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A BILL TO BE ENTITLED
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AN ACT
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relating to spoliation of evidence held for use in a criminal |
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proceeding. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.495 to read as follows: |
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Art. 38.495. SPOLIATION OF EVIDENCE. (a) Except as |
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permitted under other law and subject to Subsection (b), the state |
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shall preserve evidence in the possession, custody, or control of |
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the state and may not permit the destruction, alteration, or loss of |
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that evidence. |
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(b) Subsection (a) does not apply to a destruction, |
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alteration, or loss of evidence that reasonably occurs in the |
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course of forensic analysis, as that term is defined by Section 2, |
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Article 38.01. |
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(c) Subject to Subsection (d), evidence and testimony |
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relating to an allegation that the state, by act or omission, caused |
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the destruction, alteration, or loss of evidence held for use in a |
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criminal proceeding are admissible and may be used by the defendant |
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to make a showing of spoliation of evidence under this article. |
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(d) In determining the admissibility of evidence or |
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testimony relating to an allegation described by Subsection (c), |
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the court shall determine, out of the presence of the jury and by a |
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preponderance of the evidence, whether spoliation of evidence |
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occurred in violation of Subsection (a). If practicable, the court |
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shall make the determination under this subsection before trial |
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using the procedures under Article 28.01 of this code and Rule 104, |
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Texas Rules of Evidence. |
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(e) The party alleging spoliation of evidence in violation |
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of Subsection (a) is not required to show that: |
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(1) the actor's sole intent was to wrongfully cause the |
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destruction, alteration, or loss of the evidence; or |
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(2) the actions of the actor constituted a criminal |
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offense. |
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(f) A conviction for an offense under Section 37.09, Penal |
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Code, creates a presumption of spoliation of evidence under this |
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article. |
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(g) If it is shown during a proceeding under Subsection (d) |
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that the violation of Subsection (a) was intentional, knowing, |
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reckless, or negligent, at trial the court shall instruct the jury |
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to presume that the destroyed, altered, or lost evidence would have |
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been favorable to the defendant and unfavorable to the state. |
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(h) If it is shown during a proceeding under Subsection (d) |
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that the violation of Subsection (a) was intentional, the court may |
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impose additional sanctions on the state or dismiss any criminal |
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charges with prejudice. |
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SECTION 2. The change in law made by this Act applies to a |
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criminal proceeding that commences on or after the effective date |
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of this Act. A criminal proceeding that commences before the |
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effective date of this Act is governed by the law in effect on the |
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date the proceeding commenced, and the former law is continued in |
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effect for that purpose. |
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SECTION 3. This Act takes effect September 1, 2023. |