85R13885 MEW-F
By: Smithee H.B. No. 3134
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 2.32 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) "Electronic recording" means an audiovisual
electronic recording, or an audio recording if an audiovisual
electronic recording is unavailable, that is an authentic,
accurate, and unaltered record of a custodial interrogation.
(3) "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 persons suspected of committing criminal
offenses.
(4) "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 persons 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 and contemporaneous 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 a felony
offense.
(c) For purposes of Subsection (b), an electronic recording
of a custodial interrogation is complete only if the recording:
(1) begins at or before the time the person being
interrogated enters the area of the place of detention in which the
custodial interrogation will take place or receives a warning
described by Section 2(a), Article 38.22, whichever is earlier; and
(2) 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 electronic
recording was being 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 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
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 a felony offense.
(e) 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).
(f) 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.
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) Unless the attorney
representing the state offers proof satisfactory to the court that
good cause, as described by Article 2.32(d), existed that made
electronic recording of the custodial interrogation infeasible,
evidence of compliance or noncompliance with Article 2.32
concerning the electronic recording of a custodial interrogation
that occurs in a place of detention and is of a person suspected of
committing or charged with the commission of a felony offense:
(1) is relevant and admissible before the trier of
fact; and
(2) may be considered in determining the admissibility
of a defendant's statement under Article 38.22, Article 38.23,
another provision of this chapter, or another law.
(b) If a statement made by a person during a custodial
interrogation described by Subsection (a) 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 committing or charged with the commission of a felony
offense;
(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; and
(C) the jury may draw a negative inference from
the failure to make an electronic recording of an interrogation in
compliance with the law.
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,
2018, 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, 2017.