SECTION 1. Chapter 2, Code
of Criminal Procedure, is amended by adding Articles 2.32 and 2.33 to read
as follows:
Art. 2.32. 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 the state,
authorized by law to employ peace officers described by Subdivision (1),
(2), (3), (4), (5), (6), (7), or (8), Article 2.12.
(See SECTION 2 below.)
(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) A law enforcement
agency qualified under Article 2.33 to conduct a custodial interrogation of
the offense 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 20A.02, Penal
Code (trafficking of persons);
(6) Section 20A.03, Penal
Code (continuous trafficking of persons);
(7) Section 21.02, Penal
Code (continuous sexual abuse of young child or children);
(8) Section 21.11, Penal
Code (indecency with a child);
(9) Section 21.12, Penal
Code (improper relationship between educator and student);
(10) Section 22.011,
Penal Code (sexual assault);
(11) Section 22.021,
Penal Code (aggravated sexual assault); or
(12) 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 until the time the interrogation ceases.
(d) A recording of a
custodial interrogation that complies with this article is exempt from
public disclosure except as provided by Section 552.108, Government Code.
No
equivalent provision, but see SECTION 4 below.
Art. 2.33. LAW
ENFORCEMENT AGENCIES QUALIFIED TO CONDUCT CERTAIN CUSTODIAL
INTERROGATIONS. Only a law enforcement agency that employs peace officers
described by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8), Article
2.12, is qualified to conduct a custodial interrogation of an individual
suspected of committing an offense listed in Article 2.32(b).
|
SECTION 1. Chapter 2, Code
of Criminal Procedure, is amended by adding Articles 2.32 and 2.33 to read
as follows:
Art. 2.32. 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) "Electronic
recording" means an audio or audiovisual electronic recording of a
custodial interrogation that begins at or before the time the person being
interrogated receives a warning described by Section 2(a), Article 38.22,
and continues until the time the interrogation ceases.
(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) A law enforcement
agency qualified under Article 2.33 to conduct a custodial interrogation of
the offense shall make an 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 20A.02, Penal
Code (trafficking of persons);
(6) Section 20A.03, Penal
Code (continuous trafficking of persons);
(7) Section 21.02, Penal
Code (continuous sexual abuse of young child or children);
(8) Section 21.11, Penal
Code (indecency with a child);
(9) Section 21.12, Penal
Code (improper relationship between educator and student);
(10) Section 22.011,
Penal Code (sexual assault);
(11) Section 22.021,
Penal Code (aggravated sexual assault); or
(12) 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 until the time the interrogation ceases.
(d) A recording of a
custodial interrogation that complies with this article is exempt from
public disclosure except as provided by Section 552.108, Government Code.
(e) A law enforcement
agency otherwise required to make an electronic recording of a custodial
interrogation under this article is excused from the duty to make the
electronic recording if the law enforcement agency has good cause. For
purposes of this subsection, "good cause" includes:
(1) the accused refused
to respond to questioning or cooperate in a custodial interrogation of which
an electronic 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 accused's refusal but the accused 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 electronic
recording of the custodial interrogation; 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 accused
interrogated was not taken into custody for or being interrogated
concerning the commission of an offense listed in Subsection (b).
Art. 2.33. LAW
ENFORCEMENT AGENCIES QUALIFIED TO CONDUCT CERTAIN CUSTODIAL
INTERROGATIONS. Only a law enforcement agency that employs peace officers
described by Subdivision (1), (2), (3), (4), (5), (6), (7), (8), or (30), Article 2.12, is qualified to
conduct a custodial interrogation of an individual suspected of committing
an offense listed in Article 2.32(b).
|
SECTION 3. Sections 3(a) and
(b), Article 38.22, Code of Criminal Procedure, are amended to read as
follows:
(a) Except as provided by
Section 9, no oral, sign language, or written statement made as a result of
a custodial interrogation of a person accused of an offense listed in
Article 2.32(b) is admissible against the accused in a criminal proceeding,
and no [No] oral or sign language statement made as a result
of a custodial interrogation of a person [of an] accused of
any other offense is [made as a result of custodial interrogation
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 custodial interrogation [statement];
(2) after being [prior
to the statement but during the recording the accused is] given the
warning described by Section 2(a), [in Subsection (a) of Section
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 accurate and has not been 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 statement made by an accused during] a custodial
interrogation must be preserved until such time as the defendant's
conviction for any offense relating thereto is final, all direct appeals
therefrom are exhausted, or the prosecution of such offenses is barred by
law.
|
No
equivalent provision.
|
SECTION 4. Article 38.22,
Code of Criminal Procedure, is amended by adding Section 9 to read as
follows:
Sec. 9. An oral, sign
language, or written statement of an accused made as a result of a
custodial interrogation is admissible without an electronic recording
otherwise required by Section 3(a) if the attorney introducing the
statement shows good cause for the lack of the recording. For purposes of
this section, "good cause" includes:
(1) the accused refused
to respond to questioning or cooperate in a custodial interrogation of
which an electronic 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 accused's refusal but the accused 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 electronic
recording of the custodial interrogation; 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 accused
interrogated was not taken into custody for or being interrogated
concerning the commission of an offense listed in Article 2.32(b).
|
No
equivalent provision, but see Art. 2.32(e), Code of Criminal Procedure, in
SECTION 1 above.
|