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A BILL TO BE ENTITLED
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AN ACT
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relating to a waiver of the preservation of evidence and the return |
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of a seized weapon in a criminal case. |
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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 38.51 to read as follows: |
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Art. 38.51. WAIVER OF PRESERVATION OF EVIDENCE AND RETURN |
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OF SEIZED WEAPON. (a) Notwithstanding any other law, after a |
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defendant enters a plea of guilty or nolo contendere in accordance |
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with Article 27.13 or 27.14, as applicable, the defendant, acting |
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with counsel, may knowingly, intelligently, and voluntarily waive |
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the defendant's right to: |
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(1) the preservation of evidence under Articles 38.43 |
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and 38.50; and |
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(2) request the return of any seized weapon under |
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Article 18.19. |
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(b) A waiver under this article must be executed in |
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substantially the following written form: |
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WAIVER OF PRESERVATION OF EVIDENCE AND RETURN OF SEIZED WEAPON |
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I, __________________ (defendant's name), defendant in |
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__________________________ (case number), joined by my counsel, |
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waive the right to the preservation of any and all evidence |
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collected in this case and the right to request the return of any |
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seized weapon, as provided below. |
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I understand that under Article 38.43, Code of Criminal |
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Procedure, evidence known to contain biological material must be |
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preserved until I die, complete my sentence or term of community |
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supervision or juvenile probation, or am released on parole, |
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mandatory supervision, or juvenile probation, and that I, my |
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counsel, and the court would have 90 days to object to the planned |
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destruction of that evidence. |
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I understand that under Article 38.50, Code of Criminal |
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Procedure, I have the right to have any toxicological evidence |
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collected in this case preserved until I complete my sentence, term |
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of community supervision, or juvenile commitment or supervision |
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period. |
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I fully understand that scientific testing of any biological |
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or toxicological evidence being preserved under Article 38.43 or |
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38.50, Code of Criminal Procedure, could establish the identity of |
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the person who committed the offense in this case, or exclude me as |
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a person who could have committed the offense. I agree that testing |
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of that evidence is unnecessary because I am criminally responsible |
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for the offense charged. |
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I waive my right to receive notice of and object to the |
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planned destruction of that evidence. |
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I also waive the right to request the return of any seized |
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weapon under Article 18.19, Code of Criminal Procedure. |
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I agree that, as specified under Article 18.19, Code of |
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Criminal Procedure, or other law, all evidence collected in this |
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case, including firearms or other weapons, may be: |
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(1) returned to a person claiming a right to or |
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interest in the evidence, other than myself; |
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(2) used for law enforcement purposes; |
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(3) sold by law enforcement; or |
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(4) destroyed. |
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(c) If the court determines that the waiver described by |
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Subsection (b) was knowingly, intelligently, and voluntarily |
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given, the court shall enter an order stating that, as specified |
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under Article 18.19 or other law and at any date occurring on or |
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after the 30th day after the date of the order, all evidence |
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collected in the case, including firearms or other weapons, shall |
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be: |
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(1) returned to a person claiming a right to or |
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interest in the evidence, other than the defendant; |
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(2) used for law enforcement purposes; |
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(3) sold by law enforcement; or |
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(4) destroyed. |
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SECTION 2. This Act takes effect September 1, 2023. |