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Relating to the licensing and regulation of forensic analysts and the administration of the Texas Forensic Science Commission; authorizing fees; requiring an occupational license.
5/24/15 Second Chamber Update:
While some changes have been made in a House Committee Substitute, our underlying objections remain. We continue to oppose SB 1287.
Original Analysis Below
SB 1287 would reduce the number of names proposed from universities to the Governor for appointment to the Texas Forensic Science Commission from ten to five. The Governor would still only select one name from the list provided by each of the following universities: The University of Texas, Texas A&M University, Texas Southern University, and Sam Houston State University College of Criminal Justice.
This bill would also create a forensic analyst license that would be required to interpret forensic analysis for a court or accredited crime lab. This license would require specific course work, experience, an examination, and paying fees for the issuance and renewal of license. This bill would create an advisory committee that make recommendations on matters related to the licensing of forensic analysts. This committee would not be entitled to compensation, however they would be entitled to reimbursement for actual and necessary expenses incurred while performing duties as a member.
The Commission would now be able to revoke, suspend, or reprimand the license holder. The Commission’s administrative attachment has been changed to the Department of Public Safety rather than being formerly attached to Sam Houston State University.
As Milton Friedman has said in Capitalism and Freedom, “A citizen of the United States who under the laws of various states is not free to follow the occupation of his own choosing unless he can get a license for it, is likewise being deprived of an essential part of his freedom.”
SB 1287 would limit the individual liberty of individuals who would like to become a forensic analyst by raising the barrier to entry. Licensing requirements tend to impact those with fewer available resources by creating expensive and time consuming hoops to gain employment in their chosen trade or profession. This creates a barrier for finding work that impacts both individual liberty and free markets.
Laboratory accreditation is already subject to quality assurances provided by Government Code 411.0205. The accreditation process currently used in Texas ensures that the laboratory uses approved methods and is using the established valid minimum standards that were set by the Public Safety Director. This process already provides the necessary oversight to ensure that the interests of the public are adequately served. Dismissal from employment at an accredited laboratory is a satisfactory discipline method.
Licensing tends to discourage innovation and breakthroughs that could possibly deliver services at higher quality and lower costs. This practice also tends to conceal poor standards that are currently in practice and encourages people to find new ways to restrict entry into a professional occupation. Often times licensing regimes end up primarily serving the purpose of protecting the already licensed from unwanted competition.
Supporters of this legislation may contend that licensing is necessary to prevent unqualified witnesses from testifying in court for the state in a trial that could land a defendant in prison. We are not unsympathetic to that argument as it is true that the state should not be putting unqualified "expert witnesses" on the stand in an effort to convict a defendant. However, as a prevention against such an outcome defense attorneys have the opportunity to question the state's witnesses, expose deficient qualifications, and impeach the credibility of the witness. Defense attorneys may also call their own expert witnesses to dispute the state's witnesses.
Forensic Science Commission would be able to write their own rules and control the market from new competitors developing differing techniques than are currently practiced, essentially creating a state-sanctioned monopoly that inhibits innovation. If there is truly a problem with unqualified forensic analysts this problem should be corrected through free market mechanisms, not through dubious occupational licensing regimes that grow the size and scope of government.
We oppose this bill for violating the principles of individual liberty, limited government, and free markets.