Knowing what happened to someone you love
Warn Families Before Evidence Is Destroyed
Notice to the victim or the surviving family before the State destroys the evidence of a violent crime — and a chance to object before it is gone.
DRAFT — not filed Proposed bill for the 90th Texas Legislature · Adds Subchapter O to Texas Code of Criminal Procedure Chapter 56A · Last updated November 5, 2026
The problem
When the State destroys the evidence of a violent crime, the law warns the defendant — not the victim. Texas does not keep evidence forever: kits are purged, exhibits are sold as salvage, property rooms are emptied on schedule. But under current law, every general pre-destruction notice runs to the other side. Before biological evidence may be destroyed, Article 38.43(d) of the Code of Criminal Procedure requires mailed notice to the defendant, the defendant's last attorney of record, and the convicting court, with 91 days to object. Before a clerk disposes of a court exhibit, Article 2A.155 gives notice to the two lawyers — and the exhibit may then be sold, half the proceeds going to the victims' compensation fund, without the victim ever learning it existed.
Victims receive pre-destruction notice almost nowhere in Texas law: the only exceptions are two narrow sexual-assault pockets (unreported-exam evidence under Article 56A.306, and the limited-consent DNA programme). A rape kit, a murder weapon, DNA that could one day answer a question or support a civil claim — all can be destroyed without the family ever knowing.
What the bill does
The bill adds the victim to a notice system Texas already runs. It covers homicide, sexual assault, kidnapping, and any offence in which the victim dies. For sexual assault and kidnapping, the living victim herself holds the rights; where the victim died, her surviving family does. The bill:
- creates an opt-in notice register kept by the prosecutor's victim assistance coordinator — one registered recipient per victim — with a duty on the coordinator to offer registration at disposition and again at finality in new cases;
- requires direct written notice at least 91 days before any destruction of evidence (an entry in a tracking system alone is not notice), except that for a true perishable or hazard whose condition requires earlier destruction, notice must be given as soon as practicable before destruction;
- makes a registered objection an automatic hold, with retention extended 10 years, renewable once;
- gives the family access to the evidence before it is destroyed — viewing, and copies of written reports that are public records; and
- lets a district judge, on motion, order copying or transfer of possession of selected items under an express no-harm standard, with future DNA testing expressly protected.
The bill applies to evidence in cases that are already final — destruction is a future act even in an old case — with a 12-month phase-in so custodians can build the register and collect registrations. For past cases, registration is the family's initiative; nobody must hunt families down.
Why it works
The machinery already exists: custodians already run the 91-day notice-and-objection process for defendants, so the bill adds a recipient to a workflow rather than inventing one. And because Article 38.43 already keeps sexual-assault kits and biological evidence for 40 years or longer, most of the evidence this bill covers is going to be in storage for decades anyway. Notice at the end of that period costs almost nothing and loses nothing — it simply tells the family before the last day, not after it.
Rights and safeguards
- The rights of the accused preempt the victim — the bill states it plainly. Nothing in it stays or delays expunction.
- An acquitted or never-sentenced person's own evidence — his cell phone data, for example — is never accessible under the bill, except evidence that was the victim's own property.
- Some things can never be transferred, whatever a judge finds: contraband, sealed or expunged material, and anything else no one may lawfully possess.
- Originals are never released or privately tested under the access provision, so chain of custody and Chapter 64 DNA-testing rights are preserved — indeed, evidence kept on a family's objection is evidence that remains available for an innocence claim.
- An objection's hold cannot be overridden by the custodian. The only exception is true perishables and hazards, which are noticed but cannot be held.
- Enforcement is preventive only — by mandamus or injunctive relief. There is no new criminal offence and no damages remedy.
How hard will this be to pass?
The principle is hard to argue against — the bill adds the victim to a notice process custodians already run for the defence — and no one's rights are taken away by it. The honest friction is practical, not principled: custodians will press the storage and workload burden of objections that add years of retention, and that burden argument is where committee scrutiny will concentrate. As with every bill in this package, approaches will be re-verified against the 90th Legislature's rosters and committees before anyone is asked.
Cost
No significant fiscal note is expected. The register rides on victim assistance coordinators who already exist; the notice is one more envelope in an existing mailing.
Reading on? Below this line the page goes deeper: first a fuller brief for advocates preparing to pitch this bill inside their own organisation, then a technical appendix for attorneys and legislative staff.
The asymmetry, in the statute's own text
Texas law already decides who deserves warning before evidence is destroyed — and it chose the defence. Before biological evidence may be destroyed, Article 38.43(d) requires the custodian to notify, by mail, the defendant, the defendant's last attorney of record, and the convicting court, and to wait 91 days for a written objection. Before a clerk disposes of a court exhibit, Article 2A.155 requires notice to the attorney representing the state and the attorney representing the defendant — after which the exhibit may be sold as salvage, with half the proceeds going to the compensation to victims of crime fund, in a case whose victim was never told the exhibit existed. And outside those two provisions, routine property-room purges are governed by agency policy and records schedules: no statute requires notice to anyone at all. That unregulated channel covers the bulk of physical evidence in cases that were never tried.
Against that, the whole of Texas's victim-facing law on the point is two pockets, both sexual-assault-specific. Article 56A.306 gives a survivor notice before unreported-exam evidence is destroyed — but the notice is an entry in a tracking system, which is notice only if the survivor happens to log in. The limited-consent DNA programme gives a survivor a tracking-system notification and about three months to respond before destruction. A reported sexual-assault victim whose kit sits in a property room has no statutory pre-destruction notice at all. Neither does any homicide family, in any case, ever.
The pattern is not a Texas eccentricity; it is the national default. The federal preservation statute gives its pre-destruction notice to the defendant. California's preservation law notifies the incarcerated person, counsel, the public defender, the district attorney, and the Attorney General — everyone except the victim. The states that have built genuine victim-notice mechanics (Colorado's objection, which buys ten more years; Montana's 120 days; Nebraska's extension on request) built them for sexual-assault kits, mostly before conviction. This bill takes the machinery Texas already runs for the defence — the same 91 days, the same objection, the same custodians — and adds the one recipient every version forgot. Nothing in it is experimental except the family's name on the mailing.
Likely criticism — and our answers
You will meet these arguments in committee, in the press, and possibly inside your own organisation. Each is stated in its strongest fair form. The expected sources are custodian associations (sheriffs', police chiefs', and clerks' associations — none has taken a position on this bill), the criminal-defence bar (likewise, no position taken), and some prosecutors — named here as likely critics, which is a different thing from naming an ally: no critic is misrepresented by being expected to argue its own stated mission.
"Property rooms are already full. Every objection adds a decade of storage — for vehicles, furniture, weapons nobody will ever look at again — and counties pay for every square foot."
This is the serious objection, and it should not be waved away. The answer is in where the duties attach. The notice duty arises only at a destruction the custodian is already performing — it adds a recipient to mailings already sent under Article 38.43(d) and Article 2A.155(d), not a new process. The extension arises only where a registered recipient affirmatively objects, item by item; nothing is retained longer because a family might care. Biological evidence — the most sensitive class — is already retained for 40 years or longer under existing floors this bill expressly never shortens, so the marginal storage is concentrated in items currently destroyed soonest. And true perishables and hazards are exempt from the hold altogether. What remains is a real but bounded cost, and it should be weighed against what is being bought: the family learns before the last day, not after it.
"Letting families handle evidence will break the chain of custody — and the first person harmed will be a wrongfully convicted man whose DNA testing depends on that evidence being intact."
The bill is drafted so that this cannot happen through it. Under the access provision, originals are never released: access is supervised viewing, plus copies of written reports that are public records. An original physical or biological item can change hands only under a district judge's order, on a motion for selected, itemised items, granted only on an express finding that the transfer will cause no harm — and for biological evidence, no transfer order may issue at all unless a representative sample sufficient for future DNA testing is retained. Chapter 64 testing rights are expressly preserved, and evidence implicated in a pending Chapter 64 motion or habeas application, of which the custodian has written notice, may not be destroyed under the bill at all, objection or no objection. Preservation also runs in the family's disfavour as often as their favour: evidence kept on a family's objection is evidence that still exists for an innocence claim.
"This is an end-run around expunction and the rights of people who were acquitted or never charged."
The bill states the opposite, in terms: the rights of the accused preempt the victim, and if any provision conflicts with an accused or convicted person's rights, the accused's right controls. Nothing in the bill stays, delays, or otherwise affects an expunction, and no right under it extends to expunction-subject material. An acquitted or never-sentenced person's own evidence — his cell phone data is the standing example — is never accessible under the bill, except evidence that was the victim's own property. The bill creates no party status for the family in any proceeding, and a violation of it is not a ground for suppression, dismissal, or reversal — defendants get no windfall from it either.
"The register will fail the families who need it most. People move; addresses decay over the decades these cases span. You are promising notice you cannot deliver."
Part of this is simply true, and the bill does not pretend otherwise: registration is opt-in, and an unregistered family is not owed direct notice — no honest version of this bill could promise otherwise across forty-year-old cases. What the bill does is stack the odds. The coordinator must offer registration at disposition and again at finality — the two moments a family is already in contact with the system. Notice goes by mail and, with consent, by email or text. The registrant's duty to keep an address current is stated in the bill, and the State is not liable for a failure caused by a stale address. The alternative the critics defend — automatic notice drawn from decades-old case files — would misdirect more notices to wrong addresses and strangers, and fail families more quietly.
Potential allies
These are the kinds of organisation whose missions and records align with this bill. Organisations are deliberately not named here. A group that found its own name on a bill page could reasonably read it as being cited as a supporter, and no organisation has committed to this bill. Named research is kept in the project's working papers; a category below means a natural conversation to have, not a position taken.
- Survivor-run victims' rights organisations in Texas — organisations led by victims and surviving family members; natural allies on victims'-rights legislation generally.
- Sexual-assault victims' advocacy organisations — the category whose documented advocacy built the kit-retention floors and the only two victim-notice provisions Texas has; this bill generalises their own mechanism beyond sexual-assault cases.
- Family-violence advocacy organisations — family-violence cases are where evidence destruction and victim safety intersect most sharply.
- Innocence-protection organisations — for the notice provisions specifically. Their documented policy work supports evidence-preservation and retention statutes, in Texas and nationally: preserved evidence is what makes Chapter 64 DNA testing and actual-innocence review possible. Their alignment is with preservation; no position on family access is attributed to them, and the bill's design answers their access-side concerns in its text — originals are never released, and a family's objection protects the convicted person's evidence as much as the family's interests.
Prosecutors and custodians are consultees, not counted allies. The register and offer-duty mechanics have to work county by county, in hundreds of local offices; the people who will run them — prosecutors' victim assistance coordinators, sheriffs' and police property rooms, clerks — should be consulted on the drafting before filing, not first met in committee.
Prospective authors
To be published after re-verification. Candidates to approach — several members, identified from their records on Texas's evidence-retention and victim-notice provisions (the kit-retention floors, the tracking-system notice, the evidence-information rights enacted since 2019) — have been researched and are held in the project's working papers. Because the 2026 election changed the House, the governorship, and the Lieutenant Governorship, no names are published here until rosters and committee assignments for the 90th Legislature are verified in January.
Fiscal and implementation notes
- No significant fiscal note is expected — that is an assessment, not a verified figure, and it is stated that way deliberately. The register is maintained by victim assistance coordinators who already exist in every prosecutor's office; the notice duty adds a recipient to destructions custodians already perform and already notice to the defence side.
- Storage cost is real but narrow: it arises only for the subset of items a registered recipient affirmatively asks to keep, and the bill never shortens the existing 40-year-plus retention floors for biological evidence — that storage is already being paid for.
- A 12-month phase-in applies to cases already final when the bill takes effect, so coordinators can build the register and accept registrations before the duties bite. For those older cases, registration is the family's initiative; no coordinator must hunt families down.
- Destruction events are episodic, not continuous — the workload follows the destruction calendars custodians already keep, and the register check is one lookup added to an existing workflow.
- One honesty rule for advocates: no Texas-specific audited figure for property-room storage burden exists in the research behind this page. Do not quote one in committee; the burden argument should be met on structure, as above, not with an invented number.
Talking points
- "The law warns the defendant before the evidence is destroyed. It has never warned the victim. This bill adds one name to the mailing."
- "Ninety-one days is not our number. It is the number Texas already gives the defence."
- "An objection does not keep evidence forever. It keeps it ten more years, renewable once — and only for the items a family affirmatively asks about."
- "No original is ever released to a family under this bill. The only door to a physical item runs through a district judge applying a no-harm standard."
- "Preserved evidence serves everyone in the case. A family's objection is also what keeps the evidence in existence for an innocence claim."
Questions advocates ask
Does the family get the evidence itself?
No. Before a noticed destruction, the family may view the evidence under supervision and receive copies of written reports that are public records. Transfer of possession of a selected item is possible only on a district judge's order applying the no-harm standard — and originals of biological evidence can never be transferred unless a sample sufficient for future DNA testing is retained.
What if our family never registered?
Registration can happen at any time, and in new cases the coordinator must offer it at disposition and again at finality. Direct notice is owed to the registered recipient; for cases already final when the bill takes effect, registration is the family's initiative — nobody is required to track families down, and the bill does not pretend otherwise.
Does an objection stop destruction forever?
No. A timely objection holds the destruction automatically, and with a request for extended retention the item is kept 10 years, renewable once. Where existing law already requires longer retention — biological evidence is the main case — the longer period controls; the bill never shortens a floor.
What if the accused was acquitted, or never sentenced?
His rights preempt the family's — the bill says so expressly. His own evidence is never accessible under the bill, except evidence that was the victim's own property, and expunction is not stayed or delayed by anything in it.
What happens if a custodian destroys evidence anyway?
Enforcement is preventive: a rights holder may seek mandamus or an injunction to stop a threatened destruction. There is no new criminal offence and no damages remedy — after a destruction, no remedy could restore the item, which is why the design's teeth are the automatic hold and the judge-gated route to copies or transfer before the fact.
What about evidence in a case with DNA testing still being pursued?
It cannot be destroyed under this bill while a Chapter 64 motion or a habeas application the custodian has written notice of is pending — whether or not any family member has objected.
Download the draft bill in Texas House format (PDF) — DRAFT, not filed
Current law
| Provision | What it does now |
|---|---|
| Code Crim. Proc. art. 38.43 — biological evidence | The retention and destruction regime for biological evidence. Retention floors: sexual-assault kit contents are kept not less than 40 years or until limitations expires, whichever is longer (subsection (c-1), added by HB 8, 86th Leg.); other biological evidence is keyed to the case posture — 40 years or limitations for an unapprehended actor, and custody/completion-of-sentence periods after conviction (subsection (c)). Destruction (subsection (d)): the custodian may destroy only after notifying, by mail, the defendant, the defendant's last attorney of record, and the convicting court, and waiting out the 91-day objection window. The victim, guardian, and close relatives are not notice recipients, and no victim objection right exists anywhere in the article. Subsection (e): to the extent of any conflict, art. 38.43 controls over art. 2A.155. |
| Code Crim. Proc. art. 2A.155 — clerk's disposal of exhibits | Exhibit disposition (recodified from former art. 2.21 by HB 4504, 88th Leg., eff. Jan. 1, 2025). Earliest disposal runs from anniversaries of finality (1st anniversary for misdemeanours and felonies with sentences of five years or less and for acquittals; 2nd for noncapital felonies over five years). Pre-disposal notice goes to the attorney representing the state and the attorney representing the defendant — and only in counties under two million population; a timely request by an owner the court identifies returns the exhibit. Otherwise the clerk may dispose of the exhibit, including as surplus or salvage; proceeds split 50% to the county treasury and 50% to the compensation to victims of crime fund. No victim notice, request, or objection right exists anywhere in the article; in the largest counties there is not even attorney notice. |
| Code Crim. Proc. art. 56A.306(c) — unreported-exam evidence | The one true victim pre-destruction notice in Texas law — and its limits define this bill's drafting choices. For evidence from a sexual-assault forensic examination not reported to law enforcement, the receiving entity preserves the evidence until the earlier of the fifth anniversary of collection or the victim's written consent, and may then destroy it only if notice of the planned destruction is entered into the statewide electronic tracking system and no objection is received from the victim before the 91st day after entry. Notice by system entry is notice only if the survivor logs in; the mechanism exists, but the delivery is passive. (Built by HB 8, 86th Leg., and recast into tracking-system form by SB 1401, 88th Leg.) |
| Gov't Code §420.0736 — the HB 1422 limited-consent programme | The second victim notice, of 2025 vintage: limited-consent DNA testing without a law-enforcement report (HB 1422, 89th Leg., for evidence collected on or after December 1, 2025). After analysis, storage is capped at five years, with a tracking-system notification to the survivor and an approximately three-month response period before destruction. Again sexual-assault-only, again delivered through the tracking system rather than directly. Texas has now twice built victim pre-destruction notice — both times for one offence class, both times passively delivered. |
What the draft changes, section by section
- Section 1 — new Subchapter O, Chapter 56A (arts. 56A.701–.709). The operative regime. Definitions (art. 56A.701): "covered offense" is criminal homicide, sexual assault and aggravated sexual assault, kidnapping and aggravated kidnapping, and any other offence in which the victim dies; "evidence" is physical evidence (and records documenting or depicting it) in a custodian's possession, custody, or control, excluding the protected categories in art. 56A.709(c); "destruction" includes any disposition making evidence permanently unavailable, including salvage disposal of exhibits, but not return of property to its owner, completed forfeitures, or court-ordered destruction of contraband (which remains subject to the notice duty for biological evidence). "Close relative" takes the art. 56A.001 list and adds expressly a stepparent who married the victim's parent while the victim was a minor; the "registered recipient" is the single rights holder registered for a victim — the victim herself if living, otherwise a close relative. No one outside that definition can register in a family's place; there is no representative slot.
- The register (art. 56A.702). The prosecutor's victim assistance coordinator maintains the register — one registered recipient per victim, with relationship and current contact information. A recipient may be replaced on written request, with disputes resolved by the convicting court (or a district court where there was no conviction). Registrants must keep contact information current; the State is not liable for a failure of notice caused by a stale address. The coordinator must offer registration at disposition and again at finality for cases reaching those points on or after the effective date, and the standard victims'-rights notice must describe the register. The register is confidential and exempt from disclosure under the Public Information Act, disclosable only to a custodian for notice purposes.
- Notice (art. 56A.703). Before destroying evidence in a covered case, the custodian must check the register (and, for sexual-assault evidence, the statewide tracking system) and, if a recipient is registered, give direct written notice not later than the 91st day before the planned destruction — by mail, plus email or text with consent. Entry into a tracking system, without direct notice, expressly does not satisfy the article. The notice must describe the evidence, name the custodian, state the planned date, and explain the objection, access, and court-motion rights. The duty is in addition to art. 38.43(d) and art. 2A.155(d) notice, and no destruction may proceed until every applicable notice regime is satisfied. The article does not shorten any retention period under art. 38.43(c) or (c-1).
- Objection, hold, extension (art. 56A.704). A written objection delivered before the planned date automatically holds the destruction — no custodian discretion and no custodian override. With a written request for extended retention, the custodian retains the evidence 10 years from the objection, renewable once for a further 10 years; a longer period required by other law controls. Independently, evidence subject to a pending Chapter 64 motion or a habeas application of which the custodian has written notice may not be destroyed while that proceeding is pending, objection or not.
- Pre-destruction access (art. 56A.705). After notice and before destruction, the registered recipient (or another rights holder with the recipient's written consent) may view the evidence under the custodian's supervision, with the rights holder's attorney, and is entitled to copies of written reports in the evidence that are public records. Imagery may be viewed but not copied under this article. Access confers inspection and copying rights only — it never authorises removal, release, or private testing of an original item — and it does not stay, delay, or reach into expunction.
- Court-ordered copying or transfer (art. 56A.706). Before a noticed destruction, a rights holder may move a district court for an order authorising copying, or transfer of possession, of selected, itemised items. The custodian, the attorney representing the state, and the accused or convicted person (or that person's last attorney of record) must be served and may be heard — the defence is inside the inquiry. The court may grant the motion only on a stated finding that the copying or transfer will cause no harm, expressly considering Chapter 64 sample preservation, pending proceedings, chain of custody, the accused's rights, and third-party privacy. No transfer of biological evidence may be ordered unless a representative sample sufficient for DNA testing is retained. Transfer is of possession only, not title, and the protected categories in art. 56A.709(c) can never be copied or transferred, whatever the court finds.
- Perishables and hazards (art. 56A.707). Evidence that cannot reasonably be retained by reason of perishable condition, hazardous character, or a legal requirement of destruction is still noticed — but where its condition requires earlier destruction, notice is given as soon as practicable before destruction, and a timely objection does not hold it. The custodian must document the condition that required the action, file the documentation in the case file, and copy the coordinator.
- Enforcement (art. 56A.708). A rights holder entitled to notice may apply to a district court for a writ of mandamus or injunctive relief to compel compliance or restrain a threatened destruction. The subchapter creates no criminal offence and authorises no damages — enforcement is preventive only, by design.
- Accused-preemption and savings (art. 56A.709). "The rights of the accused preempt the rights provided by this subchapter," with an express conflicts rule. Nothing stays, delays, or affects expunction under Chapter 55A. Excluded absolutely: the personal property of a person acquitted of, or never sentenced for, the offence (including the contents of that person's electronic devices and accounts) — except evidence that was the victim's property; contraband per se and anything unlawful to possess, including child sexual abuse material; sealed, expunged, or nondisclosure-subject material while that status continues; and material whose disclosure other law prohibits, including grand jury material and informant identity. The subchapter creates no party status, does not limit art. 39.14, Brady, Chapter 64, or habeas, does not affect Public Information Act rights, and gives no ground for suppression, dismissal, reversal, or habeas relief.
- Sections 2–4 — conforming amendments. Section 2 adds the registered recipient to art. 38.43(d)'s existing notice, with the art. 56A.704 objection effect. Section 3 adds the registered recipient to art. 2A.155's exhibit-disposal notice in every county (deleting the population bracket for the victim-notice duty only), at 91 days, with the same hold. Section 4 adds the register, objection, access, and motion rights to the art. 56A.051(a) list of victims' rights, so the rights are visible in the standard notice before they are needed.
- Sections 5–7 — severability, applicability, phase-in, effective date. Severability in standard form. The Act applies to destructions occurring on or after its effective date regardless of when the case became final — destruction is a future act even in an old case — with a 12-month phase-in for cases already final, during which custodians and coordinators build the register and accept registrations. For those cases registration is family-initiated; coordinators have no duty to locate or solicit families. Effective date: September 1, 2027.
Legal analysis
- Why the duty must be statutory. The custodians this bill binds are not one agency: they are hundreds of local offices — sheriffs, municipal police property rooms, county and district clerks, crime laboratories, prosecutors' offices. An agency rule binds only the issuing agency's own operations and cannot create a right against another officeholder, a hold on another office's destruction decision, or a remedy in court. A notice right that a family can enforce, owed by every custodian in the state, with a defined consequence on objection, can be created only by the Legislature. This is also why the bill cannot be replaced by a prosecutor-association best practice: the actors who most need binding are the ones who would not sign it.
- What can be delegated — the register mechanics. The converse is equally true: the machinery does not need to live in statute forever. Register forms, the register's format and data fields, the manner of the custodians' register check, and coordination with the statewide tracking system are administrative detail of the kind a model rule or a statewide standard form handles better than statutory text, which fossilises. The draft accordingly keeps the rights, numbers, and consequences in the statute (91 days; automatic hold; 10 years, renewable once; mandamus or injunction) and leaves the register's mechanics to be standardised administratively. Delegate formats freely; delegate protections never.
- An overlay, not a new retention schedule. The subchapter conditions the exercise of destruction authority that already exists; it changes no retention period anywhere. Article 38.43(c) and (c-1) floors are expressly preserved, art. 2A.155's anniversaries are untouched, and Chapters 18, 47, and 59 dispositions proceed under their own law (returns to owners and completed forfeitures are not "destruction" at all under the draft's definition). Where biological evidence is also a filed exhibit, art. 38.43(e)'s existing priority rule resolves the conflict, and the notice duty runs to both sets of recipients. Drafting the bill as an overlay is what makes the fiscal claim defensible: the State is not being asked to store anything longer by default — only to speak before it destroys, and to pause when the one person the statute names asks it to.
- The accused-preemption rule, and why expunction is not stayed. Expunction is the cleared person's statutory entitlement: it orders the records of an arrest that did not lead to conviction destroyed or returned, and the person may deny the event ever occurred. A notice regime that stayed expunction, or that let a family's access reach expunction-subject material, would make the bill the instrument that defeats that entitlement — and would hand opponents their strongest case. The draft therefore does the opposite, in three places: the express preemption clause, the statement that nothing stays or delays expunction, and the absolute exclusion of the acquitted or never-sentenced person's own property (the cell-phone-data example), with the single exception of property that was the victim's own. The sequencing cost is real and accepted: in a dismissal case, the family's pre-destruction rights operate only on evidence that lawfully continues to exist.
- Direct notice, not system entry — the one design departure from the existing pockets. Both existing victim notices deliver by tracking-system entry. That is the weakest link in each: a survivor who does not log in has, in law, been "notified." The draft keeps the tracking system in its proper role — the custodian must check it for sexual-assault evidence — but makes entry alone expressly insufficient: the registered recipient gets a letter, and with consent an email or text, stating what will be destroyed, when, and how to object. Notice that depends on the recipient checking a database is a records practice, not a notice right.
- Enforcement is preventive because it has to be. After a destruction, no remedy restores the item; damages would compensate a loss that is not really monetary and an offence would punish custodians for scheduling decisions in a regime they are still learning. The draft's teeth are therefore placed before the fact: an automatic hold that requires no lawsuit at all, and mandamus or injunctive relief to restrain a threatened violation. The honest limit, stated for staff review rather than hidden: a custodian who destroys in violation, without notice, faces no bill-specific sanction after the fact. That gap is a deliberate consequence of the preventive design, and it is the first place a committee amendment will aim — the answer is that the hold, not the sanction, is what families actually need.
Known seams — flagged for the author and Legislative Council
Published here deliberately: a bill page that hides its drafting issues will not survive staff review, and these are mechanical rather than substantive.
- Sections 2 and 3 are narrative summaries, not amendatory text. The conforming amendments to art. 38.43(d) and art. 2A.155 are drafted in the working draft as statements of effect ("is amended to require…") rather than as full amendatory text. Legislative Council must convert both to full text; the substance is settled, the form is not.
- The art. 2A.155 population threshold needs verification at conversion. The attorney-notice duty in current art. 2A.155(d) applies in counties under two million population, per the 2023 enrolled text; commercial mirrors differ, and whether any later amendment changed the threshold must be confirmed when Section 3 is converted. The draft deletes the bracket for the victim-notice duty only — the registered recipient is noticed in every county — and that asymmetry should be a conscious choice in the converted text, not an accident of it.
- The "covered offense" conforming list is unsettled. The definition's operative categories are fixed (homicide; sexual assault; kidnapping; any offence in which the victim dies), but the closing catch-all is result-based and the conforming offence list that Legislative Council will build around it has not been settled. Council should confirm the catch-all's reach is the intended one.
- Exclusions are drafted at the definition level — with a notice consequence. The protected categories are excluded from the definition of "evidence" itself, which means no notice duty attaches to them either, not merely no access. For expunction-subject material and the accused's own property that is mostly harmless, since those follow their own regimes — but Council should confirm the notice consequence is intended rather than a side effect of where the exclusion was drafted; the alternative is to define the exclusion at the access level only.
- Register-replacement machinery is untested. One close relative may replace another's registration on written request, with disputes routed to court. Some machinery of this kind is necessary — families disagree, and there can only be one registered recipient — but it is the provision most likely to be exercised in exactly the cases where family conflict is sharpest, and the author should consider whether the court-resolution route needs a faster, cheaper form.
- Records about evidence are destroyed on their own schedules. Investigation files, property records, and chain-of-custody documentation are retained and destroyed under state records schedules independently of the evidence itself. The interaction between the notice regime and those schedules should be confirmed: a regime that preserves the item but lets its inventory and documentation be destroyed on schedule preserves less than it appears to.
- Spelling conforming pass. Supporting materials for this package use British spellings in places ("offence," "organisation"); the operative text must be conformed throughout to Texas statutory style ("offense," "organization") in a single pass at Council stage.
Sources
- Code Crim. Proc. art. 38.43 (current text): law.justia.com
- HB 4504 (88th Leg., 2023), enrolled text — art. 2A.155 as enacted: capitol.texas.gov
- HB 8 (86th Leg., 2019, Lavinia Masters Act), Senate committee analysis — the art. 38.43(c-1) kit-retention floors: capitol.texas.gov
- SB 1401 (88th Leg., 2023), enrolled text — the art. 56A.306 tracking-system notice as recast: capitol.texas.gov
- Texas DPS, Sexual Assault Evidence Tracking Program (Gov't Code §420.034): dps.texas.gov
- Texas DPS, Limited Consent DNA Testing Program (HB 1422, 89th Leg.): dps.texas.gov
- Texas State Library and Archives Commission, Local Retention Schedule PS (public safety records): tsl.texas.gov