Bill Text: TX HB747 | 2021-2022 | 87th Legislature | Introduced
Bill Title: Relating to spoliation of evidence held for use in a criminal proceeding.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-03-01 - Referred to Criminal Jurisprudence [HB747 Detail]
Download: Texas-2021-HB747-Introduced.html
| 87R5050 JSC-D | ||
| By: Dutton | H.B. No. 747 | |
|
|
||
|
|
||
| relating to spoliation of evidence held for use in a criminal | ||
| proceeding. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. Chapter 38, Code of Criminal Procedure, is | ||
| amended by adding Article 38.495 to read as follows: | ||
| Art. 38.495. SPOLIATION OF EVIDENCE. (a) Except as | ||
| permitted under other law and subject to Subsection (b), the state | ||
| shall preserve evidence in the possession, custody, or control of | ||
| the state and may not permit the destruction, alteration, or loss of | ||
| that evidence. | ||
| (b) Subsection (a) does not apply to a destruction, | ||
| alteration, or loss of evidence that reasonably occurs in the | ||
| course of forensic analysis, as that term is defined by Section 2, | ||
| Article 38.01. | ||
| (c) Subject to Subsection (d), evidence and testimony | ||
| relating to an allegation that the state, by act or omission, caused | ||
| the destruction, alteration, or loss of evidence held for use in a | ||
| criminal proceeding are admissible and may be used by the defendant | ||
| to make a showing of spoliation of evidence under this article. | ||
| (d) In determining the admissibility of evidence or | ||
| testimony relating to an allegation described by Subsection (c), | ||
| the court shall determine, out of the presence of the jury and by a | ||
| preponderance of the evidence, whether spoliation of evidence | ||
| occurred in violation of Subsection (a). If practicable, the court | ||
| shall make the determination under this subsection before trial | ||
| using the procedures under Article 28.01 of this code and Rule 104, | ||
| Texas Rules of Evidence. | ||
| (e) The party alleging spoliation of evidence in violation | ||
| of Subsection (a) is not required to show that: | ||
| (1) the actor's sole intent was to wrongfully cause the | ||
| destruction, alteration, or loss of the evidence; or | ||
| (2) the actions of the actor constituted a criminal | ||
| offense. | ||
| (f) A conviction for an offense under Section 37.09, Penal | ||
| Code, creates a presumption of spoliation of evidence under this | ||
| article. | ||
| (g) If it is shown during a proceeding under Subsection (d) | ||
| that the violation of Subsection (a) was intentional, knowing, | ||
| reckless, or negligent, at trial the court shall instruct the jury | ||
| to presume that the destroyed, altered, or lost evidence would have | ||
| been favorable to the defendant and unfavorable to the state. | ||
| (h) If it is shown during a proceeding under Subsection (d) | ||
| that the violation of Subsection (a) was intentional, the court may | ||
| impose additional sanctions on the state or dismiss any criminal | ||
| charges with prejudice. | ||
| SECTION 2. The change in law made by this Act applies to a | ||
| criminal proceeding that commences on or after the effective date | ||
| of this Act. A criminal proceeding that commences before the | ||
| effective date of this Act is governed by the law in effect on the | ||
| date the proceeding commenced, and the former law is continued in | ||
| effect for that purpose. | ||
| SECTION 3. This Act takes effect September 1, 2021. | ||
