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A BILL TO BE ENTITLED
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AN ACT
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relating to the use of in-custody informant testimony in a criminal |
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trial. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 38.075, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 38.075. [CORROBORATION OF CERTAIN] TESTIMONY OF |
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IN-CUSTODY INFORMANT WITNESS [REQUIRED]. |
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Sec. 1. DEFINITIONS. In this article: |
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(1) "Attorney representing the state" means a district |
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attorney, a criminal district attorney, or a county attorney with |
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criminal jurisdiction. |
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(2) "Benefit" means any deal, payment, leniency, |
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inducement, or other advantage that is offered or provided to an |
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in-custody informant in exchange for testimony, including: |
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(A) leniency in any criminal case or in a |
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community supervision or parole matter, including a decision not to |
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make an arrest or file charges with respect to an offense, a |
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decision to reduce the number or severity of charges, or a decision |
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to reduce a sentence; |
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(B) money; |
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(C) assistance with a change in immigration |
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status; |
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(D) in-kind benefits such as food, housing, or |
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travel; |
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(E) in-custody benefits such as visiting |
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privileges, transfer to better living conditions, or enhanced |
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access to food, entertainment, or other amenities; and |
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(F) any benefit that is conferred on a third |
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party and that results directly or indirectly from the in-custody |
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informant's testimony. |
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(3) "Correctional facility" has the meaning assigned |
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by Section 1.07, Penal Code. |
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(4) "In-custody informant" means a person to whom a |
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defendant makes a statement against the defendant's interest while |
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the person is imprisoned or confined in the same correctional |
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facility as the defendant. |
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(5) "In-custody informant index" means a centralized |
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index that includes information and records related to in-custody |
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informants who may or may not be used as witnesses in criminal |
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trials. |
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Sec. 2. MAINTAINING AND DISCLOSING IN-CUSTODY INFORMANT |
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INFORMATION. (a) Each attorney representing the state shall adopt |
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and implement a detailed written policy regarding the creation and |
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maintenance of an in-custody informant index. |
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(b) The policy must require that information and records |
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concerning cases in which an in-custody informant testified or |
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offered to testify are maintained in the in-custody informant |
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index, including, at a minimum, the following: |
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(1) a summary of the informant's testimony and, if |
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available, a copy of the testimony; |
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(2) any benefit offered or provided to the informant; |
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(3) whether the informant has at any time changed the |
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informant's statement or testimony regarding a statement allegedly |
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made by the defendant; |
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(4) the complete criminal history of the informant, |
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including: |
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(A) any pending charges or investigations in |
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which the informant is a suspect; and |
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(B) evidence of any prior offense committed by |
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the informant, regardless of whether the offense resulted in |
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conviction; and |
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(5) any other information relevant to the credibility |
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of the informant, including any history of mental illness or drug or |
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alcohol abuse. |
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(c) The policy must require that any information or records |
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maintained under Subsection (b) relating to an in-custody informant |
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in the defendant's case be disclosed to the defendant and the |
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defendant's attorney. |
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Sec. 3. PRETRIAL RELIABILITY HEARING. The testimony of an |
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in-custody informant is not admissible against a defendant in a |
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criminal trial, whether offered in the guilt or innocence phase or |
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the punishment phase of the trial, unless: |
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(1) on or before the 14th day before the date the trial |
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begins, the attorney representing the state: |
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(A) notifies the defendant of: |
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(i) the state's intention to offer the |
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testimony; and |
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(ii) the name of the informant; and |
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(B) provides the defendant with a written summary |
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of the testimony to be offered and a copy of all prior written, |
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oral, or recorded statements of the informant concerning the |
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defendant; |
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(2) the judge finds, in a hearing conducted outside |
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the presence of the jury, that the testimony of the informant is |
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reliable after considering relevant factors, including: |
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(A) any benefit offered or provided to the |
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informant; |
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(B) the time, date, location, and substance of: |
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(i) any statement allegedly made by the |
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defendant to the informant; and |
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(ii) any informant statement that was given |
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to a law enforcement agency and that implicates the defendant in the |
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offense charged; |
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(C) whether the informant has at any time changed |
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the informant's statement or testimony regarding a statement |
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allegedly made by the defendant; |
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(D) the complete criminal history of the |
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informant, including: |
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(i) any pending charges or investigations |
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in which the informant is a suspect; and |
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(ii) evidence of any prior offense |
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committed by the informant, regardless of whether the offense |
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resulted in conviction; |
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(E) previous prosecutions in which the informant |
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testified or offered to testify, and any benefits offered or |
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provided to the informant; and |
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(F) any other information relevant to the |
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credibility of the informant, including any history of mental |
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illness or drug or alcohol abuse; and |
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(3) the testimony is otherwise admissible under the |
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Texas Rules of Evidence. |
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Sec. 4. ADMISSIBILITY OF PRIOR OFFENSES. Notwithstanding |
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Rule 609, Texas Rules of Evidence, if testimony of an in-custody |
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informant is admitted at trial, evidence of prior offenses |
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committed by the informant, regardless of whether the informant was |
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convicted, may be admitted for the purpose of impeachment. |
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Sec. 5. JURY INSTRUCTION. If testimony of an in-custody |
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informant is admitted at trial, on request of the defendant, the |
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court may instruct the jury to: |
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(1) examine and weigh the testimony of the informant |
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with greater care and scrutiny than the testimony of other |
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witnesses; and |
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(2) consider the factors listed in Section 3(2) in |
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assessing the reliability of the testimony. |
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Sec. 6. CORROBORATION REQUIRED. (a) A defendant may not be |
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convicted of an offense on the testimony of an in-custody informant |
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[a person to whom the defendant made a statement against the
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defendant's interest during a time when the person was imprisoned
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or confined in the same correctional facility as the defendant] |
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unless the testimony is corroborated by other evidence tending to |
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connect the defendant with the offense committed. [In this
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subsection, "correctional facility" has the meaning assigned by
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Section 1.07, Penal Code.] |
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(b) Corroboration is not sufficient for the purposes of this |
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section [article] if the corroboration only shows that the offense |
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was committed. |
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SECTION 2. The change in law made by this Act applies to the |
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admissibility of evidence in a criminal proceeding that commences |
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on or after the effective date of this Act. The admissibility of |
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evidence in a criminal proceeding that commences before the |
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effective date of this Act is governed by the law in effect on the |
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date the proceeding commenced, and the former law is continued in |
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effect for that purpose. |
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SECTION 3. Each attorney representing the state shall adopt |
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and implement the written policy required by Section 2, Article |
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38.075, Code of Criminal Procedure, as added by this Act, not later |
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than January 1, 2018. |
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SECTION 4. This Act takes effect September 1, 2017. |