Texas 2011 - 82nd Regular

Texas House Bill HB219 Compare Versions

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1	1	82R471 GCB-D
2	2	By: Gallego H.B. No. 219
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the electronic recording and admissibility of certain
8	8	custodial interrogations.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 2, Code of Criminal Procedure, is
11	11	amended by adding Article 2.31 to read as follows:
12	12	Art. 2.31. ELECTRONIC RECORDING OF CUSTODIAL
13	13	INTERROGATIONS. (a) In this article:
14	14	(1) "Custodial interrogation" means any investigative
15	15	questioning, other than routine questions associated with booking,
16	16	by a peace officer during which:
17	17	(A) a reasonable person in the position of the
18	18	person being interrogated would consider himself or herself to be
19	19	in custody; and
20	20	(B) a question is asked that is reasonably likely
21	21	to elicit an incriminating response.
22	22	(2) "Law enforcement agency" means an agency of the
23	23	state, or of a county, municipality, or other political subdivision
24	24	of this state, that employs peace officers who, in the routine
25	25	performance of the officers' duties, conduct custodial
26	26	interrogations of individuals suspected of committing criminal
27	27	offenses.
28	28	(3) "Place of detention" means a police station or
29	29	other building that is a place of operation for a law enforcement
30	30	agency, including a municipal police department or county sheriff's
31	31	department, and is owned or operated by the law enforcement agency
32	32	for the purpose of detaining individuals in connection with the
33	33	suspected violation of a penal law. The term does not include a
34	34	courthouse.
35	35	(b) Unless good cause exists that makes electronic
36	36	recording infeasible, a law enforcement agency shall make a
37	37	complete, contemporaneous, audio or audiovisual electronic
38	38	recording of any custodial interrogation that occurs in a place of
39	39	detention and is of a person suspected of committing or charged with
40	40	the commission of an offense under:
41	41	(1) Section 19.02, Penal Code (murder);
42	42	(2) Section 19.03, Penal Code (capital murder);
43	43	(3) Section 20.03, Penal Code (kidnapping);
44	44	(4) Section 20.04, Penal Code (aggravated
45	45	kidnapping);
46	46	(5) Section 21.02, Penal Code (continuous sexual abuse
47	47	of young child or children);
48	48	(6) Section 21.11, Penal Code (indecency with a
49	49	child);
50	50	(7) Section 21.12, Penal Code (improper relationship
51	51	between educator and student);
52	52	(8) Section 22.011, Penal Code (sexual assault);
53	53	(9) Section 22.021, Penal Code (aggravated sexual
54	54	assault); or
55	55	(10) Section 43.25, Penal Code (sexual performance by
56	56	a child).
57	57	(c) For purposes of Subsection (b), an electronic recording
58	58	of a custodial interrogation is complete only if the recording
59	59	begins at or before the time the person being interrogated receives
60	60	a warning described by Section 2(a), Article 38.22, and continues,
61	61	without interruption, until the time the interrogation ceases.
62	62	(d) For purposes of Subsection (b), good cause that makes
63	63	electronic recording infeasible includes the following:
64	64	(1) the person being interrogated refused to respond
65	65	or cooperate in a custodial interrogation at which an audio or
66	66	audiovisual recording was made, provided that:
67	67	(A) a contemporaneous recording of the refusal
68	68	was made; or
69	69	(B) the peace officer or agent of the law
70	70	enforcement agency conducting the interrogation attempted, in good
71	71	faith, to record the person's refusal but the person was unwilling
72	72	to have the refusal recorded, and the peace officer or agent
73	73	contemporaneously, in writing, documented the refusal;
74	74	(2) the statement was not made exclusively as the
75	75	result of a custodial interrogation, including a statement that was
76	76	made spontaneously by the accused and not in response to a question
77	77	by a peace officer;
78	78	(3) the peace officer or agent of the law enforcement
79	79	agency conducting the interrogation attempted, in good faith, to
80	80	record the interrogation but the recording equipment did not
81	81	function, the officer or agent inadvertently operated the equipment
82	82	incorrectly, or the equipment malfunctioned or stopped operating
83	83	without the knowledge of the officer or agent;
84	84	(4) exigent public safety concerns prevented or
85	85	rendered infeasible the making of an audio or audiovisual recording
86	86	of the statement; or
87	87	(5) the peace officer or agent of the law enforcement
88	88	agency conducting the interrogation reasonably believed at the time
89	89	the interrogation commenced that the person being interrogated was
90	90	not taken into custody for or being interrogated concerning the
91	91	commission of an offense listed in Subsection (b).
92	92	(e) A law enforcement agency shall preserve an electronic
93	93	recording described by Subsection (b) until the later of the date on
94	94	which:
95	95	(1) any conviction for an offense that is the subject
96	96	of the interrogation or that results from the interrogation is
97	97	final, all direct appeals of the case are exhausted, and the time to
98	98	file a petition for a writ of habeas corpus has expired; or
99	99	(2) the prosecution of the offense that is the subject
100	100	of the interrogation or that arises from the interrogation is
101	101	barred by law.
102	102	(f) The attorney representing the state shall provide to the
103	103	defendant, in a timely manner and not later than the 60th day before
104	104	the date the trial begins, a copy of an electronic recording
105	105	described by Subsection (b).
106	106	(g) A recording of a custodial interrogation that complies
107	107	with this section is exempt from public disclosure except as
108	108	provided by Section 552.108, Government Code.
109	109	SECTION 2. Chapter 38, Code of Criminal Procedure, is
110	110	amended by adding Article 38.24 to read as follows:
111	111	Art. 38.24. USE OF CERTAIN EVIDENCE CONCERNING ELECTRONIC
112	112	RECORDING OF CUSTODIAL INTERROGATIONS. (a) Evidence of compliance
113	113	or noncompliance with Article 2.31 concerning the electronic
114	114	recording of a custodial interrogation is relevant and admissible
115	115	before the trier of fact.
116	116	(b) Evidence of compliance with Article 2.31 concerning the
117	117	electronic recording of a custodial interrogation is not a
118	118	condition precedent to the admissibility of a defendant's statement
119	119	under Article 38.23, another provision of this chapter, or another
120	120	law.
121	121	(c) If the statement of a person suspected of committing or
122	122	charged with the commission of an offense listed in Article 2.31(b)
123	123	that is made by the person during a custodial interrogation
124	124	conducted in a place of detention is admitted in evidence during
125	125	trial, and if an electronic recording of the complete interrogation
126	126	is not available, the court:
127	127	(1) if the court is the trier of fact, may consider the
128	128	absence of an electronic recording of the interrogation in
129	129	evaluating the evidence relating to and resulting from the
130	130	interrogation; and
131	131	(2) if the jury is the trier of fact, shall on request
132	132	of the defendant instruct the jury that:
133	133	(A) it is the policy of this state to
134	134	electronically record custodial interrogations of persons
135	135	suspected of having committed an offense listed in Article 2.31(b);
136	136	and
137	137	(B) the jury may consider the absence of an
138	138	electronic recording of the interrogation in evaluating the
139	139	evidence relating to and resulting from the interrogation.
140	140	(d) The court may refuse to give the jury instruction
141	141	described by Subsection (c)(2) if the attorney representing the
142	142	state offers proof satisfactory to the court that:
143	143	(1) good cause, as described by Article 2.31(d),
144	144	existed that made electronic recording of a custodial interrogation
145	145	infeasible; or
146	146	(2) the law enforcement agency that failed to
147	147	electronically record the interrogation acted in good faith at the
148	148	time the agency failed to make the recording.
149	149	SECTION 3. Article 38.24, Code of Criminal Procedure, as
150	150	added by this Act, applies to the use of a statement resulting from
151	151	a custodial interrogation that occurs on or after September 1,
152	152	2012, regardless of whether the criminal offense giving rise to
153	153	that interrogation is committed before, on, or after that date.
154	154	SECTION 4. This Act takes effect September 1, 2011.
155	155	COMMITTEE AMENDMENT NO. 1
156	156	Amend H.B. No. 219 (introduced version) as follows:
157	157	(1) Between pages 2 and 3, insert the following:
158	158	(b-1) If, during a custodial interrogation of an offense
159	159	other than an offense listed in Subsection (b), the person being
160	160	interrogated discloses information that causes the peace officer to
161	161	have reasonable suspicion to believe that the person has committed
162	162	an offense that requires an electronic recording under that
163	163	subsection, the officer may continue the interrogation, and good
164	164	cause exists making electronic recording infeasible, as provided by
165	165	Subsection(d)(5).
166	166	(2) On page 3, lines 4-5, strike ", without interruption,".
167	167	(3) On page 3, line 5, between "ceases" and the underlined
168	168	period, insert the following:
169	169	, except that the recording may contain one or more pauses if
170	170	the pauses occur to:
171	171	(1) ensure that the recording complies with Subsection
172	172	(b-1); or
173	173	(2) accommodate a temporary break from interrogation.
174	174	(4) On page 5, line 5, after the underlined period, insert
175	175	the following:
176	176	Evidence of a pause in the recording is not admissible based
177	177	solely on the existence of the pause..
178	178	Carter