By: West, et al. S.B. No. 1253
(Smithee)
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) "Electronic recording" means an audiovisual
electronic recording, or an audio recording if an audiovisual
electronic recording is unavailable, that is authentic, accurate,
and unaltered.
(2) "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.
(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 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 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:
(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 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 an offense listed in Subsection (b).
(e) A recording of a custodial interrogation that complies
with this article is exempt from public disclosure as provided by
Section 552.108, Government Code.
SECTION 2. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 9 to read as follows:
Sec. 9. Notwithstanding any other provision of this
article, no oral, sign language, or written statement that is made
by a person accused of an offense listed in Article 2.32(b) and made
as a result of a custodial interrogation occurring in a place of
detention, as that term is defined by Article 2.32, is admissible
against the accused in a criminal proceeding unless:
(1) an electronic recording was made of the statement,
as required by Article 2.32(b); or
(2) 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.
SECTION 3. Section 9, Article 38.22, 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
March 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.