Untitled Texas Attorney General Opinion, KP-0127

The Texas Forensic Science Commission asked whether certain forensic analyses are admissible in Texas criminal courts, whether the Commission can exempt analyses from accreditation, and whether crime labs must report misconduct across all disciplines.
Texas Code of Criminal Procedure art. 38.35(d)(1) bars admission of a "forensic analysis of physical evidence" and related expert testimony if the crime laboratory was not accredited by the Commission at the time of analysis, subject to a narrow cure in art. 38.35(e).
Texas Rule of Evidence 702 permits expert testimony when it helps the trier of fact, creating a potential conflict with the statutory accreditation rule.
The Commission accredits crime laboratories by rule and generally requires labs to be first accredited by a recognized accrediting body; when independent accreditation is unavailable or inappropriate, art. 38.01 § 4‑d(c) permits the Commission to exempt labs or particular analyses by rule.
Article 38.01 requires crime laboratories that "conduct forensic analyses" to report professional negligence or professional misconduct to the Commission; “forensic analysis” is broadly defined in art. 38.01.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Article 38.35 supersedes Rule 702 when they conflict	Rule 702 allows admissibility of expert testimony that aids the trier of fact	A statute (art. 38.35) requiring accreditation controls over the rule when irreconcilable	Article 38.35 prevails over Rule 702 to the extent of any conflict
Admissibility of forensic analysis from a non‑accredited, non‑exempt lab	Such testimony may be admissible under Rule 702 or other doctrines	Art. 38.35 makes analyses by unaccredited, non‑exempt labs inadmissible (except narrow cure)	Forensic analysis from a lab neither accredited nor exempt is inadmissible under art. 38.35(d)(1) unless cured as in art. 38.35(e)
Whether the Commission may withhold an exemption pending integrity concerns	The Commission must grant exemptions where independent accreditation is unavailable	The statute says the Commission "may" exempt, implying discretion	The Commission may reasonably withhold granting an exemption under art. 38.01 § 4‑d(c)
Scope of the reporting requirement for professional negligence/misconduct	Reporting applies only to disciplines that are subject to accreditation	Reporting applies to any forensic analyses as defined in art. 38.01	Labs must report professional negligence or misconduct for all forensic disciplines (not just accredited ones) under art. 38.01 § 4(a)(2)

Scherl v. State, 7 S.W.3d 650 (Tex. App.-Texarkana 1999) (noting that a statute will prevail where a rule "irreconcilably conflicts" with it)
NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, N.A., 317 S.W.3d 462 (Tex. App.-Houston [1st Dist.] 2010) (discussing when statutes conflict if the same facts yield different results)
Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) (interpreting the permissive meaning of the word "may")