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A BILL TO BE ENTITLED
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AN ACT
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relating to the electronic recording and admissibility of certain |
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statements made by an accused as a result of custodial |
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interrogation. |
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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: |
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(1) it is shown on the face of the statement that: |
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(A) [(a)] the accused, prior to making the |
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statement, either received from a magistrate the warning provided |
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in Article 15.17 of this code or received from the person to whom |
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the statement is made a warning that: |
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(i) [(1)] he has the right to remain silent |
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and not make any statement at all and that any statement he makes |
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may be used against him at his trial; |
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(ii) [(2)] any statement he makes may be |
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used as evidence against him in court; |
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(iii) [(3)] he has the right to have a |
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lawyer present to advise him prior to and during any questioning; |
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(iv) [(4)] if he is unable to employ a |
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lawyer, he has the right to have a lawyer appointed to advise him |
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prior to and during any questioning; and |
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(v) [(5)] he has the right to terminate the |
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interview at any time; and |
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(B) [(b)] the accused, prior to and during the |
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making of the statement, knowingly, intelligently, and voluntarily |
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waived the rights set out in the warning prescribed by Paragraph (A) |
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[Subsection (a)] of this subdivision; and |
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(2) an electronic recording that complies with the |
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requirements of Section 3(a) of this article is made of the accused |
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making the statement [section]. |
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SECTION 2. Sections 3(a) and (e), Article 38.22, Code of |
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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 shall be admissible against the |
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accused in a criminal proceeding unless: |
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(1) an electronic recording that includes [, which may
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include] motion picture, video tape, or other visual recording[,] |
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is made of 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 Subdivision (1)(A) [Subsection
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(a)] of Section 2 above and the accused knowingly, intelligently, |
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and voluntarily waives 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 persons who speak or are otherwise visible |
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[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 subsection [article]. |
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(e) The courts of this state shall strictly construe |
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Subsection (a) of this section and may not interpret Subsection (a) |
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as making admissible a statement unless all requirements of the |
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subsection have been satisfied by the state, except that: |
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(1) only [voices that are] material persons on a |
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recording are identified; and |
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(2) the accused was given the warning in Subdivision |
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(1)(A) [Subsection (a)] of Section 2 above or its fully effective |
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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. Each electronic recording of a statement must be |
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preserved until such time as: |
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(1) the defendant's conviction for any offense |
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relating to the statement is final, all direct appeals of the case |
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are exhausted, and the time to file a petition for a writ of habeas |
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corpus has expired; or |
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(2) the prosecution of the offense is barred by law. |
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SECTION 4. Section 3(b), Article 38.22, Code of Criminal |
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Procedure, is repealed. |
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SECTION 5. The change in law made by this Act applies only |
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to the admissibility of a statement made by an accused on or after |
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the effective date of this Act. The admissibility of a statement |
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made by an accused before the effective date of this Act is governed |
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by the law in effect when the statement was made, and the former law |
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is continued in effect for that purpose. |
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SECTION 6. This Act takes effect September 1, 2013. |