83R1558 GCB-D
By: Canales H.B. No. 1096
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 Articles 2.32 and 2.33 to read as follows:
Art. 2.32. 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 the state, authorized by law to employ peace officers described
by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8), Article
2.12.
(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) A law enforcement agency qualified under Article 2.33 to
conduct a custodial interrogation of the offense 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 20A.02, Penal Code (trafficking of
persons);
(6) Section 20A.03, Penal Code (continuous
trafficking of persons);
(7) Section 21.02, Penal Code (continuous sexual abuse
of young child or children);
(8) Section 21.11, Penal Code (indecency with a
child);
(9) Section 21.12, Penal Code (improper relationship
between educator and student);
(10) Section 22.011, Penal Code (sexual assault);
(11) Section 22.021, Penal Code (aggravated sexual
assault); or
(12) 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
until the time the interrogation ceases.
(d) A recording of a custodial interrogation that complies
with this article is exempt from public disclosure except as
provided by Section 552.108, Government Code.
Art. 2.33. LAW ENFORCEMENT AGENCIES QUALIFIED TO CONDUCT
CERTAIN CUSTODIAL INTERROGATIONS. Only a law enforcement agency
that employs peace officers described by Subdivision (1), (2), (3),
(4), (5), (6), (7), or (8), Article 2.12, is qualified to conduct a
custodial interrogation of an individual suspected of committing an
offense listed in Article 2.32(b).
SECTION 2. Section 1, Article 38.22, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. In this article:
(1) "Electronic recording" means an audio or
audiovisual electronic recording of a custodial interrogation that
begins at or before the time the person being interrogated receives
a warning described by Section 2(a) and continues until the time the
interrogation ceases.
(2) "Written [, a written] statement" [of an accused]
means a statement of an accused signed by the accused or a statement
made by the accused in the accused's [his] own handwriting or, if
the accused is unable to write, a statement bearing the accused's
[his] mark, when the mark has been witnessed by a person other than
a peace officer.
SECTION 3. Sections 3(a) and (b), Article 38.22, Code of
Criminal Procedure, are amended to read as follows:
(a) Except as provided by Section 9, no oral, sign language,
or written statement made as a result of a custodial interrogation
of a person accused of an offense listed in Article 2.32(b) is
admissible against the accused in a criminal proceeding, and no
[No] oral or sign language statement made as a result of a custodial
interrogation of a person [of an] accused of any other offense is
[made as a result of custodial interrogation 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
the custodial interrogation [statement];
(2) after being [prior to the statement but during the
recording the accused is] given the warning described by Section
2(a), [in Subsection (a) of Section 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 accurate and has not been 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 [any statement made by an
accused during] a custodial interrogation must be preserved until
such time as the defendant's conviction for any offense relating
thereto is final, all direct appeals therefrom are exhausted, or
the prosecution of such offenses is barred by law.
SECTION 4. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 9 to read as follows:
Sec. 9. An oral, sign language, or written statement of an
accused made as a result of a custodial interrogation is admissible
without an electronic recording otherwise required by Section 3(a)
if the attorney introducing the statement shows good cause for the
lack of the recording. For purposes of this section, "good cause"
includes:
(1) the accused refused to respond to questioning or
cooperate in a custodial interrogation of which an electronic
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 accused's refusal but the accused 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 electronic recording of the
custodial interrogation; 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 accused interrogated was not
taken into custody for or being interrogated concerning the
commission of an offense listed in Article 2.32(b).
SECTION 5. The changes in law made by this Act apply to the
use of a statement made as a result of a custodial interrogation
that occurs on or after the effective date of this Act, regardless
of whether the criminal offense giving rise to that interrogation
is committed before, on, or after that date.
SECTION 6. This Act takes effect September 1, 2013.