When does postmortem toxicology testing in Texas need Forensic Science Commission accreditation?

Plain-English summary

The Texas Forensic Science Commission accredits crime laboratories and licenses forensic analysts under article 38.01 of the Code of Criminal Procedure. Its chair asked the AG whether postmortem toxicology, the chemical testing a medical examiner or forensic pathologist orders to help determine an individual's cause and manner of death, falls under the Commission's accreditation authority. A wrinkle is that the statute's definition of "forensic analysis" excludes testing done principally for "medical practice," and postmortem toxicology can look a lot like medical practice even when it bears on a possible crime.

The AG worked through the layered definitions. A "crime laboratory" is one that conducts a "forensic analysis subject to" article 38.35. "Forensic analysis" includes a toxicologic examination of physical evidence performed "for the purpose of determining the connection of the evidence to a criminal action," but it does not include testing conducted principally for medical practice or other purposes "unrelated to determining the connection of physical evidence to a criminal action." Reading the definition and its medical-practice exception together, the AG concluded the exception removes a test from accreditation only when the test's principal purpose is unrelated to a criminal action. So a lab doing postmortem toxicology is a crime laboratory subject to accreditation if, and only if, the purpose of the analysis is to determine the connection of evidence to a criminal action.

Critically, the AG said what matters is the purpose of the test (why the medical examiner or forensic pathologist requested it), not how the results are ultimately used. Because the chair did not describe when a particular postmortem toxicology request is or is not tied to a criminal action, the answer turns on the facts of each request. The AG also noted the Commission can refine the scope of accreditation by rule and can create exemptions, for example for analyses routinely conducted outside a crime lab. In the end, whether a particular postmortem toxicology analysis was performed to connect evidence to a criminal action is for the Commission to decide in the first instance, subject to judicial review.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Forensic Science Commission and its chair (who requested the opinion): The opinion told the Commission that its accreditation authority over postmortem toxicology turns on the purpose of the analysis, not the type of test or how results are used. It confirmed that the Commission itself makes the first-instance determination of whether a given analysis was performed to connect evidence to a criminal action, subject to judicial review, and that the Commission may further define scope and create exemptions by rule.

Medical examiner and forensic pathologist laboratories (as the opinion described them): The opinion treated such a lab as a "crime laboratory" subject to accreditation only when it performs postmortem toxicology for the purpose of determining the connection of evidence to a criminal action. When the principal purpose is medical practice unrelated to a criminal action, the analysis falls within the exception.

Prosecutors, defense counsel, and courts relying on the results (as the opinion described them): The opinion did not resolve admissibility, but its purpose-based line affects which labs must be accredited. It distinguished the lab-accreditation question from the separate question of whether individual analysts must be licensed, which it did not decide.

Common questions

Does every postmortem toxicology lab in Texas need Forensic Science Commission accreditation?
No. The AG concluded a lab needs accreditation for postmortem toxicology only if the analysis is performed for the purpose of determining the connection of physical evidence to a criminal action. Testing done principally for medical practice unrelated to a criminal action falls within an exception.

Is it the use of the results or the reason for the test that matters?
The reason. The AG was explicit that the purpose of the examination or testing, not how the results are ultimately used, determines whether the lab is subject to accreditation, and that purpose depends on why the medical examiner or forensic pathologist requested it.

Who decides whether a particular analysis counts?
The Commission, in the first instance, subject to judicial review. The AG said the facts and circumstances of each request will likely determine whether the lab performing it is subject to accreditation, and the Commission makes that call first.

Can the Commission exempt certain testing?
Yes. The AG noted that article 38.01 lets the Commission refine accreditation scope by rule and create exemptions, including for analyses that are admissible under a statute or well-established rule of evidence or that are routinely conducted outside a crime laboratory.

Background and statutory framework

The Commission administers forensic accreditation and licensing under Code of Criminal Procedure article 38.01, including licensing forensic analysts (§ 4-a) and accrediting "crime laboratories and other entities conducting forensic analyses of physical evidence for use in criminal proceedings" (§ 4-d(b)(1)). Article 38.01 does not require accreditation of particular test types like postmortem toxicology; instead, the Commission's authority depends on defined terms that article 38.01 imports from article 38.35 (§§ 2(3), 4-d(a); see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 478 (Tex. 2009), holding that a court must construe a defined term by its statutory definition). Although article 38.01, section 2(4) also defines "forensic analysis," sections 4-a and 4-d adopt the article 38.35 definition for licensing and accreditation (§§ 4-a(a)(1), 4-d(a)).

A "crime laboratory" includes any entity that conducts a forensic analysis subject to article 38.35 (art. 38.35(a)(1)). "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert test on physical evidence for the purpose of determining the connection of the evidence to a criminal action, and it excludes a test conducted principally for scientific research, medical practice, civil or administrative litigation, or other purposes unrelated to determining that connection (art. 38.35(a)(4), (a)(4)(F)). "Physical evidence" and "criminal action" are also defined (art. 38.35(a)(2), (a)(5)). Harmonizing the definition with its medical-practice exception, the AG concluded a lab is subject to accreditation for postmortem toxicology only if the analysis is performed to determine the connection of evidence to a criminal action, a purpose-based and fact-dependent inquiry. The Commission may refine scope and create exemptions by rule (§ 4-d(b), (c)(2)-(3); 37 Tex. Admin. Code § 651.5), but it determines in the first instance, subject to judicial review, whether a particular analysis qualifies.

Citations

Cases:

• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 478 (Tex. 2009)

Statutes:

• Tex. Code Crim. Proc. art. 38.01, §§ 2(3), 2(4), 4-a, 4-a(a)(1), 4-d, 4-d(a), 4-d(b), 4-d(b)(1), 4-d(c)(2)-(3)
• Tex. Code Crim. Proc. art. 38.35(a)(1), (a)(2), (a)(4), (a)(4)(F), (a)(5)
• 37 Tex. Admin. Code § 651.5

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0188
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0188.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 21, 2018

Jeffrey Barnard, M.D. Opinion No. KP-0188
Chair
Texas Forensic Science Commission Re: Whether postmortem toxicological
1700 North Congress Avenue, Suite 445 analysis conducted pursuant to the request of
Austin, Texas 78701 a medical examiner or forensic pathologist is
subject to accreditation requirements of the
Forensic Science Commission (RQ-0183-KP)

Dear Dr. Barnard:

    You ask about the accreditation authority of the Texas Forensic Science Commission (the "Commission") concerning postmortem toxicological analysis conducted pursuant to the request of a medical examiner or forensic pathologist. [1] The Commission administers forensic science accreditation and licensing programs under article 38.01 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. art. 38.01, § 4-d. You state that "[t]oxicology is the science of identifying and understanding the adverse effects of external chemical and physical agents on biological systems." Request Letter at 2; see MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1323 (11th ed. 2004) (defining "toxicology" as "a science that deals with poisons and their effect and with the problems involved"). You explain that medical examiners and forensic pathologists typically request postmortem toxicology to determine an individual's cause and manner of death. Request Letter at 2-3. You ask generally "whether postmortem toxicological analysis ... conducted pursuant to the request of a medical examiner or forensic pathologist is subject to Commission accreditation requirements." Id. at 1.

    Article 38.01 creates the Commission and assigns its duties and authority. TEX. CODE CRIM. PROC. art. 38.01. The statute does not require accreditation of particular types of analysis or testing such as postmortem toxicology. Rather, article 38.01, section 4-a requires the Commission to license certain persons as forensic analysts. Id. art. 38.01, § 4-a. Also, section 4-d requires the Commission to accredit "crime laboratories and other entities conducting forensic analyses of physical evidence for use in criminal proceedings." Id. art. 38.01, § 4-d(b)(1). As you ask only about accreditation, we limit our review to the Commission's authority to accredit entities under article 38.01.

    The Commission's accreditation authority under article 38.01 depends on the meaning of several key terms that article 38.01 defines by reference to article 38.35. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 478 (Tex. 2009) (holding that "[i]f a statute defines a term, a court is bound to construe that term by its statutory definition only" (internal quotation marks omitted)). As defined, a "'crime laboratory' includes a public or private laboratory or other entity that conducts a forensic analysis subject to [article 38.35]." TEX. CODE CRIM. PROC. art. 38.35(a)(1) (emphasis added); see also id. art. 38.01, § 2(3) (stating that the term "'[c]rime laboratory' has the meaning assigned by Article 38.35"). For accreditation purposes,

             "Forensic analysis" means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term includes an examination or test requested by a law enforcement agency, prosecutor, criminal suspect or defendant, or court. The term does not include:

                      (F) an expert examination or test conducted principally for the purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.

Id. art. 38.35(a)(4)(F) (emphases added); see also id. art. 38.01, § 4-d(a) (adopting the definition of "forensic analysis" from article 38.35). [2] Additionally, article 38.35 defines "physical evidence" as "any tangible object, thing, or substance relating to a criminal action," and "criminal action" as "includ[ing] an investigation, complaint, arrest, bail, bond, trial, appeal, punishment, or other matter related to conduct proscribed by a criminal offense." Id. art. 38.35(a)(2), (5).

    You ask whether postmortem toxicology conducted pursuant to the request of a medical examiner or forensic pathologist falls within the "medical practice" exception from the definition of "forensic analysis" in article 38.35(a)(4)(F). Request Letter at 3. You ask further if the answer depends on whether the postmortem toxicology results are used for the purpose of determining the connection of evidence to a criminal action. Id. Neither article 38.01 nor article 38.35 addresses whether the laboratory of a medical examiner or forensic pathologist must be accredited. See TEX. CODE CRIM. PROC. arts. 38.01, .35. However, a laboratory of a medical examiner or forensic pathologist can be a "crime laboratory" subject to the Commission's accreditation requirements if it performs a "forensic analysis subject to" article 38.35. Id. art. 38.35(a)(1). Toxicologic examinations or testing performed on physical evidence are subject to article 38.35 if they are performed "for the purpose of determining the connection of the evidence to a criminal action." Id. art. 38.35(a)(4). The exclusion for examinations or tests conducted principally for medical practice purposes is limited to purposes "unrelated to determining the connection of physical evidence to a criminal action." Id. art. 38.35(a)(4)(F). Harmonizing the definition of forensic analysis with its exceptions, a court would likely conclude that testing constituting medical practice is excluded only if its principal purpose is "unrelated to determining the connection of physical evidence to a criminal action." Id. Thus, a laboratory performing postmortem toxicology analysis is a crime laboratory subject to accreditation requirements if, and only if, the purpose of the analysis is to determine the connection of the evidence to a criminal action. Id.

    Under article 38.35, the purpose of the examination or testing, not how the results are ultimately used, determines whether the laboratory performing the postmortem toxicology analysis is subject to accreditation. Id. Further, the purpose of the toxicology depends on why a medical examiner or forensic pathologist requests the analysis. Cf. id. art. 38.35(a)(4)(F) (stating that for forensic accreditation purposes, the term "'forensic analysis' ... includes an examination or test requested by" law enforcement, prosecutors, suspects, defendants, or a court). You acknowledge that "[p]ostmortem toxicology may but does not necessarily involve a criminal action," but you do not provide us with information about circumstances when a request for postmortem toxicology analysis is or is not related to a criminal action. Request Letter at 3. The facts and circumstances concerning a particular request by a medical examiner or forensic pathologist for postmortem toxicology testing and examination will likely determine whether the laboratory that performs the analysis is subject to accreditation requirements. [3]

     Moreover, even if statutory definitions could encompass a particular type of analysis, article 38.01 authorizes the Commission to further refine by rule the scope and applicability of the accreditation process requirements to comport with certain practical considerations. See TEX. CODE CRIM. PROC. art. 38.01, § 4-d(b); see also 37 TEX. ADMIN. CODE § 651.5 (Tex. Forensic Sci. Comm'n, Forensic Disciplines and Procedures Subject to Commission Accreditation). Specifically, the Commission may create exemptions from the accreditation process for an entity conducting a particular type of forensic analysis examination or test that is admissible under a statute or well-established rule of evidence, or if it is "routinely conducted outside of a crime laboratory by a person other than an employee of the crime laboratory." Id. art. 38.01, § 4-d(c)(2)-(3). Nevertheless, the Commission's duty to establish an accreditation process for crime laboratories and other specified entities requires the Commission to determine in the first instance, subject to judicial review, whether particular postmortem toxicological analysis is performed for the purpose of determining the connection of physical evidence to a criminal action and therefore subject to accreditation requirements.

                                   SUMMARY

                    Postmortem toxicological analysis requested by a medical examiner or forensic pathologist is subject to the Forensic Science Commission's accreditation authority only if it is performed for the purpose of determining the connection of physical evidence to a criminal action. Such purpose depends on why a medical examiner or forensic pathologist requests the analysis, not how the results are ultimately used. Whether any particular postmortem toxicological analysis is performed for the purpose of determining the connection of physical evidence to a criminal action is for the Commission to determine in the first instance, subject to judicial review.

                                          Very truly yours,

                                          KEN PAXTON
                                          Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Jeffrey Barnard, M.D., Chair, Tex. Forensic Sci. Comm'n, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 3 (Sept. 22, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] Article 38.01, section 2 also provides a definition of "forensic analysis." TEX. CODE CRIM. PROC. art. 38.01, § 2(4). However, sections 4-a and 4-d specifically adopt the definition located in article 38.35 for licensing and credentialing purposes. Id. art. 38.01, §§ 4-a(a)(1), 4-d(a).

[3] As discussed above, whether a laboratory or division is subject to accreditation does not resolve whether individual forensic analysts are subject to licensing requirements.