Criminal Law
May-June 2009

When is a court order needed to destroy evidence?

The last in a series of three articles on how to destroy unneeded evidence from criminal cases

Jana K. McCown

First Assistant District Attorney in Williamson County

When is a court order required in order to destroy evidence? Which judges may sign the order? Is there a time limit during which the order must be signed? Searching through the assorted statutes governing evidence destruction shows, yet again, that the legislature never intended for police agencies to keep evidence indefinitely. The key to the decision to destroy evidence is to examine when and why it might be helpful to retain evidence. And the answer is definitely not a vague “somebody might need it someday.” That’s a packrat’s answer.

Has the legislature already addressed the potential future need for evidence in the “biological material” retention statute in Article 38.43 of the Code of Criminal Procedure? Actually, I believe so. I have not been able to think of a single additional category of evidence where one could conclusively establish the guilt or innocence of a defendant other than with DNA. I know that DNA isn’t always the smoking gun, but it may come closer than any other category of physical evidence. By requiring an extended period for retention of DNA evidence, our laws have addressed the when and why questions. So why are you keeping that beer can in evidence?

Court order required

If you look at all of the destruction statutes, you may be surprised to find that no court order is required in some of them. Certainly the courts don’t want to be bothered every time some piece of abandoned or unclaimed property is disposed of. Frankly, neither do you. Remember in the first article of this series when I covered all the kinds of unnecessary items that end up in an evidence room? (Find it online at www.tdcaa .com/node/3894.) They are still there. So let’s look to see when you must obtain a court order before we talk about when you don’t have to get one.


Firearms and other seized weapons. Weapons seized in connection with an offense involving the use of a weapon or under Chapter 46 of the Penal Code (weapons offenses except prohibited weapons and weapons that are stolen property) shall be held by the law enforcement agency making the seizure. If it was not seized pursuant to a search or arrest warrant, an inventory of the seized weapons must be delivered to a magistrate.

If there is a prosecution ending with a conviction or 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 request 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 use by the law enforcement agency or by a county forensic lab 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;
•    the offense was committed in or on the premises of a playground, school, video arcade facility, or youth center; or
•    the court determines based on the defendant’s prior criminal history or 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.

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),1 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, the law enforcement agency may request an order of destruction or forfeiture from any magistrate.

If there is no prosecution or conviction for an offense involving the weapon seized, the magistrate to whom the seizure was reported shall, within the stated time period (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 makes the written request within 61 days of the notification, the magistrate shall order the weapon returned.

If the person does not make a timely written request (within 61 days from the date of notification), 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 the 121 days from the date of notification.


Gambling evidence, prohibited weapons, obscene materials, et al. Article 18.18 of the Code of Criminal Procedure is the statute that deals with items that are generally illegal to possess and should not be returned to the owner. In addition to prohibited weapons, it consists of a jumble of categories including gambling paraphernalia, criminal instruments, obscene devices or material, child pornography, scanning devices or re-encoders, and dog-fighting equipment.2


Prohibited weapons. Prohibited weapons are treated differently from the disposition of other firearms or seized weapons covered by Article 18.19. Texas, more so than many states, respects the rights of gun owners to keep their firearms except in specific situations. Not so for prohibited weapons.

When there is a conviction for an offense involving a prohibited weapon, the court entering the judgment of conviction shall order the prohibited weapon be destroyed or forfeited to the law enforcement agency that initiated the complaint. Notice that the statute says “an offense involving a prohibited weapon,” which presumably means any offense, not just a weapons charge under Penal Code §46.05. If the murder weapon is a sawed-off shotgun (a short barrel firearm), then this statute governs, meaning that the prosecutor in a case involving a prohibited weapon should be thinking about that weapon when negotiating a plea agreement. It should be made clear to the defendant that the weapon will not be returned. Furthermore, the judge should be asked to include a sentence ordering the destruction (or forfeiture) of the prohibited weapon in the judgment.

The statute anticipates that the destruction order by the convicting court will be entered within 30 days. If more than 30 days have passed since sentencing, any magistrate in the county of the offense may enter the order. Notice the short time frame?

If there is no prosecution for the prohibited weapon that has been seized, the law enforcement agency must make a motion “in a timely manner” after the prosecutor informs it in writing that no prosecution will arise (preferably right after notice). There are some additional notice requirements to the person found in possession and an opportunity to appear and show cause before a magistrate why the prohibited weapon should not be destroyed, but the bottom line is that unless that person can show by a preponderance of the evidence that the weapon is not a prohibited weapon and that he is entitled to possess it, destruction is mandatory.3


Other illegal items. What do gambling devices, criminal instruments, obscenity, child pornography, and scanning devices or re-encoders have in common? They are all included in the same statute for destruction. Why? Because when it is illegal in most situations to possess or use something, prosecutors shouldn’t put it back into circulation!

When there is a final conviction4 for the following offenses, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material, child pornography, or scanning device or re-encoder by destroyed or forfeited to the state.5 The offenses include:
•    possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia (Penal Code §47.06);
• offenses involving a criminal instrument (Penal Code §16.01);
• offenses involving an obscene device or material (Penal Code §§43.22-23, 43.25);
•    offenses involving child pornography (Penal Code §43.26);
• offenses involving a scanning device or re-encoder (Bus. & Com. code §§35.60 and 522.001); and
• offense involving dog-fighting (Penal Code §42.10).

If there is no final conviction, the same procedure as that used for prohibited weapons is specified.6 Again, the person found in possession or any person interested in the evidence may appear before the magistrate and show cause why the item should not be destroyed. Unless the item can be proved by a preponderance of the evidence that it is not from a prohibited category, it will be destroyed or forfeited.

Interestingly enough, the statute allows any magistrate in the county to enter a destruction order for prohibited weapons after 30 days, but the same permission is not specifically granted for the remaining categories. Frankly, this is probably an oversight in the statute.


Stolen property. Chapter 47 of the Code of Criminal Procedure governs the disposition of stolen property and any other property acquired in a manner which makes the acquisition a penal offense.vii When an officer seizes property alleged to be stolen, he is supposed to immediately file a schedule of the property and its value with the court having jurisdiction of the case. The officer is also supposed to notify the court of the names and addresses of each party who has a claim to possession of the seized property.8 If the ownership of the stolen property is contested or disputed, the officer with custody of the property shall hold it subject to the order of the proper court.9

This all sounds very logical and organized, but in many counties the “court having jurisdiction of the case” may transfer from a JP or municipal court where a complaint is filed and warrants issued, to a county or district court where the criminal charges will actually be prosecuted. If a criminal action related to the stolen property is not pending, certain judges may hold a hearing to determine the right to possession of the property. This “property hearing” may be done by a district judge, county court judge, statutory county court judge, justice of the peace having jurisdiction as a magistrate, or a municipal judge having jurisdiction in the city where the property is held. In Williamson County, most property hearings are done at the municipal or JP level.

The court that conducts the hearing has three choices:
•    order the property delivered to whomever has the superior right to possession, without conditions;
•    order the property delivered to whomever has the superior right to possession, subject to the condition that the property be made available to the prosecutor if needed for future prosecutions; or
•    award custody of the property to a peace officer pending resolution of any criminal investigation regarding the property.10
If the actual owner can’t be determined, the court shall order the peace officer to:
1.    deliver the property to a government agency for official purposes,
2.    deliver the property to the person designated by a municipality (PDA), county purchasing agent (CPA), or sheriff to be treated like abandoned or unclaimed property, or
3.    destroy the property.

There is no specific time by which the property hearing must occur. Clearly from the statute’s wording, the hearing may even occur before an investigation is complete when charges may be anticipated but have not yet been filed. Most of the time when a true owner is known and not in dispute, law enforcement will return the property to the owner without the necessity of a property hearing. It is only when ownership is uncertain that the officer is required to hold the property subject to a court order.

When there is a trial for theft or any other illegal acquisition of property that is a crime, the trial court shall order the property be restored to the “person appearing by proof to be the owner.” While the case is still pending, the trial judge may, upon hearing, make a written order directing the property to be restored to the true owner.11 Article 47.04 is nearly identical but calls the hearing an examining trial and, upon motion by the state, authorizes the court to make a written order directing the property be restored subject to the condition that it be made available to the state or by order of any court with jurisdiction over the offense to be used as evidence.

If the prosecuting attorney gives written consent, any magistrate having jurisdiction in the county where the case is pending may hold a hearing to determine the right to possession of property subject to the Certificate of Title Act found in Chapter 501 of the Transportation code. If (stolen) property is not claimed within 30 days from the conviction, it is treated like abandoned or unclaimed property.12

Court order optional


Biological material evidence. Although Article 38.43 of the Code of Criminal Procedure requires that the convicting court be notified when the decision to destroy evidence containing biological material is made, there is no follow-up requirement that the court enter an order actually permitting the destruction. My recommendation still stands, however, that prosecutors apply for an order authorizing the destruction once the defendant and last attorney have been notified and the applicable time periods have passed without any objection being received. It’s a simple process to tell the judge that notice has been properly given and no objection has been received. It takes away the appearance that the prosecutor, clerk, or law enforcement agency has unilaterally decided to destroy evidence, thereby avoiding accusations of improper destruction.


Controlled substance plants. A controlled substance plant is a plant from which a Schedule I or II controlled substance may be derived. Marijuana is a controlled substance plant. §481.152 of the Health and Safety Code specifically authorizes the seizure and forfeiture to the state without the necessity of a court order if the plants are wild growth, the owners or cultivators are unknown, or the plants have been planted, cultivated, or harvested in violation of the Texas Controlled Substance Act.13 Don’t ask me why, but unharvested peyote growing in its natural state is excepted from summary forfeiture.14

If a controlled substance plant is seized and summarily forfeited, the department or a peace officer may destroy the controlled substance plants under the rules of the department and without a court order or a court order for destruction (or other disposition) may be obtained under §481.159.15
3Controlled substance property.16 Controlled substance property is defined to include controlled substances, mixtures containing a controlled substance, controlled substance analogue, counterfeit controlled substances, drug paraphernalia, chemical precursors, chemical lab apparatus, and raw materials.17 Marijuana is also a controlled substance.18 The Health and Safety Code authorizes the forfeiture without a court order and/or the destruction without a court order according to the rules of the department. However, as in §481.152, a court order may be obtained pursuant to §481.159 for the disposition/ destruction of controlled substance property.

For both controlled substance property and plants, there is no specific time frame set out for the destruction, nor does it specify which courts may issue the optional court order. This may differ from jurisdiction to jurisdiction. In Williamson County, the justice of the peace courts are generally used in all drug cases except those involving a trial.

No order required


Abandoned or unclaimed property.19 The category described as “abandoned or unclaimed property” encompasses a wide range of property that may end up in the evidence room. Law enforcement acts as a repository for all sorts of abandoned vehicles, bicycles, found weapons, and assorted items that are turned in because the owner is unknown. The statute does not cover the following:
• contraband subject to forfeiture under Chapter 59,
•    whiskey, wine, and beer,
• property that has been ordered returned by a magistrate to the person entitled to possession, or
• property held as evidence (i.e., property related to a charge that has been filed or a case under investigation).

When this type of property remains unclaimed for 30 days,20 it should be delivered to either 1) the PDM if seized by a municipal peace officer or 2) the CPA where it was seized if seized by any other peace officer. If there is no county purchasing agent, the property shall be disposed by the sheriff.21

If the owner is known, notice of the intended disposition shall be sent by certified mail to the last known address of the owner, giving the owner 90 days to claim it. If the owner or address is unknown and the value is $500 or more, the PDM, CPA, or sheriff must publish in a newspaper and allow 90 days to claim from the date of the publication. If unclaimed, there must be an additional notice published in the newspaper 14 days before the date of sale. If the owner or address is unknown and the value is less than $500, the PDM, CPA, or sheriff may sell or donate the property. No notice by publication is required.

If all the provisions of the statute have been met and the property is scheduled for disposition, the law enforcement agency that originally seized the property may request and have the property converted to agency use. The statute does not specify to whom that request should be directed, but in the absence of specific instructions, it appears that the request may be simply directed to the PDM or the CPA. The property may also be transferred to another law enforcement agency for that agency’s use. When the property is no longer useful, it should be returned to the PDM, CPA or sheriff for disposition.


Excess quantities of drugs.22 When a large seizure of controlled substance property or plants is made, the law enforcement agency which made the seizure is authorized to destroy the excess quantity before the case is disposed and without obtaining a court order. There are very specific steps which must be followed to preserve a sufficient quantity for testing and for discovery. These steps were discussed in a previous article and will not be repeated here.

Included in the excess quantity statute you will also find the authorization to destroy without a court order items which consist of hazardous waste, residuals, contaminated glassware, associated equipment, or by-products for illicit chemical laboratories. When the items either created a health or environmental hazard or are not capable of being safely stored, they may be forfeited and destroyed rather than placed into evidence.


Explosive weapons and chemical dispensing devices. In CCP Article 18.181, the legislature clearly recognizes the inability of certain types of evidence to be safely stored and preserved. Without requiring a court order or any other type of intervention, law enforcement is authorized to destroy explosive weapons after steps are taken to photograph and document the weapon prior to destruction and the effects of any destruction. Because the destruction is allowed prior to any criminal case conclusion, the statute specifically makes admissible representative samples, photographs, and records made of the destruction process in lieu of the actual weapon itself.

The moral of this story

Having made this journey through the land of evidence destruction, I have come back to my initial conclusions. The evidence destruction statutes are scattered all over, overlap in some instances, are hard to understand, and are occasionally vague. There are too many courts involved and not enough direction for a prosecutor or an evidence technician to ever be absolutely sure that they are doing it correctly. The time schedules are inconsistent depending upon who must be notified and what manner of notification is required.

There is some good news, however. Somewhere along the way somebody gave some thought to whether and when evidence in a criminal case should be released, returned, or destroyed. While they may not have gotten it perfect, the underlying concepts are solid. Evidence is useful only for a specific case and for a finite amount of time. When the investigation and prosecution are concluded, the evidence should be disposed of once any applicable statute mandating retention has been complied with fully. Let’s be careful out there! ✤


1 The Texas Parks & Wildlife Code also allows a weapon to be forfeited or destroyed when there is a conviction for certain Parks & Wildlife Code offenses. Tex. Parks & Wildlife §§61.0221 and 62.017.
2 Dog fighting equipment includes the dogs  which may be forfeited or destroyed. If destruction is necessary, it must be performed by a veterinarian licensed in Texas or by trained personnel in an animal shelter or humane society if not vet is available. Tex. Code Crim. Proc. Art. 18.18(a).
3 Tex. Code Crim. Proc. Art. 18.18(b-e).
4 Deferred adjudication is not a final conviction for purposes of this section.
5 Tex. Code Crim. Proc. Art. 18.18(a).
6 Tex. Code Crim. Proc. Art. 18.18(b-e).
7 Tex. Code Crim. Proc. Art. 47.11.
8 Tex. Code Crim. Proc. Art. 47.03.
9 Tex. Code Crim. Proc. Art. 47.01. Note: Property governed by Chapter 371 of the Finance Code must be held regardless of whether ownership is disputed.
10 Tex. Code Crim. Proc. Art. 47.01A.
11 Tex. Code Crim. Proc. Art. 47.02.
12 Tex. Code Crim. Proc. Art. 47.06.
13 Tex. Health & Safety Code §481.
14 Tex. Health & Safety Code §481.152(b).
15 Tex. Health & Safety Code §481.152(d).
16 Tex. Health & Safety Code §481.153.
17 Tex. Health & Safety Code §481.151(1).
18 Marjuana is a Schedule I hallucinogenic substance in the 2009 Controlled Substance schedules as published in the January 2, 2009 issue of the Texas Register. See also dmd/control_subst_sched.shtm.
19 Tex. Code Crim. Proc. Art. 18.17.
20 Although the start date is not specified, the 30 days should begin with the discovery and collection of the abandoned or unclaimed property.
21 Tex. Code Crim. Proc. Art. 18.17(a).
22 Tex. Health & Safety Code §481.160.