85R1936 MEW-D
By: West S.B. No. 1253
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) "Law enforcement agency" means a governmental
agency authorized by law to employ peace officers.
(2) "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 individuals in connection with the
suspected violation of a penal law. The term does not include a
courthouse.
(b) A law enforcement agency of the state or of a
municipality, county, or other political subdivision of the state
shall make a complete, contemporaneous, audio or audiovisual
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
begins at or before the time the person being interrogated receives
a warning described by Section 2(a), Article 38.22, and continues
until the time the interrogation ceases.
(d) 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.
(e) Evidence from a custodial interrogation conducted by a
federal law enforcement agency or a law enforcement agency of
another state is not admissible in a criminal proceeding unless the
interrogation complied with that agency's custodial interrogation
procedures.
SECTION 2. Section 1, Article 38.22, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. In this article:
(1) "Electronic recording" means an audio or
audiovisual electronic recording of a custodial interrogation that
begins at or before the time the person being interrogated receives
a warning described by Section 2(a) and continues until the time the
interrogation ceases.
(2) "Written statement"[, a written statement of an
accused] means:
(A) [(1)] a statement made by the accused in the
accused's [his] own handwriting; or
(B) [(2)] a statement made in a language the
accused can read or understand that:
(i) [(A)] is signed by the accused; or
(ii) [(B)] bears the mark of the accused,
if the accused is unable to write and the mark is witnessed by a
person other than a peace officer.
SECTION 3. Sections 3(a) and (b), Article 38.22, Code of
Criminal Procedure, are amended to read as follows:
(a) Except as provided by Section 9, an oral, sign language,
or written statement made as a result of a custodial interrogation
of a person accused of an offense listed in Article 2.32(b) is not
admissible against the accused in a criminal proceeding, and an
[No] oral or sign language statement made as a result of a custodial
interrogation of a person [of an] accused of any other offense is
not [made as a result of custodial interrogation shall be]
admissible against the accused in a criminal proceeding, unless:
(1) an electronic recording [, which may include
motion picture, video tape, or other visual recording,] is made of
the custodial interrogation [statement];
(2) after receiving [prior to the statement but during
the recording the accused is given] the warning described by
Section 2(a), [in 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 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 article.
(b) Each [Every] electronic recording of [any statement
made by an accused during] a custodial interrogation must be
preserved until:
(1) [such time as] the defendant's conviction for any
offense relating to the recording [thereto] is final and[,] all
direct appeals from the conviction [therefrom] are exhausted;[,] or
(2) the prosecution of an offense described by
Subdivision (1) [such offenses] is barred by law.
SECTION 4. Article 38.22, Code of Criminal Procedure, is
amended by adding Section 9 to read as follows:
Sec. 9. An oral, sign language, or written statement of an
accused made as a result of a custodial interrogation is admissible
without an electronic recording otherwise required by Section 3(a)
if the attorney introducing the statement shows good cause for the
lack of the recording. For purposes of this section, "good cause"
includes:
(1) the accused refused to respond to questioning or
cooperate in a custodial interrogation of which an electronic
recording was 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 accused's refusal but the accused 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 exclusively 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 or agent of the law enforcement agency conducting
the interrogation;
(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
custodial interrogation; 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 accused interrogated was not
taken into custody for or being interrogated concerning the
commission of an offense listed in Article 2.32(b).
SECTION 5. The changes in law made by this Act apply to the
use of a statement made as a result of a custodial interrogation
that occurs on or after the effective date of this Act, regardless
of whether the offense giving rise to that interrogation is
committed before, on, or after that date.
SECTION 6. This Act takes effect September 1, 2017.