85R9733 MAW-F
By: Smithee H.B. No. 3133
A BILL TO BE ENTITLED
AN ACT
relating to the use of in-custody informant testimony in a criminal
trial.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 38.075, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.075. [CORROBORATION OF CERTAIN] TESTIMONY OF
IN-CUSTODY INFORMANT WITNESS [REQUIRED].
Sec. 1. DEFINITIONS. In this article:
(1) "Attorney representing the state" means a district
attorney, a criminal district attorney, or a county attorney with
criminal jurisdiction.
(2) "Benefit" means any deal, payment, leniency,
inducement, or other advantage that is offered or provided to an
in-custody informant in exchange for testimony, including:
(A) leniency in any criminal case or in a
community supervision or parole matter, including a decision not to
make an arrest or file charges with respect to an offense, a
decision to reduce the number or severity of charges, or a decision
to reduce a sentence;
(B) money;
(C) assistance with a change in immigration
status;
(D) in-kind benefits such as food, housing, or
travel;
(E) in-custody benefits such as visiting
privileges, transfer to better living conditions, or enhanced
access to food, entertainment, or other amenities; and
(F) any benefit that is conferred on a third
party and that results directly or indirectly from the in-custody
informant's testimony.
(3) "Correctional facility" has the meaning assigned
by Section 1.07, Penal Code.
(4) "In-custody informant" means a person to whom a
defendant makes a statement against the defendant's interest while
the person is imprisoned or confined in the same correctional
facility as the defendant.
(5) "In-custody informant index" means a centralized
index that includes information and records related to in-custody
informants who may or may not be used as witnesses in criminal
trials.
Sec. 2. MAINTAINING AND DISCLOSING IN-CUSTODY INFORMANT
INFORMATION. (a) Each attorney representing the state shall adopt
and implement a detailed written policy regarding the creation and
maintenance of an in-custody informant index.
(b) The policy must require that information and records
concerning cases in which an in-custody informant testified or
offered to testify are maintained in the in-custody informant
index, including, at a minimum, the following:
(1) a summary of the informant's testimony and, if
available, a copy of the testimony;
(2) any benefit offered or provided to the informant;
(3) whether the informant has at any time changed the
informant's statement or testimony regarding a statement allegedly
made by the defendant;
(4) the complete criminal history of the informant,
including:
(A) any pending charges or investigations in
which the informant is a suspect; and
(B) evidence of any prior offense committed by
the informant, regardless of whether the offense resulted in
conviction; and
(5) any other information relevant to the credibility
of the informant, including any history of mental illness or drug or
alcohol abuse.
(c) The policy must require that any information or records
maintained under Subsection (b) relating to an in-custody informant
in the defendant's case be disclosed to the defendant and the
defendant's attorney.
Sec. 3. PRETRIAL RELIABILITY HEARING. The testimony of an
in-custody informant is not admissible against a defendant in a
criminal trial, whether offered in the guilt or innocence phase or
the punishment phase of the trial, unless:
(1) on or before the 14th day before the date the trial
begins, the attorney representing the state:
(A) notifies the defendant of:
(i) the state's intention to offer the
testimony; and
(ii) the name of the informant; and
(B) provides the defendant with a written summary
of the testimony to be offered and a copy of all prior written,
oral, or recorded statements of the informant concerning the
defendant;
(2) the judge finds, in a hearing conducted outside
the presence of the jury, that the testimony of the informant is
reliable after considering relevant factors, including:
(A) any benefit offered or provided to the
informant;
(B) the time, date, location, and substance of:
(i) any statement allegedly made by the
defendant to the informant; and
(ii) any informant statement that was given
to a law enforcement agency and that implicates the defendant in the
offense charged;
(C) whether the informant has at any time changed
the informant's statement or testimony regarding a statement
allegedly made by the defendant;
(D) the complete criminal history of the
informant, including:
(i) any pending charges or investigations
in which the informant is a suspect; and
(ii) evidence of any prior offense
committed by the informant, regardless of whether the offense
resulted in conviction;
(E) previous prosecutions in which the informant
testified or offered to testify, and any benefits offered or
provided to the informant; and
(F) any other information relevant to the
credibility of the informant, including any history of mental
illness or drug or alcohol abuse; and
(3) the testimony is otherwise admissible under the
Texas Rules of Evidence.
Sec. 4. ADMISSIBILITY OF PRIOR OFFENSES. Notwithstanding
Rule 609, Texas Rules of Evidence, if testimony of an in-custody
informant is admitted at trial, evidence of prior offenses
committed by the informant, regardless of whether the informant was
convicted, may be admitted for the purpose of impeachment.
Sec. 5. JURY INSTRUCTION. If testimony of an in-custody
informant is admitted at trial, on request of the defendant, the
court may instruct the jury to:
(1) examine and weigh the testimony of the informant
with greater care and scrutiny than the testimony of other
witnesses; and
(2) consider the factors listed in Section 3(2) in
assessing the reliability of the testimony.
Sec. 6. CORROBORATION REQUIRED. (a) A defendant may not be
convicted of an offense on the testimony of an in-custody informant
[a person to whom the defendant made a statement against the
defendant's interest during a time when the person was imprisoned
or confined in the same correctional facility as the defendant]
unless the testimony is corroborated by other evidence tending to
connect the defendant with the offense committed. [In this
subsection, "correctional facility" has the meaning assigned by
Section 1.07, Penal Code.]
(b) Corroboration is not sufficient for the purposes of this
section [article] if the corroboration only shows that the offense
was committed.
SECTION 2. The change in law made by this Act applies to the
admissibility of evidence in a criminal proceeding that commences
on or after the effective date of this Act. The admissibility of
evidence in a criminal proceeding that commences before the
effective date of this Act is governed by the law in effect on the
date the proceeding commenced, and the former law is continued in
effect for that purpose.
SECTION 3. Each attorney representing the state shall adopt
and implement the written policy required by Section 2, Article
38.075, Code of Criminal Procedure, as added by this Act, not later
than January 1, 2018.
SECTION 4. This Act takes effect September 1, 2017.