Legal Eagles,

I recently had a question from a prosecutor where a defense attorney tried to exclude his hero's UA results at a MTR because the DA didn't comply with CCP 38.41/38.42 (certificate of analysis and chain of custody). It's important in the context of a revocation because the 20 day filing requirement makes it impossible to avoid a bond hearing (if the hero wants one). I thought this question was kinda tough because the language seems unambiguous--but I know 38.41/38.42 shouldn't apply in a MTR. Here's my response...anybody have any observations?


In September, 2003, the Texas Legislature amended the CCP requiring a "certificate of analysis" and "chain of custody affidavit" to accompany the introduction of a lab analysis report conducted "by or for a law enforcement agency." C.C.P. Art. 38.41 & 38.42. Question: does this requirement apply to the results of a routine urinalysis screening made by a privately contracted laboratory when that report is admitted against a probationer in a revocation hearing?

Background. Articles 38.41 and 38.42 were passed in reaction to Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990). Cole concerned a laboratory examination of trace evidence collected in a SANE exam. Such reports made by "law enforcement agencies" do not qualify for the public records exception because they would be used against a criminal defendant--likewise, the report could not be back-doored through the business records exception. The legislature intended to create a mechanism through which a defendant could object in advance to a police lab report so that the state could have the analyst/chemist/scientist available at trial. Cole's holding relied on federal court interpretations of F.R.E. 803(8): reports are specifically excluded from the public records exception (and inferentially from the business records exception) if made by [1] law enforcement agencies [2] in anticipation of use in a criminal proceeding. See United States v. Oates, 560 F.2d 45 (2nd Cir. 1977); United States v. Stone, 604 F.2d 922 (5th Cir. 1979). Cole recognized the possibility that reports prepared in law enforcement labs could be admissible against a criminal defendant, but that forensic analysis of a SANE kit is, as a matter of law, in anticipation of litigation.

Results from UA screening, ordered as a condition of probation and analyzed by a privately contracted lab, fall outside Cole's scope for two reasons. First, an independently contracted lab is not a "law enforcement agency." The CCA has held that a county medical examiner is not acting in a "law enforcement" capacity when preparing an autopsy report. Garcia v. State, 868 S.W.2d 337 (Tex. Crim. App. 1993). A survey of cases seems to indicate that the "law enforcement" label applies only to labs which would be biased towards the prosecution or charged with the enforcement of laws. See Oates (U.S. Customs chemist is "law enforcement" because customs is charged with enforcing laws against importation of controlled substances); Cole (scientist in a Department of Public Safety lab is "law enforcement"). But see also 2 Tex. Prac., Texas Rules Of Evidence Sec. 803.13 (3d ed.) (citing conflicting Texas authority about whether a police department forensic lab is "law enforcement").

Second, it is arguable that UA screening conducted regularly as a condition of probation is not "in anticipation of litigation" even though it is entirely foreseeable that a failed test will be used in a revocation proceeding. For example, you could argue that the test is not ordered following a PC determination, no search warrant is required, and the test is conducted pursuant to a contractual agreement between the defendant and the state. In Greer v. State, the 14th Court of Appeals approved the admission of a probation officer's file, in a revocation hearing, as a business record. 999 S.W.2d 484 (Tex. Crim. App.-Houston 1999). Conducting a Cole analysis, the court found that entries in a probation officer's file are "objective" recordings of an "unambiguous factual matter" and not made "in an adversarial or investigative context."

I believe the probation department would qualify as a law enforcement agency. When the analysis is requested by a law enforcement agency, then Art. 38.41 could be used to eliminate the need for witnesses in court. The shortened time frame for probation revocations limits its usefulness unless the probationer is on bond.

However, there are generally more violations alleged in an MRP than just a positive UA. I have never gone forward on that allegation alone. If that is the only allegation, probation conditions are generally modified by agreeement to add some jail time or other sanction without having to have a hearing.

Watch out for defense attorneys also seeking to exclude the results of a UA from a revocation hearing on the basis that the testing agency was not an accredited lab under CCP art. 38.35.

One response to such motions is that UAs do not fall within the definition of "physical evidence" in 38.35(a)(2) ("... any tangible object, thing, or substance relating to a criminal offense."). UAs do not "relate to a criminal offense," but are part of a revocation for an administrative violation of probation.

We avoid urine problems by training our probation officers to obtain an admission from a probationer following a positive urine test. The admission alone is sufficient to prove a violation (and remember the defendant need not receive Miranda warnings because he/she is not in custody).

If the defendant wants to contest his admission, then he/she can pay for and obtain a proper lab analysis. We haven't had to bring in a lab guy very often.

Is there a Crawford Problem here? our judge was allowing in test results as business records of the probation dept. (his idea, not mine) but since Crawford, he has required lab testimony or admissions.

Ultimately, as usual, John is right. Train the officers to get admissions. It has saved us a lot of trouble. That is until you get the "qualified" admission that I got several years ago.... the defendant admitted he would test positive but believed it would be from oral sex with his girl friend who was using cocaine. Merry Christmas, ya'll

We have seen that sort of partial admission here, as well. Seems the defendant claimed he must have picked up some "residue" on certain parts of his girlfriend's body. I took it as a complete admission.

I have used the business record predicate for years to admit the chronological entries of field officers and certain other contents of the file when the court officer has the file on the stand. The results of scientific tests contained in the files, however, seem to be different in that while the report is part of the file, the proper application of the method of testing, its efficacy and the rest are not covered by the predicate. We have always had live testimony on UAs and our provider is in Arizona. For that reason, I strive to find some other violation before going forward, although if UAs are all we have we go on those. Our probation office is good at seeking admissions from the probationers as well.