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  By: Smithee, et al. (Senate Sponsor - Perry) H.B. No. 34
         (In the Senate - Received from the House May 3, 2017;
  May 18, 2017, read first time and referred to Committee on Criminal
  Justice; May 21, 2017, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 7, Nays 0;
  May 21, 2017, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR H.B. No. 34 By:  Whitmire
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to measures to prevent wrongful convictions.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
  SECTION 1.  Chapter 2, Code of Criminal Procedure, is
  amended by adding Articles 2.023 and 2.32 to read as follows:
         Art. 2.023.  TRACKING USE OF CERTAIN TESTIMONY. (a) In this
  article:
               (1)  "Attorney representing the state" means a district
  attorney, a criminal district attorney, or a county attorney with
  criminal jurisdiction.
               (2)  "Correctional facility" has the meaning assigned
  by Section 1.07, Penal Code.
         (b)  An attorney representing the state shall track:
               (1)  the use of testimony of a person to whom a
  defendant made a statement against the defendant's interest while
  the person was imprisoned or confined in the same correctional
  facility as the defendant, regardless of whether the testimony is
  presented at trial; and
               (2)  any benefits offered or provided to a person in
  exchange for testimony described by Subdivision (1).
         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 38.075, Code of Criminal Procedure, is
  amended by adding Subsection (c) to read as follows:
         (c)  Evidence of a prior offense committed by a person who
  gives testimony described by Subsection (a) may be admitted for the
  purpose of impeachment if the person received a benefit described
  by Article 39.14(h-1)(2) with respect to the offense, regardless of
  whether the person was convicted of the offense.
         SECTION 3.  Section 3, Article 38.20, Code of Criminal
  Procedure, is amended by amending Subsection (c) and adding
  Subsection (d) to read as follows:
         (c)  The model policy or any other policy adopted by a law
  enforcement agency under Subsection (a) must:
               (1)  be based on:
                     (A)  credible field, academic, or laboratory
  research on eyewitness memory;
                     (B)  relevant policies, guidelines, and best
  practices designed to reduce erroneous eyewitness identifications
  and to enhance the reliability and objectivity of eyewitness
  identifications; and
                     (C)  other relevant information as appropriate;
  and
               (2)  include [address] the following information
  regarding evidence-based practices [topics]:
                     (A)  procedures for selecting [the selection of]
  photograph and live lineup filler photographs or participants to
  ensure that the photographs or participants:
                           (i)  are consistent in appearance with the
  description of the alleged perpetrator that was provided by a
  witness; and
                           (ii)  do not make the suspect noticeably
  stand out;
                     (B)  instructions given to a witness before
  conducting a photograph or live lineup identification procedure
  that must include a statement that the person who committed the
  offense may or may not be present in the procedure and that the
  investigation will continue regardless of whether the witness
  identifies a person in the procedure;
                     (C)  procedures for documenting and preserving 
  the [documentation and preservation of] results of a photograph or
  live lineup identification procedure, including the documentation
  of witness statements, regardless of the outcome of the procedure;
                     (D)  procedures for administering a photograph or
  live lineup identification procedure to an illiterate person or a
  person with limited English language proficiency;
                     (E)  for a live lineup identification procedure,
  [if practicable,] procedures for assigning an administrator who is
  unaware of which member of the live lineup is the suspect in the
  case [or alternative procedures designed to prevent opportunities
  to influence the witness];
                     (F)  for a photograph identification procedure,
  procedures for assigning an administrator who is capable of
  administering a photograph array in a blind manner or in a manner
  consistent with other proven or supported best practices designed
  to prevent opportunities to influence the witness; and
                     (G)  any other procedures or best practices
  supported by credible research or commonly accepted as a means to
  reduce erroneous eyewitness identifications and to enhance the
  objectivity and reliability of eyewitness identifications.
         (d)  A witness who makes an identification based on a
  photograph or live lineup identification procedure shall be asked
  immediately after the procedure to state, in the witness's own
  words, the witness's level of confidence in making the
  identification.  A law enforcement agency shall document in
  accordance with Subsection (c)(2)(C) any statement made under this
  subsection.
         SECTION 4.  Section 5, Article 38.20, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 5.  (a)  Any evidence or expert testimony presented by
  the state or the defendant on the subject of eyewitness
  identification is admissible only subject to compliance with the
  Texas Rules of Evidence.  Except as provided by Subsection (c),
  evidence [Evidence] of compliance with the model policy or any
  other policy adopted under this article [or with the minimum
  requirements of this article] is not a condition precedent to the
  admissibility of an out-of-court eyewitness identification.
         (b)  Notwithstanding Article 38.23 as that article relates
  to a violation of a state statute and except as provided by
  Subsection (c), a failure to conduct a photograph or live lineup
  identification procedure in substantial compliance with the model
  policy or any other policy adopted under this article [or with the
  minimum requirements of this article] does not bar the admission of
  eyewitness identification testimony in the courts of this state.
         (c)  If a witness who has previously made an out-of-court
  photograph or live lineup identification of the accused makes an
  in-court identification of the accused, the eyewitness
  identification is admissible into evidence against the accused only
  if the evidence is accompanied by:
               (1)  the details of each prior photograph or live
  lineup identification made of the accused by the witness, including
  the manner in which the identification procedure was conducted; and
               (2)  evidence showing the witness's confidence level as
  described by the witness at the time of a prior photograph or live
  lineup identification specified under Subdivision (1).
         SECTION 5.  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 6.  Article 39.14, Code of Criminal Procedure, is
  amended by adding Subsection (h-1) to read as follows:
         (h-1)  In this subsection, "correctional facility" has the
  meaning assigned by Section 1.07, Penal Code. Notwithstanding any
  other provision of this article, if the state intends to use at a
  defendant's trial testimony of a person to whom the defendant made a
  statement against the defendant's interest while the person was
  imprisoned or confined in the same correctional facility as the
  defendant, the state shall disclose to the defendant:
               (1)  the person's complete criminal history, including
  any charges that were dismissed or reduced as part of a plea
  bargain;
               (2)  any grant, promise, or offer of immunity from
  prosecution, reduction of sentence, or other leniency or special
  treatment, given by the state in exchange for the person's
  testimony;
               (3)  information concerning other criminal cases in
  which the person has testified, or offered to testify, against a
  defendant with whom the person was imprisoned or confined,
  including any grant, promise, or offer as described by Subdivision
  (2) given by the state in exchange for the testimony; and
               (4)  other information in the possession, custody, or
  control of the state that is relevant to the person's credibility.
         SECTION 7.  Section 1701.253, Occupations Code, is amended
  by adding Subsection (n) to read as follows:
         (n)  As part of the minimum curriculum requirements, the
  commission shall establish a statewide comprehensive education and
  training program on eyewitness identification, including the
  variables that affect a witness's vision and memory, practices for
  minimizing contamination, and effective eyewitness identification
  protocols.
  SECTION 8.  STUDY REGARDING USE OF DRUG FIELD TEST KITS. (a)
  The Texas Forensic Science Commission shall conduct a study
  regarding the use of drug field test kits by law enforcement
  agencies in this state. The commission shall:
               (1)  evaluate the quality, accuracy, and reliability of
  drug field test kits;
               (2)  identify any common problems with drug field test
  kits;
               (3)  evaluate the availability and adequacy of training
  for law enforcement officers regarding the use of drug field test
  kits and the interpretation of the test results; and
               (4)  develop legislative recommendations regarding the
  use of drug field test kits by law enforcement agencies and
  regarding related training for law enforcement officers.
         (b)  Not later than December 1, 2018, the Texas Forensic
  Science Commission shall submit to the governor, the lieutenant
  governor, and each member of the legislature a written report that
  summarizes the results of the study conducted under this section
  and includes any legislative recommendations.
         SECTION 9.  CRIME SCENE INVESTIGATION STUDY. (a) The Texas
  Forensic Science Commission shall conduct a study regarding the
  manner in which crime scene investigations are conducted in this
  state. The commission shall:
               (1)  evaluate the standard procedures used in
  processing a crime scene and evaluate the quality of crime scene
  investigations;
               (2)  evaluate the availability and adequacy of the
  training or continuing education provided to crime scene
  investigators; and
               (3)  develop legislative recommendations regarding
  improvements to crime scene investigation procedures and training.
         (b)  Not later than December 1, 2018, the Texas Forensic
  Science Commission shall submit to the governor, the lieutenant
  governor, and each member of the legislature a written report that
  summarizes the results of the study conducted under this section
  and includes any legislative recommendations.
         SECTION 10.  Article 2.32 and Section 9, Article 38.22, Code
  of Criminal Procedure, as added by this Act, apply 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 11.  Article 38.075(c), Code of Criminal Procedure,
  as added 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 12.  (a)  Section 3(d), Article 38.20, Code of
  Criminal Procedure, as added by this Act, applies only to a
  photograph or live lineup identification procedure conducted on or
  after the effective date of this Act, regardless of whether the
  offense to which the procedure is related was committed before, on,
  or after the effective date of this Act.
         (b)  Section 5, Article 38.20, Code of Criminal Procedure, as
  amended by this Act, applies only to the trial of an offense with
  respect to which a prior photograph or live lineup identification
  of the accused occurred on or after the effective date of this Act,
  regardless of whether the offense that is the subject of the trial
  was committed before, on, or after the effective date of this Act.
         SECTION 13.  Article 39.14(h-1), Code of Criminal Procedure,
  as added by this Act, applies to the prosecution of an offense
  committed on or after the effective date of this Act. The
  prosecution of an offense committed before the effective date of
  this Act is governed by the law in effect on the date the offense was
  committed, and the former law is continued in effect for that
  purpose. For purposes of this section, an offense is committed
  before the effective date of this Act if any element of the offense
  occurs before the effective date.
         SECTION 14.  Not later than January 1, 2018, the Texas
  Commission on Law Enforcement shall establish the eyewitness
  identification education and training program as required by
  Section 1701.253(n), Occupations Code, as added by this Act.
         SECTION 15.  This Act takes effect September 1, 2017.
 
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