Relating to spoliation of evidence held for use in a criminal proceeding.

89(R) HB 2728 - Introduced version - Bill Text

89R11380 JDK-D

By: Dutton

H.B. No. 2728

A BILL TO BE ENTITLED

AN ACT

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, 2025.