81R168 KCR-F
By: Ellis S.B. No. 116
A BILL TO BE ENTITLED
AN ACT
relating to electronically recording certain interrogations and
the admissibility of certain statements made by a juvenile or a
criminal defendant.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2, Code of Criminal Procedure, is
amended by adding Article 2.31 to read as follows:
Art. 2.31. ELECTRONIC RECORDING OF INTERROGATIONS. (a)
Each law enforcement agency in this state shall provide training
concerning the technological aspects of electronically recording
interrogations to peace officers and other employees of the law
enforcement agency who interrogate criminal defendants or
suspects, including juveniles.
(b) The Department of Public Safety shall adopt rules for
providing funds or electronic recording equipment to law
enforcement agencies in this state for the purpose of recording
interrogations of criminal defendants or suspects, including
juveniles.
SECTION 2. Section 2, Article 38.22, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. (a) No written statement made by an accused as a
result of custodial interrogation is admissible as evidence against
the accused [him] in any criminal proceeding unless:
(1) it is shown on the face of the statement that:
(A) [(a)] the accused, prior to making the
statement, either received from a magistrate the warning provided
in Article 15.17 of this code or received from the person to whom
the statement is made a warning that:
(i) the accused [(1) he] has the right to
remain silent and not make any statement at all and that any
statement the accused [he] makes may be used against the accused
[him] at [his] trial;
(ii) [(2)] any statement the accused [he]
makes may be used as evidence against the accused [him] in court;
(iii) the accused [(3) he] has the right to
have a lawyer present to advise the accused [him] prior to and
during any questioning;
(iv) [(4)] if the accused [he] is unable to
employ a lawyer, the accused [he] has the right to have a lawyer
appointed to advise the accused [him] prior to and during any
questioning; and
(v) the accused [(5) he] has the right to
terminate the interview at any time; and
(B) [(b)] the accused, prior to and during the
making of the statement, knowingly, intelligently, and voluntarily
waived the rights set out in the warning prescribed by Paragraph
(A); and
(2) in the case of a criminal proceeding in which the
accused is charged with a felony, an electronic recording that
complies with the requirements of Section 3(a) is made of the
custodial interrogation resulting in the statement [Subsection (a)
of this section].
(b) Every electronic recording of a custodial
interrogation, if any, resulting in a written statement must be
preserved until such time as:
(1) the defendant's conviction for any offense
relating to the statement is final, all direct appeals of the case
are exhausted, and the time to file a petition for a writ of habeas
corpus has expired; or
(2) the prosecution of the offense is barred by law.
(c) Notwithstanding Subsection (a)(2), a written statement
made by an accused as a result of a custodial interrogation is
admissible as evidence against the accused in a criminal proceeding
if the requirements of Subsection (a)(1) are satisfied with respect
to each portion of the written statement that is to be used as
evidence. This subsection expires September 1, 2012.
SECTION 3. Section 3, Article 38.22, Code of Criminal
Procedure, is amended by amending Subsections (a) and (b) and
adding Subsection (f) to read as follows:
(a) No oral or sign language statement of an accused made as
a result of custodial interrogation is [shall be] admissible
against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion
picture, video tape, or other visual recording, is made of:
(A) the statement; and
(B) in the case of a criminal proceeding in which
the accused is charged with a felony, the custodial interrogation
resulting in the statement;
(2) prior to the statement but during the recording
the accused is given the warning in [Subsection (a) of] Section 2(a)
[2 above] and the accused knowingly, intelligently, and voluntarily
waives any rights set out in the warning;
(3) the recording device was capable of making an
accurate recording, the operator was competent, and the recording
is substantially accurate and has not been intentionally altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the
proceeding, the attorney representing the defendant is provided
with a true, complete, and accurate copy of all recordings of the
defendant made under this article.
(b) Every electronic recording of a custodial interrogation
resulting in an oral or sign language statement, if any, and any
statement made by an accused during a custodial interrogation must
be preserved until such time as:
(1) the defendant's conviction for any offense
relating to the statement [thereto] is final, all direct appeals of
the case [therefrom] are exhausted, and the time to file a petition
requesting a writ of habeas corpus has expired; or
(2) the prosecution of the offense [such offenses] is
barred by law.
(f) Notwithstanding the requirement of Subsection (a)(1)(B)
that in felony cases a recording be made of the custodial
interrogation resulting in the statement, an oral or sign language
statement made by an accused as a result of a custodial
interrogation is admissible as evidence against the accused in a
criminal proceeding if the requirements of Subsection (a) are
otherwise satisfied with respect to each portion of the oral or sign
language statement that is to be used as evidence. This subsection
expires September 1, 2012.
SECTION 4. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 9 to read as follows:
Sec. 9. A recording of a custodial interrogation made under
Section 2(a)(2) or 3(a) is exempt from required public disclosure
under Chapter 552, Government Code.
SECTION 5. Section 51.095, Family Code, is amended by
amending Subsections (a), (c), and (f) and adding Subsections (g),
(h), and (i) to read as follows:
(a) Notwithstanding Section 51.09, the statement of a child
is admissible in evidence in any future proceeding concerning the
matter about which the statement was given if:
(1) the statement is made in writing under a
circumstance described by Subsection (d) and:
(A) the statement shows that the child has at
some time before the making of the statement received from a
magistrate a warning that:
(i) the child may remain silent and not make
any statement at all and that any statement that the child makes may
be used in evidence against the child;
(ii) the child has the right to have an
attorney present to advise the child either prior to any
questioning or during the questioning;
(iii) if the child is unable to employ an
attorney, the child has the right to have an attorney appointed to
counsel with the child before or during any interviews with peace
officers or attorneys representing the state; and
(iv) the child has the right to terminate
the interview at any time;
(B) and:
(i) the statement must be signed in the
presence of a magistrate by the child with no law enforcement
officer or prosecuting attorney present, except that a magistrate
may require a bailiff or a law enforcement officer if a bailiff is
not available to be present if the magistrate determines that the
presence of the bailiff or law enforcement officer is necessary for
the personal safety of the magistrate or other court personnel,
provided that the bailiff or law enforcement officer may not carry a
weapon in the presence of the child; and
(ii) the magistrate must be fully convinced
that the child understands the nature and contents of the statement
and that the child is signing the same voluntarily, and if a
statement is taken, the magistrate must sign a written statement
verifying the foregoing requisites have been met;
(C) the child knowingly, intelligently, and
voluntarily waives these rights before and during the making of the
statement and signs the statement in the presence of a magistrate;
[and]
(D) the magistrate certifies that the magistrate
has had the opportunity to view any recording made under Paragraph
(E), has examined the child independent of any law enforcement
officer or prosecuting attorney, except as required to ensure the
personal safety of the magistrate or other court personnel, and has
determined that the child understands the nature and contents of
the statement and has knowingly, intelligently, and voluntarily
waived these rights; and
(E) in the case of a proceeding in which it is
alleged that the child engaged in conduct violating a penal law of
the grade of felony, the interrogation, if any, of the child
resulting in the statement is recorded by an electronic recording
device, including a device that records images, and:
(i) the recording device is capable of
making an accurate recording, the operator of the device is
competent to use the device, the recording is substantially
accurate, and the recording has not been intentionally altered;
(ii) each voice on the recording is
identified; and
(iii) not later than the 20th day before the
date of the proceeding, the attorney representing the child is
given a complete and accurate copy of each recording of the child
made under this subdivision;
(2) the statement is made orally and the child makes a
statement of facts or circumstances that are found to be true and
tend to establish the child's guilt, such as the finding of secreted
or stolen property, or the instrument with which the child states
the offense was committed;
(3) the statement was res gestae of the delinquent
conduct or the conduct indicating a need for supervision or of the
arrest;
(4) the statement is made:
(A) in open court at the child's adjudication
hearing;
(B) before a grand jury considering a petition,
under Section 53.045, that the child engaged in delinquent conduct;
or
(C) at a preliminary hearing concerning the child
held in compliance with this code, other than at a detention hearing
under Section 54.01; or
(5) subject to Subsection (f), the statement is made
orally under a circumstance described by Subsection (d) and the
statement and, in the case of a proceeding in which it is alleged
that the child engaged in conduct violating a penal law of the grade
of felony, the interrogation, if any, of the child resulting in the
statement are [is] recorded by an electronic recording device,
including a device that records images, and:
(A) before making the statement, the child is
given the warning described by Subdivision (1)(A) by a magistrate,
the warning is a part of the recording, and the child knowingly,
intelligently, and voluntarily waives each right stated in the
warning;
(B) the recording device is capable of making an
accurate recording, the operator of the device is competent to use
the device, the recording is substantially accurate, and the
recording has not been intentionally altered;
(C) each voice on the recording is identified;
and
(D) not later than the 20th day before the date of
the proceeding, the attorney representing the child is given a
complete and accurate copy of each recording of the child made under
this subdivision.
(c) An electronic recording [of a child's statement] made
under Subsection (a)(1) or (a)(5) shall be preserved until all
juvenile or criminal matters relating to any conduct referred to in
the recording [statement] are final, including the exhaustion of
all appeals, or barred from prosecution.
(f) A magistrate who provides the warnings required by
Subsection (a)(5) for a recorded oral statement may, at the time the
warnings are provided, request by speaking on the recording that
the officer return [the child and the recording] to the magistrate
at the conclusion of the process of questioning the child and the
recording and, in the case of a proceeding in which it is alleged
that the child engaged in conduct violating a penal law of the grade
of felony, any recording of any other interrogation of the child
resulting in the oral statement being recorded. The magistrate may
then view the recording or recordings with the child or have the
child view the recording or recordings to enable the magistrate to
determine whether the child's oral statements were given
voluntarily. The magistrate's determination of voluntariness
shall be reduced to writing and signed and dated by the magistrate.
If a magistrate uses the procedure described by this subsection, a
child's oral statement is not admissible unless the magistrate
determines that the statement was given voluntarily.
(g) A recording of an interrogation made under Subsection
(a)(1) or (a)(5) is exempt from required public disclosure under
Chapter 552, Government Code.
(h) Notwithstanding the requirements of Subsections
(a)(1)(E) and (a)(5) that a recording be made of the interrogation
resulting in the statement, a statement that is made in writing or
made orally under a circumstance described by Subsection (d) is
admissible in any future proceeding concerning the matter about
which the statement was given if:
(1) concerning a statement made in writing, the
requirements of Subsections (a)(1)(A)-(D) are satisfied with
respect to each portion of the statement that is to be used as
evidence; or
(2) concerning a statement made orally, the
requirements of Subsection (a)(5) are otherwise satisfied with
respect to each portion of the statement that is to be used as
evidence.
(i) Subsection (h) and this subsection expire September 1,
2012.
SECTION 6. The Department of Public Safety shall begin
adopting rules under Article 2.31(b), Code of Criminal Procedure,
as added by this Act, not later than March 1, 2010.
SECTION 7. Article 38.22, Code of Criminal Procedure, as
amended by this Act, and Section 51.095, Family Code, as amended by
this Act, apply to the admissibility of a written, oral, or sign
language statement that is made on or after the effective date of
this Act. A written, oral, or sign language statement that is made
before the effective date of this Act is governed by the law in
effect at the time that the statement was made, and that law is
continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2009.