83R8029 MEW-D
By: West S.B. No. 969
A BILL TO BE ENTITLED
AN ACT
relating to the electronic recording and admissibility of certain
statements made by an accused as a result of custodial
interrogation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2, Article 38.22, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. No written statement made by an accused as a result
of custodial interrogation is admissible as evidence against 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) [(1)] he has the right to remain silent
and not make any statement at all and that any statement he makes
may be used against him at his trial;
(ii) [(2)] any statement he makes may be
used as evidence against him in court;
(iii) [(3)] he has the right to have a
lawyer present to advise him prior to and during any questioning;
(iv) [(4)] if he is unable to employ a
lawyer, he has the right to have a lawyer appointed to advise him
prior to and during any questioning; and
(v) [(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)
[Subsection (a)] of this subdivision; and
(2) an electronic recording that complies with the
requirements of Section 3(a) of this article is made of the accused
making the statement [section].
SECTION 2. Sections 3(a) and (e), Article 38.22, Code of
Criminal Procedure, are amended to read as follows:
(a) No oral or sign language statement of an accused made as
a result of custodial interrogation shall be admissible against the
accused in a criminal proceeding unless:
(1) an electronic recording that includes [, which may
include] motion picture, video tape, or other visual recording[,]
is made of the statement;
(2) prior to the statement but during the recording
the accused is given the warning in Subdivision (1)(A) [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 persons who speak or are otherwise visible
[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 subsection [article].
(e) The courts of this state shall strictly construe
Subsection (a) of this section and may not interpret Subsection (a)
as making admissible a statement unless all requirements of the
subsection have been satisfied by the state, except that:
(1) only [voices that are] material persons on a
recording are identified; and
(2) the accused was given the warning in Subdivision
(1)(A) [Subsection (a)] of Section 2 above or its fully effective
equivalent.
SECTION 3. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 3A to read as follows:
Sec. 3A. Each electronic recording of a 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.
SECTION 4. Section 3(b), Article 38.22, Code of Criminal
Procedure, is repealed.
SECTION 5. The change in law made by this Act applies only
to the admissibility of a statement made by an accused on or after
the effective date of this Act. The admissibility of a statement
made by an accused before the effective date of this Act is governed
by the law in effect when the statement was made, and the former law
is continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2013.