87R5564 EAS-D
By: Krause H.B. No. 2631
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. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.0751 to read as follows:
Art. 38.0751. TESTIMONY OF IN-CUSTODY INFORMANT
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 express or implied grant,
promise, or offer of a reduction in sentence, immunity from
prosecution, or other form of leniency or special treatment, made
or given to an in-custody informant in exchange for 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 confined in the same correctional facility as the
defendant.
Sec. 2. APPLICABILITY. This article applies to a
proceeding in the prosecution of an offense under any of the
following provisions of the Penal Code:
(1) Section 19.02 (Murder);
(2) Section 19.03 (Capital Murder);
(3) Section 20.03 (Kidnapping);
(4) Section 20.04 (Aggravated Kidnapping);
(5) Section 21.02 (Continuous Sexual Abuse of Young
Child or Children);
(6) Section 21.11 (Indecency with a Child);
(7) Section 22.011 (Sexual Assault);
(8) Section 22.02 (Aggravated Assault);
(9) Section 22.021 (Aggravated Sexual Assault);
(10) Section 22.04 (Injury to a Child, Elderly
Individual, or Disabled Individual);
(11) Section 28.02 (Arson);
(12) Section 29.02 (Robbery);
(13) Section 29.03 (Aggravated Robbery); or
(14) Section 30.02 (Burglary).
Sec. 3. PRETRIAL ADMISSIBILITY HEARING. (a) 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 21st day before the date the trial
begins, the attorney representing the state notifies the defendant
of the state's intention to offer the testimony; and
(2) in a hearing conducted outside the presence of the
jury, the judge finds by clear and convincing evidence that:
(A) any benefit offered to the informant was not
of a type that would unduly influence the informant's testimony;
(B) the informant could be found by a rational
juror to be reliable and credible; and
(C) the value of the testimony is not outweighed
by the danger of causing unfair prejudice to the defendant, causing
unnecessary complication of the issues for the jury, or misleading
the jury.
(b) The court shall consider the following factors at the
hearing:
(1) any benefit offered or provided to the in-custody
informant;
(2) the time, date, location, and substance of:
(A) any statement allegedly made by the defendant
to the informant; and
(B) any informant statement that was given to a
law enforcement agency, attorney representing the state, or other
state official that implicates the defendant in the offense
charged;
(3) whether the informant has at any time changed the
informant's statement or testimony regarding a statement allegedly
made by the defendant and, if so, the time, date, and location of
the change in the informant's statement or testimony and the
persons present at that time;
(4) the complete criminal history of the informant,
including any charges that were dismissed or reduced as part of a
plea bargain;
(5) previous prosecutions in which the informant
testified or offered to testify against a defendant with whom the
informant was confined in the same correctional facility, and any
benefits offered or provided to the informant;
(6) any information relevant to the credibility of the
informant and the credibility of the informant's statement;
(7) any information relevant to the informant's
character relating to truthfulness or untruthfulness; and
(8) expert testimony the court considers useful to
make the finding required by Subsection (a)(2), including testimony
regarding:
(A) the practices of the applicable law
enforcement agency or attorney representing the state regarding
in-custody informants;
(B) the use of in-custody informant testimony in
similar cases; or
(C) any risk factors associated with
characteristics particular to the informant or the case.
(c) The judge may not inform the jury of the judge's ruling
at the admissibility hearing.
(d) The defendant has the right to call the in-custody
informant as a witness at the admissibility hearing.
Sec. 4. REQUIREMENT TO PROVIDE INFORMATION AND RECORDS.
(a) The attorney representing the state shall provide to the
defendant and the defendant's attorney all information and records
that the state intends to offer at the admissibility hearing,
including the information described by Section 3(b).
(b) The attorney representing the state must provide the
information not later than the 10th day before the date the
admissibility hearing begins, except for good cause shown.
Sec. 5. JURY INSTRUCTION. If testimony of an in-custody
informant is admitted at trial, the court shall instruct the jury to
disregard the informant's testimony unless the jury determines
that:
(1) any benefit granted, promised, or offered to the
informant did not unduly influence the testimony; and
(2) the testimony is truthful.
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. This Act takes effect September 1, 2021.