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A BILL TO BE ENTITLED
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AN ACT
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relating to the electronic recording and admissibility of certain |
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custodial interrogations. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 2, Code of Criminal Procedure, is |
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amended by adding Article 2.32 to read as follows: |
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Art. 2.32. ELECTRONIC RECORDING OF CUSTODIAL |
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INTERROGATIONS. (a) In this article: |
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(1) "Law enforcement agency" means a governmental |
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agency authorized by law to employ peace officers. |
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(2) "Place of detention" means a police station or |
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other building that is a place of operation for a law enforcement |
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agency, including a municipal police department or county sheriff's |
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department, and is owned or operated by the law enforcement agency |
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for the purpose of detaining individuals in connection with the |
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suspected violation of a penal law. The term does not include a |
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courthouse. |
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(b) A law enforcement agency of the state or of a |
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municipality, county, or other political subdivision of the state |
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shall make a complete, contemporaneous, audio or audiovisual |
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electronic recording of any custodial interrogation that occurs in |
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a place of detention and is of a person suspected of committing or |
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charged with the commission of an offense under: |
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(1) Section 19.02, Penal Code (murder); |
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(2) Section 19.03, Penal Code (capital murder); |
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(3) Section 20.03, Penal Code (kidnapping); |
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(4) Section 20.04, Penal Code (aggravated |
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kidnapping); |
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(5) Section 20A.02, Penal Code (trafficking of |
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persons); |
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(6) Section 20A.03, Penal Code (continuous |
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trafficking of persons); |
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(7) Section 21.02, Penal Code (continuous sexual abuse |
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of young child or children); |
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(8) Section 21.11, Penal Code (indecency with a |
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child); |
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(9) Section 21.12, Penal Code (improper relationship |
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between educator and student); |
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(10) Section 22.011, Penal Code (sexual assault); |
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(11) Section 22.021, Penal Code (aggravated sexual |
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assault); or |
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(12) Section 43.25, Penal Code (sexual performance by |
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a child). |
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(c) For purposes of Subsection (b), an electronic recording |
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of a custodial interrogation is complete only if the recording |
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begins at or before the time the person being interrogated receives |
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a warning described by Section 2(a), Article 38.22, and continues |
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until the time the interrogation ceases. |
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(d) A recording of a custodial interrogation that complies |
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with this article is exempt from public disclosure except as |
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provided by Section 552.108, Government Code. |
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(e) Evidence from a custodial interrogation conducted by a |
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federal law enforcement agency or a law enforcement agency of |
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another state is not admissible in a criminal proceeding unless the |
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interrogation complied with that agency's custodial interrogation |
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procedures. |
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SECTION 2. Section 1, Article 38.22, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 1. In this article: |
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(1) "Electronic recording" means an audio or |
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audiovisual electronic recording of a custodial interrogation that |
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begins at or before the time the person being interrogated receives |
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a warning described by Section 2(a) and continues until the time the |
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interrogation ceases. |
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(2) "Written statement"[, a written statement of an
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accused] means: |
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(A) [(1)] a statement made by the accused in the |
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accused's [his] own handwriting; or |
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(B) [(2)] a statement made in a language the |
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accused can read or understand that: |
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(i) [(A)] is signed by the accused; or |
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(ii) [(B)] bears the mark of the accused, |
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if the accused is unable to write and the mark is witnessed by a |
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person other than a peace officer. |
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SECTION 3. Sections 3(a) and (b), Article 38.22, Code of |
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Criminal Procedure, are amended to read as follows: |
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(a) Except as provided by Section 9, an oral, sign language, |
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or written statement made as a result of a custodial interrogation |
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of a person accused of an offense listed in Article 2.32(b) is not |
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admissible against the accused in a criminal proceeding, and an |
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[No] oral or sign language statement made as a result of a custodial |
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interrogation of a person [of an] accused of any other offense is |
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not [made as a result of custodial interrogation shall be] |
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admissible against the accused in a criminal proceeding, unless: |
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(1) an electronic recording [, which may include
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motion picture, video tape, or other visual recording,] is made of |
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the custodial interrogation [statement]; |
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(2) after receiving [prior to the statement but during
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the recording the accused is given] the warning described by |
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Section 2(a), [in Subsection (a) of Section 2 above and] the accused |
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knowingly, intelligently, and voluntarily waives any rights set out |
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in the warning; |
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(3) the recording device was capable of making an |
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accurate recording, the operator was competent, and the recording |
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is accurate and has not been altered; |
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(4) all voices on the recording are identified; and |
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(5) not later than the 20th day before the date of the |
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proceeding, the attorney representing the defendant is provided |
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with a true, complete, and accurate copy of all recordings of the |
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defendant made under this article. |
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(b) Each [Every] electronic recording of [any statement
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made by an accused during] a custodial interrogation must be |
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preserved until: |
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(1) [such time as] the defendant's conviction for any |
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offense relating to the recording [thereto] is final and[,] all |
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direct appeals from the conviction [therefrom] are exhausted;[,] or |
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(2) the prosecution of an offense described by |
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Subdivision (1) [such offenses] is barred by law. |
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SECTION 4. Article 38.22, Code of Criminal Procedure, is |
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amended by adding Section 9 to read as follows: |
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Sec. 9. An oral, sign language, or written statement of an |
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accused made as a result of a custodial interrogation is admissible |
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without an electronic recording otherwise required by Section 3(a) |
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if the attorney introducing the statement shows good cause for the |
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lack of the recording. For purposes of this section, "good cause" |
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includes: |
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(1) the accused refused to respond to questioning or |
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cooperate in a custodial interrogation of which an electronic |
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recording was made, provided that: |
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(A) a contemporaneous recording of the refusal |
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was made; or |
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(B) the peace officer or agent of the law |
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enforcement agency conducting the interrogation attempted, in good |
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faith, to record the accused's refusal but the accused was |
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unwilling to have the refusal recorded, and the peace officer or |
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agent contemporaneously, in writing, documented the refusal; |
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(2) the statement was not made exclusively as the |
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result of a custodial interrogation, including a statement that was |
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made spontaneously by the accused and not in response to a question |
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by a peace officer or agent of the law enforcement agency conducting |
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the interrogation; |
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(3) the peace officer or agent of the law enforcement |
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agency conducting the interrogation attempted, in good faith, to |
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record the interrogation but the recording equipment did not |
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function, the officer or agent inadvertently operated the equipment |
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incorrectly, or the equipment malfunctioned or stopped operating |
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without the knowledge of the officer or agent; |
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(4) exigent public safety concerns prevented or |
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rendered infeasible the making of an electronic recording of the |
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custodial interrogation; or |
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(5) the peace officer or agent of the law enforcement |
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agency conducting the interrogation reasonably believed at the time |
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the interrogation commenced that the accused interrogated was not |
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taken into custody for or being interrogated concerning the |
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commission of an offense listed in Article 2.32(b). |
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SECTION 5. The changes in law made by this Act apply to the |
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use of a statement made as a result of a custodial interrogation |
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that occurs on or after the effective date of this Act, regardless |
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of whether the offense giving rise to that interrogation is |
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committed before, on, or after that date. |
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SECTION 6. This Act takes effect September 1, 2017. |