Texas 2023 - 88th Regular

Texas House Bill HB946 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R2976 SHH-D
2	2	By: Dutton H.B. No. 946
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to spoliation of evidence held for use in a criminal
8	8	proceeding.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 38, Code of Criminal Procedure, is
11	11	amended by adding Article 38.495 to read as follows:
12	12	Art. 38.495. SPOLIATION OF EVIDENCE. (a) Except as
13	13	permitted under other law and subject to Subsection (b), the state
14	14	shall preserve evidence in the possession, custody, or control of
15	15	the state and may not permit the destruction, alteration, or loss of
16	16	that evidence.
17	17	(b) Subsection (a) does not apply to a destruction,
18	18	alteration, or loss of evidence that reasonably occurs in the
19	19	course of forensic analysis, as that term is defined by Section 2,
20	20	Article 38.01.
21	21	(c) Subject to Subsection (d), evidence and testimony
22	22	relating to an allegation that the state, by act or omission, caused
23	23	the destruction, alteration, or loss of evidence held for use in a
24	24	criminal proceeding are admissible and may be used by the defendant
25	25	to make a showing of spoliation of evidence under this article.
26	26	(d) In determining the admissibility of evidence or
27	27	testimony relating to an allegation described by Subsection (c),
28	28	the court shall determine, out of the presence of the jury and by a
29	29	preponderance of the evidence, whether spoliation of evidence
30	30	occurred in violation of Subsection (a). If practicable, the court
31	31	shall make the determination under this subsection before trial
32	32	using the procedures under Article 28.01 of this code and Rule 104,
33	33	Texas Rules of Evidence.
34	34	(e) The party alleging spoliation of evidence in violation
35	35	of Subsection (a) is not required to show that:
36	36	(1) the actor's sole intent was to wrongfully cause the
37	37	destruction, alteration, or loss of the evidence; or
38	38	(2) the actions of the actor constituted a criminal
39	39	offense.
40	40	(f) A conviction for an offense under Section 37.09, Penal
41	41	Code, creates a presumption of spoliation of evidence under this
42	42	article.
43	43	(g) If it is shown during a proceeding under Subsection (d)
44	44	that the violation of Subsection (a) was intentional, knowing,
45	45	reckless, or negligent, at trial the court shall instruct the jury
46	46	to presume that the destroyed, altered, or lost evidence would have
47	47	been favorable to the defendant and unfavorable to the state.
48	48	(h) If it is shown during a proceeding under Subsection (d)
49	49	that the violation of Subsection (a) was intentional, the court may
50	50	impose additional sanctions on the state or dismiss any criminal
51	51	charges with prejudice.
52	52	SECTION 2. The change in law made by this Act applies to a
53	53	criminal proceeding that commences on or after the effective date
54	54	of this Act. A criminal proceeding that commences before the
55	55	effective date of this Act is governed by the law in effect on the
56	56	date the proceeding commenced, and the former law is continued in
57	57	effect for that purpose.
58	58	SECTION 3. This Act takes effect September 1, 2023.