Texas 2017 - 85th Regular

Texas House Bill HB3134 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R13885 MEW-F
2	2	By: Smithee H.B. No. 3134
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 2.32 to read as follows:
12	12	Art. 2.32. 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) "Electronic recording" means an audiovisual
23	23	electronic recording, or an audio recording if an audiovisual
24	24	electronic recording is unavailable, that is an authentic,
25	25	accurate, and unaltered record of a custodial interrogation.
26	26	(3) "Law enforcement agency" means an agency of the
27	27	state, or of a county, municipality, or other political subdivision
28	28	of this state, that employs peace officers who, in the routine
29	29	performance of the officers' duties, conduct custodial
30	30	interrogations of persons suspected of committing criminal
31	31	offenses.
32	32	(4) "Place of detention" means a police station or
33	33	other building that is a place of operation for a law enforcement
34	34	agency, including a municipal police department or county sheriff's
35	35	department, and is owned or operated by the law enforcement agency
36	36	for the purpose of detaining persons in connection with the
37	37	suspected violation of a penal law. The term does not include a
38	38	courthouse.
39	39	(b) Unless good cause exists that makes electronic
40	40	recording infeasible, a law enforcement agency shall make a
41	41	complete and contemporaneous electronic recording of any custodial
42	42	interrogation that occurs in a place of detention and is of a person
43	43	suspected of committing or charged with the commission of a felony
44	44	offense.
45	45	(c) For purposes of Subsection (b), an electronic recording
46	46	of a custodial interrogation is complete only if the recording:
47	47	(1) begins at or before the time the person being
48	48	interrogated enters the area of the place of detention in which the
49	49	custodial interrogation will take place or receives a warning
50	50	described by Section 2(a), Article 38.22, whichever is earlier; and
51	51	(2) continues, without interruption, until the time
52	52	the interrogation ceases.
53	53	(d) For purposes of Subsection (b), good cause that makes
54	54	electronic recording infeasible includes the following:
55	55	(1) the person being interrogated refused to respond
56	56	or cooperate in a custodial interrogation at which an electronic
57	57	recording was being made, provided that:
58	58	(A) a contemporaneous recording of the refusal
59	59	was made; or
60	60	(B) the peace officer or agent of the law
61	61	enforcement agency conducting the interrogation attempted, in good
62	62	faith, to record the person's refusal but the person was unwilling
63	63	to have the refusal recorded, and the peace officer or agent
64	64	contemporaneously, in writing, documented the refusal;
65	65	(2) the statement was not made as the result of a
66	66	custodial interrogation, including a statement that was made
67	67	spontaneously by the accused and not in response to a question by a
68	68	peace officer;
69	69	(3) the peace officer or agent of the law enforcement
70	70	agency conducting the interrogation attempted, in good faith, to
71	71	record the interrogation but the recording equipment did not
72	72	function, the officer or agent inadvertently operated the equipment
73	73	incorrectly, or the equipment malfunctioned or stopped operating
74	74	without the knowledge of the officer or agent;
75	75	(4) exigent public safety concerns prevented or
76	76	rendered infeasible the making of an electronic recording of the
77	77	statement; or
78	78	(5) the peace officer or agent of the law enforcement
79	79	agency conducting the interrogation reasonably believed at the time
80	80	the interrogation commenced that the person being interrogated was
81	81	not taken into custody for or being interrogated concerning the
82	82	commission of a felony offense.
83	83	(e) The attorney representing the state shall provide to the
84	84	defendant, in a timely manner and not later than the 60th day before
85	85	the date the trial begins, a copy of an electronic recording
86	86	described by Subsection (b).
87	87	(f) A recording of a custodial interrogation that complies
88	88	with this article is exempt from public disclosure except as
89	89	provided by Section 552.108, Government Code.
90	90	SECTION 2. Chapter 38, Code of Criminal Procedure, is
91	91	amended by adding Article 38.24 to read as follows:
92	92	Art. 38.24. USE OF CERTAIN EVIDENCE CONCERNING ELECTRONIC
93	93	RECORDING OF CUSTODIAL INTERROGATIONS. (a) Unless the attorney
94	94	representing the state offers proof satisfactory to the court that
95	95	good cause, as described by Article 2.32(d), existed that made
96	96	electronic recording of the custodial interrogation infeasible,
97	97	evidence of compliance or noncompliance with Article 2.32
98	98	concerning the electronic recording of a custodial interrogation
99	99	that occurs in a place of detention and is of a person suspected of
100	100	committing or charged with the commission of a felony offense:
101	101	(1) is relevant and admissible before the trier of
102	102	fact; and
103	103	(2) may be considered in determining the admissibility
104	104	of a defendant's statement under Article 38.22, Article 38.23,
105	105	another provision of this chapter, or another law.
106	106	(b) If a statement made by a person during a custodial
107	107	interrogation described by Subsection (a) is admitted in evidence
108	108	during trial, and if an electronic recording of the complete
109	109	interrogation is not available, the court:
110	110	(1) if the court is the trier of fact, may consider the
111	111	absence of an electronic recording of the interrogation in
112	112	evaluating the evidence relating to and resulting from the
113	113	interrogation; and
114	114	(2) if the jury is the trier of fact, shall on request
115	115	of the defendant instruct the jury that:
116	116	(A) it is the policy of this state to
117	117	electronically record custodial interrogations of persons
118	118	suspected of committing or charged with the commission of a felony
119	119	offense;
120	120	(B) the jury may consider the absence of an
121	121	electronic recording of the interrogation in evaluating the
122	122	evidence relating to and resulting from the interrogation; and
123	123	(C) the jury may draw a negative inference from
124	124	the failure to make an electronic recording of an interrogation in
125	125	compliance with the law.
126	126	SECTION 3. Article 38.24, Code of Criminal Procedure, as
127	127	added by this Act, applies to the use of a statement resulting from
128	128	a custodial interrogation that occurs on or after September 1,
129	129	2018, regardless of whether the criminal offense giving rise to
130	130	that interrogation is committed before, on, or after that date.
131	131	SECTION 4. This Act takes effect September 1, 2017.