| 1 | 1 | | 85R4111 JSC-D |
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| 2 | 2 | | By: Dutton H.B. No. 1220 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to spoliation of evidence held for use in a criminal |
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| 8 | 8 | | proceeding. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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| 11 | 11 | | amended by adding Article 38.495 to read as follows: |
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| 12 | 12 | | Art. 38.495. SPOLIATION OF EVIDENCE. (a) Except as |
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| 13 | 13 | | permitted under other law, the state shall preserve evidence in the |
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| 14 | 14 | | possession, custody, or control of the state and may not permit the |
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| 15 | 15 | | destruction, alteration, or loss of that evidence. |
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| 16 | 16 | | (b) Evidence and testimony relating to an allegation that |
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| 17 | 17 | | the state, by act or omission, caused the destruction, alteration, |
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| 18 | 18 | | or loss of evidence held for use in a criminal proceeding are |
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| 19 | 19 | | admissible and may be used by the defendant to make a showing of |
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| 20 | 20 | | spoliation of evidence under this article, subject to Subsection |
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| 21 | 21 | | (c). |
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| 22 | 22 | | (c) In determining the admissibility of evidence or |
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| 23 | 23 | | testimony relating to an allegation described by Subsection (b), |
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| 24 | 24 | | the court shall determine, out of the presence of the jury and by a |
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| 25 | 25 | | preponderance of the evidence, whether spoliation of evidence |
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| 26 | 26 | | occurred in violation of Subsection (a). If practicable, the court |
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| 27 | 27 | | shall make the determination under this subsection before trial |
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| 28 | 28 | | using the procedures under Article 28.01 of this code and Rule 104, |
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| 29 | 29 | | Texas Rules of Evidence. |
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| 30 | 30 | | (d) The party alleging spoliation of evidence in violation |
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| 31 | 31 | | of Subsection (a) is not required to show that: |
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| 32 | 32 | | (1) the actor's sole intent was to wrongfully cause the |
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| 33 | 33 | | destruction, alteration, or loss of the evidence; or |
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| 34 | 34 | | (2) the actions of the actor constituted a criminal |
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| 35 | 35 | | offense. |
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| 36 | 36 | | (e) A conviction for an offense under Section 37.09, Penal |
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| 37 | 37 | | Code, creates a presumption of spoliation of evidence under this |
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| 38 | 38 | | article. |
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| 39 | 39 | | (f) If it is shown during a proceeding under Subsection (c) |
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| 40 | 40 | | that the violation of Subsection (a) was intentional, knowing, |
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| 41 | 41 | | reckless, or negligent, at trial the court shall instruct the jury |
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| 42 | 42 | | to presume that the destroyed, altered, or lost evidence would have |
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| 43 | 43 | | been favorable to the defendant and unfavorable to the state. |
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| 44 | 44 | | (g) If it is shown during a proceeding under Subsection (c) |
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| 45 | 45 | | that the violation of Subsection (a) was intentional, the court may |
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| 46 | 46 | | impose additional sanctions on the state or dismiss any criminal |
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| 47 | 47 | | charges with prejudice. |
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| 48 | 48 | | SECTION 2. The change in law made by this Act applies to a |
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| 49 | 49 | | criminal proceeding that commences on or after the effective date |
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| 50 | 50 | | of this Act. A criminal proceeding that commences before the |
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| 51 | 51 | | effective date of this Act is governed by the law in effect when the |
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| 52 | 52 | | proceeding commenced, and the former law is continued in effect for |
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| 53 | 53 | | that purpose. |
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| 54 | 54 | | SECTION 3. This Act takes effect September 1, 2017. |
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