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RULE §651.305Complaint and Self-disclosure Screening

(a) Complaints and self-disclosures shall be considered initially through the CDSC. The chair of the CDSC shall present the complaints and disclosures before the Commission with a recommendation for disposition. The CDSC may recommend the following dispositions:

  (1) dismiss the complaint or disclosure;

  (2) accept the complaint or disclosure and submit for action by an Investigation Panel;

  (3) recommend the Commission use its discretion to review the matter for educational purposes;

  (4) recommend no further action by the laboratory is necessary at this time; or

  (5) take such other action as appropriate.

(b) The CDSC may assign staff to collect preliminary information related to a complaint or self-disclosure, including research into the status of any underlying criminal or civil case and whether the complaint or self-disclosure addresses a forensic analysis subject to investigation by the Commission.

(c) An actor named in a complaint or self-disclosure and the involved accredited laboratory, facility or entity may be given an opportunity but is not required to provide a written reply, offering any reasons for or against accepting the complaint or disclosure for investigation.

(d) The following factors may be considered when a complaint or self-disclosure is screened by the CDSC and considered by the Commission:

  (1) whether the Commission has investigative jurisdiction;

  (2) the availability of the person who was the defendant in the criminal action associated with the forensic evidence;

  (3) the availability of any actor who conducted any part of the forensic analysis;

  (4) the length of time between the forensic analysis and the complaint or disclosure;

  (5) the availability of records in connection with the forensic analysis and any associated litigation;

  (6) the status of any criminal case or civil litigation associated with the forensic analysis;

  (7) the potential for additional relevant forensic analysis;

  (8) any other factor that would enhance or detract from a complete and accurate investigation of the forensic analysis and any alleged negligence or misconduct;

  (9) the availability of funds to complete an investigation; and

  (10) the opportunity for the investigation and report to educate the forensic science community, advance the standards and training associated with such a forensic analysis or identify legislative recommendations for strengthening a field of forensic science.

(e) Upon reaching a recommended initial disposition for a complaint or self-disclosure, the CDSC shall provide a summary of the recommendation to the Commission's presiding officer for presentation to a quorum of Commissioners.

(f) Following action by a quorum of Commissioners regarding the disposition of any complaint or self-disclosure, the Commission shall notify the complainant, actor involved in the forensic analysis and the laboratory, facility or entity of the disposition.

(g) To ensure thorough consideration of all complaints and self-disclosures, complainants and laboratories submitting self-disclosures should make such submissions at least fifteen (15) business days before a particular quarterly Commission meeting to have the complaint or self-disclosure considered at that meeting. The Commission reserves the right to consider any complaint or disclosure that does not meet the 15-day deadline at the next quarterly meeting.

(h) A Commission member may, by formal motion, request that the full Commission reconsider a dismissed complaint or disclosure if the member identifies new evidence of professional negligence or professional misconduct that was not previously considered by the Commission. The new evidence may be derived from either:

  (1) information in the existing record that the complainant believes was not considered by the Commission previously; or

  (2) new information brought to the Commission’s attention that was not previously considered by the Commission.

(i) A motion described under subsection (h) of this section may be made only if the Commissioner believes in good faith that the information will have a material impact on the Commission’s analysis of the complaint or disclosure pursuant to its screening criteria.

(j) After considering the member’s motion, the Commission shall vote to:

  (1) affirm the original decision to dismiss the complaint or self-disclosure; or

  (2) re-open the complaint or disclosure.

(k) The Commission shall notify the complainant and the appropriate laboratory, facility or entity in writing of the results of the Commission's vote under subsection (h) of this section.

(l) The Commission shall conduct an appropriate investigation of a complaint or disclosure reopened under subsection (j)(2) of this section.

Source Note: The provisions of this §651.305 adopted to be effective January 30, 2018, 43 TexReg 473

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