Texas Property and Evidence Legal Updates Kolene Dean

Transcription

1 Texas Property and Evidence Legal Updates 2016 Kolene Dean

2 Limitations Texas Code of Criminal Procedure Chapter 12.

3 NO LIMITATION Murder and Manslaughter Sexual Assault (Child Vic?m) Aggravated Sexual Assault (Child) Sexual assault (DNA Collected) Con?nuous Sexual Abuse

4 NO LIMITATION Indecency with a Child Leaving Scene of Accident (Death) Trafficking of Persons (Child) Con?nuous Trafficking of Persons

5 TEN YEARS TheK of Estate TheK by Public Servant (Gov,t. Prop) Forgery Injury to Elderly/Disabled (1 st Degree) Sexual Assault Arson Trafficking of Persons Compelling Pros?tu?on

6 SEVEN YEARS Misapplica?on of Fiduciary Property Securing Execu?on of Document by Decep?on Tax Viola?on (Chapter 162 Tax Code) False Statement to Obtain Property or Credit Money Laundering Credit or Debit Card Abuse Fraudulent Use or Possession of ID Info. Medicaid Fraud Bigamy

7 FIVE YEARS Felony TheK Robbery Kidnapping or Burglary Injury to Elderly/Disabled (Non 1 st Degree) Abandoning or Endangering a Child Insurance Fraud

8 VICTIM AGE DEPENDENT 20 YEARS from Vic?ms 18 th Birthday if: Vic?m younger than 17 YOA on date of offense Vic?m of Sexual Performance by Child Aggravated Kidnapping (Sexual) Burglary (Sexual)

9 VICTIM AGE DEPENDENT 10 YEARS from Vic?ms 18 th Birthday if: Vic?m of Trafficking of Persons Injury to a Child Compelling Pros?tu?on Bigamy

10 GENERAL LIMITATIONS 3 YEARS all other Felonies 2 YEARS all Misdemeanors

11 Laws that pertain to Property & Evidence Code of Criminal Procedure Chapter 12 Statute of Limita?ons Chapter 18 Art Disposi?on of abandoned or unclaimed property Art Disposi?on of gambling paraphernalia, prohibited weapon, criminal instruments and other contraband Art Disposi?on of explosive weapons and chemical dispensing devices Art Disposi?on of Chapter 38 Art Photographic Evidence in TheK cases Art Biological Evidence Art DWI Evidence Chapter 47 Art Property sold Art Owner may recover Chapter 59 Art Disposi?on of Forfeited Property Chapter 64 Mo?on for forensic DNA Tes?ng

12 Laws that pertain to Property & Evidence Health and Safety Code Chapter seizure and summary forfeiture and destruc?on of controlled substance plants seizure and summary forfeiture and destruc?on of controlled substance property Rules Disposi?on of controlled substance property or plant Destruc?on of excess quan??es Alcoholic Beverage Code Chapter seizure of illicit beverages arrest of person in possession report of seizure beverage delivered to commission

13 DPS Drug Rules find this on DPS web site chp. 13 Texas Administra?ve Code Appeals chp. 13 sub chp. G chp CCP

14 Disposal Laws Ar?cle Code of Criminal Procedure

15 Art DISPOSITION OF ABANDONED OR UNCLAIMED PROPERTY (a) All unclaimed or abandoned personal property of every kind, other than contraband subject to forfeiture under Chapter 59 of this code and whiskey, wine and beer, seized by any peace officer in the State of Texas which is not held as evidence to be used in any pending case and has not been ordered destroyed or returned to the person en?tled to possession of the same by a magistrate, which shall remain unclaimed for a period of 30 days shall be delivered for disposi?on to a person designated by the municipality or the purchasing agent of the county in which the property was seized. If a peace officer of a municipality seizes the property, the peace officer shall deliver the property to a person designated by the municipality. If any other peace officer seizes the property, the peace officer shall deliver the property to the purchasing agent of the county. If the county has no purchasing agent, then such property shall be disposed of by the sheriff of the county.

16 Art Eligibility Summary IF: Abandoned Property Does not include alcoholic beverage property or evidence Not held as evidence in any pending case Has not been ordered to be destroyed or returned to a person by a magistrate Has remained unclaimed for a period of 30 days; then THEN: Property shall be delivered for disposi?on to A person designated by the municipality or purchasing agent of the county in which the property was seized.

17 Finders Keepers? Do we have the legal authority to return found property to the Qinder?

18 Art Disposal Process NOTIFICATION REQUIREMENT (b) The county purchasing agent, the person designated by the municipality, or the sheriff of the county, as the case may be, shall mail a no?ce to the last known address of the owner of such property by cer?fied mail. Such no?ce shall describe the property being held, give the name and address of the officer holding such property, and shall state that if the owner does not claim such property within 90 days from the date of the no?ce such property will be disposed of and the proceeds, aker deduc?ng the reasonable expense of keeping such property and the costs of the disposi?on, placed in the treasury of the municipality or county giving the no?ce.

19 Notice Requirement Summary Shall mail a no?ce to the last known address of the owner of such property by cer?fied mail. No?ce shall describe the property Give the name and address where property is located Owner does not claim such property within 90 days that property will be disposed; and Any monies will be placed into treasury of Municipality or County

20 Art Disposal Process Item Value Based Procedures (c) If the property has a fair market value of $500 or more and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff, as the case may be, shall cause to be published once in a paper of general circula?on in the municipality or county a no?ce containing a general descrip?on of the property held, the name of the owner if known, the name and address of the officer holding such property, and a statement that if the owner does not claim such property within 90 days from the date of the publica?on such property will be disposed of and the proceeds, aker deduc?ng the reasonable expense of keeping such property and the costs of the disposi?on, placed in the treasury of the municipality or county disposing of the property. If the property has a fair market value of less than $500 and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff may sell or donate the property. The person designated by the municipality, the purchasing agent, or the sheriff shall deposit the sale proceeds, aker deduc?ng the reasonable expense of keeping the property and costs of the sale, in the treasury of the municipality or county selling or dona?ng the property.

21 Item Value Disposal Summary Fair Market Value Over $500 IF OWNER or OWNER S ADDRESS IS UNKNOWN No?ce shall be published in a paper of general circula?on General Descrip?on of Item Owner s Name (if known) Give the name and address where property is located Statement that explains if the owner does not claim such property within 90 days that property will be disposed; and Any monies will be placed into treasury of Municipality or County

22 Item Value Disposal Summary Fair Market Value UNDER $500 IF OWNER or OWNER S ADDRESS IS UNKNOWN The designated person may sell or donate the property Any monies will be placed into treasury of Municipality or County

23 Art Disposal Process Sale Requirements (d) The sale under this ar?cle of any property that has a fair market value of $500 or more shall be preceded by a no?ce published once at least 14 days prior to the date of such sale in a newspaper of general circula?on in the municipality or county where the sale is to take place, sta?ng the general descrip?on of the property, the names of the owner if known, and the date and place that such sale will occur. This ar?cle does not require disposi?on by sale.

24 Sale Requirement Summary Sale any property fair market value of $500 or more: Shall be preceded by a no?ce published once at least 14 days prior to the date of such sale in a newspaper of general circula?on, sta?ng: the general descrip?on of the property, the names of the owner if known, the date and place that such sale will occur. This ar?cle does not require disposi?on by sale.

25 Class C Offense Exception (d- 1) Notwithstanding Subsec?on (a), (b), (c), or (d), if property described by Subsec?on (a), other than money, is seized by a peace officer at the?me the owner of the property is arrested for an offense punishable as a Class C misdemeanor, the law enforcement agency may provide no?ce to the owner at the?me the owner is taken into or released from custody. On receiving the no?ce, the owner must sign the no?ce and anach a thumbprint to the no?ce. The no?ce must include (1) a descrip?on of the property being held; (2) the address where the property is being held; and (3) a statement that if the owner does not claim the property before the 31st day aker the date the owner is released from custody, the property will be disposed of and the proceeds of the property, aker deduc?ng the reasonable expense of keeping and disposing of the property, will be placed in the treasury of the municipality or county providing the no?ce.

26 Class C Offense Exception (d- 2) If the property for which no?ce is provided under Subsec?on (d- 1) is not claimed by the owner before the 31st day aker the date the owner is released from custody, the law enforcement agency holding the property shall deliver the property for disposi?on to a person designated by the municipality or to the purchasing agent or sheriff of the county in which the property was seized, as applicable. The person designated by the municipality, the purchasing agent, or the sheriff may sell or donate the property without mailing or publishing an addi?onal no?ce as required by Subsec?on (b), (c), or (d). The sale proceeds, aker deduc?ng the reasonable expense of keeping and disposing of the property, must be deposited in the treasury of the municipality or county disposing of the property.

27 Class C Exception Summary Property other than money, Seized by a peace officer at the?me the owner of the property is arrested for, an offense punishable as a Class C misdemeanor, The law enforcement agency may provide no?ce to the owner at the?me the owner is taken into or released from custody. On receiving the no?ce, the owner must sign the no?ce and anach a thumbprint to the no?ce.

28 Class C Exception Summary The no?ce must include (1) a descrip?on of the property being held; (2) the address where the property is being held; and (3) a statement that if the owner does not claim the property before the 31st day aker the date the owner is released from custody, the property will be disposed of and the proceeds of the property, aker deduc?ng the reasonable expense of keeping and disposing of the property, will be placed in the treasury of the municipality or county providing the no?ce. IF UNCLAIMED BEFORE 31 DAYS AFTER RELEASE, MAY SELL OR DONATE ITEMS WITHOUT MAILING NOTIFICATION

29 Art Owner s Right to Claim Property (e) The real owner of any property disposed of shall have the right to file a claim to the proceeds with the commissioners court of the county or with the governing body of the municipality in which the disposi?on took place. A claim by the real owner must be filed not later than the 30th day aker the date of disposi?on. If the claim is allowed by the commissioners court or the governing body of the municipality, the municipal or county treasurer shall pay the owner such funds as were paid into the treasury of the municipality or county as proceeds of the disposi?on. If the claim is denied by the commissioners court or the governing body or if said court or body fails to act upon such claim within 90 days, the claimant may sue the municipal or county treasurer in a court of competent jurisdic?on in the county, and upon sufficient proof of ownership, recover judgment against such municipality or county for the recovery of the proceeds of the disposi?on. OWNER MAY FILE CLAIM NOT LATER THAN THE 30 TH DAY AFTER SALE.

30 Art : Other Issues (f) For the purposes of this ar?cle: (1) "Person designated by a municipality" means an officer or employee of a municipality who is designated by the municipality to be primarily responsible for the disposi?on of property under this ar?cle. (2) "Property held as evidence" means property related to a charge that has been filed or to a maner that is being inves?gated for the filing of a charge. (g) If the provisions of this sec?on have been met and the property is scheduled for disposi?on, the municipal or county law enforcement agency that originally seized the property may request and have the property converted to agency use. The agency at any Gme may transfer the property to another municipal or county law enforcement agency for the use of that agency. The agency last using the property shall return the property to the person designated by the municipality, county purchasing agent, or sheriff, as the case may be, for disposigon when the agency has completed the intended use of the property.

31 Art : Other Issues (h) If the abandoned or unclaimed personal property is money, the person designated by the municipality, the county purchasing agent, or the sheriff of the county, as appropriate, may, aier giving nogce under SubsecGon (b) or (c) of this argcle, deposit the money in the treasury of the municipality or county giving nogce without conducgng the sale as required by Subsec?on (d) of this ar?cle. (i) While offering the property for sale under this ar?cle, if a person designated by a municipality, county purchasing agent, or sheriff considers any bid as insufficient, the person, agent, or sheriff may decline the bid and reoffer the property for sale. (j) Chapters 72, 74, 75, and 76, Property Code, do not apply to unclaimed or abandoned property to which this ar?cle applies.

32 Other Issues Summary Items May be converted for departmental use May give to another law enforcement agency When no longer usable return to the original agency Money follow same guidelines as real items Unclaimed money placed in general fund

33 Art : Quick Guide Owner Unknown + Value Under $500 = Hold 30 days and dispose. May Sell/ Donate or Convert to department use Value Over $500: Adver?se in general circula?on Hold 90 days then dispose Owner known, mail cer?fied lener 90 days You may no?fy a person while they are in custody

34 SpeciQic Evidence Disposal Laws

35 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. (a) Following the final convic?on of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, for an offense involving an obscene device or material, for an offense involving child pornography, or for an offense involving a scanning device or re- encoder, the court entering the judgment of convic?on shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material, child pornography, or scanning device or re- encoder be destroyed or forfeited to the state. Upon Final ConvicGon (gambling device or equipment, obscene device, any offense child pornography): Court entering judgment is to order item to be destroyed or Forfeited to the state.

36 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. PROHIBITED WEAPONS Not later than the 30th day aker the final convic?on of a person for an offense involving a prohibited weapon, the court entering the judgment of convic?on on its own mo?on, on the mo?on of the prosecu?ng anorney in the case, or on the mo?on of the law enforcement agency ini?a?ng the complaint on no?ce to the prosecu?ng anorney in the case if the prosecutor fails to move for the order shall order that the prohibited weapon be destroyed or forfeited to the law enforcement agency that ini?ated the complaint. If the court fails to enter the order within the?me required by this subsec?on, any magistrate in the county in which the offense occurred may enter the order. Not later 30th day aker final convic?on Court entering convic?on (you may pe??on court) Order prohibited weapon be destroyed or forfeited If court fails to enter in 30 days any Magistrate may enter the order

37 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. DOG FIGHTING Following the final convic?on of a person for an offense involving dog figh?ng, the court entering the judgment of convic?on shall order that any dog- figh?ng equipment be destroyed or forfeited to the state. Destruc?on of dogs, if necessary, must be carried out by a veterinarian licensed in this state or, if one is not available, by trained personnel of a humane society or an animal shelter. If forfeited, the court shall order the contraband delivered to the state, any poli?cal subdivision of the state, or to any state ins?tu?on or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in inves?ga?ng alleged viola?ons of the Penal Code, or to the state, any poli?cal subdivision of the state, or to any state ins?tu?on or agency. Court entering judgement shall order.

38 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. NO PROSECUTION (b) If there is no prosecu?on or convic?on following seizure, the magistrate to whom the return was made shall no?fy in wri?ng the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re- encoder, criminal instrument, or dog- figh?ng equipment to show cause why the property seized should not be destroyed or the proceeds forfeited. The magistrate, on the mo?on of the law enforcement agency seizing a prohibited weapon, shall order the weapon destroyed or forfeited to the law enforcement agency seizing the weapon, unless a person shows cause as to why the prohibited weapon should not be destroyed or forfeited. A law enforcement agency shall make a mo?on under this sec?on in a?mely manner aker the?me at which the agency is informed in wri?ng by the anorney represen?ng the state that no prosecu?on will arise from the seizure.

39 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. NO PROSECUTION (CONTINUED) (c) The magistrate shall include in the no?ce a detailed descrip?on of the property seized and the total amount of alleged gambling proceeds; the name of the person found in possession; the address where the property or proceeds were seized; and the date and?me of the seizure. (d) The magistrate shall send the no?ce by registered or cer?fied mail, return receipt requested, to the person found in possession at the address where the property or proceeds were seized. If no one was found in possession, or the possessor's address is unknown, the magistrate shall post the no?ce on the courthouse door.

40 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. NO PROSECUTION (CONTINUED) (e) Any person interested in the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re- encoder, criminal instrument, or dog- figh?ng equipment seized must appear before the magistrate on the 20th day following the date the no?ce was mailed or posted. Failure to?mely appear forfeits any interest the person may have in the property or proceeds seized, and no person aker failing to?mely appear may contest destruc?on or forfeiture. (f) If a person Gmely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, obscene device or material, child pornography, criminal instrument, scanning device or re- encoder, or dog- figh?ng equipment and that he is en?tled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this ar?cle.

41 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. NO PROSECUTION SUMMARY No?fy person to show cause not to destroy Magistrate shall order the prohibited weapon destroyed or forfeited. No?ce by cer?fied mail or courthouse door pos?ng 20 Days to Make Claim

42 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. DEFINITIONS Criminal instrument, gambling device or equipment, altered gambling equipment or gambling paraphernalia and prohibited weapon have the meaning defined in the Penal Code. Dog- figh?ng equipment means: (A) equipment used for training or handling a figh?ng dog, including a harness, treadmill, cage, decoy, pen, house for keeping a figh?ng dog, feeding apparatus, or training pen; (B) equipment used for transpor?ng a figh?ng dog, including any automobile, or other vehicle, and its appurtenances which are intended to be used as a vehicle for transpor?ng a figh?ng dog; (C) equipment used to promote or adver?se an exhibi?on of dog figh?ng, including a prin?ng press or similar equipment, paper, ink, or photography equipment; or (D) a dog trained, being trained, or intended to be used to fight with another dog;

43 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. DEFINITIONS "obscene device" and "obscene" have the meanings assigned by Sec?on 43.21, Penal Code "re- encoder" has the meaning assigned by Sec?on , Business & Commerce Code; "scanning device" has the meaning assigned by Sec?on , Business & Commerce Code; and "obscene material" and "child pornography" include digital images and the media and equipment on which those images are stored.

44 Art DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRBAND. LIABILITY (h) No provider of an electronic communica?on service or of a remote compu?ng service to the public shall be held liable for an offense involving obscene material or child pornography under this sec?on on account of any ac?on taken in good faith in providing that service.

45 Art DISPOSITION OF SEIZED WEAPONS. WEAPONS SHALL BE HELD: (a) Weapons seized in connec?on with an offense involving the use of a weapon or an offense under Penal Code Chapter 46 shall be held by the law enforcement agency making the seizure, subject to the following provisions, unless: PROHIBITED WEAPON EXCEPTION: (1) the weapon is a prohibited weapon iden?fied in Penal Code Chapter 46, in which event Ar?cle of this code applies; or STOLEN WEAPON EXCEPTION (2) the weapon is alleged to be stolen property, in which event Chapter 47 of this code applies.

46 Art DISPOSITION OF SEIZED WEAPONS. SHALL NOTIFY MAGISTRATE: (b) When a weapon described in Paragraph (a) of this ar?cle is seized, and the seizure is not made pursuant to a search or arrest warrant, the person seizing the same shall prepare and deliver to a magistrate a wrinen inventory of each weapon seized. Typically occurs in case filing documents NON- PROSECUTION (c) If there is no prosecu?on or convic?on for an offense involving the weapon seized, the magistrate to whom the seizure was reported shall, before the 61st day aker the date the magistrate determines that there will be no prosecu?on or convic?on, no?fy in wri?ng the person found in possession of the weapon that the person is en?tled to the weapon upon wrinen request to the magistrate.. No?fy person before 61 st day that weapon is ready for release Determine lawful eligibility to possess weapon.

47 Art DISPOSITION OF SEIZED WEAPONS. UNCLAIMED WEAPONS The magistrate shall order the weapon returned to the person found in possession before the 61st day aker the date the magistrate receives a request from the person. If the weapon is not requested before the 61st day aker the date of no?fica?on, the magistrate shall, before the 121st day aker the date of no?fica?on, order the weapon destroyed, sold at public sale by the law enforcement agency holding the weapon or by an aucgoneer licensed under Chapter 1802, Occupa?ons Code, or forfeited to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the magistrate. If the magistrate does not order the return, destruc?on, sale, or forfeiture of the weapon within the applicable period prescribed by this subsec?on, the law enforcement agency holding the weapon may request an order of destrucgon, sale, or forfeiture of the weapon from the magistrate. Only a firearms dealer licensed under 18 U.S.C. Sec?on 923 may purchase a weapon at public sale under this subsec?on. Proceeds from the sale of a seized weapon under this subsec?on shall be transferred, aker the deduc?on of court costs to which a district court clerk is en?tled under Ar?cle 59.05(f), followed by the deduc?on of auc?on costs, to the law enforcement agency holding the weapon

48 Art DISPOSITION OF SEIZED WEAPONS. UNCLAIMED WEAPONS SUMMARY If unclaimed within 61 days, then before the 121 st day the weapon should be ordered: Destroyed Sold at public sale by the department or licensed auc?oneer Forfeited to state forensic lab If magistrate does not order the weapon disposed, the agency may request the ac?on

49 Art DISPOSITION OF SEIZED WEAPONS. RIGHT TO CLAIM WEAPON (d) A person either convicted or receiving deferred adjudicagon under Chapter 46, Penal Code, is engtled to the weapon seized upon request to the court in which the person was convicted or placed on deferred adjudicagon. However, the court entering the judgment shall order the weapon destroyed, sold at public sale by the law enforcement agency holding the weapon or by an auc?oneer licensed under Chapter 1802, Occupa?ons Code, or forfeited to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the court if: (1) the person does not request the weapon before the 61st day aker the date of the judgment of convic?on or the order placing the person on deferred adjudica?on; (2) the person has been previously convicted under Chapter 46, Penal Code; (3) the weapon is one defined as a prohibited weapon under Chapter 46, Penal Code; (4) the offense for which the person is convicted or receives deferred adjudica?on was commixed in or on the premises of a playground, school, video arcade facility, or youth center, as those terms are defined by Sec?on , Health and Safety Code; or (5) the court determines based on the prior criminal history of the defendant or based on the circumstances surrounding the commission of the offense that possession of the seized weapon would pose a threat to the community or one or more individuals.

50 Art DISPOSITION OF SEIZED WEAPONS. AUCTION OR SALE OF WEAPONS (d- 1) Only a firearms dealer licensed under 18 U.S.C. Sec?on 923 may purchase a weapon at public sale under Subsec?on (d). Proceeds from the sale of a seized weapon under Subsec?on (d) shall be transferred, aker the deduc?on of court costs to which a district court clerk is en?tled under Ar?cle 59.05(f), followed by the deduc?on of auc?on costs, to the law enforcement agency holding the weapon. Licensed firearms dealer only may purchase weapon The agency and court may charge fee for holding.

51 Art DISPOSITION OF SEIZED WEAPONS. DISPOSITION OF WEAPONS (e) If the person found in possession of a weapon is convicted of an offense involving the use of the weapon, before the 61st day aier the date of convicgon the court entering judgment of convicgon shall order destrucgon of the weapon, sale at public sale by the law enforcement agency holding the weapon or by an auc?oneer licensed under Chapter 1802, Occupa?ons Code, or forfeiture to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the court. If the court entering judgment of convic?on does not order the destruc?on, sale, or forfeiture of the weapon within the period prescribed by this subsec?on, the law enforcement agency holding the weapon may request an order of destruc?on, sale, or forfeiture of the weapon from a magistrate. Only a firearms dealer licensed under 18 U.S.C. SecGon 923 may purchase a weapon at public sale under this subsecgon. Proceeds from the sale of a seized weapon under this subsecgon shall be transferred, aier the deducgon of court costs to which a district court clerk is engtled under ArGcle 59.05(f), followed by the deducgon of aucgon costs, to the law enforcement agency holding the weapon. Follow Requirements Listed Above Agency may request destruc?on or forfeiture Court hearing required for return to owner.

52 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (FULL TEXT) Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS. (a) A law enforcement officer who seizes a firearm from a person taken into custody under Sec?on , Health and Safety Code, and not in connec?on with an offense involving the use of a weapon or an offense under Chapter 46, Penal Code, shall immediately provide the person a wrinen copy of the receipt for the firearm and a wrinen no?ce of the procedure for the return of a firearm under this ar?cle. (b) The law enforcement agency holding a firearm subject to disposi?on under this ar?cle shall, as soon as possible, but not later than the 15th day aker the date the person is taken into custody under Sec?on , Health and Safety Code, provide wrinen no?ce of the procedure for the return of a firearm under this ar?cle to the last known address of the person's closest immediate family member as iden?fied by the person or reasonably iden?fiable by the law enforcement agency, sent by cer?fied mail, return receipt requested. The wrinen no?ce must state the date by which a request for the return of the firearm must be submined to the law enforcement agency as provided by Subsec?on (h). (c) Not later than the 30th day aker the date a firearm subject to disposi?on under this ar?cle is seized, the law enforcement agency holding the firearm shall contact the court in the county having jurisdic?on to order commitment under Chapter 574, Health and Safety Code, and request the disposi?on of the case. Not later than the 30th day aker the date of this request, the clerk of the court shall advise the reques?ng agency whether the person taken into custody was released under Sec?on , Health and Safety Code, or was ordered to receive inpa?ent mental health services under Sec?on or , Health and Safety Code.

53 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (FULL TEXT) (d) Not later than the 30th day aker the date the clerk of the court informs a law enforcement agency holding a firearm subject to disposi?on under this ar?cle that the person taken into custody was released under Sec?on , Health and Safety Code, the law enforcement agency shall: (1) conduct a check of state and na?onal criminal history record informa?on to verify whether the person may lawfully possess a firearm under 18 U.S.C. Sec?on 922(g); and (2) provide wrinen no?ce to the person by cer?fied mail that the firearm may be returned to the person on verifica?on under Subdivision (1) that the person may lawfully possess the firearm. (e) Not later than the 30th day aker the date the clerk of the court informs a law enforcement agency holding a firearm subject to disposi?on under this ar?cle that the person taken into custody was ordered to receive inpa?ent mental health services under Sec?on or , Health and Safety Code, the law enforcement agency shall provide wrinen no?ce to the person by cer?fied mail that the person:

54 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (FULL TEXT) (1) is prohibited from owning, possessing, or purchasing a firearm under 18 U.S.C. Sec?on 922(g)(4); (2) may pe??on the court that entered the commitment order for relief from the firearms disability under Sec?on , Health and Safety Code; and (3) may dispose of the firearm in the manner provided by Subsec?on (f). (f) A person who receives no?ce under Subsec?on (e) may dispose of the person's firearm by: (1) releasing the firearm to the person's designee, if: (A) the law enforcement agency holding the firearm conducts a check of state and na?onal criminal history record informa?on and verifies that the designee may lawfully possess a firearm under 18 U.S.C. Sec?on 922(g);

55 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (FULL TEXT) (B) the person provides to the law enforcement agency a copy of a notarized statement releasing the firearm to the designee; and (C) the designee provides to the law enforcement agency an affidavit confirming that the designee: (i) will not allow access to the firearm by the person who was taken into custody under Sec?on , Health and Safety Code, at any?me during which the person may not lawfully possess a firearm under 18 U.S.C. Sec?on 922(g); and (ii) acknowledges the responsibility of the designee and no other person to verify whether the person has reestablished the person's eligibility to lawfully possess a firearm under 18 U.S.C. Sec?on 922(g); or (2) releasing the firearm to the law enforcement agency holding the firearm, for disposi?on under Subsec?on (h).

56 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (FULL TEXT) (g) If a firearm subject to disposi?on under this ar?cle is wholly or partly owned by a person other than the person taken into custody under Sec?on , Health and Safety Code, the law enforcement agency holding the firearm shall release the firearm to the person claiming a right to or interest in the firearm aker: (1) the person provides an affidavit confirming that the person: (A) wholly or partly owns the firearm; (B) will not allow access to the firearm by the person who was taken into custody under Sec?on , Health and Safety Code, at any?me during which that person may not lawfully possess a firearm under 18 U.S.C. Sec?on 922(g); and (C) acknowledges the responsibility of the person and no other person to verify whether the person who was taken into custody under Sec?on , Health and Safety Code, has reestablished the person's eligibility to lawfully possess a firearm under 18 U.S.C. Sec?on 922(g); and (2) the law enforcement agency holding the firearm conducts a check of state and na?onal criminal history record informa?on and verifies that the person claiming a right to or interest in the firearm may lawfully possess a firearm under 18 U.S.C. Sec?on 922(g). (h) If a person to whom wrinen no?ce is provided under Subsec?on (b) or another lawful owner of a firearm subject to disposi?on under this ar?cle does not submit a wrinen request to the law enforcement agency for the return of the firearm before the 121st day aker the date the law enforcement agency holding the firearm provides wrinen no?ce under Subsec?on (b), the law enforcement agency may have the firearm sold by a person who is a licensed firearms dealer under 18 U.S.C. Sec?on 923. The proceeds from the sale of a firearm under this subsec?on shall be given to the owner of the seized firearm, less the cost of administering this subsec?on. An unclaimed firearm that was seized from a person taken into custody under Sec?on , Health and Safety Code, may not be destroyed or forfeited to the state. Added by Acts 2013, 83rd Leg., R.S., Ch. 776 (S.B. 1189), Sec. 2, eff. September 1, 2013.

57 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (SUMMARY) Applies only to APOW NO DUTY TO SEIZE Agency at the?me the person taken into custody must provide a receipt for the firearm Agency shall provide wrinen instruc?ons on procedure to retrieve firearm Before the 15th day, Cer?fied lener to the last known closest immediate family. Must advise the date request is made by.

58 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (SUMMARY) Agency must request disposi?on from proper court within 30 days. Court has 30 days to respond Agency has 30 days aker the no?fica?on to Conduct a check on person see if they can have a firearm Cer?fied lener no?fying person Within 30 days aker court informs agency you must no?fy person by cer?fied mail of the using prescribed language used in statute.

59 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (SUMMARY) Agency may release the firearm to the persons designee IF Check see if they qualify Notarized statement authorizing release The person provides to the agency a wrinen affidavit (i) will not allow access to the firearm by the person who was taken into custody under Sec?on , Health and Safety Code, at any?me during which the person may not lawfully possess a firearm under 18 U.S.C. Sec?on 922(g); and Must acknowledge the responsibility of possessing and whether the person is eligible to have a weapon Release the firearm to the agency for disposi?on

60 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (SUMMARY) If the weapon is owned by another person Release aker they have provided to the agency Affidavit confirming that the person wholly or partly owns the firearm Will not allow access to the firearm by the person who was taken into custody Acknowledges the responsibility Agency conducts a check to verify their eligibility to possess a firearm

61 Art DISPOSITION OF FIREARM SEIZED FROM CERTAIN PERSONS WITH MENTAL ILLNESS (SUMMARY) AKer wrinen no?fica?on to the owner of firearm AKer 121 days Agency may have the firearm sold ONLY CAN NOT BE DESTROYED Proceeds given to owner of firearm TWENTY SEVEN SPECIFIC LEGAL REQUIREMENTS

62 Safe Keeping? Do we have the legal authority to withhold Qirearms property from the owner?

63 Federal Firearms Laws 18 USC, 922, Chapter 44 Unlawful acts (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammuni?on to any person knowing or having reasonable cause to believe that such person - (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) is a fugigve from jusgce; (3) is an unlawful user of or addicted to any controlled substance (as defined in sec?on 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) has been adjudicated as a mental defecgve or has been commixed to any mental insgtugon;

64 Federal Firearms Laws USC, 922, Chapter 44 Unlawful act (5) who, being an alien - (A) is illegally or unlawfully in the United States; or (B) except as provided in subsec?on (y)(2), has been admined to the United States under a nonimmigrant visa (as that term is defined in sec?on 101(a) (26) of the Immigra?on and Na?onality Act (8 U.S.C. 1101(a) (26))); (6) who has been discharged from the Armed Forces under dishonorable condigons; (7) who, having been a cigzen of the United States, has renounced his cigzenship;

65 Federal Firearms Laws USC, 922, Chapter 44 Unlawful act (8) is subject to a court order that restrains such person from harassing, stalking, or threatening an in?mate partner of such person or child of such in?mate partner or person, or engaging in other conduct that would place an in?mate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that - (A) was issued aker a hearing of which such person received actual no?ce, and at which such person had the opportunity to par?cipate; and (B) (i) includes a finding that such person represents a credible threat to the physical safety of such in?mate partner or child; or (ii) by its terms explicitly prohibits the use, anempted use, or threatened use of physical force against such in?mate partner or child that would reasonably be or expected to cause bodily injury; (9) has been convicted in any court of a misdemeanor crime of domesgc violence.

66 PHOTOGRAPHIC EVIDENCE FOR THEFT

67 Art PHOTOGRAPHIC EVIDENCE IN THEFT CASES (a) In this ar?cle, "property" means any tangible personal property. (b) A photograph of property that a person is alleged to have unlawfully appropriated with the intent to deprive the owner of the property is admissible into evidence under rules of law governing the admissibility of photographs. The photograph is as admissible in evidence as is the property itself. (c) The provisions of Ar?cle concerning the bringing of stolen property before a magistrate for examina?on are complied with if a photograph of the stolen property is brought before the magistrate. (d) The defendant's rights of discovery and inspec?on of tangible physical evidence are sa?sfied if a photograph of the property is made available to the defendant by the state on order of any court having jurisdic?on over the cause.

68 Texas Biological Evidence Laws Texas Code of Criminal Procedure Ar?cle 38.43

69 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL (a) In this ar?cle, "biological evidence" means: (1) the contents of a sexual assault examina?on kit; or (2) any item that contains blood, semen, hair, saliva, skin?ssue, fingernail scrapings, bone, bodily fluids, or any other iden?fiable biological material that was collected as part of an inves?ga?on of an alleged felony offense or conduct cons?tu?ng a felony offense that might reasonably be used to: (A) establish the iden?ty of the person commizng the offense or engaging in the conduct cons?tu?ng the offense; or (B) exclude a person from the group of persons who could have commined the offense or engaged in the conduct cons?tu?ng the offense. (b) This ar?cle applies to a governmental or public en?ty or an individual, including a law enforcement agency, prosecutor's office, court, public hospital, or crime laboratory, that is charged with the collec?on, storage, preserva?on, analysis, or retrieval of biological evidence.

70 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL (c) An en?ty or individual described by Subsec?on (b) shall ensure that biological evidence collected pursuant to an inves?ga?on or prosecu?on of a felony offense or conduct cons?tu?ng a felony offense is retained and preserved: (1) for not less than 40 years, or un?l the applicable statute of limita?ons has expired, if there is an unapprehended actor associated with the offense; or

71 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL (2) in a case in which a defendant has been convicted, placed on deferred adjudica?on community supervision, or adjudicated as having engaged in delinquent conduct and there are no addi?onal unapprehended actors associated with the offense: (A) un?l the inmate is executed, dies, or is released on parole, if the defendant is convicted of a capital felony; (B) un?l the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment in the Texas Department of Criminal Jus?ce;

72 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL (C) un?l the defendant completes the defendant's term of community supervision, including deferred adjudica?on community supervision, if the defendant is placed on community supervision; (D) un?l the defendant dies, completes the defendant's sentence, or is released on parole, mandatory supervision, or juvenile proba?on, if the defendant is commined to the Texas Youth Commission; or

73 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL (E) un?l the defendant completes the defendant's term of juvenile proba?on, including a term of community supervision upon transfer of supervision to a criminal court, if the defendant is placed on juvenile proba?on. (d) The anorney represen?ng the state, clerk, or other officer in possession of biological evidence described by Subsec?on (a) may destroy the evidence, but only if the anorney, clerk, or officer by mail no?fies the defendant, the last anorney of record for the defendant, and the convic?ng court of the decision to destroy the evidence and a wrinen objec?on is not received by the anorney, clerk, or officer from the defendant, anorney of record, or court before the 91st day aker the later of the following dates: (1) the date on which the anorney represen?ng the state, clerk, or other officer receives proof that the defendant received no?ce of the planned destruc?on of evidence; or (2) the date on which no?ce of the planned destruc?on of evidence is mailed to the last anorney of record for the defendant.

74 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL (e) To the extent of any conflict, this ar?cle controls over Ar?cle (f) The Department of Public Safety shall adopt standards and rules authorizing a county with a popula?on less than 100,000 to ensure the preserva?on of biological evidence by promptly delivering the evidence to the Department of Public Safety for storage in accordance with Sec?on , Government Code, and department rules. (g) The Department of Public Safety shall adopt standards and rules, consistent with best prac?ces, rela?ng to a person described by Subsec?on (b), that specify the manner of collec?on, storage, preserva?on, and retrieval of biological evidence. (h) A person described by Subsec?on (b) may solicit and accept giks, grants, dona?ons, and contribu?ons to support the collec?on, storage, preserva?on, retrieval, and destruc?on of biological evidence.

75 Art EVIDENCE CONTAINING BIOLOGICAL MATERIAL Capital Cases and DNA Evidence Evidence containing any form of biological evidence must be tested. Specific item tes?ng is a decision between state and the defendant If no agree reached, then Court will hold hearing determine what items should be tested and provide informa?on to the defendant regarding when hearing will take place. Defendant may pay for independent tes?ng using cer?fied lab.

76 CHAPTER 64. MOTION FOR FORENSIC DNA TESTING Art MOTION. (a) In this sec?on, "biological material": (1) means an item that is in possession of the state and that contains blood, semen, hair, saliva, skin?ssue or cells, fingernail scrapings, bone, bodily fluids, or other iden?fiable biological evidence that may be suitable for forensic DNA tes?ng; and (2) includes the contents of a sexual assault evidence collec?on kit.

77 (a- 1) A convicted person may submit to the convic?ng court a mo?on for forensic DNA tes?ng of evidence containing biological material. The mo?on must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the mo?on. (b) The mo?on may request forensic DNA tes?ng only of evidence described by Subsec?on (a- 1) that was secured in rela?on to the offense that is the basis of the challenged convic?on and was in the possession of the state during the trial of the offense, but: (1) was not previously subjected to DNA tes?ng; or (2) although previously subjected to DNA tes?ng, can be subjected to tes?ng with newer tes?ng techniques that provide a reasonable likelihood of results that are more accurate and proba?ve than the results of the previous test. Explana?on 1. Convicted person may ask the court for DNA tes?ng. 2. Newer techniques

78 Sec Sec?on Sec CHAIN OF CUSTODY. Medical, law enforcement, department, and laboratory personnel who handle sexual assault evidence under this chapter or other law shall maintain the chain of custody of the evidence from the Gme the evidence is collected ungl the Gme the evidence is destroyed. Explana?on 23. CHAIN of CUSTODY you shall maintain

79 US Govt. Code US Govt. Code Sec ANALYSIS OF SEXUAL ASSAULT EVIDENCE. (a) A law enforcement agency that receives sexual assault evidence collected under this chapter or other law shall submit that evidence to a public accredited crime laboratory for analysis not later than the 30th day aier the date on which that evidence was received. (b) A person who submits sexual assault evidence to a public accredited crime laboratory under this chapter or other law shall provide the following signed, wrinen cer?fica?on with each submission: "This evidence is being submined by (name of person making submission) in connec?on with a criminal inves?ga?on. Explana?on 24. All SANE kits must be sent to the lab within 30 days.

80 Sec CONSENT FOR RELEASE OF CERTAIN EVIDENCE. (a) Consent for the release of evidence contained in an evidence collec?on kit must be in wri?ng and signed by: (1) the survivor, if the survivor is 14 years of age or older; (2) the survivor's parent or guardian or an employee of the Department of Family and Protec?ve Services, if the survivor is younger than 14 years of age; or Explana?on 25. GET COURT or DISTRICT ATTORNEYS APPROVAL (c) Consent for release under Subsec?on (a) applies only to evidence contained in an evidence collec?on kit and does not affect the confiden?ality of any other confiden?al informa?on under this chapter. (d) The wrinen consent must specify: (1) the evidence covered by the release; (2) the reason or purpose for the release; and (3) the person to whom the evidence is to be released.