83R10725 MAW-D
By: West S.B. No. 1439
A BILL TO BE ENTITLED
AN ACT
relating to property and evidence technicians.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 10, Occupations Code, is amended by adding
Chapter 1705 to read as follows:
CHAPTER 1705. PROPERTY AND EVIDENCE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1705.001. SHORT TITLE. This chapter may be cited as
the Texas Act for Property and Evidence (TAPE).
Sec. 1705.002. EVIDENCE TECHNICIANS. In this section:
(1) "Evidence" means any item that tends to prove or
disprove that a criminal act occurred or can prove or disprove guilt
or innocence.
(2) "Evidence technician" means a person employed by
or serving a law enforcement agency who receives, preserves,
stores, disposes of, and accounts for any and all property or
evidence that comes into the agency's possession. The term includes
a property control officer, property attendant, or property
specialist.
(3) "Property" means any item submitted to a law
enforcement agency's property room that does not have evidentiary
value or is not related to or alleged to be related to any criminal
act.
Sec. 1705.003. EVIDENCE TECHNICIAN CERTIFICATION. (a)
This state or a political subdivision of this state may not appoint
or employ a person to act as an evidence technician unless the
person has had, or intends to complete not later than the first
anniversary of the date of the person's appointment or employment,
at least eight hours of evidence technician training as determined
by the commission.
(b) The commission shall accredit an evidence technician
training program that fulfills the minimum requirements
established by commission rule. The commission shall adopt rules
providing for the accreditation of an evidence technician training
program developed and taught by the Texas Association of Property
and Evidence Inventory Technicians, the Department of Public
Safety, an institution of higher education, including a junior
college, community college, or technical school, or any other
entity approved by the commission.
(c) A person who completes an accredited training program
under this section may submit evidence of satisfactory completion
of an accredited evidence technician training program and request a
written acknowledgment from the commission. On a determination by
the commission that the person meets the minimum requirements for
an evidence technician, the commission shall issue the written
acknowledgment to the person.
(d) A person performing the duties of an evidence technician
and serving under permanent appointment on and before September 1,
2013, is not required to meet the requirements of this section as a
condition of continued employment.
(e) Notwithstanding this section, a person may be appointed
or serve as an evidence technician on a temporary or probationary
basis or may perform the duties of an evidence technician in an
emergency.
(f) A person appointed on a temporary or probationary basis
after September 1, 2013, who does not satisfactorily complete an
accredited evidence technician training program before the first
anniversary of the date the person is originally appointed shall be
removed from the position. The person's temporary or probationary
appointment may not be extended for more than one year except that
not earlier than the first anniversary of the date the person is
removed under this subsection, the employing agency may petition
the commission for reinstatement of the person to temporary or
probationary employment.
Sec. 1705.004. PREVENTING CONSEQUENCES OF THEFT. (a) Any
person, other than a peace officer, under this section, has a right
to prevent the consequences of theft by seizing any personal
property that has been stolen and bringing it, with the person
suspected of committing the theft, if that person can be taken,
before a magistrate for examination, or delivering the property and
the person suspected of committing the theft to a peace officer for
that purpose.
(b) To justify a seizure under this section, there must be
reasonable grounds to believe the property is stolen, and the
seizure must be openly made and the proceedings must be completed
within 72 hours.
(c) If the proceedings are not conducted within the
prescribed time frame set forth in Subsection (b), the property
shall be returned to the person from whom it was seized.
Sec. 1705.005. DISPOSITION OF ABANDONED OR UNCLAIMED
PROPERTY. (a) All unclaimed or abandoned personal property of
every kind, other than contraband subject to forfeiture under
Chapter 59, Code of Criminal Procedure, and whiskey, wine, and
beer, seized by any peace officer in this state which is not held as
evidence to be used in any pending case and has not been ordered
destroyed or returned to the person entitled to possession of the
property by a magistrate, which remains unclaimed for a period of 30
days, shall be delivered for disposition to a person designated by
the municipality or the purchasing agent of the county in which the
property was seized. If a peace officer of a municipality seizes
the property, the peace officer shall deliver the property to a
person designated by the municipality. Proceeds from the sale of
the property through public auction shall be deposited in the
treasury designated for use by the contributing agency. If any
other peace officer seizes the property, the peace officer shall
deliver the property to the purchasing agent of the county. If the
county has no purchasing agent, then such property shall be
disposed of by the sheriff of the county.
(b) The county purchasing agent, the person designated by
the municipality, or the sheriff of the county shall mail notice to
the last known address of the owner of the property by certified
mail. The notice shall describe the property being held, give the
name and address of the officer holding such property, and state
that if the owner does not claim the property within 90 days from
the date of the notice, the property will be disposed of and the
proceeds deposited in the treasury designated for use by the
contributing agency.
(c) If the property has a fair market value of $500 or more
and the owner or the address of the owner is unknown, the person
designated by the municipality, the county purchasing agent, or the
sheriff shall cause to be published once in a paper of general
circulation in the municipality or county a notice containing a
general description of the property held, the name of the owner if
known, the name and address of the officer holding the property, and
a statement that if the owner does not claim the property within 90
days from the date of the publication, the property will be disposed
of and, after deducting the reasonable expense of keeping the
property and the costs of the disposition, the proceeds placed in
the treasury of the municipality or county disposing of the
property. If the property has a fair market value of less than $500
and the owner or the address of the owner is unknown, the person
designated by the municipality, the county purchasing agent, or the
sheriff may sell or donate the property. The person designated by
the municipality, the purchasing agent, or the sheriff shall
deposit the sale proceeds in the treasury of the applicable
municipality or county.
(d) The sale under this section of any property that has a
fair market value of $500 or more shall be preceded by a notice
published once at least 14 days prior to the date of the sale in a
newspaper of general circulation in the municipality or county
where the sale is to take place, stating the general description of
the property, the name of the owner if known, and the date and place
that the sale will occur. This subsection does not require
disposition by sale.
(e) The real owner of any property disposed of shall have
the right to file a claim to the proceeds with the commissioners
court of the county or with the governing body of the municipality
in which the disposition took place. A claim by the real owner must
be filed not later than the 30th day after the date of disposition.
If the claim is allowed by the commissioners court or the governing
body of the municipality, the municipal or county treasurer shall
pay the owner the funds paid into the treasury of the municipality
or county as proceeds of the disposition. If the claim is denied by
the commissioners court or the governing body, or if the court or
body fails to act upon such claim within 90 days, the claimant may
file suit against the municipal or county treasurer in a court of
competent jurisdiction in the county, and if the claimant presents
sufficient proof of ownership, recover judgment against the
municipality or county for the recovery of the proceeds of the
disposition.
(f) In this section:
(1) "Person designated by a municipality" means an
officer or employee of a municipality who is designated by the
municipality to be primarily responsible for the disposition of
property under this section.
(2) "Property held as evidence" means property related
to a charge that has been filed or to a matter that is being
investigated for the filing of a charge.
(g) If the provisions of this section have been met and the
property is scheduled for disposition, the municipal or county law
enforcement agency that originally seized the property may request
and have the property converted to agency use. The agency at any
time may transfer the property to another municipal or county law
enforcement agency for the use of that agency. The agency last
using the property shall return the property to the person
designated by the municipality, county purchasing agent, or sheriff
for disposition when the agency has completed the intended use of
the property.
(h) If the abandoned or unclaimed personal property is
money, the person designated by the municipality, the county
purchasing agent, or the sheriff of the county, as appropriate,
may, after giving notice under Subsection (b) or (c), deposit the
money in the treasury of the municipality or county giving the
notice.
(i) While offering the property for sale under this section,
if a person designated by a municipality, county purchasing agent,
or sheriff considers any bid insufficient, the person, agent, or
sheriff may decline the bid and reoffer the property for sale.
(j) Chapters 72, 74, 75, and 76, Property Code, do not apply
to unclaimed or abandoned property to which this section applies.
Sec. 1705.006. DISPOSITION OF GAMBLING PARAPHERNALIA,
PROHIBITED WEAPONS, CRIMINAL INSTRUMENTS, AND OTHER CONTRABAND.
(a) Following the final conviction of a person for possession of a
gambling device or equipment, altered gambling equipment, or
gambling paraphernalia, or for an offense involving a criminal
instrument, an obscene device or material, child pornography, or a
scanning device or re-encoder, the court entering the judgment of
conviction shall order that the machine, device, gambling equipment
or gambling paraphernalia, instrument, obscene device or material,
child pornography, or scanning device or re-encoder be destroyed or
forfeited to the state. Not later than the 30th day after the final
conviction of a person for an offense involving a prohibited
weapon, the court entering the judgment of conviction on its own
motion, on the motion of the prosecuting attorney in the case, or on
the motion of the law enforcement agency initiating the complaint
after notice to the prosecuting attorney in the case if the
prosecutor fails to move for the order, shall order that the
prohibited weapon be destroyed or forfeited to the law enforcement
agency that initiated the complaint. If the court fails to enter
the order within the time required by this subsection, any
magistrate in the county in which the offense occurred may enter the
order. Following the final conviction of a person for an offense
involving dog fighting, the court entering the judgment of
conviction shall order that any dog-fighting equipment be destroyed
or forfeited to the state. Destruction of dogs, if necessary, must
be carried out by a veterinarian licensed in this state or, if one
is not available, by trained personnel of a humane society or an
animal shelter. If forfeited, the court shall order the contraband
delivered to the state, any political subdivision of the state, or
any state institution or agency. If gambling proceeds were seized,
the court shall order them forfeited to the state and shall transmit
them to the grand jury of the county in which they were seized for
use in investigating alleged violations of the Penal Code, or to the
state, any political subdivision of the state, or any state
institution or agency.
(b) If there is no prosecution or conviction following
seizure, the magistrate to whom the return was made shall notify in
writing the person found in possession of the alleged gambling
device or equipment, altered gambling equipment or gambling
paraphernalia, gambling proceeds, prohibited weapon, obscene
device or material, child pornography, scanning device or
re-encoder, criminal instrument, or dog-fighting equipment to show
cause why the property seized should not be destroyed or the
proceeds forfeited. The magistrate, on the motion of the law
enforcement agency seizing a prohibited weapon, shall order the
weapon destroyed or forfeited to the law enforcement agency seizing
the weapon, unless a person shows cause as to why the prohibited
weapon should not be destroyed or forfeited. A law enforcement
agency shall make a motion under this section in a timely manner
after the time at which the agency is informed in writing by the
attorney representing the state that no prosecution will arise from
the seizure.
(c) The magistrate shall include in the notice a detailed
description of the property seized and the total amount of alleged
gambling proceeds, the name of the person found in possession, the
address where the property or proceeds were seized, and the date and
time of the seizure.
(d) The magistrate shall send the notice by registered or
certified mail, return receipt requested, to the person found in
possession at the address where the property or proceeds were
seized. If no one was found in possession, or the possessor's
address is unknown, the magistrate shall post the notice on the
courthouse door.
(e) Any person interested in the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
child pornography, scanning device or re-encoder, criminal
instrument, or dog-fighting equipment seized must appear before the
magistrate on the 20th day following the date the notice was mailed
or posted. Failure to timely appear forfeits any interest the
person may have in the property or proceeds seized, and no person
after failing to timely appear may contest destruction or
forfeiture.
(f) If a person timely appears to show cause why the
property or proceeds should not be destroyed or forfeited, the
magistrate shall conduct a hearing on the issue and determine the
nature of the property or proceeds and the person's interest
therein. Unless the person proves by a preponderance of the
evidence that the property or proceeds are not gambling equipment,
altered gambling equipment, gambling paraphernalia, a gambling
device, gambling proceeds, a prohibited weapon, an obscene device
or material, child pornography, a criminal instrument, a scanning
device or re-encoder, or dog-fighting equipment and that the person
is entitled to possession, the magistrate shall dispose of the
property or proceeds in accordance with Subsection (a).
(g) In this section:
(1) "Criminal instrument," "gambling device or
equipment, altered gambling equipment, or gambling paraphernalia,"
and "prohibited weapon" have the meanings assigned by the Penal
Code.
(2) "Dog-fighting equipment" means:
(A) equipment used for training or handling a
fighting dog, including a harness, treadmill, cage, decoy, pen,
house for keeping a fighting dog, feeding apparatus, or training
pen;
(B) equipment used for transporting a fighting
dog, including any automobile, or other vehicle, and its
appurtenances which are intended to be used as a vehicle for
transporting a fighting dog;
(C) equipment used to promote or advertise an
exhibition of dog fighting, including a printing press or similar
equipment, paper, ink, or photography equipment; or
(D) a dog trained, being trained, or intended to
be used to fight with another dog.
(3) "Obscene device" and "obscene" have the meanings
assigned by Section 43.21, Penal Code.
(4) "Re-encoder" has the meaning assigned by Section
35.60, Business & Commerce Code.
(5) "Scanning device" has the meaning assigned by
Section 35.60, Business & Commerce Code.
(6) "Obscene material" and "child pornography"
include digital images and the media and equipment on which those
images are stored.
(h) A provider of an electronic communication service or of
a remote computing service to the public may not be held liable for
an offense involving obscene material or child pornography under
this section due to any action taken in good faith in providing that
service.
Sec. 1705.007. DISPOSITION OF EXPLOSIVE WEAPONS AND
CHEMICAL DISPENSING DEVICES. (a) After seizure of an explosive
weapon or chemical dispensing device, as these terms are defined in
Section 46.01, Penal Code, a peace officer or a person acting at the
direction of a peace officer shall:
(1) photograph the weapon in the position where it is
recovered before touching or moving it;
(2) record the identification designations printed on
a weapon if the markings are intact;
(3) if the weapon can be moved, move it to an isolated
area in order to lessen the danger to the public;
(4) if possible, retain a portion of a wrapper or other
packaging materials connected to the weapon;
(5) retain a small portion of the explosive material
and submit the material to a laboratory for chemical analysis;
(6) separate and retain components associated with the
weapon such as fusing and triggering mechanisms if those mechanisms
are not hazardous in themselves;
(7) destroy the remainder of the weapon in a safe
manner;
(8) at the time of destruction, photograph the
destruction process and make careful observations of the
characteristics of the destruction;
(9) after destruction, inspect the disposal site and
photograph the site to record the destructive characteristics of
the weapon; and
(10) retain components of the weapon and records of
the destruction for use as evidence in court proceedings.
(b) Representative samples, photographs, and records made
pursuant to this section are admissible in civil or criminal
proceedings in the same manner and to the same extent as if the
explosive weapon were offered in evidence, regardless of whether or
not the remainder of the weapon has been destroyed. No inference or
presumption of spoliation applies to weapons destroyed pursuant to
this section.
Sec. 1705.008. DEPOSIT OF MONEY PENDING DISPOSITION. (a)
If money is seized by a law enforcement agency in connection with a
violation of Chapter 47, Penal Code, the state or the political
subdivision of the state that employs the law enforcement agency
may deposit the money in an interest-bearing bank account in the
jurisdiction of the agency that made seizure or in the county in
which the money was seized until a final judgment is rendered
concerning the violation.
(b) If a final judgment is rendered concerning a violation
of Chapter 47, Penal Code, money seized in connection with the
violation that has been placed in an interest-bearing bank account
shall be distributed according to this chapter, with any interest
being distributed in the same manner and used for the same purpose
as the principal.
Sec. 1705.009. DISPOSITION OF SEIZED WEAPONS. (a) Weapons
seized in connection with an offense involving the use of a weapon
or an offense under Chapter 46, Penal Code, shall be held by the law
enforcement agency making the seizure, subject to the following
provisions, unless:
(1) the weapon is a prohibited weapon identified in
Chapter 46, Penal Code, in which event Section 1705.006 applies; or
(2) the weapon is alleged to be stolen property, in
which event Chapter 47, Code of Criminal Procedure, applies.
(b) When a weapon described in Subsection (a) is seized, and
the seizure is not made pursuant to a search or arrest warrant, the
person seizing the weapon shall prepare and deliver to a magistrate
a written inventory of each weapon seized.
(c) If there is no prosecution or conviction for an offense
involving the weapon seized, the magistrate to whom the seizure was
reported shall, before the 61st day after the date the magistrate
determines that there will be no prosecution or conviction, notify
in writing the person found in possession of the weapon that the
person is entitled to the weapon upon written request to the
magistrate. The magistrate shall order the weapon returned to the
person found in possession before the 61st day after the date the
magistrate receives a request from the person. If the weapon is not
requested before the 61st day after the date of notification, the
magistrate shall, before the 121st day after the date of
notification, order the weapon destroyed or forfeited to the state
for use by the law enforcement agency holding the weapon or by a
county forensic laboratory designated by the magistrate. If the
magistrate does not order the return, destruction, or forfeiture of
the weapon within the applicable period prescribed by this
subsection, the law enforcement agency holding the weapon may
request an order of destruction or forfeiture of the weapon from the
magistrate.
(d) A person either convicted or receiving deferred
adjudication under Chapter 46, Penal Code, is entitled to the
weapon seized upon request to the court in which the person was
convicted or placed on deferred adjudication. However, the court
entering the judgment shall order the weapon destroyed or forfeited
to the state for use by the law enforcement agency holding the
weapon or by a county forensic laboratory designated by the court
if:
(1) the person does not request the weapon before the
61st day after the date of the judgment of conviction or the order
placing the person on deferred adjudication;
(2) the person has been previously convicted under
Chapter 46, Penal Code;
(3) the weapon is a prohibited weapon as provided by
Section 46.05, Penal Code;
(4) the offense for which the person is convicted or
receives deferred adjudication was committed in or on the premises
of a playground, school, video arcade facility, or youth center, as
those terms are defined by Section 481.134, Health and Safety Code;
or
(5) the court determines based on the prior criminal
history of the defendant or based on the circumstances surrounding
the commission of the offense that possession of the seized weapon
would pose a threat to the community or one or more individuals.
(e) If the person found in possession of a weapon is
convicted of an offense involving the use of the weapon, before the
61st day after the date of conviction the court entering judgment of
conviction shall order destruction of the weapon or forfeiture to
the state for use by the law enforcement agency holding the weapon
or by a county forensic laboratory designated by the court. If the
court entering judgment of conviction does not order the
destruction or forfeiture of the weapon within the period
prescribed by this subsection, the law enforcement agency holding
the weapon may request an order of destruction or forfeiture of the
weapon from a magistrate.
Sec. 1705.010. DUTY OF CLERKS. (a) In a criminal
proceeding, a clerk of the district or county court shall:
(1) receive and file all papers;
(2) receive all exhibits at the conclusion of the
proceeding;
(3) issue all process; and
(4) perform all other duties imposed on the clerk by
law.
(b) At any time during or after a criminal proceeding, the
court reporter shall release for safekeeping any firearm or
contraband received as an exhibit in that proceeding to:
(1) the sheriff; or
(2) in a county with a population of 500,000 or more,
the law enforcement agency that collected, seized, or took
possession of the firearm or contraband or produced the firearm or
contraband at the proceeding.
(c) The sheriff or the law enforcement agency, as
applicable, shall receive and hold the exhibits consisting of
firearms or contraband and release them only to the person or
persons authorized by the court in which such exhibits have been
received or dispose of them as provided by this chapter.
(d) In this section, "eligible exhibit" means an exhibit
filed with the clerk that:
(1) is not a firearm or contraband;
(2) has not been ordered by the court to be returned to
its owner; and
(3) is not an exhibit in another pending criminal
action.
(e) An eligible exhibit may be disposed of as provided by
this section:
(1) on or after the first anniversary of the date on
which a conviction becomes final in the case, if the case is a
misdemeanor or a felony for which the sentence imposed by the court
is five years or less; or
(2) on or after the second anniversary of the date on
which a conviction becomes final in the case, if the case is an
offense, other than a capital felony, for which the sentence
imposed by the court is greater than five years.
(f) A clerk in a county with a population of 1.7 million or
more may dispose of an eligible exhibit on the date provided by
Subsection (e) if on that date the clerk has not received a request
for the exhibit from either the attorney representing the state in
the case or the attorney representing the defendant.
(g) A clerk in a county with a population of less than 1.7
million must provide written notice by mail to the attorney
representing the state in the case and the attorney representing
the defendant before disposing of an eligible exhibit.
(h) The notice under Subsection (g) of this section must:
(1) describe the eligible exhibit;
(2) give the name and address of the court holding the
exhibit; and
(3) state that the eligible exhibit will be disposed
of unless a written request is received by the clerk before the 31st
day after the date of notice.
(i) If a request is not received by a clerk covered by
Subsection (g) of this section before the 31st day after the date of
notice, the clerk may dispose of the eligible exhibit.
(j) If a request is timely received, the clerk shall deliver
the eligible exhibit to the person making the request if the court
determines the requestor is the owner of the eligible exhibit.
Sec. 1705.011. EVIDENCE CONTAINING BIOLOGICAL MATERIAL.
(a) In this section, "biological evidence" means:
(1) the contents of a sexual assault examination kit;
or
(2) any item that contains blood, semen, hair, saliva,
skin tissue, fingernail scrapings, bone, bodily fluids, or any
other identifiable biological material that was collected as part
of an investigation of an alleged felony offense or conduct
constituting a felony offense that might reasonably be used to:
(A) establish the identity of the person
committing the offense or engaging in the conduct constituting the
offense; or
(B) exclude a person from the group of persons
who could have committed the offense or engaged in the conduct
constituting the offense.
(b) This section applies to a governmental or public entity
or an individual, including a law enforcement agency, prosecutor's
office, court, public hospital, or crime laboratory, that is
charged with the collection, storage, preservation, analysis, or
retrieval of biological evidence.
(c) An entity or individual described by Subsection (b)
shall ensure that biological evidence collected pursuant to an
investigation or prosecution of a felony offense or conduct
constituting a felony offense is retained and preserved:
(1) for not less than 40 years, or until the applicable
statute of limitations has expired, if there is an unapprehended
actor associated with the offense; or
(2) in a case in which a defendant has been convicted,
placed on deferred adjudication community supervision, or
adjudicated as having engaged in delinquent conduct and there are
no additional unapprehended actors associated with the offense:
(A) until the inmate is executed, dies, or is
released on parole, if the defendant is convicted of a capital
felony;
(B) until the defendant dies, completes the
defendant's sentence, or is released on parole or mandatory
supervision, if the defendant is sentenced to a term of confinement
or imprisonment in the Texas Department of Criminal Justice;
(C) until the defendant completes the
defendant's term of community supervision, including deferred
adjudication community supervision, if the defendant is placed on
community supervision;
(D) until the defendant dies, completes the
defendant's sentence, or is released on parole, mandatory
supervision, or juvenile probation, if the defendant is committed
to the Texas Juvenile Justice Department; or
(E) until the defendant completes the
defendant's term of juvenile probation, including a term of
community supervision upon transfer of supervision to a criminal
court, if the defendant is placed on juvenile probation.
(d) The attorney representing the state, clerk, or other
officer in possession of biological evidence described by
Subsection (a) may destroy the evidence, but only if the attorney,
clerk, or officer by mail notifies the defendant, the last attorney
of record for the defendant, and the convicting court of the
decision to destroy the evidence and a written objection is not
received by the attorney, clerk, or officer from the defendant,
attorney of record, or court before the 91st day after the later of
the following dates:
(1) the date on which the attorney representing the
state, clerk, or other officer receives proof that the defendant
received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned
destruction of evidence is mailed to the last attorney of record for
the defendant.
(e) To the extent of any conflict, this section controls
over Section 1705.010.
(f) The Department of Public Safety shall adopt standards
and rules authorizing a county with a population less than 100,000
to ensure the preservation of biological evidence by promptly
delivering the evidence to the Department of Public Safety for
storage in accordance with Section 411.053, Government Code, and
department rules.
(g) The Department of Public Safety shall adopt standards
and rules, consistent with best practices, relating to a person
described by Subsection (b), that specify the manner of collection,
storage, preservation, and retrieval of biological evidence.
(h) A person described by Subsection (b) may solicit and
accept gifts, grants, donations, and contributions to support the
collection, storage, preservation, retrieval, and destruction of
biological evidence.
Sec. 1705.012. ANALYSIS OF SEXUAL ASSAULT EVIDENCE. (a)
This section applies only to physical evidence of a sexual assault
with respect to an active criminal case.
(b) A law enforcement agency that receives sexual assault
evidence collected under this chapter or other law shall submit
that evidence to a public accredited crime laboratory for analysis
not later than the 30th day after the date on which that evidence
was received.
(c) A person who submits sexual assault evidence to a public
accredited crime laboratory under this section or other law shall
provide the following signed, written certification with each
submission: "This evidence is being submitted by (name of person
making submission) in connection with a criminal investigation."
(d) If sufficient personnel and resources are available, a
public accredited crime laboratory as soon as practicable shall
complete its analysis of sexual assault evidence submitted under
this section or other law.
(e) To ensure the expeditious completion of analyses, the
department and other applicable public accredited crime
laboratories may contract with private accredited crime
laboratories as appropriate to perform those analyses, subject to
the necessary quality assurance reviews by the public accredited
crime laboratories.
(f) The failure of a law enforcement agency to submit sexual
assault evidence within the period required by this section does
not affect the authority of:
(1) the agency to submit the evidence to an accredited
crime laboratory for analysis; or
(2) an accredited crime laboratory to analyze the
evidence or provide the results of that analysis to appropriate
persons.
(g) On the request of any appropriate person and after an
evidence collection kit containing biological evidence has been
analyzed by an accredited crime laboratory and any necessary
quality assurance reviews have been performed, the department shall
compare the DNA profile obtained from the biological evidence with
DNA profiles maintained in:
(1) state databases, including the DNA database
maintained under Subchapter G, Chapter 411, Government Code, if the
amount and quality of the analyzed sample meet the requirements of
the state database comparison policies; and
(2) the CODIS DNA database established by the Federal
Bureau of Investigation, if the amount and quality of the analyzed
sample meet the requirements of the bureau's CODIS comparison
policies.
Sec. 1705.013. BEVERAGE DELIVERED TO COMMISSION. Any
alcoholic beverage, its container, and its packaging which has been
seized by a peace officer, as provided in Section 103.03, Alcoholic
Beverage Code, may be disposed of by the agency seizing the items or
may be delivered to the commission for immediate public or private
sale in the manner determined by the commission.
Sec. 1705.014. BEVERAGE OF ILLICIT MANUFACTURE OR UNFIT FOR
CONSUMPTION. (a) The commission or local agency may not sell
alcoholic beverages seized by a peace officer, as provided in
Section 1705.013, that are unfit for public consumption or are of
illicit manufacture.
(b) An alcoholic beverage is unfit for public consumption
if:
(1) the manufacturer or wholesaler of the beverage
determines that the beverage is inappropriate for sale to a
consumer;
(2) the beverage is damaged; or
(3) the code date affixed by the manufacturer to the
beverage has expired.
(c) If the commission or local agency determines that a
seized alcoholic beverage is unfit for public consumption or is of
illicit manufacture, the commission or local agency shall destroy
the beverage.
Sec. 1705.015. SALE OF BEER. (a) Any beer, its container,
or its packaging which is seized under the terms of this chapter
shall be disposed of in accordance with this section.
(b) On notification that beer has been seized, the
commission or local agency shall promptly notify a holder of a
general, local, or branch distributor's license who handles the
brand of beer seized and who operates in the county in which it was
seized. If the beer was seized in a dry area, the commission or
local agency shall notify either the general, local, or branch
distributor who handles the brand operating nearest the area or the
manufacturer brewing the beer. The commission or local agency, as
appropriate, and the distributor or manufacturer shall jointly
determine whether the beer is in a salable condition.
(c) If the beer is determined not to be in a salable
condition, the commission or local agency shall immediately destroy
it. If it is determined to be in a salable condition, it shall be
offered for sale to the distributor or manufacturer. If offered to
a distributor, the beer shall be sold at the distributor's cost
price less any state taxes which have been paid on the beer. If the
beer is offered to a manufacturer, it shall be sold at the
manufacturer's cost price to its nearest distributor, less any
state taxes which have been paid on the beer. A distributor or
manufacturer that purchases beer under this subsection is
responsible for the costs of transporting the beer. Local agencies
may donate the beer to distributors or manufacturers. Local
agencies may collect any charges incurred as a result of the
seizure, and storage or warehousing charges necessarily incurred as
a result of the seizure shall be added to the cost price.
(d) If the distributor or manufacturer does not exercise the
right to purchase salable beer or to purchase returnable bottles,
containers, or packages at the applicable deposit price before the
11th day after the date items are offered to the distributor or
manufacturer, the commission shall sell the beer, bottles,
containers, or packages at public or private sale as provided in
this chapter. Local agencies shall dispose of the beer, bottles,
containers, or packages as provided for in this chapter.
Sec. 1705.016. SALE OF LIQUOR. (a) Any liquor, its
container, or its packaging which is seized under the terms of this
chapter shall be disposed of in accordance with this section.
(b) On notification that liquor has been seized, the
commission or local agency shall promptly notify a holder of a
wholesaler's permit, a general class B wholesaler's permit, or a
local class B wholesaler's permit who handles the brand of liquor
seized and who operates in the county in which it was seized. If the
liquor was seized in a dry area, the commission or local agency
shall notify the wholesaler who handles the brand seized who
operates nearest the area. The commission or local agency, as
appropriate, and the wholesaler shall jointly determine whether the
liquor is in a salable condition.
(c) If the liquor is determined not to be in a salable
condition, the commission or local agency shall immediately destroy
it. If it is determined to be in a salable condition, it shall first
be offered for sale to the wholesaler notified at the wholesaler's
cost price plus any storage or warehousing charges necessarily
incurred as a result of the seizure.
(d) If the wholesaler does not exercise the right to
purchase salable liquor, containers, or packages at the price
specified in this section before the 11th day after the date items
are offered to the wholesaler, the commission shall sell the
liquor, container, or packages at public or private sale, as
provided in this chapter. The local agency shall destroy the
liquor, container, or packages as provided in this chapter.
Sec. 1705.017. EXERCISE OF DISCRETION IN CASE OF MISTAKE.
This chapter shall not be construed as preventing the commission
from exercising its discretion if illicit alcoholic beverages are
seized as the result of an accidental shipment or other reasonable
mistake. Under those circumstances, the commission may issue
orders and make disposition of the alcoholic beverages as it finds
just and reasonable.
Sec. 1705.018. PROCEEDS FROM SALE. (a) The proceeds from
the sale of seized alcoholic beverages, containers, and packaging
shall be placed in escrow in a suspense account established by the
commission for that purpose, pending the outcome of a forfeiture
suit under this chapter.
(b) Proceeds in escrow which are not forfeited to the state
as a result of the suit shall be refunded to the alleged violator.
If alcoholic beverages are illegally seized and sold, the person
legally entitled to possession of the beverages at the time of the
seizure may recover from the state the fair market value of the
beverages, with the reimbursement paid out of the proceeds held in
escrow from the sale and, if the funds are insufficient, from the
confiscated liquor fund.
Sec. 1705.019. SEIZURE, SUMMARY FORFEITURE, AND SUMMARY
DESTRUCTION OF CONTROLLED SUBSTANCE PROPERTY. (a) Controlled
substance property that is manufactured, delivered, or possessed in
violation of Chapter 481, Health and Safety Code, is subject to
seizure and summary forfeiture to the state.
(b) If an item of controlled substance property is seized
and forfeited under this section, a court may order the disposition
of the property under Section 481.159, Health and Safety Code, or
the department or a peace officer may summarily destroy the
property under the rules of the department.
Sec. 1705.020. RULES. (a) The director may adopt
reasonable rules and procedures, not inconsistent with the
provisions of this chapter, concerning:
(1) summary forfeiture and summary destruction of
controlled substance property or plants;
(2) establishment and operation of a secure storage
area;
(3) delegation by a law enforcement agency head of the
authority to access a secure storage area; and
(4) minimum tolerance for and the circumstances of
loss or destruction during an investigation.
(b) The rules for the destruction of controlled substance
property or plants must require:
(1) not less than two witnesses of the destruction of
the property or plants;
(2) the preparation of an inventory of the property or
plants destroyed; and
(3) the preparation of a statement that contains the
names of the witnesses of the destruction and the details of the
destruction.
(c) A document prepared under a rule adopted under this
section must be completed, retained, and made available for
inspection by the director.
Sec. 1705.021. DISPOSITION OF CONTROLLED SUBSTANCE
PROPERTY OR PLANT. (a) If a district court orders the forfeiture
of a controlled substance property or plant under this chapter the
court shall also order a law enforcement agency to:
(1) retain the property or plant for its official
purposes, including use in the investigation of offenses under this
code;
(2) deliver the property or plant to a government
agency for official purposes;
(3) deliver the property or plant to a person
authorized by the court to receive it;
(4) deliver the property or plant to a person
authorized by the director to receive it for a purpose described by
Section 481.065(a), Health and Safety Code; or
(5) destroy the property or plant.
(b) The district court may not require the department to
receive, analyze, or retain a controlled substance property or
plant forfeited to a law enforcement agency other than the
department.
(c) In order to ensure that a controlled substance property
or plant is not diluted, substituted, diverted, or tampered with
while being used in the investigation of offenses under the Health
and Safety Code, law enforcement agencies using the property or
plant for this purpose shall:
(1) employ a qualified individual to conduct
qualitative and quantitative analyses of the property or plant
before and after its use in an investigation;
(2) maintain the property or plant in a secure storage
area accessible only to the law enforcement agency head and the
individual responsible for analyzing, preserving, and maintaining
security over the property or plant; and
(3) maintain a log documenting:
(A) the date of issue, date of return, type,
amount, and concentration of property or plant used in an
investigation; and
(B) the signature and the printed or typed name
of the peace officer to whom the property or plant was issued and
the signature and the printed or typed name of the individual
issuing the property or plant.
(d) A law enforcement agency may contract with another law
enforcement agency to provide security that complies with
Subsection (c) for controlled substance property or plants.
(e) A law enforcement agency may adopt a written policy with
more stringent requirements than those required by Subsection (c).
The director may enter and inspect, in accordance with Section
481.181, Health and Safety Code, a location at which an agency
maintains records or controlled substance property or plants as
required by this section.
(f) If a law enforcement agency uses a controlled substance
property or plant in the investigation of an offense under the
Health and Safety Code and the property or plant has been
transported across state lines before the forfeiture, the agency
shall cooperate with a federal agency in the investigation if
requested to do so by the federal agency.
(g) Under the rules of the department, a law enforcement
agency head may grant to another person access to a secure storage
facility under Subsection (c)(2).
(h) A county, justice, or municipal court may order
forfeiture of a controlled substance property or plant, unless the
lawful possession of and title to the property or plant can be
ascertained. If the court determines that a person had lawful
possession of and title to the controlled substance property or
plant before it was seized, the court shall order the controlled
substance property or plant returned to the person, if the person so
desires. The court may only order the destruction of a controlled
substance property or plant that is not otherwise disposed of in the
manner prescribed by Section 1705.022.
(i) If a controlled substance property or plant seized under
this chapter was forfeited to an agency for the purpose of
destruction or for any purpose other than investigation, the
property or plant may not be used in an investigation unless a
district court orders disposition under this section and permits
the use of the property or plant in the investigation.
Sec. 1705.022. DESTRUCTION OF EXCESS QUANTITIES. (a) If a
controlled substance property or plant is forfeited under the
Health and Safety Code or this chapter, the law enforcement agency
that seized the property or plant or to which the property or plant
is forfeited may summarily destroy the property or plant without a
court order before the disposition of a case arising out of the
forfeiture if the agency ensures that:
(1) at least five random and representative samples
are taken from the total amount of the property or plant and a
sufficient quantity is preserved to provide for discovery by
parties entitled to discovery;
(2) photographs are taken that reasonably depict the
total amount of the property or plant; and
(3) the gross weight or liquid measure of the property
or plant is determined, either by actually weighing or measuring
the property or plant or by estimating its weight or measurement
after making dimensional measurements of the total amount seized.
(b) If the property consists of a single container of
liquid, taking and preserving one representative sample complies
with Subsection (a)(1).
(c) A representative sample, photograph, or record made
under this section is admissible in civil or criminal proceedings
in the same manner and to the same extent as if the total quantity of
the suspected controlled substance property or plant was offered in
evidence, regardless of whether the remainder of the property or
plant has been destroyed. An inference or presumption of
spoliation does not apply to a property or plant destroyed under
this section.
(d) If hazardous waste, residuals, contaminated glassware,
associated equipment, or by-products from illicit chemical
laboratories or similar operations are unsafe or are forfeited,
those items may be disposed of under Subsection (a) or may be seized
and summarily forfeited and destroyed by a law enforcement agency
without a court order before the disposition of a case arising out
of the forfeiture if current environmental protection standards are
followed.
(e) A law enforcement agency seizing and destroying or
disposing of materials described in Subsection (d) shall ensure
that photographs are taken that reasonably depict the total amount
of the materials seized and the manner in which the materials were
physically arranged or positioned before seizure.
Sec. 1705.023. POLICY REGARDING DESTRUCTION. Each
laboratory and law enforcement agency shall adopt a policy
regarding the destruction of items under this chapter. The policy
must include standardized handling and destruction procedures. The
policy must require that for each item destroyed:
(1) before destruction, notice must be provided to the
appropriate attorney representing the state;
(2) the destruction must be performed by appropriately
trained individuals by use of an incinerator or other suitable
method of destruction;
(3) at least two individuals must witness the
destruction;
(4) the item must be subjected to appropriate
laboratory analysis before destruction; and
(5) all documentation related to the destruction must
be maintained in a readily accessible format for not less than two
years following the date of destruction.
Sec. 1705.024. CHAIN OF CUSTODY AFFIDAVIT. (a) A chain of
custody affidavit that complies with this section is admissible in
evidence on behalf of the state or the defendant to establish the
chain of custody of physical evidence without the necessity of any
person in the chain of custody personally appearing in court.
(b) This section does not limit the right of a party to
summon a witness or to introduce admissible evidence relevant to
the chain of custody.
(c) A chain of custody affidavit under this section must
contain the following information stated under oath:
(1) the affiant's name and address;
(2) a description of the item of evidence and its
container, if any, obtained by the affiant;
(3) the name of the affiant's employer on the date the
affiant obtained custody of the physical evidence;
(4) the date and method of receipt and the name of the
person from whom or location from which the item of physical
evidence was received;
(5) the date and method of transfer and the name of the
person to whom or location to which the item of physical evidence
was transferred; and
(6) a statement that the item of evidence was
transferred in essentially the same condition as received except
for any minor change resulting from field or laboratory testing
procedures.
(d) Not later than the 20th day before the trial begins in a
proceeding in which a chain of custody affidavit under this section
is to be introduced, the affidavit must be filed with the clerk of
the court and a copy must be provided by fax, hand delivery, or
certified mail, return receipt requested, to the opposing party.
The affidavit is not admissible under Section 1 if, not later than
the 10th day before the trial begins, the opposing party files a
written objection to the use of the affidavit with the clerk of the
court and provides a copy of the objection by fax, hand delivery, or
certified mail, return receipt requested, to the offering party.
(e) A chain of custody affidavit is sufficient for purposes
of this section if it uses the following form or if it otherwise
substantially complies with this section:
CHAIN OF CUSTODY AFFIDAVIT
BEFORE ME, the undersigned authority, personally appeared
______________________________, who being by me duly sworn, stated
as follows:
My name is __________. I am of sound mind, over the age of 18
years, capable of making this affidavit, and personally acquainted
with the facts stated in this affidavit.
My address is __________.
On the ___ day of __________, 20___, I was employed by
___________.
On that date, I came into possession of the physical evidence
described as follows: (description of evidence)
I received the physical evidence from __________ (name of
person or description of location) on the ___ day of __________,
20___, by ___________ (method of receipt).
This physical evidence was in a container described and
marked as follows: (description of container)
I transferred the physical evidence to __________ (name of
person or description of location) on the ___ day of __________,
20___, by ___________ (method of delivery).
During the time that the physical evidence was in my custody,
I did not make any changes or alterations to the condition of the
physical evidence except for those resulting from field or
laboratory testing procedures, and the physical evidence or a
representative sample of the physical evidence was transferred in
essentially the same condition as received.
____________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the ___ day of
__________, 20___.
____________________________
Notary Public, State of Texas
SECTION 2. (a) The Department of Public Safety of the
State of Texas, in adopting the initial standards and rules
required by Section 1705.011, Occupations Code, as added by this
Act, shall consult with:
(1) large, medium, and small law enforcement agencies;
(2) law enforcement associations;
(3) scientific experts in the collection,
preservation, storage, and retrieval of biological evidence; and
(4) organizations engaged in the development of law
enforcement policy, such as:
(A) the National Institute of Standards and
Technology of the United States Commerce Department;
(B) the Texas District and County Attorneys
Association;
(C) the Texas Criminal Defense Lawyers
Association;
(D) the Texas Association of Property and
Evidence Inventory Technicians; and
(E) other organizations in this state that
represent clients pursuing claims of innocence based on
post-conviction biological evidence.
(b) The Department of Public Safety of the State of Texas
shall adopt the standards and rules required by Section 1705.011,
Occupations Code, as added by this Act, not later than September 1,
2014.
SECTION 3. This Act takes effect September 1, 2013.