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  H.B. No. 215
 
 
 
 
AN ACT
  relating to photograph and live lineup identification procedures in
  criminal cases.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 38, Code of Criminal Procedure, is
  amended by adding Article 38.20 to read as follows:
         Art. 38.20.  PHOTOGRAPH AND LIVE LINEUP IDENTIFICATION
  PROCEDURES
         Sec. 1.  In this article, "institute" means the Bill
  Blackwood Law Enforcement Management Institute of Texas located at
  Sam Houston State University.
         Sec. 2.  This article applies only to a law enforcement
  agency of this state or of a county, municipality, or other
  political subdivision of this state that employs peace officers who
  conduct photograph or live lineup identification procedures in the
  routine performance of the officers' official duties.
         Sec. 3.  (a)  Each law enforcement agency shall adopt,
  implement, and as necessary amend a detailed written policy
  regarding the administration of photograph and live lineup
  identification procedures in accordance with this article. A law
  enforcement agency may adopt:
               (1)  the model policy adopted under Subsection (b); or
               (2)  the agency's own policy that, at a minimum,
  conforms to the requirements of Subsection (c).
         (b)  The institute, in consultation with large, medium, and
  small law enforcement agencies and with law enforcement
  associations, scientific experts in eyewitness memory research,
  and appropriate organizations engaged in the development of law
  enforcement policy, shall develop, adopt, and disseminate to all
  law enforcement agencies in this state a model policy and
  associated training materials regarding the administration of
  photograph and live lineup identification procedures. The
  institute shall provide for a period of public comment before
  adopting the policy and materials.
         (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)  address the following topics:
                     (A)  the selection of photograph and live lineup
  filler photographs or participants;
                     (B)  instructions given to a witness before
  conducting a photograph or live lineup identification procedure;
                     (C)  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.
         Sec. 4.  (a)  Not later than December 31 of each
  odd-numbered year, the institute shall review the model policy and
  training materials adopted under this article and shall modify the
  policy and materials as appropriate.
         (b)  Not later than September 1 of each even-numbered year,
  each law enforcement agency shall review its policy adopted under
  this article and shall modify that policy as appropriate.
         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. 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, 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.
         SECTION 2.  (a) Not later than December 31, 2011, the Bill
  Blackwood Law Enforcement Management Institute of Texas shall
  develop, adopt, and disseminate the model policy and associated
  training materials required under Article 38.20, Code of Criminal
  Procedure, as added by this Act.
         (b)  Not later than September 1, 2012, each law enforcement
  agency to which Article 38.20, Code of Criminal Procedure, as added
  by this Act, applies shall adopt a policy as required by that
  article.
         (c)  The change in law made by Section 5, 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 September 1, 2012, regardless of whether the offense to which
  the procedure is related occurred before, on, or after September 1,
  2012.
         SECTION 3.  This Act takes effect September 1, 2011.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 215 was passed by the House on March
  31, 2011, by the following vote:  Yeas 145, Nays 0, 2 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 215 was passed by the Senate on May
  18, 2011, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor