HB2728 - Relating to spoliation of evidence held for use in a criminal proceeding.

  89R11380 JDK-D     By: Dutton H.B. No. 2728       A BILL TO BE ENTITLED   AN ACT   relating to spoliation of evidence held for use in a criminal   proceeding.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 38, Code of Criminal Procedure, is   amended by adding Article 38.495 to read as follows:           Art.   38.495.     SPOLIATION OF EVIDENCE. (a)   Except as   permitted under other law and subject to Subsection (b), the state   shall preserve evidence in the possession, custody, or control of   the state and may not permit the destruction, alteration, or loss of   that evidence.           (b)     Subsection (a) does not apply to a destruction,   alteration, or loss of evidence that reasonably occurs in the   course of forensic analysis, as that term is defined by Section 2,   Article 38.01.           (c)     Subject to Subsection (d), evidence and testimony   relating to an allegation that the state, by act or omission, caused   the destruction, alteration, or loss of evidence held for use in a   criminal proceeding are admissible and may be used by the defendant   to make a showing of spoliation of evidence under this article.           (d)     In determining the admissibility of evidence or   testimony relating to an allegation described by Subsection (c),   the court shall determine, out of the presence of the jury and by a   preponderance of the evidence, whether spoliation of evidence   occurred in violation of Subsection (a).   If practicable, the court   shall make the determination under this subsection before trial   using the procedures under Article 28.01 of this code and Rule 104,   Texas Rules of Evidence.           (e)     The party alleging spoliation of evidence in violation   of Subsection (a) is not required to show that:                 (1)     the actor's sole intent was to wrongfully cause the   destruction, alteration, or loss of the evidence; or                 (2)     the actions of the actor constituted a criminal   offense.           (f)     A conviction for an offense under Section 37.09, Penal   Code, creates a presumption of spoliation of evidence under this   article.           (g)     If it is shown during a proceeding under Subsection (d)   that the violation of Subsection (a) was intentional, knowing,   reckless, or negligent, at trial the court shall instruct the jury   to presume that the destroyed, altered, or lost evidence would have   been favorable to the defendant and unfavorable to the state.           (h)     If it is shown during a proceeding under Subsection (d)   that the violation of Subsection (a) was intentional, the court may   impose additional sanctions on the state or dismiss any criminal   charges with prejudice.          SECTION 2.  The change in law made by this Act applies to a   criminal proceeding that commences on or after the effective date   of this Act. A criminal proceeding that commences before the   effective date of this Act is governed by the law in effect on the   date the proceeding commenced, and the former law is continued in   effect for that purpose.          SECTION 3.  This Act takes effect September 1, 2025.