Criminal Law
March-April 2009

What to do with evidence when you’re done with it

The second article in a series discussing how to dispose of unneeded evidence in the police department’s evidence room

Jana K. McCown

First Assistant District Attorney in Williamson County

This article might have been really short because there are only three real options for evidence once a prosecutor is finished with it:
•    return it to the rightful owner (when allowed),
•    forfeit it for use by the law enforcement agency, or
•    destroy it.

Of course, it’s not that easy in practice. Prosecutors must decide what it means to be “done” with evidence, and we must recognize that this point can be reached at different times during a criminal prosecution. Finally, prosecutors must know whether a court order is required to dispose of the evidence in any particular manner. Frankly, the legislature would have had to work at it to make the applicable statutes any more difficult to understand and more inconsistent with one another, but in lieu of a complete rewrite of the evidence laws, this article will provide a few tips for your consideration.

When a criminal case is over and there is no further use for evidence collected in the case, law enforcement agencies frequently get left holding the bag (pun intended). It is more than likely that everyone involved—officers, investigators, and prosecutors—will quickly move on to the next case and never give the previous one another thought. Unless the law enforcement agency has an employee whose sole responsibility is to keep the evidence room cleaned out, it runs the risk of becoming a semi-permanent storage facility for items that nobody expects to ever need or use again. While it may be a pack-rat’s dream to keep every item ever collected “just in case” it might be needed, the evidence room instead can become a health or fire hazard. By purging and destroying the drugs, guns, and other illegal contraband that have been removed from the streets, law enforcement can make sure that these items are never a threat to our citizens again.

Setting the standards

It is important to let law enforcement know prosecutors’ expectations concerning evidence retention. Set guidelines for local law enforcement agencies to use in drawing up their policy so there are uniform standards across the jurisdiction. By educating evidence room technicians about retention laws and destruction requirements, we can take away any guesswork and prevent the untimely destruction of evidence that might damage a prosecution.

The first step should be to meet with the different agency evidence technicians and talk about the issues that arise with evidence retention and destruction. If your office doesn’t already have a procedure in place, discuss a method by which their agency will be notified when a case has been completed. Establish an agreed-upon timeframe during which the agency will hold evidence in most cases. In the September– October 2008 issue of The Texas Prosecutor, the statutes that mandate the time periods for retaining certain types of evidence were discussed. This article will cover the remaining kinds of evidence where there is not a statutorily mandated retention period.

There are a couple of simple checklists that may prevent disposing of evidence too soon. The Williamson County District Attor-ney’s Office has requested that our agencies check with us before disposing of evidence related to most felony cases in the county. After the criminal case is finished and the appropriate time period has passed, the law enforcement agency fills out a destruction authorization form and forwards it to our office. A prosecutor then reviews the information available about the case (by computer) to determine any need to continue holding the evidence. The prosecutor assigned does not have to be the same one who handled the case, as long as she understands the rules for evidence retention and the situations in which she should consult with the case prosecutor. Especially in a larger jurisdiction, the volume involved would make it logistically impossible to distribute destruction requests to a large number of prosecutors and get them back on a timely basis. There is no reason that an investigator or other support staff could not assist as well. The goal is for a consistent response based upon the reasons we preserve evidence.  As a general rule, most evidence is requested to be held until sometime after the felony case has been disposed. There are exceptions, of course, including the rules for excess quantities of drugs and explosives or chemicals, which were discussed in the previous article.

Other prosecutor-imposed rules for retention in Williamson County include:
•    all co-defendant cases must be disposed of before the evidence is disposed;
•    any direct appeals should be completed and the mandate issued; and
•    the evidence should not contain biological material. This rule may involve a more in-depth review, but it is initiated by looking at the list of property included in the authorization for disposition request. Training the law enforcement agency is critical here.

By examining closely the reasons evidence should be held and carefully considering when it is appropriate to release or dispose of evidence, we can remove the hesitation to act that comes from not having thought through these issues.

Releasing evidence

During many criminal investigations, items that ultimately have no evidentiary value are collected. For instance, when computers are seized and a forensic exam performed, if nothing illegal is discovered, then it may be appropriate to authorize the computer’s return prior to the completion of the case. The same is true for business records, household items, or any other category of evidence that was collected “just in case” something helpful might be found. Of course, someone who is familiar with the case must decide about the early release. Preferably, that person will be the prosecutor or at the very least the case investigator who has checked with the prosecutor. No court order is required under these circumstances.

Another category of evidence that law enforcement frequently releases early is automobiles. Once the vehicle has been processed by crime scene personnel, there is rarely a reason to keep an entire vehicle. If photographs and the “black box” aren’t enough, consider keeping the damaged bumper or some smaller portion of the vehicle to use in court. The high cost of impounding an automobile when the vehicle itself shouldn’t be required for introduction into evidence is a consideration. As long as there is not an articulable reason (i.e., further testing could be performed or the vehicle is the subject of a forfeiture), then there is no reason not to release the vehicle after all real evidence has been gathered.

Returning items to their owner

Not every item in an evidence room should be destroyed at the end of the case. Many times, items that are completely legal to possess can and should be returned to the rightful owner at some point. There are a few categories of items where the legislature has designated the procedure to follow and made it dependant upon the disposition reached in the case, a timely request from a party, or other relevant factors.

Seized weapons. Weapons seized in connection with an offense involving the use of a weapon or under Chapter 46 of the Penal Code (except prohibited weapons and stolen weapons) must be disposed of as directed in Article 18.19 of the Code of Criminal Procedure. Although the statute anticipates that an inventory of weapons seized (other than those seized pursuant to a search or arrest warrant) will be delivered to a magistrate, the reality is that few agencies comply with this requirement, probably because most magistrates don’t have a system in place for filing this sort of document.1

Weapons seized in this manner shall be held by the law enforcement agency making the seizure. It may surprise some prosecutors to learn that certain of these weapons could end up being returned to the person found in possession of the weapon under certain circumstances. For instance, if there is a prosecution and if the person found in possession of the weapon is convicted or placed on deferred adjudication for an offense under Penal Code Chapter 46, the defendant may request the court in which the case was handled to return the weapon. The law actually states that the person convicted or receiving deferred adjudication under Chapter 46 is entitled to the weapon upon request unless the circumstances set out below exist. (This statute does not apply to prohibited weapons, which are governed by Article 18.18 of the Code of Criminal Procedure and discussed separately below.) The request by the defendant must occur before the 61st day after the date of the judgment.

The weapon shall not be returned but ordered destroyed or forfeited to the state for law enforcement or county forensic lab use by the court entering the judgment if:
•    no request for return has been made before the 61st day;
•    the person has a previous conviction under Penal Code chapter 46;
•    the weapon is a prohibited weapon;2
•    the offense was committed in or on the premises of a playground, school, video arcade facility, or youth center; or
•    based on the defendant’s prior criminal history or based on the circumstances surrounding the commission of the offense, the court determines that possession of the seized weapon would pose a threat to the community or one or more individuals.

If the person found in possession of a weapon is convicted of an offense involving the use of a weapon (presumably other than under Chapter 46), the court entering judgment shall order the destruction of the weapon or forfeiture to the state for use by the law enforcement agency or county forensic lab within 61 days of the date of the conviction. If no order is made within the applicable time period, the law enforcement agency may request an order of destruction or forfeiture from any magistrate.

In any case, if the prosecutor does not want a weapon returned to the defendant, the best practice is to have the defendant agree to forfeit the weapon as a part of the plea agreement. Language can then be included in the judgment ordering forfeiture to the state for destruction to avoid the inefficiency of the court having to create a separate order, have another hearing at a later date, and having to make findings based upon little or no evidence related to whether the weapon should be returned.

If there is no prosecution or conviction for an offense involving the weapon, the magistrate to whom the seizure was reported shall, within 61 days after determining there will be no prosecution, notify in writing the person found in possession of the weapon that the person is entitled to the weapon upon written request to the magistrate. If the person does not make a timely written request, before the 121st day after the date of notification the magistrate shall order the weapon destroyed 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. The law enforcement agency holding the weapon may request an order of destruction or forfeiture from the magistrate if no order has been made within 121 days from the date of notification.

There are no other exceptions specifically designated if there is no prosecution; however, prohibited weapons are treated differently.

Prohibited weapons. When a prohibited weapon has been seized, Article 18.18 of the Code of Criminal Procedure establishes the procedure for disposition. Prohibit-ed weapons as defined in the Penal Code are never returned to the owner or person found in possession. When there is a final conviction for an offense involving a prohibited weapon, not later than the 30th day after the conviction, the court entering the judgment of conviction shall order that the prohibited weapon be destroyed or forfeited to the law enforcement agency that initiated the complaint.3 Because the court can take this action on its own motion or on the motion of the prosecutor or law enforcement, language ordering the destruction or forfeiture should be included in the judgment of conviction.

When there is no prosecution or conviction following the seizure, the magistrate to whom the return was (theoretically) made is charged with notifying the person found in possession to show cause why the prohibited weapon should not be destroyed.4 Any person interested in the prohibited weapon must timely appear before the magistrate and, if there is such an appearance, the magistrate must conduct a hearing. Unless the person proves by a preponderance of the evidence that the property is not a prohibited weapon and that he is entitled to possession, that magistrate shall order the destruction or forfeiture to law enforcement.5

Stolen weapons. Occasionally prosecutors may come across a case where a seized weapon was originally stolen from someone we will call the “true owner.” What should we do when the true owner wants the weapon returned? Assuming that the weapon is not prohibited and not per se illegal to possess, Chapter 47 of the Code of Criminal Procedure governing the disposition of stolen property are the only statutes that gives any guidance, and then, only without any specific reference to stolen weapons.

Most prosecutors would prefer to have the weapon remain in an evidence room until the case is completed, particularly if the weapon was used during the commission of the offense. This stance is perfectly acceptable and, in some cases, may even result in the evidence being held until all appeals are disposed. The statute sets out a procedure, if appropriate and only upon the State’s motion (if the case has not been disposed), to restore the property to the true owner subject to the condition that the property shall be made available to the State for evidentiary purposes.6 Clearly, the prosecutor’s decision to allow the early return of a seized weapon to the true owner will be different when the offense is theft of a firearm than it would be for an aggravated robbery or murder.

Forfeiture of evidence

A few evidence disposition statutes in the Code of Criminal Procedure and the Health and Safety Code authorize the forfeiture of certain kinds of evidence for use by a law enforcement agency or by a county forensic lab. Health and Safety Code §481.159 (controlled substance property or plants) and Article 18.19 of the Code of Criminal Procedure (seized weapons) are the two primary statutes that authorize evidence to be forfeited for law enforcement’s use. Others include Article 18.18 governing the disposition of gambling paraphernalia, prohibited weapons, criminal instruments, and other contraband, the abandoned and unclaimed property statute in Code of Criminal Procedure Article 18.17, and the general asset forfeiture provisions of Chapter 59 of the Code of Criminal Procedure (the latter being too broad to discuss in this article).

Controlled substance property or plants. §481.159 of the Health and Safety Code authorizes a district court to order a law enforcement agency to retain the (controlled substance) property or plant for official purposes, including use in the investigation of offenses under the Health and Safety Code.7 This same statute anticipates that the forfeiture to the agency may be for other purposes as well,8 such as use of the forfeited drugs for canine training. But remember, while a county, justice, or municipal court may order the forfeiture and destruction of controlled substance property or plants, only a district court has the authority to order the forfeiture and retention of these items.

Law enforcement agencies other than the Department of Public Safety may not require DPS to take, hold, or analyze the controlled substances used for investigative purposes.9 Instead, the statute designates the minimum specific requirements for the storage, accounting for, and analysis of the retained controlled substance property or plants. While an agency may contract with another law enforcement agency to provide security for the controlled substance property or plants, the requirement that the agency employ a qualified individual to conduct qualitative and quantitative analyses of the property and plant before and after use in an investigation most likely limits the use of forfeited property and plants for investigative purposes to larger, more comprehensive law enforcement agencies.

Seized weapons.
While Article 18.19 of the Code of Criminal Procedure authorizes the forfeiture of seized weapons to law enforcement, it has been my experience that many agencies prefer to destroy all seized weapons, though I know of a few agencies that have converted weapons for use by a ballistics examiner for reference samples or to use as examples in courtroom testimony. Theoretically an agency could convert a specific type of weapon for use by an officer, but it could be difficult to find the right kinds of weapons and guarantee that they were in good working order and would not subject the officer to risks not associated with a new weapon.

Gambling paraphernalia, prohibited weapons, criminal instruments, and other contraband.
Gambling devices and equipment, criminal instruments, obscene devices or materials, child pornography, dog fighting equipment, and scanning devices or re-encoders are all lumped into a single statute under Article 18.18 of the Code of Criminal Procedure, the same statute that dictates the disposition of prohibited weapons discussed above. The court entering a judgment involving a final conviction for the following offenses “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”:10
•    possession of a gambling device or equipment, altered gambling equipment or paraphernalia,
•    offenses involving a criminal instrument,
•    offenses involving an obscene device or material,
•    offenses involving child pornography, and
•    offenses involving a scanning device or re-encoder.
For offenses involving a prohibited weapon, the order for destruction or forfeiture must be made not later than the 30th day after the final conviction. There is no such time limit for the other offenses and evidence in this article. Dog-fighting equipment is treated similarly but talked about separately due to the issues related to the destruction of dogs.

If there is no prosecution or conviction, all of these categories of evidence are treated the same as prohibited weapons, which were discussed previously in this article, with one exception. In 2006, House Bill 2462 authorized the Texas Building and Procurement Commission to sell gambling equipment that has been transferred to it by a commissioner’s court. The commission may sell it only to a person that the commission determines is licensed or authorized to sell, lease, or otherwise provide gambling equipment to others or to operate gambling equipment issued by an agency in another state or foreign jurisdiction where it is not against the law. This bill became effective June 15, 2007, as Government Code §2175.904. You may ask, how did the commissioner’s court get involved in this issue? Local Government Code §263.152 authorizes the commissioner’s court to transfer gambling equipment “in the possession of the county following its forfeiture to the state” to the Texas Building and Procurement Commission. Apparently, it would be a waste to destroy perfectly good gambling equipment when some other state might use it! There aren’t really any safeguards that would prevent the “legally sold somewhere else” gambling equipment from being brought back to Texas, however, so I recommend that the court order destruction.

Abandoned or unclaimed property. Article 18.17 of the Code of Criminal Procedure allows property not held as evidence (i.e., property unrelated to a charge that has been filed or a case under investigation) to be converted to agency use or sold after all applicable requirements are met. Evidence rooms are full of property that has been placed in the evidence locker to secure it while attempts are made to locate an owner. Some of the other evidence in the evidence room may eventually fall into the category of unclaimed property as well. If a particular item in the evidence room does not fall into another category with a specific statutory provision dictating its disposition, then it may fall into the category of abandoned or unclaimed property. Bicycles, found property, and stolen property where the true owner has not been located are just a few examples. Specifically excluded is whiskey, wine and beer, and contraband subject to forfeiture under Chapter 59. Chapter 47 governing the disposition of stolen property also specifically provides for the disposition according to Article 18.17 of stolen property not claimed within 30 days from the conviction date.11


It can be difficult to categorize the different items in an evidence room with any degree of certainty because the categories frequently overlap. In addition, the evidence from a single case may qualify for disposition under more than one statute, making it more complicated to dispose of the items with a single action. While larger law enforcement agencies do just fine with their evidence dispositions, many smaller agencies look to their prosecutors’ office for help. If we take time to become familiar with the statutes that dictate the procedures, we all should be able to teach them the method that will fit best with prosecutions. ✤


1 It looks like the legislature theoretically intended for there to be some sort of accounting system for seized weapons. Code of Criminal Procedure Article 18.19(c) gives the responsibility to notify the person found in possession of the weapon to the same magistrate to whom the seizure was reported when there will be no prosecution or conviction.
2 Prohibited weapons are also addressed in Code of Criminal Procedure Article 18.18, but the timeframe during which the court entering the judgment of conviction is supposed to order the destruction or forfeiture under that statute is not later than the 30th day after the final conviction of a person for an offense involving a prohibited weapon.
3 Tex. Code Crim. Proc. art. 18.18(a).
4 Tex. Code Crim. Proc. art. 18.18(b).
5 Tex. Code Crim. Proc. art. 18.18(f).
6 Tex. Code Crim. Proc. art.  47.04.
7 Tex. Health & Safety Code §481.159(a).
8  Tex. Health & Safety Code §481.159(i).
9  Tex. Health & Safety Code §481.159(b).
10 Tex. Code Crim. Proc. art. 18.18(a).
11 Tex. Code Crim. Proc. art.  47.06.

Editor’s note: The last of this series of articles will discuss the need for a court order of destruction.