Texas 2025 - 89th Regular

Texas House Bill HB2728 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	89R11380 JDK-D
2	2	By: Dutton H.B. No. 2728
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7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to spoliation of evidence held for use in a criminal
10	10	proceeding.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 38, Code of Criminal Procedure, is
13	13	amended by adding Article 38.495 to read as follows:
14	14	Art. 38.495. SPOLIATION OF EVIDENCE. (a) Except as
15	15	permitted under other law and subject to Subsection (b), the state
16	16	shall preserve evidence in the possession, custody, or control of
17	17	the state and may not permit the destruction, alteration, or loss of
18	18	that evidence.
19	19	(b) Subsection (a) does not apply to a destruction,
20	20	alteration, or loss of evidence that reasonably occurs in the
21	21	course of forensic analysis, as that term is defined by Section 2,
22	22	Article 38.01.
23	23	(c) Subject to Subsection (d), evidence and testimony
24	24	relating to an allegation that the state, by act or omission, caused
25	25	the destruction, alteration, or loss of evidence held for use in a
26	26	criminal proceeding are admissible and may be used by the defendant
27	27	to make a showing of spoliation of evidence under this article.
28	28	(d) In determining the admissibility of evidence or
29	29	testimony relating to an allegation described by Subsection (c),
30	30	the court shall determine, out of the presence of the jury and by a
31	31	preponderance of the evidence, whether spoliation of evidence
32	32	occurred in violation of Subsection (a). If practicable, the court
33	33	shall make the determination under this subsection before trial
34	34	using the procedures under Article 28.01 of this code and Rule 104,
35	35	Texas Rules of Evidence.
36	36	(e) The party alleging spoliation of evidence in violation
37	37	of Subsection (a) is not required to show that:
38	38	(1) the actor's sole intent was to wrongfully cause the
39	39	destruction, alteration, or loss of the evidence; or
40	40	(2) the actions of the actor constituted a criminal
41	41	offense.
42	42	(f) A conviction for an offense under Section 37.09, Penal
43	43	Code, creates a presumption of spoliation of evidence under this
44	44	article.
45	45	(g) If it is shown during a proceeding under Subsection (d)
46	46	that the violation of Subsection (a) was intentional, knowing,
47	47	reckless, or negligent, at trial the court shall instruct the jury
48	48	to presume that the destroyed, altered, or lost evidence would have
49	49	been favorable to the defendant and unfavorable to the state.
50	50	(h) If it is shown during a proceeding under Subsection (d)
51	51	that the violation of Subsection (a) was intentional, the court may
52	52	impose additional sanctions on the state or dismiss any criminal
53	53	charges with prejudice.
54	54	SECTION 2. The change in law made by this Act applies to a
55	55	criminal proceeding that commences on or after the effective date
56	56	of this Act. A criminal proceeding that commences before the
57	57	effective date of this Act is governed by the law in effect on the
58	58	date the proceeding commenced, and the former law is continued in
59	59	effect for that purpose.
60	60	SECTION 3. This Act takes effect September 1, 2025.