By: West  S.B. No. 1253
         (In the Senate - Filed March 3, 2017; March 13, 2017, read
  first time and referred to Committee on Criminal Justice;
  April 10, 2017, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 6, Nays 1; April 10, 2017,
  sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1253 By:  Perry
 
 
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)  "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 audiovisual
  electronic recording, or an audio recording if an audiovisual
  electronic recording is unavailable, that is an authentic,
  accurate, and unaltered record of a custodial interrogation.
               (3)  "Law enforcement agency" means an agency of the
  state, or of a county, municipality, or other political subdivision
  of this state, that employs peace officers who, in the routine
  performance of the officers' duties, conduct custodial
  interrogations of persons suspected of committing criminal
  offenses.
               (4)  "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 persons in connection with the
  suspected violation of a penal law. The term does not include a
  courthouse.
         (b)  Unless good cause exists that makes electronic
  recording infeasible, a law enforcement agency shall make a
  complete and contemporaneous 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:
               (1)  begins at or before the time the person being
  interrogated enters the area of the place of detention in which the
  custodial interrogation will take place or receives a warning
  described by Section 2(a), Article 38.22, whichever is earlier; and
               (2)  continues, without interruption, until the time
  the interrogation ceases.
         (d)  For purposes of Subsection (b), good cause that makes
  electronic recording infeasible includes the following:
               (1)  the person being interrogated refused to respond
  or cooperate in a custodial interrogation at which an electronic
  recording was being 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 person's refusal but the person 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 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
  statement; 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 person being interrogated was
  not taken into custody for or being interrogated concerning the
  commission of an offense listed in Subsection (b).
         (e)  The attorney representing the state shall provide to the
  defendant, in a timely manner and not later than the 30th day before
  the date the trial begins, a copy of an electronic recording
  described by Subsection (b).
         (f)  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.
         SECTION 2.  Chapter 38, Code of Criminal Procedure, is
  amended by adding Article 38.24 to read as follows:
         Art. 38.24.  USE OF CERTAIN EVIDENCE CONCERNING ELECTRONIC
  RECORDING OF CUSTODIAL INTERROGATIONS. (a)  Unless the attorney
  representing the state offers proof satisfactory to the court that
  good cause, as described by Article 2.32(d), existed that made
  electronic recording of the custodial interrogation infeasible,
  evidence of compliance or noncompliance with Article 2.32
  concerning the electronic recording of a 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 listed in
  Article 2.32(b):
               (1)  is relevant and admissible before the trier of
  fact; and
               (2)  may be considered in determining the admissibility
  of a defendant's statement under Article 38.22, Article 38.23,
  another provision of this chapter, or another law.
         (b)  If a statement made by a person during a custodial
  interrogation described by Subsection (a) is admitted in evidence
  during trial, and if an electronic recording of the complete
  interrogation is not available, the court:
               (1)  if the court is the trier of fact, may consider the
  absence of an electronic recording of the interrogation in
  evaluating the evidence relating to and resulting from the
  interrogation; and
               (2)  if the jury is the trier of fact, shall on request
  of the defendant instruct the jury that:
                     (A)  it is the policy of this state to
  electronically record custodial interrogations of persons
  suspected of committing or charged with the commission of an
  offense listed in Article 2.32(b);
                     (B)  the jury may consider the absence of an
  electronic recording of the interrogation in evaluating the
  evidence relating to and resulting from the interrogation; and
                     (C)  the jury may draw a negative inference from
  the failure to make an electronic recording of an interrogation in
  compliance with the law.
         SECTION 3.  Article 38.24, Code of Criminal Procedure, as
  added by this Act, applies to the use of a statement resulting from
  a custodial interrogation that occurs on or after September 1,
  2018, regardless of whether the criminal offense giving rise to
  that interrogation is committed before, on, or after that date.
         SECTION 4.  This Act takes effect September 1, 2017.
 
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