Tampering With or Fabricating Physical Evidence: Texas Penal Code §37.09

The Texas Tampering With or Fabricating Physical Evidence law in the state of Texas makes it illegal to alter, destroy, or conceal anything with the intent to make it less useful as evidence in an investigation or official proceeding that you know is pending or in progress.

In addition to tampering with evidence of an ongoing proceeding or investigation, the offense covers fabricating evidence – making, presenting, or using evidence with knowledge of its falsity with the intent to affect the course or outcome of the investigation or official proceeding – as well altering, destroying, or concealing any evidence that has to do with a crime that has been committed with the intent to make the evidence less useful during a future investigation.

The offense also makes it illegal to fail to report a human corpse if you observed it under circumstances in which it’s apparent that an offense had likely been committed and the police don’t already known about its location.

The Texas legislature codified this criminal offense in Texas Penal Code Section 37.09. The legislature did not update this law in 2023. In fact, this law has not been amended since 2021, when the legislature made a nonsubstantive cross-reference update.

The Penal Code classifies the Texas Tampering With or Fabricating Physical Evidence law under Title 8 “Offenses Against Public Administration,” Chapter 37 “Perjury and Other Falsifications.” Learn more about the Texas offense of Tampering With or Fabricating Physical Evidence below.

What is the current Texas law about Tampering With or Fabricating Physical Evidence?

Texas law currently defines the offense of Tampering With or Fabricating Physical Evidence in Penal Code Section §37.09 as follows:^[1]

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Subsection (d) describes a way to violate this law even when there is no current proceeding or investigation, but when you do know a crime that has been committed, as well as a way to violate the law by failing to report a corpse:

(d) A person commits an offense if the person:

(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense; or

(2) observes a human corpse under circumstances in which a reasonable person would believe that an offense had been committed, knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the corpse, and fails to report the existence of and location of the corpse to a law enforcement agency.

The statute provides an important exception (for attorneys) to the law’s applicability. The statute does not apply if the evidence concealed is privileged or is the work product of the parties to the investigation or official proceeding.^[2]

What is a lesser included to Tampering With or Fabricating Physical Evidence?

I have used the Hindering Proceedings by Disorderly Conduct offense as a lesser-included offense to Tampering with Physical Evidence. It won’t work for every subsection of the offense, but for a subsection (a)(1) or (d)(1) offense, it may be used as a lesser included.

How can I be charged with a Tampering With or Fabricating Physical Evidence offense in Texas?

You can be charged with Tampering With or Fabricating Physical Evidence in Texas if the state’s attorneys believe that each of the elements of 37.09(a) or (d) as described in the section above have been met.

What is the statute of limitation for Tampering With or Fabricating Physical Evidence in Texas?

Misdemeanor level Tampering With or Fabricating Physical Evidence charges have a two-year limitations period.^[3] Felony level offenses have a three-year limitations period.^[4]

What is the penalty for a Texas Tampering With or Fabricating Physical Evidence offense?

If the offense falls under subsection (a) or (d)(1), then a conviction for Tampering With or Fabricating Physical Evidence in Texas is punished as a Felony of the Third Degree,^[5] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 10 years.

If the offense falls under subsection (a) or (d)(1), and the thing altered or destroyed is a human corpse, then a conviction for Tampering With or Fabricating Physical Evidence in Texas is punished as a Felony of the Second Degree,^[6] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 20 years.

If the offense is a subsection (d)(2) violation (failing to report a human corpse), then a conviction is punishable as a Class A misdemeanor,^[7] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year.

Can you get probation for Tampering With or Fabricating Physical Evidence in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Tampering With or Fabricating Physical Evidence, and judges are also allowed to accept deferred adjudication plea deals.^[8]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[9] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[10]

What level of crime is Tampering With or Fabricating Physical Evidence in Texas?

The Penal Code classifies Tampering With or Fabricating Physical Evidence as a Class A misdemeanor, second degree felony, or third degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §37.09. This law is current as of 2024.^2. Texas Penal Code §37.09(b)^3. Code of Criminal Procedure 12.02(a)^4. See Code of Criminal Procedure 12.01(9)^5. Texas Penal Code §37.09(c)^6. Texas Penal Code §37.09(c)^7. Texas Penal Code §37.09(c)^8. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^9. Art. 42A.053(c), Texas Code of Criminal Procedure^10. Art. 42A.054(b), Texas Code of Criminal Procedure