Can a Texas court order destruction of blood evidence after a DWI case ends?

Plain-English summary

The Harris County District Attorney (the request came from his predecessor) asked the Attorney General two questions about getting rid of old blood evidence: whether the DA's office may petition a district or inferior court to destroy blood seized during the investigation of an intoxication-related offense, and whether those courts have authority to order that destruction. The DA's office knew the statutes governing blood evidence in felony cases, but explained that the vast majority of the samples in Harris County law enforcement's possession came from intoxication-related misdemeanors, most of them in cases that had been concluded or finally resolved. So the opinion treated the question as whether a court can order destruction of blood evidence in misdemeanor cases where final judgment has been entered and all appeals are exhausted.

The opinion answered the court-authority question first. A court has all powers necessary to exercise its jurisdiction, including the power to issue orders and determine essential questions, but without jurisdiction a court has no power to act. A trial court's jurisdiction ends when a case becomes final or is taken to a higher court, so a trial court does not retain jurisdiction over a case that has been finally resolved. A court that no longer has jurisdiction over a case has no authority to order the destruction of evidence in that case, and the opinion found no statutory or common-law cause of action or other authority that would let a court order destruction of evidence in a misdemeanor case over which it otherwise lacks jurisdiction. So a court likely lacks the authority to order destruction of blood evidence in finally resolved misdemeanor cases.

Given that answer, the opinion did not reach the first question about the DA's authority to petition, because petitioning a court for an order it lacks authority to issue would likely be ineffective. The opinion noted that other procedures might be available to destroy the evidence, but because the questions were limited to a court's authority, it did not address those other means. It closed with a caution that prosecutors should always handle evidence in a way that comports with constitutional requirements, citing the federal due-process standard that failing to preserve potentially useful evidence is not a due-process violation absent bad faith, and a Texas decision defining bad faith as an improper motive.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Prosecutors and the requesting DA's office (as the opinion described it): The opinion told the office that a court likely cannot order destruction of blood evidence in a finally resolved misdemeanor case, so it did not reach whether the office could petition for such an order, and it did not address other, non-court means of destroying the evidence.

Judges (as the opinion described it): The opinion described a trial court's jurisdiction as ending when a case becomes final, leaving the court without authority to order destruction of evidence in that case.

Law enforcement holding the samples (as the opinion described it): The opinion noted other procedures might exist to destroy the evidence but did not address them, and it cautioned that handling of evidence must comport with constitutional requirements, referencing the bad-faith standard for failing to preserve evidence.

Common questions

Can a Texas court order blood evidence destroyed after a DWI misdemeanor case is over?
The opinion concluded a court likely cannot, because a trial court's jurisdiction ends when the case is finally resolved, and without jurisdiction it has no authority to order destruction of the evidence.

Why didn't the AG answer whether the DA could petition for destruction?
The opinion explained that petitioning a court for an order it lacks authority to issue would likely be ineffective, so it did not need to reach that question.

Are there other ways to destroy the old blood samples?
The opinion said other procedures might be available, but because the questions were limited to a court's authority, it did not address other means of destroying the evidence.

What should prosecutors keep in mind when handling this evidence?
The opinion cautioned that prosecutors should handle evidence consistent with constitutional requirements, noting that failing to preserve potentially useful evidence is not a due-process violation absent bad faith, which requires an improper motive.

Background and statutory framework

The opinion noted the statutes governing destruction of blood evidence in felony cases (Code of Criminal Procedure article 38.43(a)(2), (d)) but explained those felony procedures did not apply to the misdemeanor samples at issue. Its analysis turned on jurisdiction: Government Code section 21.001(a) gives a court the powers necessary to exercise its jurisdiction (with Garcia v. Dial), but a court without jurisdiction has no power to act (State v. Dunbar; State v. Patrick), and jurisdiction ends when a case becomes final or is taken up (Patrick). It contrasted the limited continuing authority of a court to issue writs of habeas corpus under article 11.01. Finding no other authority for a court to order destruction in a case it no longer has jurisdiction over, the opinion concluded the court likely lacks that authority.

On the constitutional caution, the opinion cited the federal decision Arizona v. Youngblood (no due-process violation for failing to preserve potentially useful evidence absent bad faith by the state) and Ex parte Napper (bad faith requires evidence of an improper motive, such as personal animus or a desire to keep the defendant from useful evidence).

Citations

Cases:

• Garcia v. Dial, 596 S.W.2d 524, 527-28 (Tex. Crim. App. 1980)
• State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009)
• State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002)
• Arizona v. Youngblood, 488 U.S. 51, 58 (1988)
• Ex parte Napper, 322 S.W.3d 202, 238 (Tex. Crim. App. 2010)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 38.43(a)(2), (d) (West Supp. 2012); art. 11.01 (West 2005)
• Tex. Gov't Code Ann. § 21.001(a) (West 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0992
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0992.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 12, 2013

The Honorable Mike Anderson Opinion No. GA-0992
Harris County District Attorney
Criminal Justice Center Re: Authority of certain persons to direct the
1201 Franklin, Suite 600 disposition of blood seized during the
Houston, Texas 77002 investigation of an intoxication-related offense
(RQ-1082-GA)

Dear Mr. Anderson:

Your predecessor asked two questions regarding the proper disposition of evidence in a criminal case:[1]

(1) Does the Harris County District Attorney's Office have the authority to petition a district or inferior court for the destruction of blood seized during the investigation of an intoxication-related offense?

(2) Do district court judges and inferior court judges have the authority to order the destruction of blood seized during the investigation of an intoxication-related offense?

Request Letter at 1. The brief submitted with the request letter indicates that your office is aware of the statutes governing the destruction of blood evidence in felony cases. Brief at 2-3 (citing TEX. CODE CRIM. PROC. ANN. art. 38.43(a)(2), (d) (West Supp. 2012)). The brief states that the vast majority of blood samples currently in the possession of Harris County law enforcement officials were seized in relation to intoxication-related misdemeanor offenses, in which the procedures governing felony cases are inapplicable. Brief at 3. The requestor also states that most of these samples relate to misdemeanor cases that have been "concluded" or "finally resolved." Request Letter at 1; Brief at 3, 5. Accordingly, we understand your questions to concern a court's authority to order the destruction of blood evidence related to misdemeanor cases in which final judgment has been entered and all appeals exhausted.

We begin by addressing the second question, which concerns a court's authority to order the destruction of blood evidence related to a misdemeanor case that has been finally resolved. To begin with, a court has all powers necessary for the exercise of its jurisdiction, including the power to issue writs and orders and "determine all essential questions." TEX. GOV'T CODE ANN. § 21.001(a) (West 2004); Garcia v. Dial, 596 S.W.2d 524, 527-28 (Tex. Crim. App. 1980). Without jurisdiction, however, a court has no power to act. State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009); see also State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002) (holding that "a source of jurisdiction must be found to authorize the trial court's orders"). Jurisdiction ends "when a case becomes final or is taken to a higher court." Patrick, 86 S.W.3d at 596. Therefore, a trial court does not retain jurisdiction over a case that has been finally resolved. A court that no longer has jurisdiction over a case has no authority to issue an order providing for the destruction of evidence in that case. Cf. TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005) (granting trial courts authority to issue writs of habeas corpus to determine whether an inmate is lawfully incarcerated). Furthermore, the request letter does not point to, and we are not aware of, a statutory or common-law cause of action or any other legal authority that would empower a court to order the destruction of evidence related to misdemeanor cases over which the court otherwise lacks jurisdiction. Consequently, we conclude that a court likely lacks the authority to order the destruction of blood evidence related to misdemeanor cases that have been finally resolved. Because petitioning a court for an order the court lacks the authority to issue would likely be ineffective, we need not address the first question concerning the authority of the Harris County District Attorney's Office.

While we conclude that a court does not have the authority to order the destruction of blood evidence collected in a misdemeanor case that is finally resolved, it is possible that other procedures may be used to destroy that evidence. Because your questions are limited to a court's authority to order the destruction of blood evidence, we do not address other potential means of destroying such evidence. Prosecutors should always take care that their handling of evidence in criminal cases comports with constitutional requirements. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that failure to preserve potentially useful evidence was not a denial of due process absent a showing of bad faith on the part of the state); see also Ex parte Napper, 322 S.W.3d 202, 238 (Tex. Crim. App. 2010) (holding that a finding of bad faith must be based on evidence demonstrating an "improper motive, such as personal animus against defendant or a desire to prevent the defendant from obtaining evidence that might be useful").

SUMMARY

A district or inferior court likely does not have authority to order the destruction of blood collected during the investigation of an intoxication-related misdemeanor offense after the underlying case has been finally resolved.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] See Request Letter and Brief from Honorable Patricia R. Lykos, Harris Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Sept. 5, 2012), http://texasattorneygeneral.gov/opin ("Request Letter" & "Brief").