.

Legislative History

Added by Acts 1991, 72nd Leg., ch. 298, Sec. 1, eff. Sept. 1, 1991; Art. heading amended by Acts 2003, 78th Leg., ch. 698, Sec. 1, eff. June 20, 2003; Subsec. (a)(1) amended by Acts 2003, 78th Leg., ch. 698, Sec. 2, eff. June 20, 2003; Subsecs. (d), (e) added by Acts 2003, 78th Leg., ch. 698, Sec. 3, eff. June 20, 2003. Amended by: Acts 2005, 79th Leg., Ch. 1224 (H.B. 1068 ), Sec. 2, eff. September 1, 2005. Acts 2015, 84th Leg., R.S., Ch. 1276 (S.B. 1287 ), Sec. 8, eff. September 1, 2015. Acts 2015, 84th Leg., R.S., Ch. 1276 (S.B. 1287 ), Sec. 9, eff. September 1, 2015.