How Do I Get Evidence in a Criminal Case Returned to Me?

Full question:

My handgun was stolen and is now in the custody of Denton County Sheriffs dept. Article 56.02 - CRIME VICTIMS' RIGHTS states under # 9 '(9) the right to prompt return of any property of the victim that is held by a law enforcement agency or the attorney for the state as evidence when the property is no longer required for that purpose; I am a legal gun owner and have a CHL. For over 6 months I have been told that I could get my weapon beck as the court case has been finalized. The defendant made a plea bargain and is now in prison for 40 years. I understand there is no appeal on a plea bargain so there will be no future need of the weapon as evidence. How do I get my weapon back?

• Category: Civil Rights
• Date: 04/07/2025
• State: Texas

Answer:

The answer will depend in part on the nature of the remedy you seek. A writ of mandate is an order to a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. The writ is issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. It is also referred to as a writ of mandamus. A person may petition for a writ of mandamus when an official has refused to fulfill a legal obligation, such as ordering an agency to release public records. It is a remedy that is used when there are no other remedies available. It is appropriate to use in situations where an official has failed to carry out a required duty, rather than requiring the official to act in a matter over which s/he has discretion. For example, a decision to deny a building permit for construction with minor or inconsequential variances from code requirements involves discretion, so an appeal would be more suitable as a remedy. However,
one would seek mandamus if the permitting office acknowledged that all requirements had been met, but still refused to issue the permit, as required to do by law. The exercise of administrative discretion is not interfered upon by the court, but it will do so if there has been an illegal exercise of the discretion. There is an illegal exercise of discretion where:

-The order is made without, or in excess of, jurisdiction
-The order is made in bad faith, or
-The authority is influenced by extraneous consideration.

Mandamus is an extraordinary writ, to be issued only where there is:

-A clear legal right in the petitioner to the order sought
-An imperative duty upon the respondent to perform, accompanied by a refusal to do so
-The lack of another adequate remedy; and
-Properly invoked jurisdiction of the court.

The writ of mandamus can also be issued in a mandamus proceeding, apart from any judicial proceeding. Generally, such a petition for a mandamus order is filed to force a judicial or government officer to perform a duty owed to the petitioner.

Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that

(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.

A request for a declaratory judgment may be filed with the court, seeking to have a judicial declaration of the rights of parties involved. A petition for a declaratory judgment asks the court to define the legal relationship between the parties and their rights with respect to the matter before the court. It is used to determine the legal status of a situation, rather than the enforcement of the rights involved. For example, if ownership of the gun is in doubt, a request for a declaratory judgment on ownership might be requested.