Tex. Code Crim. Proc. art. 38.42

Current with legislation from the 2023 Regular and Special Sessions signed by the Governor as of November 21, 2023.

Section 38.42 - Chain of Custody Affidavit

Sec. 1. A chain of custody affidavit that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the chain of custody of physical evidence without the necessity of any person in the chain of custody personally appearing in court.

Sec. 2. This article does not limit the right of a party to summon a witness or to introduce admissible evidence relevant to the chain of custody.

Sec. 3. A chain of custody affidavit under this article must contain the following information stated under oath:

(1) the affiant's name and address;

(2) a description of the item of evidence and its container, if any, obtained by the affiant;

(3) the name of the affiant's employer on the date the affiant obtained custody of the physical evidence;

(4) the date and method of receipt and the name of the person from whom or location from which the item of physical evidence was received;

(5) the date and method of transfer and the name of the person to whom or location to which the item of physical evidence was transferred; and

(6) a statement that the item of evidence was transferred in essentially the same condition as received except for any minor change resulting from field or laboratory testing procedures.

Sec. 4. Not later than the 20th day before the trial begins in a proceeding in which a chain of custody affidavit under this article is to be introduced, the affidavit must be filed with the clerk of the court and a copy must be provided by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the opposing party. The affidavit is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the affidavit with the clerk of the court and provides a copy of the objection by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the offering party.

Sec. 5. A chain of custody affidavit is sufficient for purposes of this article if it uses the following form or if it otherwise substantially complies with this article:

CHAIN OF CUSTODY AFFIDAVIT

BEFORE ME, the undersigned authority, personally appeared ______________________________, who being by me duly sworn, stated as follows:

My name is __________. I am of sound mind, over the age of 18 years, capable of making this affidavit, and personally acquainted with the facts stated in this affidavit.

My address is __________.

On the ___ day of __________, 20___, I was employed by ___________.

On that date, I came into possession of the physical evidence described as follows: (description of evidence)

I received the physical evidence from __________ (name of person or description of location) on the ___ day of __________, 20___, by ___________ (method of receipt).

This physical evidence was in a container described and marked as follows: (description of container)

I transferred the physical evidence to __________ (name of person or description of location) on the ___ day of __________, 20___, by ___________ (method of delivery).

During the time that the physical evidence was in my custody, I did not make any changes or alterations to the condition of the physical evidence except for those resulting from field or laboratory testing procedures, and the physical evidence or a representative sample of the physical evidence was transferred in essentially the same condition as received.

__________

Affiant

SWORN TO AND SUBSCRIBED before me on the ___ day of __________, 20___.

__________

Notary Public, State of Texas

Tex. Code Crim. Proc. § 38.42

Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 78,Sec. 5, eff. 5/18/2013.

Added by Acts 2003, 78th Leg., ch. 923, Sec. 1, eff. 9/1/2003.