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79R1326 KCR-F

By:  Ellis                                                        S.B. No. 662


A BILL TO BE ENTITLED
AN ACT
relating to electronically recording certain interrogations and the admissibility of certain statements made by a juvenile or a criminal defendant. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.30 to read as follows: Art. 2.30. ELECTRONIC RECORDING OF INTERROGATIONS. (a) Each law enforcement agency in this state shall train peace officers and other employees of the law enforcement agency who interrogate criminal defendants or suspects, including juveniles, concerning the technological aspects of electronically recording interrogations. (b) The Department of Public Safety shall adopt rules for providing funds or electronic recording equipment to law enforcement agencies in this state for the purpose of recording interrogations of criminal defendants or suspects, including juveniles. SECTION 2. Section 2, Article 38.22, Code of Criminal Procedure, is amended to read as follows: Sec. 2. (a) No written statement made by an accused as a result of custodial interrogation is admissible as evidence against the accused [him] in any criminal proceeding unless: (1) it is shown on the face of the statement that: (A) [(a)] the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that: (i) the accused [(1) he] has the right to remain silent and not make any statement at all and that any statement the accused [he] makes may be used against the accused [him] at [his] trial; (ii) [(2)] any statement the accused [he] makes may be used as evidence against the accused [him] in court; (iii) the accused [(3) he] has the right to have a lawyer present to advise the accused [him] prior to and during any questioning; (iv) [(4)] if the accused [he] is unable to employ a lawyer, the accused [he] has the right to have a lawyer appointed to advise the accused [him] prior to and during any questioning; and (v) the accused [(5) he] has the right to terminate the interview at any time; and (B) [(b)] the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by [Subsection (a) of] this section; and (2) in the case of a criminal proceeding in which the accused is charged with a felony, an electronic recording that complies with the requirements of Section 3(a) is made of the custodial interrogation resulting in the statement. (b) Every electronic recording of a custodial interrogation, if any, resulting in a written statement must be preserved until such time as the defendant's conviction for any offense relating to the statement is final, all direct appeals of the case are exhausted, the time to file a petition for a writ of habeas corpus has expired, or the prosecution of the offense is barred by law. (c) Notwithstanding Subsection (a)(2), a written statement made by an accused as a result of a custodial interrogation is admissible as evidence against the accused in a criminal proceeding if the requirements of Subsection (a)(1) are satisfied with respect to each portion of the written statement that is to be used as evidence. This subsection expires September 1, 2008. SECTION 3. Section 3, Article 38.22, Code of Criminal Procedure, is amended by amending Subsections (a) and (b) and adding Subsection (f) to read as follows: (a) No oral or sign language statement of an accused made as a result of custodial interrogation is [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 statement and, in the case of a criminal proceeding in which the accused is charged with a felony, the custodial interrogation resulting in the statement; (2) prior to the statement but during the recording the accused is given the warning in [Subsection (a) of] Section 2(a) [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 substantially accurate and has not been intentionally 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) Every electronic recording of any custodial interrogation resulting in an oral or sign language statement, if any, and any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant's conviction for any offense relating to the statement [thereto] is final, all direct appeals of the case [therefrom] are exhausted, the time to file a petition requesting a writ of habeas corpus has expired, or the prosecution of such offenses is barred by law. (f) Notwithstanding the requirement of Subsection (a)(1) that in felony cases a recording be made of the custodial interrogation resulting in the statement, an oral or sign language statement made by an accused as a result of a custodial interrogation is admissible as evidence against the accused if the requirements of Subsection (a) are otherwise satisfied with respect to each portion of the oral or sign language statement that is to be used as evidence. This subsection expires September 1, 2008. SECTION 4. Article 38.22, Code of Criminal Procedure, is amended by adding Section 9 to read as follows: Sec. 9. A recording of a custodial interrogation made under Section 2(a)(2) or 3(a) is exempt from required public disclosure under Chapter 552, Government Code. SECTION 5. Section 51.095, Family Code, is amended by amending Subsection (a) and adding Subsections (f), (g), and (h) to read as follows: (a) Notwithstanding Section 51.09, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if: (1) the statement is made in writing under a circumstance described by Subsection (d) and: (A) the statement shows that the child has at some time before the making of the statement received from a magistrate a warning that: (i) the child may remain silent and not make any statement at all and that any statement that the child makes may be used in evidence against the child; (ii) the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning; (iii) if the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state; and (iv) the child has the right to terminate the interview at any time; (B) and: (i) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present, except that a magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child; and (ii) the magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily, and if a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met; (C) the child knowingly, intelligently, and voluntarily waives these rights before and during the making of the statement and signs the statement in the presence of a magistrate; [and] (D) the magistrate certifies that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights; and (E) in the case of a proceeding in which it is alleged that the child engaged in conduct violating a penal law of the grade of felony, the interrogation, if any, of the child resulting in the statement is recorded by an electronic recording device, including a device that records images, and: (i) the recording device is capable of making an accurate recording, the operator of the device is competent to use the device, the recording is substantially accurate, and the recording has not been intentionally altered; (ii) each voice on the recording is identified; and (iii) not later than the 20th day before the date of the proceeding, the attorney representing the child is given a complete and accurate copy of each recording of the child made under this subdivision; (2) the statement is made orally and the child makes a statement of facts or circumstances that are found to be true and tend to establish the child's guilt, such as the finding of secreted or stolen property, or the instrument with which the child states the offense was committed; (3) the statement was res gestae of the delinquent conduct or the conduct indicating a need for supervision or of the arrest; (4) the statement is made: (A) in open court at the child's adjudication hearing; (B) before a grand jury considering a petition, under Section 53.045, that the child engaged in delinquent conduct; or (C) at a preliminary hearing concerning the child held in compliance with this code, other than at a detention hearing under Section 54.01; or (5) the statement is made orally under a circumstance described by Subsection (d) and the statement and, in the case of a proceeding in which it is alleged that the child engaged in conduct violating a penal law of the grade of felony, the interrogation, if any, of the child resulting in the statement is recorded by an electronic recording device, including a device that records images, and: (A) before making the statement, the child is given the warning described by Subdivision (1)(A) by a magistrate, the warning is a part of the recording, and the child knowingly, intelligently, and voluntarily waives each right stated in the warning; (B) the recording device is capable of making an accurate recording, the operator of the device is competent to use the device, the recording is accurate, and the recording has not been altered; (C) each voice on the recording is identified; and (D) not later than the 20th day before the date of the proceeding, the attorney representing the child is given a complete and accurate copy of each recording of the child made under this subdivision. (f) A recording of an interrogation made under Subsection (a)(1) or (a)(5) is exempt from required public disclosure under Chapter 552, Government Code. (g) Notwithstanding the requirements of Subsections (a)(1)(E) and (a)(5) that a recording be made of the interrogation resulting in the statement, a statement that is made in writing or made orally under a circumstance described by Subsection (d) is admissible in any future proceeding concerning the matter about which the statement was given if: (1) concerning a statement that is made in writing, the requirements of Subsections (a)(1)(A)-(D) are satisfied; or (2) concerning a statement made orally, the requirements of Subsection (a)(5) are otherwise satisfied with respect to each portion of the statement that is to be used as evidence. (h) Subsection (g) and this subsection expire September 1, 2008. SECTION 6. The Department of Public Safety shall begin adopting rules under Section 2.30(b), Code of Criminal Procedure, as added by this Act, not later than March 1, 2006. SECTION 7. Article 38.22, Code of Criminal Procedure, as amended by this Act, and Section 51.095, Family Code, as amended by this Act, apply to the admissibility of a written, oral, or sign language statement that is made on or after the effective date of this Act. A written, oral, or sign language statement that is made before the effective date of this Act is governed by the law in effect at the time that the statement was made, and that law is continued in effect for that purpose. SECTION 8. This Act takes effect September 1, 2005.