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A BILL TO BE ENTITLED
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AN ACT
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relating to the electronic recording of custodial interrogations |
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and certain statements and the admissibility of statements |
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resulting from those interrogations. |
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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 result |
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of custodial interrogation is admissible as evidence against him in |
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any criminal proceeding unless the interrogation was recorded |
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according to the requirements of Section 3 and unless it is shown on |
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the face of 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 |
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any statement at all and that any statement he makes may be used |
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against him at his trial; |
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(2) any statement he makes may be used as |
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evidence against him in court; |
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(3) he has the right to have a lawyer present to |
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advise 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 |
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at any 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 signed a |
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written waiver of [waived] the rights set out in the warning |
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prescribed by Subsection (a) [of this section]. |
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SECTION 2. Sections 3(a), (c), and (e), Article 38.22, Code |
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of Criminal Procedure, are amended to read as follows: |
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(a) No oral or sign language statement of an accused made as |
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a result of custodial interrogation is [shall be] admissible |
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against the accused in a criminal proceeding unless: |
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(1) at least two [an] electronic recordings are made |
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of the interrogation and the statement, in the form of a [recording,
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which may include] motion picture, video tape, audio tape, or other |
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means appropriate for the recording [visual recording, is made] of |
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the interrogation and the statement; |
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(2) prior to the statement but during the recording |
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the accused is given the warning in Subsection (a) of Section 2 |
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[above] and the accused knowingly, intelligently, and voluntarily |
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signs a written waiver of [waives] any rights set out in the |
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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 that are material to |
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the custodial interrogation or the making of the statement are |
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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) The electronic recording requirements of this article |
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do [Subsection (a) of this section shall] not apply to any statement |
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which contains assertions of facts or circumstances that are found |
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to be true and which conduce to establish the guilt of the accused, |
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such as the finding of secreted or stolen property or the instrument |
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with which he states the offense was committed. |
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(e) The courts of this state shall strictly construe the |
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electronic recording requirements [Subsection (a)] of this article |
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[section] and may not interpret those requirements [Subsection (a)] |
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as making admissible a statement unless all requirements of |
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Subsection (a) [the subsection] have been satisfied by the state, |
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except that [:
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[(1) only voices that are material are identified; and
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[(2)] the accused was given the warning in Subsection |
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(a) of Section 2 [above] or its fully effective equivalent. |
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SECTION 3. Article 38.22, Code of Criminal Procedure, is |
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amended by adding Section 3A to read as follows: |
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Sec. 3A. Notwithstanding the electronic recording |
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requirements of this article, a statement is not inadmissible |
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because of a failure to make an electronic recording if it is shown |
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by clear and convincing evidence that the statement was voluntary |
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and reliable and that the law enforcement officers conducting the |
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interrogation or taking the statement, as applicable, had good |
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cause not to comply with those requirements. Good cause may be |
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established by showing that the failure to record an interrogation |
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or an oral or sign language statement was the result of: |
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(1) an accident or unintentional mistake by a law |
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enforcement officer conducting the interrogation or taking the |
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statement; |
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(2) a failure of the recording equipment that was not |
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caused by the negligence of a law enforcement officer conducting |
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the interrogation or taking the statement; or |
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(3) the occurrence or imminent threat of a disaster, |
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as defined by Section 418.004, Government Code. |
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SECTION 4. The change in law made by this Act applies only |
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to the admissibility of a statement made on or after the effective |
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date of this Act. The admissibility of a statement made before the |
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effective date of this Act is covered by the law in effect when 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. |