Relating to a waiver of the preservation of evidence and the return of a seized weapon in a criminal case.

89(R) HB 2180 - Engrossed version - Bill Text

By: Cunningham

H.B. No. 2180

A BILL TO BE ENTITLED

AN ACT

relating to a waiver of the preservation of evidence and the return

of a seized weapon in a criminal case.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 38, Code of Criminal Procedure, is

amended by adding Article 38.51 to read as follows:

Art.

38.51.

WAIVER OF PRESERVATION OF EVIDENCE AND RETURN

OF SEIZED WEAPON. (a) Notwithstanding any other law, after a

defendant enters a plea of guilty or nolo contendere in accordance

with Article 27.13 or 27.14, as applicable, the defendant, acting

with counsel, may knowingly, intelligently, and voluntarily waive

the defendant's right to:

(1)

the preservation of evidence under Article 38.50;

and

(2)

request the return of any seized weapon under

Article 18.19.

(b)

A waiver under this article must be executed in

substantially the following written form:

WAIVER OF PRESERVATION OF EVIDENCE AND RETURN OF SEIZED WEAPON

I, __________________ (defendant's name), defendant in

__________________________ (case number), joined by my counsel,

waive the right to the preservation of evidence collected in this

case and the right to request the return of any seized weapon, as

provided below.

I understand that under Article 38.50, Code of Criminal

Procedure, I would otherwise have the right to have any

toxicological evidence collected in this case preserved until I

complete my sentence, term of community supervision, or juvenile

commitment or supervision period.

However, I waive my right to receive notice of and object to

the planned destruction of that evidence.

I also waive the right to request the return of any seized

weapon under Article 18.19, Code of Criminal Procedure.

I agree that, as specified under Article 18.19, Code of

Criminal Procedure, or other law, all evidence collected in this

case, including firearms or other weapons, may be:

(1)

returned to a person claiming a right to or

interest in the evidence, other than myself;

(2) used for law enforcement purposes;

(3) sold by law enforcement; or

(4) destroyed.

(c)

If the court determines that the waiver described by

Subsection (b) was knowingly, intelligently, and voluntarily

given, the court shall enter an order stating that, as specified

under Article 18.19 or other law and at any date occurring on or

after the 120th day after the date of the order, all evidence

collected in the case, including firearms or other weapons, shall

be:

(1)

returned to a person claiming a right to or

interest in the evidence, other than the defendant;

(2) used for law enforcement purposes;

(3) sold by law enforcement; or

(4) destroyed.

(d)

A defendant may revoke the waiver under this article

until the 120th day after the date of the order.

(e)

An attorney representing the state may not request that

a defendant give a waiver under this article as part of a plea

bargain agreement.

(f)

Notwithstanding any other provision of this article, a

crime laboratory, as defined by Article 38.35, may preserve any

evidence or work product derived from evidence that the crime

laboratory considers necessary to comply with accreditation

requirements, laboratory policy, or applicable scientific

standards.

(g)

Notwithstanding any other provision of this article, a

waiver executed under this article is void and unenforceable

unless:

(1)

the waiver is made in writing, in open court before

a judge as part of the record and recorded by the court reporter,

and signed by both the defendant and the defendant's attorney;

(2)

the waiver is executed not earlier than the 120th

day after the date the defendant enters a plea of guilty or no

contendere;

(3)

the defendant receives and signs an admonishment

in plain language stating:

"Waiving your right to the preservation of evidence may

severely limit your ability to win an appeal or seek

post-conviction relief.

It may result in the destruction of

evidence that could have helped prove your innocence.

Once

destroyed, that evidence cannot be recovered."; and

(4)

the defendant's attorney certifies in writing that

the waiver was made freely, voluntarily, and without coercion, and

that the defendant was fully advised of the consequences of waiving

the preservation of evidence.

(h)

Evidence may not be destroyed or disposed of until after

the 120th day after the date of the order.

(i)

A waiver under this article may not be requested,

required, or included as part of any plea agreement or plea bargain

negotiation.

SECTION 2. This Act takes effect September 1, 2025.