By: Cunningham H.B. No. 1104
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 Articles 38.43
and 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 any and all evidence
collected in this case and the right to request the return of any
seized weapon, as provided below.
I understand that under Article 38.43, Code of Criminal
Procedure, evidence known to contain biological material must be
preserved until I die, complete my sentence or term of community
supervision or juvenile probation, or am released on parole,
mandatory supervision, or juvenile probation, and that I, my
counsel, and the court would have 90 days to object to the planned
destruction of that evidence.
I understand that under Article 38.50, Code of Criminal
Procedure, I 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.
I fully understand that scientific testing of any biological
or toxicological evidence being preserved under Article 38.43 or
38.50, Code of Criminal Procedure, could establish the identity of
the person who committed the offense in this case, or exclude me as
a person who could have committed the offense. I agree that testing
of that evidence is unnecessary because I am criminally responsible
for the offense charged.
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 30th 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.
SECTION 2. This Act takes effect September 1, 2023.