82R471 GCB-D

By: Ellis S.B. No. 123

A BILL TO BE ENTITLED

AN ACT

relating to the electronic recording and admissibility of certain custodial interrogations.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.31 to read as follows:

Art. 2.31. ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS. (a) In this article:

(1) "Custodial interrogation" means any investigative questioning, other than routine questions associated with booking, by a peace officer during which:

(A) a reasonable person in the position of the person being interrogated would consider himself or herself to be in custody; and

(B) a question is asked that is reasonably likely to elicit an incriminating response.

(2) "Law enforcement agency" means an agency of the state, or of a county, municipality, or other political subdivision of this state, that employs peace officers who, in the routine performance of the officers' duties, conduct custodial interrogations of individuals suspected of committing criminal offenses.

(3) "Place of detention" means a police station or other building that is a place of operation for a law enforcement agency, including a municipal police department or county sheriff's department, and is owned or operated by the law enforcement agency for the purpose of detaining individuals in connection with the suspected violation of a penal law. The term does not include a courthouse.

(b) Unless good cause exists that makes electronic recording infeasible, a law enforcement agency shall make a complete, contemporaneous, audio or audiovisual electronic recording of any custodial interrogation that occurs in a place of detention and is of a person suspected of committing or charged with the commission of an offense under:

(1) Section 19.02, Penal Code (murder);

(2) Section 19.03, Penal Code (capital murder);

(3) Section 20.03, Penal Code (kidnapping);

(4) Section 20.04, Penal Code (aggravated kidnapping);

(5) Section 21.02, Penal Code (continuous sexual abuse of young child or children);

(6) Section 21.11, Penal Code (indecency with a child);

(7) Section 21.12, Penal Code (improper relationship between educator and student);

(8) Section 22.011, Penal Code (sexual assault);

(9) Section 22.021, Penal Code (aggravated sexual assault); or

(10) Section 43.25, Penal Code (sexual performance by a child).

(c) For purposes of Subsection (b), an electronic recording of a custodial interrogation is complete only if the recording begins at or before the time the person being interrogated receives a warning described by Section 2(a), Article 38.22, and continues, without interruption, until the time the interrogation ceases.

(d) For purposes of Subsection (b), good cause that makes electronic recording infeasible includes the following:

(1) the person being interrogated refused to respond or cooperate in a custodial interrogation at which an audio or audiovisual recording was made, provided that:

(A) a contemporaneous recording of the refusal was made; or

(B) the peace officer or agent of the law enforcement agency conducting the interrogation attempted, in good faith, to record the person's refusal but the person was unwilling to have the refusal recorded, and the peace officer or agent contemporaneously, in writing, documented the refusal;

(2) the statement was not made exclusively as the result of a custodial interrogation, including a statement that was made spontaneously by the accused and not in response to a question by a peace officer;

(3) the peace officer or agent of the law enforcement agency conducting the interrogation attempted, in good faith, to record the interrogation but the recording equipment did not function, the officer or agent inadvertently operated the equipment incorrectly, or the equipment malfunctioned or stopped operating without the knowledge of the officer or agent;

(4) exigent public safety concerns prevented or rendered infeasible the making of an audio or audiovisual recording of the statement; or

(5) the peace officer or agent of the law enforcement agency conducting the interrogation reasonably believed at the time the interrogation commenced that the person being interrogated was not taken into custody for or being interrogated concerning the commission of an offense listed in Subsection (b).

(e) A law enforcement agency shall preserve an electronic recording described by Subsection (b) until the later of the date on which:

(1) any conviction for an offense that is the subject of the interrogation or that results from the interrogation is final, all direct appeals of the case are exhausted, and the time to file a petition for a writ of habeas corpus has expired; or

(2) the prosecution of the offense that is the subject of the interrogation or that arises from the interrogation is barred by law.

(f) The attorney representing the state shall provide to the defendant, in a timely manner and not later than the 60th day before the date the trial begins, a copy of an electronic recording described by Subsection (b).

(g) A recording of a custodial interrogation that complies with this section is exempt from public disclosure except as provided by Section 552.108, Government Code.

SECTION 2. Chapter 38, Code of Criminal Procedure, is amended by adding Article 38.24 to read as follows:

Art. 38.24. USE OF CERTAIN EVIDENCE CONCERNING ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS. (a) Evidence of compliance or noncompliance with Article 2.31 concerning the electronic recording of a custodial interrogation is relevant and admissible before the trier of fact.

(b) Evidence of compliance with Article 2.31 concerning the electronic recording of a custodial interrogation is not a condition precedent to the admissibility of a defendant's statement under Article 38.23, another provision of this chapter, or another law.

(c) If the statement of a person suspected of committing or charged with the commission of an offense listed in Article 2.31(b) that is made by the person during a custodial interrogation conducted in a place of detention is admitted in evidence during trial, and if an electronic recording of the complete interrogation is not available, the court:

(1) if the court is the trier of fact, may consider the absence of an electronic recording of the interrogation in evaluating the evidence relating to and resulting from the interrogation; and

(2) if the jury is the trier of fact, shall on request of the defendant instruct the jury that:

(A) it is the policy of this state to electronically record custodial interrogations of persons suspected of having committed an offense listed in Article 2.31(b); and

(B) the jury may consider the absence of an electronic recording of the interrogation in evaluating the evidence relating to and resulting from the interrogation.

(d) The court may refuse to give the jury instruction described by Subsection (c)(2) if the attorney representing the state offers proof satisfactory to the court that:

(1) good cause, as described by Article 2.31(d), existed that made electronic recording of a custodial interrogation infeasible; or

(2) the law enforcement agency that failed to electronically record the interrogation acted in good faith at the time the agency failed to make the recording.

SECTION 3. Article 38.24, Code of Criminal Procedure, as added by this Act, applies to the use of a statement resulting from a custodial interrogation that occurs on or after September 1, 2012, regardless of whether the criminal offense giving rise to that interrogation is committed before, on, or after that date.

SECTION 4. This Act takes effect September 1, 2011.