85R1936 MEW-D

By: Canales H.B. No. 229

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 2.32 to read as follows:

Art. 2.32. ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS. (a) In this article:

(1) "Law enforcement agency" means a governmental agency authorized by law to employ peace officers.

(2) "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 of the state or of a municipality, county, or other political subdivision of the state 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.

(e) Evidence from a custodial interrogation conducted by a federal law enforcement agency or a law enforcement agency of another state is not admissible in a criminal proceeding unless the interrogation complied with that agency's custodial interrogation procedures.

SECTION 2. Section 1, Article 38.22, Code of Criminal Procedure, is amended to read as follows:

Sec. 1. In this article:

(1) "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) and continues until the time the interrogation ceases.

(2) "Written statement"[, 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 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, an 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 not admissible against the accused in a criminal proceeding, and an [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 not [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 receiving [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) Each [Every] electronic recording of [any statement made by an accused during] a custodial interrogation must be preserved until:

(1) [such time as] the defendant's conviction for any offense relating to the recording [thereto] is final and[,] all direct appeals from the conviction [therefrom] are exhausted;[,] or

(2) the prosecution of an offense described by Subdivision (1) [such offenses] is barred by law.

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 or agent of the law enforcement agency conducting the interrogation;

(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).

SECTION 5. The changes in law made 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 offense giving rise to that interrogation is committed before, on, or after that date.

SECTION 6. This Act takes effect September 1, 2017.