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

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

FULL TEXT:
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.