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A BILL TO BE ENTITLED
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AN ACT
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relating to the admissibility of a statement made by an accused in a |
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criminal case. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2, Article 38.22, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 2. No [written] statement made by an accused as a |
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result of custodial interrogation is admissible as evidence against |
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him in any criminal proceeding unless it is shown [on the face of
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the statement] that: |
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(a) the accused, prior to making the statement, either |
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received from a magistrate the warning provided in Article 15.17 |
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[of this code] or received from the person to whom the statement is |
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made a warning that: |
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(1) he has the right to remain silent and not make any |
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statement at all and that any statement he makes may be used against |
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him at his trial; |
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(2) any statement he makes may be used as evidence |
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against him in court; |
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(3) he has the right to have a lawyer present to advise |
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him prior to and during any questioning; |
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(4) if he is unable to employ a lawyer, he has the |
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right to have a lawyer appointed to advise him prior to and during |
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any questioning; and |
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(5) he has the right to terminate the interview at any |
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time; and |
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(b) the accused, prior to and during the making of the |
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statement, knowingly, intelligently, and voluntarily waived the |
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rights set out in the warning prescribed by Subsection (a) [of this
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section]. |
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SECTION 2. Sections 3(a), (c), and (d), Article 38.22, Code |
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of Criminal Procedure, are amended to read as follows: |
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(a) An [No] oral or sign language statement of an accused |
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made as the [a] result of custodial interrogation is not [shall be] |
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admissible against the accused in a criminal proceeding unless: |
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(1) the statement is made in compliance with the |
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requirements of Section 2; |
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(2) the oral statement was heard or the sign language |
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statement was witnessed by two or more persons; |
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(3) at least two of the persons described by |
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Subdivision (2) have prepared a written memorandum of the contents |
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of the statement within 48 hours after the time the statement was |
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made, including the date, time, and place the statement was made; |
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and |
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(4) the persons who prepared a written memorandum |
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under Subdivision (3) swear before a magistrate that the date, |
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time, and place of the memorandum are correct and that the |
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memorandum accurately reflects the statement made by the accused |
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[an electronic recording, which may include motion picture, video
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tape, or other visual recording, is made of the statement;
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[(2) prior to the statement but during the recording the
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accused is given the warning in Subsection (a) of Section 2 above
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and the accused knowingly, intelligently, and voluntarily waives
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any rights set out 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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(c) Subsection (a) does [of this section shall] not apply to |
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any statement which contains assertions of facts or circumstances |
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that are found to be true and which conduce to establish the guilt |
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of the accused, such as the finding of secreted or stolen property |
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or the instrument with which he states the offense was committed. |
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(d) If the accused is a deaf person, the accused's statement |
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under Subsection (a) [Section 2 or Section 3(a) of this article] is |
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not admissible against the accused unless the warning in Section 2 |
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[of this article] is interpreted to the deaf person by an |
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interpreter who is qualified and sworn as provided in Article 38.31 |
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[of this code]. |
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SECTION 3. Sections 3(b) and (e), Article 38.22, Code of |
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Criminal Procedure, are repealed. |
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SECTION 4. The change in law made by this Act applies only |
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to a statement made by an accused on or after the effective date of |
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this Act. A statement made by an accused before the effective date |
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of this Act is governed by the law in effect at the time the |
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statement was made, and the former law is continued in effect for |
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that purpose. |
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SECTION 5. This Act takes effect September 1, 2009. |