Is tampering with evidence a felony in Texas?
Yes. Under Penal Code §37.09, altering, destroying or concealing a record, document or thing with intent to impair its value as evidence is a third degree felony, 2 to 10 years. It becomes a second degree felony, 2 to 20 years, where the thing involved is a human corpse. The key element is knowledge: the main offense requires that you knew an investigation or official proceeding was pending or in progress. A separate and often overlooked subsection, §37.09(d)(1), reaches further, requiring only that you knew an offense had been committed.
- This charge is usually an add-on. It arrives alongside the arrest it grew out of, and it is often the most serious count on the indictment.
- It is a third degree felony even where the underlying case is a misdemeanor. Swallowing or throwing a small quantity of drugs during a stop can carry more exposure than the possession itself.
- Two different knowledge requirements. §37.09(a) needs knowledge that an investigation or proceeding was pending or in progress. §37.09(d)(1) needs only knowledge that an offense had been committed, which is a lower bar and a wider net.
- Fabricating is covered too: making, presenting or using something you know to be false, with intent to affect the outcome.
- A human corpse moves it to a second degree felony, and failing to report one you reasonably believe is connected to an offense is a Class A misdemeanor in its own right.
- Privileged material and the parties' work product are expressly outside the section.
- Intent to impair is an element. Panic, reflex and ordinary tidying are not the same thing, and that distinction is where these cases are won.
Almost nobody is arrested for tampering with evidence on its own. It attaches to something else: a traffic stop where something went out of a window, a search where a phone was wiped, a death where a scene was moved. The result is that a case which began as a misdemeanor can end up with a felony count carrying 2 to 10 years attached to a reaction that lasted two seconds. Peter M. Barrett has defended serious state and federal charges in Dallas County since 1994, across more than 150 jury trials, and the case review is free and confidential. This guide sets out what §37.09 requires and where it is contested.
What the State has to prove
§37.09(a) creates two offenses, both of which begin with knowing that an investigation or official proceeding is pending or in progress:
- Tampering. Altering, destroying or concealing any record, document or thing with intent to impair its verity, legibility or availability as evidence in that investigation or proceeding.
- Fabricating. Making, presenting or using any record, document or thing knowing it is false and with intent to affect the course or outcome of the investigation or proceeding.
Read the first element carefully, because it is the one most often assumed rather than proved. The State must show the accused knew an investigation or official proceeding was already pending or under way at the moment of the conduct. Someone who throws something away before any police involvement, with no knowledge of any investigation, has not committed the §37.09(a) offense.
The subsection that closes the gap
That is exactly the gap §37.09(d)(1) fills, and it is the provision defense lawyers see prosecutors fall back on. It makes it an offense to alter, destroy or conceal a record, document or thing with intent to impair its availability as evidence in any subsequent investigation or proceeding, where the person acted knowing that an offense has been committed.
No pending investigation is needed. Knowing an offense happened is enough. The two routes carry the same punishment, so when a case looks defensible on the "pending investigation" element, the charge can simply be re-pleaded under (d)(1). Any defense built only on the absence of an active investigation has to account for that.
Grading
| Conduct | Level | Range |
|---|---|---|
| Tampering or fabricating under §37.09(a), or concealing under (d)(1) | 3rd degree felony | 2 to 10 years |
| The same, where the thing altered, destroyed or concealed is a human corpse | 2nd degree felony | 2 to 20 years |
| Failing to report a human corpse under §37.09(d)(2) | Class A misdemeanor | Up to 1 year, $4,000 fine |
The corpse provision in §37.09(d)(2) is its own offense and worth stating plainly: a person commits it by observing a human corpse in circumstances where a reasonable person would believe an offense had been committed, knowing or having reason to know that law enforcement is unaware of it, and failing to report its existence and location. It punishes silence, not conduct.
What the section does not reach
§37.09(b) puts two categories outside the offense entirely: the section does not apply where the record, document or thing concealed is privileged, or is the work product of the parties to the investigation or proceeding. That protects the ordinary conduct of a defense, and it is the answer where an accusation is really about material held by a lawyer.
There is also a specific defense in §37.09(c-1) covering visual material prohibited under §43.261 destroyed in the manner that section permits.
How the charge actually arises
- During a traffic stop or search. Something is swallowed, thrown or dropped. The quantity is often small enough that the possession charge alone would be a misdemeanor, while the tampering count is a third degree felony. The drug charges guide sets out the possession side.
- Phones and messages. Deleting messages, wiping a handset or resetting an account after learning of an investigation is squarely within "alters, destroys or conceals a record".
- After an incident. Cleaning, moving or disposing of items at a scene, which is also where the corpse provisions come in.
- Documents. Back-dating, altering or creating paperwork during an investigation, which is the fabricating half of the statute and overlaps with the fraud offenses.
Sealing
§37.09 sits in Penal Code chapter 37, which is not among the chapters excluded from the misdemeanor nondisclosure routes in Gov't Code §411.072, §411.073 and §411.0735. Those routes apply to misdemeanors, so they reach the §37.09(d)(2) Class A offense but not the felony versions. For a felony, nondisclosure depends on the separate deferred adjudication provisions and on the conditions in §411.074, which is covered in the expunction and nondisclosure guide.
Where these cases are defended
- Intent to impair. This is an element, and it is not the same as panic. Dropping something, swallowing reflexively or moving an object out of the way is consistent with a dozen states of mind that are not an intent to impair its availability as evidence.
- Knowledge, on whichever route is pleaded. Under (a), did the accused know an investigation or proceeding was pending or in progress at that moment. Under (d)(1), did he know an offense had been committed. Both are provable facts, and both are frequently inferred rather than shown.
- Whether anything was actually impaired. Where the item was recovered, photographed or never existed as the State describes it, the theory of impairment weakens even if the conduct looks bad.
- What the video shows. These allegations rest on brief observations by officers who were doing several things at once. Dash and body camera footage, and the timing of when it starts, decide a lot of them.
- The relationship to the underlying case. If the possession or assault count fails, the tampering count can still stand, so each needs its own defense. That is a reason to treat the add-on as the main charge rather than an afterthought.
- Privilege and work product. Where the material is a lawyer's file, §37.09(b) removes it from the section.
Common questions
What is the punishment for tampering with evidence in Texas?
Tampering or fabricating under Penal Code §37.09(a), and concealing under §37.09(d)(1), are third degree felonies punishable by 2 to 10 years. If the thing altered, destroyed or concealed is a human corpse, the offense is a second degree felony at 2 to 20 years. Failing to report a human corpse under §37.09(d)(2) is a Class A misdemeanor.
Can you be charged with tampering for swallowing drugs during a stop?
Yes, and it is one of the most common ways this charge arises. The State will say you destroyed or concealed the item with intent to impair its availability as evidence, knowing an investigation was in progress. Because the tampering count is a third degree felony, it frequently carries more exposure than the possession charge it grew out of. The defense usually turns on intent and on what the video actually shows.
Does there have to be an investigation already under way?
For the offense in §37.09(a), yes: the State must prove you knew an investigation or official proceeding was pending or in progress. But §37.09(d)(1) covers the same conduct where you merely knew that an offense had been committed, aimed at any subsequent investigation, and it carries the same punishment. So the absence of an active investigation is not a complete answer on its own.
Is deleting text messages tampering with evidence?
It can be. Messages are records, and deleting them is altering or destroying them. Whether it is an offense depends on what you knew at the time and why you did it. Routine deletion before any knowledge of an investigation or offense is not the same as clearing a handset after being told police are looking into something, and the timing is usually recoverable from the device and the account.
What if the evidence was found anyway?
The offense is about the conduct and the intent, not the outcome, so recovery does not automatically defeat the charge. It does matter to the practical case. Where the item was recovered, recorded or never impaired at all, the State's account of what was concealed and what effect it had becomes harder to sustain in front of a jury, and it affects how the case resolves.
Can a tampering with evidence charge be dropped?
It can, and the route is usually the mental state rather than the act. Intent to impair is an element the State must prove, and conduct that looks like concealment is often consistent with reflex, panic or ordinary handling of property. Where the knowledge element is weak on the route pleaded, the charge can also be reduced or resolved alongside the underlying case rather than tried on its own.
What should I do if I am charged with this alongside another offense?
Treat the tampering count as the serious one, because it often is. Do not explain what you did with an item or why, and do not hand over or delete anything on a device once you know an investigation exists. Ask your lawyer to obtain the body and dash camera footage early, since it is the single most important evidence in these cases and retention periods are short. The consultation is free and confidential: (214) 526-0555, answered 24/7 for emergencies.
The law this article describes, at the source.
This page is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.