HB2180 - Relating to a waiver of the preservation of evidence and the return of a seized weapon in a criminal case.

      By: Cunningham H.B. No. 2180       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 Article 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 evidence collected in this   case and the right to request the return of any seized weapon, as   provided below.             I understand that under Article 38.50, Code of Criminal   Procedure, I would otherwise 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.           However, 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 120th 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.           (d)     A defendant may revoke the waiver under this article   until the 120th day after the date of the order.           (e)     An attorney representing the state may not request that   a defendant give a waiver under this article as part of a plea   bargain agreement.           (f)     Notwithstanding any other provision of this article, a   crime laboratory, as defined by Article 38.35, may preserve any   evidence or work product derived from evidence that the crime   laboratory considers necessary to comply with accreditation   requirements, laboratory policy, or applicable scientific   standards.           (g)     Notwithstanding any other provision of this article, a   waiver executed under this article is void and unenforceable   unless:                 (1)     the waiver is made in writing, in open court before   a judge as part of the record and recorded by the court reporter,   and signed by both the defendant and the defendant's attorney;                 (2)     the waiver is executed not earlier than the 120th   day after the date the defendant enters a plea of guilty or no   contendere;                 (3)     the defendant receives and signs an admonishment   in plain language stating:           "Waiving your right to the preservation of evidence may   severely limit your ability to win an appeal or seek   post-conviction relief.   It may result in the destruction of   evidence that could have helped prove your innocence.   Once   destroyed, that evidence cannot be recovered."; and                 (4)     the defendant's attorney certifies in writing that   the waiver was made freely, voluntarily, and without coercion, and   that the defendant was fully advised of the consequences of waiving   the preservation of evidence.           (h)     Evidence may not be destroyed or disposed of until after   the 120th day after the date of the order.           (i)     A waiver under this article may not be requested,   required, or included as part of any plea agreement or plea bargain   negotiation.          SECTION 2.  This Act takes effect September 1, 2025.