82R471 GCB-D
By: Ellis S.B. No. 123
A BILL TO BE ENTITLED
AN ACT
relating to the electronic recording and admissibility of certain
custodial interrogations.
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 CUSTODIAL
INTERROGATIONS. (a) In this article:
(1) "Custodial interrogation" means any investigative
questioning, other than routine questions associated with booking,
by a peace officer during which:
(A) a reasonable person in the position of the
person being interrogated would consider himself or herself to be
in custody; and
(B) a question is asked that is reasonably likely
to elicit an incriminating response.
(2) "Law enforcement agency" means an agency of the
state, or of a county, municipality, or other political subdivision
of this state, that employs peace officers who, in the routine
performance of the officers' duties, conduct custodial
interrogations of individuals suspected of committing criminal
offenses.
(3) "Place of detention" means a police station or
other building that is a place of operation for a law enforcement
agency, including a municipal police department or county sheriff's
department, and is owned or operated by the law enforcement agency
for the purpose of detaining individuals in connection with the
suspected violation of a penal law. The term does not include a
courthouse.
(b) Unless good cause exists that makes electronic
recording infeasible, a law enforcement agency shall make a
complete, contemporaneous, audio or audiovisual electronic
recording of any custodial interrogation that occurs in a place of
detention and is of a person suspected of committing or charged with
the commission of an offense under:
(1) Section 19.02, Penal Code (murder);
(2) Section 19.03, Penal Code (capital murder);
(3) Section 20.03, Penal Code (kidnapping);
(4) Section 20.04, Penal Code (aggravated
kidnapping);
(5) Section 21.02, Penal Code (continuous sexual abuse
of young child or children);
(6) Section 21.11, Penal Code (indecency with a
child);
(7) Section 21.12, Penal Code (improper relationship
between educator and student);
(8) Section 22.011, Penal Code (sexual assault);
(9) Section 22.021, Penal Code (aggravated sexual
assault); or
(10) Section 43.25, Penal Code (sexual performance by
a child).
(c) For purposes of Subsection (b), an electronic recording
of a custodial interrogation is complete only if the recording
begins at or before the time the person being interrogated receives
a warning described by Section 2(a), Article 38.22, and continues,
without interruption, until the time the interrogation ceases.
(d) For purposes of Subsection (b), good cause that makes
electronic recording infeasible includes the following:
(1) the person being interrogated refused to respond
or cooperate in a custodial interrogation at which an audio or
audiovisual recording was made, provided that:
(A) a contemporaneous recording of the refusal
was made; or
(B) the peace officer or agent of the law
enforcement agency conducting the interrogation attempted, in good
faith, to record the person's refusal but the person was unwilling
to have the refusal recorded, and the peace officer or agent
contemporaneously, in writing, documented the refusal;
(2) the statement was not made exclusively as the
result of a custodial interrogation, including a statement that was
made spontaneously by the accused and not in response to a question
by a peace officer;
(3) the peace officer or agent of the law enforcement
agency conducting the interrogation attempted, in good faith, to
record the interrogation but the recording equipment did not
function, the officer or agent inadvertently operated the equipment
incorrectly, or the equipment malfunctioned or stopped operating
without the knowledge of the officer or agent;
(4) exigent public safety concerns prevented or
rendered infeasible the making of an audio or audiovisual recording
of the statement; or
(5) the peace officer or agent of the law enforcement
agency conducting the interrogation reasonably believed at the time
the interrogation commenced that the person being interrogated was
not taken into custody for or being interrogated concerning the
commission of an offense listed in Subsection (b).
(e) A law enforcement agency shall preserve an electronic
recording described by Subsection (b) until the later of the date on
which:
(1) any conviction for an offense that is the subject
of the interrogation or that results from the interrogation 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 that is the subject
of the interrogation or that arises from the interrogation is
barred by law.
(f) The attorney representing the state shall provide to the
defendant, in a timely manner and not later than the 60th day before
the date the trial begins, a copy of an electronic recording
described by Subsection (b).
(g) A recording of a custodial interrogation that complies
with this section is exempt from public disclosure except as
provided by Section 552.108, Government Code.
SECTION 2. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.24 to read as follows:
Art. 38.24. USE OF CERTAIN EVIDENCE CONCERNING ELECTRONIC
RECORDING OF CUSTODIAL INTERROGATIONS. (a) Evidence of compliance
or noncompliance with Article 2.31 concerning the electronic
recording of a custodial interrogation is relevant and admissible
before the trier of fact.
(b) Evidence of compliance with Article 2.31 concerning the
electronic recording of a custodial interrogation is not a
condition precedent to the admissibility of a defendant's statement
under Article 38.23, another provision of this chapter, or another
law.
(c) If the statement of a person suspected of committing or
charged with the commission of an offense listed in Article 2.31(b)
that is made by the person during a custodial interrogation
conducted in a place of detention is admitted in evidence during
trial, and if an electronic recording of the complete interrogation
is not available, the court:
(1) if the court is the trier of fact, may consider the
absence of an electronic recording of the interrogation in
evaluating the evidence relating to and resulting from the
interrogation; and
(2) if the jury is the trier of fact, shall on request
of the defendant instruct the jury that:
(A) it is the policy of this state to
electronically record custodial interrogations of persons
suspected of having committed an offense listed in Article 2.31(b);
and
(B) the jury may consider the absence of an
electronic recording of the interrogation in evaluating the
evidence relating to and resulting from the interrogation.
(d) The court may refuse to give the jury instruction
described by Subsection (c)(2) if the attorney representing the
state offers proof satisfactory to the court that:
(1) good cause, as described by Article 2.31(d),
existed that made electronic recording of a custodial interrogation
infeasible; or
(2) the law enforcement agency that failed to
electronically record the interrogation acted in good faith at the
time the agency failed to make the recording.
SECTION 3. Article 38.24, Code of Criminal Procedure, as
added by this Act, applies to the use of a statement resulting from
a custodial interrogation that occurs on or after September 1,
2012, regardless of whether the criminal offense giving rise to
that interrogation is committed before, on, or after that date.
SECTION 4. This Act takes effect September 1, 2011.