85R8377 AJZ-D
 
  By: Smithee H.B. No. 34
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to measures to prevent wrongful convictions.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
  SECTION 1.  Chapter 2, Code of Criminal Procedure, is
  amended by adding Article 2.023 to read as follows:
         Art. 2.023.  POLICY REGARDING USE OF CERTAIN TESTIMONY. (a)
  In this article:
               (1)  "Attorney representing the state" means a district
  attorney, criminal district attorney, or county attorney
  performing the duties of a district attorney.
               (2)  "Correctional facility" has the meaning assigned
  by Section 1.07, Penal Code.
         (b)  An attorney representing the state shall adopt a written
  policy regarding the testimony of a person to whom a defendant made
  a statement against the defendant's interest while the person was
  imprisoned or confined in the same correctional facility as the
  defendant and regarding how that testimony may be used at the
  defendant's trial. The policy must require the attorney
  representing the state to:
               (1)  implement a system to track the use of, and
  benefits offered or provided in exchange for, testimony described
  by this article; and
               (2)  promptly disclose information regarding the
  testifying person as required by Article 39.14(h-1).
  SECTION 2.  Chapter 2, Code of Criminal Procedure, is
  amended by adding Article 2.32 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 that begins at the time the person
  being interrogated enters the area of the place of detention in
  which the custodial interrogation will take place and that
  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 shall make an electronic
  recording of any custodial interrogation that is of a person
  suspected of committing or charged with the commission of a felony
  offense and that the law enforcement agency conducts in a place of
  detention.
         (c)  An electronic recording of a custodial interrogation
  that complies with this article is exempt from public disclosure
  except as provided by Section 552.108, Government Code.
         SECTION 3.  Article 38.075, Code of Criminal Procedure, is
  amended by adding Subsection (c) to read as follows:
         (c)  Notwithstanding Rules 404 and 405, Texas Rules of
  Evidence, evidence of other crimes, wrongs, or acts committed by,
  and information described by Article 39.14(h-1) regarding, a
  person who gives testimony described by Subsection (a) shall be
  admitted for its bearing on relevant matters, including the
  character of the person. 
  SECTION 4.  Sections 3(a) and (c), Article 38.20, Code of
  Criminal Procedure, are amended to read as follows:
         (a)  Each law enforcement agency shall adopt and [,]
  implement [, and as necessary amend a detailed written policy
  regarding the administration of photograph and live lineup
  identification procedures in accordance with this article.     A law
  enforcement agency may adopt:
               [(1)]  the model policy adopted under Subsection (b)[;
  or
               [(2)     the agency's own policy that, at a minimum,
  conforms to the requirements of Subsection (c)].
         (c)  The model policy [or any other policy adopted by a law
  enforcement agency] under Subsection (b) [(a)] must:
               (1)  be based on:
                     (A)  credible field, academic, or laboratory
  research on eyewitness memory;
                     (B)  relevant policies, guidelines, and best
  practices designed to reduce erroneous eyewitness identifications
  and to enhance the reliability and objectivity of eyewitness
  identifications; and
                     (C)  other relevant information as appropriate;
  and
               (2)  address the following topics:
                     (A)  the selection of photograph and live lineup
  filler photographs or participants;
                     (B)  instructions given to a witness before
  conducting a photograph or live lineup identification procedure;
                     (C)  the documentation and preservation of
  results of a photograph or live lineup identification procedure,
  including the documentation of witness statements, regardless of
  the outcome of the procedure;
                     (D)  procedures for administering a photograph or
  live lineup identification procedure to an illiterate person or a
  person with limited English language proficiency;
                     (E)  for a live lineup identification procedure,
  if practicable, procedures for assigning an administrator who is
  unaware of which member of the live lineup is the suspect in the
  case or alternative procedures designed to prevent opportunities to
  influence the witness;
                     (F)  for a photograph identification procedure,
  procedures for assigning an administrator who is capable of
  administering a photograph array in a blind manner or in a manner
  consistent with other proven or supported best practices designed
  to prevent opportunities to influence the witness; and
                     (G)  any other procedures or best practices
  supported by credible research or commonly accepted as a means to
  reduce erroneous eyewitness identifications and to enhance the
  objectivity and reliability of eyewitness identifications.
         SECTION 5.  Section 4(b), Article 38.20, Code of Criminal
  Procedure, is amended to read as follows:
         (b)  Not later than September 1 of each even-numbered year,
  each law enforcement agency shall adopt the updated model policy as
  modified by the institute under Subsection (a) in the preceding
  year [review its policy adopted under this article and shall modify
  that policy as appropriate].
         SECTION 6.  Section 5, Article 38.20, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 5.  (a)  Any evidence or expert testimony presented by
  the state or the defendant on the subject of eyewitness
  identification is admissible only subject to compliance with the
  Texas Rules of Evidence.  Except as provided by Subsection (c),
  evidence [Evidence] of compliance with the model policy [or any
  other policy] adopted under this article [or with the minimum
  requirements of this article] is not a condition precedent to the
  admissibility of an out-of-court eyewitness identification.
         (b)  Notwithstanding Article 38.23 as that article relates
  to a violation of a state statute and except as provided by
  Subsection (c), a failure to conduct a photograph or live lineup
  identification procedure in substantial compliance with the model
  policy [or any other policy] adopted under this article [or with the
  minimum requirements of this article] does not bar the admission of
  eyewitness identification testimony in the courts of this state.
         (c)  If a witness makes an in-court identification of the
  accused, the eyewitness identification is admissible into evidence
  against the accused only if the evidence is accompanied by:
               (1)  the details of any prior identification made of
  the accused by the witness, including the manner in which that
  identification procedure was conducted; and
               (2)  evidence showing the witness's confidence level as
  described by the witness at the time of the prior identification.
         SECTION 7.  Section 1, Article 38.22, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 1.  In this article:
               (1)  "Electronic recording" has the meaning assigned by
  Article 2.32.
               (2)  "Written [, a written] statement" [of an accused]
  means:
                     (A) [(1)]  a statement made by the accused in the
  accused's [his] own handwriting; or
                     (B) [(2)]  a statement made in a language the
  accused can read or understand that:
                           (i) [(A)]  is signed by the accused; or
                           (ii) [(B)]  bears the mark of the accused,
  if the accused is unable to write and the mark is witnessed by a
  person other than a peace officer.
         SECTION 8.  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 a felony offense 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.
         SECTION 9.  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 began that the accused interrogated was not taken
  into custody for or being interrogated concerning the commission of
  a felony offense.
         SECTION 10.  Article 39.14, Code of Criminal Procedure, is
  amended by adding Subsection (h-1) to read as follows:
         (h-1)  In this subsection, "correctional facility" has the
  meaning assigned by Section 1.07, Penal Code. Notwithstanding any
  other provision of this article, if the state intends to use at a
  defendant's trial testimony of a person to whom the defendant made a
  statement against the defendant's interest while the person was
  imprisoned or confined in the same correctional facility as the
  defendant, the state shall disclose to the defendant:
               (1)  the person's complete criminal history, including
  any charges that were dismissed or reduced as part of a plea
  bargain;
               (2)  any grant, promise, or offer of immunity from
  prosecution, reduction of sentence, or other leniency or special
  treatment, given by the state in exchange for the person's
  testimony;
               (3)  information concerning other criminal cases in
  which the person has testified, or offered to testify, against a
  defendant with whom the person was imprisoned or confined,
  including any grant, promise, or offer as described by Subdivision
  (2) given by the state in exchange for the testimony; and
               (4)  other information in the possession, custody, or
  control of the state that is relevant to the person's credibility.
         SECTION 11.  Section 1701.253, Occupations Code, is amended
  by adding Subsection (n) to read as follows:
         (n)  As part of the minimum curriculum requirements, the
  commission shall establish a statewide comprehensive education and
  training program on eyewitness identification, including the
  variables that affect a witness's vision and memory, practices for
  minimizing contamination, and effective eyewitness identification
  protocols.
  SECTION 12.  STUDY REGARDING USE OF DRUG FIELD TEST KITS.
  (a) The Texas Forensic Science Commission shall conduct a study
  regarding the use of drug field test kits by law enforcement
  agencies in this state. The commission shall:
               (1)  evaluate the quality, accuracy, and reliability of
  drug field test kits;
               (2)  identify any common problems with drug field test
  kits;
               (3)  evaluate the availability and adequacy of training
  for law enforcement officers regarding the use of drug field test
  kits and the interpretation of the test results; and
               (4)  develop legislative recommendations regarding the
  use of drug field test kits by law enforcement agencies and
  regarding related training for law enforcement officers.
         (b)  Not later than December 1, 2018, the Texas Forensic
  Science Commission shall submit to the governor, the lieutenant
  governor, and each member of the legislature a written report that
  summarizes the results of the study conducted under this section
  and includes any legislative recommendations.
         SECTION 13.  CRIME SCENE INVESTIGATION STUDY. (a) The Texas
  Forensic Science Commission shall conduct a study regarding the
  manner in which crime scene investigations are conducted in this
  state. The commission shall:
               (1)  evaluate the standard procedures used in
  processing a crime scene and evaluate the quality of crime scene
  investigations;
               (2)  evaluate the availability and adequacy of the
  training or continuing education provided to crime scene
  investigators; and
               (3)  develop legislative recommendations regarding
  improvements to crime scene investigation procedures and training.
         (b)  Not later than December 1, 2018, the Texas Forensic
  Science Commission shall submit to the governor, the lieutenant
  governor, and each member of the legislature a written report that
  summarizes the results of the study conducted under this section
  and includes any legislative recommendations.
         SECTION 14.  Not later than December 1, 2017, each attorney
  representing the state, as defined by Article 2.023, Code of
  Criminal Procedure, as added by this Act, shall adopt the written
  policy required by that article.
         SECTION 15.  Article 2.32 and Section 9, Article 38.22, Code
  of Criminal Procedure, as added by this Act, and Sections 1 and 3,
  Article 38.22, Code of Criminal Procedure, as amended by this Act,
  apply to the use of a statement made as a result of a custodial
  interrogation that occurs on or after the effective date of this
  Act, regardless of whether the criminal offense giving rise to that
  interrogation is committed before, on, or after that date.
         SECTION 16.  Article 38.075(c), Code of Criminal Procedure,
  as added by this Act, applies to the admissibility of evidence in a
  criminal proceeding that commences on or after the effective date
  of this Act. The admissibility of evidence in a criminal proceeding
  that commences before the effective date of this Act is governed by
  the law in effect on the date the proceeding commenced, and the
  former law is continued in effect for that purpose.
         SECTION 17.  (a)  Not later than October 1, 2017, each law
  enforcement agency to which Article 38.20, Code of Criminal
  Procedure, as amended by this Act, applies shall adopt the model
  policy as required by that article.
         (b)  Sections 5(a) and (b), Article 38.20, Code of Criminal
  Procedure, as amended by this Act, apply only to a photograph or
  live lineup identification procedure conducted on or after January
  1, 2018, regardless of whether the offense to which the procedure is
  related was committed before, on, or after January 1, 2018.
         (c)  Section 5(c), Article 38.20, Code of Criminal
  Procedure, as added by this Act, applies only to the trial of an
  offense with respect to which a prior identification of the accused
  occurred on or after January 1, 2018, regardless of whether the
  offense that is the subject of the trial was committed before, on,
  or after January 1, 2018.
         SECTION 18.  Article 39.14(h-1), Code of Criminal Procedure,
  as added by this Act, applies to the prosecution of an offense
  committed on or after the effective date of this Act. The
  prosecution of an offense committed before the effective date of
  this Act is governed by the law in effect on the date the offense was
  committed, and the former law is continued in effect for that
  purpose. For purposes of this section, an offense is committed
  before the effective date of this Act if any element of the offense
  occurs before the effective date.
         SECTION 19.  Not later than January 1, 2018, the Texas
  Commission on Law Enforcement shall establish the eyewitness
  identification education and training program as required by
  Section 1701.253(n), Occupations Code, as added by this Act.
         SECTION 20.  This Act takes effect September 1, 2017.