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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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custodial interrogations. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 2, Code of Criminal Procedure, is |
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amended by adding Article 2.32 to read as follows: |
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Art. 2.32. ELECTRONIC RECORDING OF CUSTODIAL |
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INTERROGATIONS. (a) In this article: |
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(1) "Custodial interrogation" means any investigative |
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questioning, other than routine questions associated with booking, |
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by a peace officer during which: |
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(A) a reasonable person in the position of the |
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person being interrogated would consider himself or herself to be |
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in custody; and |
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(B) a question is asked that is reasonably likely |
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to elicit an incriminating response. |
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(2) "Electronic recording" means an audiovisual |
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electronic recording, or an audio recording if an audiovisual |
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electronic recording is unavailable, that is an authentic, |
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accurate, and unaltered record of a custodial interrogation. |
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(3) "Law enforcement agency" means an agency of the |
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state, or of a county, municipality, or other political subdivision |
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of this state, that employs peace officers who, in the routine |
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performance of the officers' duties, conduct custodial |
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interrogations of persons suspected of committing criminal |
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offenses. |
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(4) "Place of detention" means a police station or |
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other building that is a place of operation for a law enforcement |
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agency, including a municipal police department or county sheriff's |
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department, and is owned or operated by the law enforcement agency |
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for the purpose of detaining persons in connection with the |
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suspected violation of a penal law. The term does not include a |
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courthouse. |
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(b) Unless good cause exists that makes electronic |
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recording infeasible, a law enforcement agency shall make a |
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complete and contemporaneous electronic recording of any custodial |
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interrogation that occurs in a place of detention and is of a person |
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suspected of committing or charged with the commission of an |
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offense under: |
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(1) Section 19.02, Penal Code (murder); |
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(2) Section 19.03, Penal Code (capital murder); |
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(3) Section 20.03, Penal Code (kidnapping); |
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(4) Section 20.04, Penal Code (aggravated |
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kidnapping); |
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(5) Section 20A.02, Penal Code (trafficking of |
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persons); |
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(6) Section 20A.03, Penal Code (continuous |
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trafficking of persons); |
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(7) Section 21.02, Penal Code (continuous sexual abuse |
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of young child or children); |
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(8) Section 21.11, Penal Code (indecency with a |
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child); |
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(9) Section 21.12, Penal Code (improper relationship |
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between educator and student); |
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(10) Section 22.011, Penal Code (sexual assault); |
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(11) Section 22.021, Penal Code (aggravated sexual |
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assault); or |
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(12) Section 43.25, Penal Code (sexual performance by |
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a child). |
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(c) For purposes of Subsection (b), an electronic recording |
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of a custodial interrogation is complete only if the recording: |
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(1) begins at or before the time the person being |
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interrogated enters the area of the place of detention in which the |
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custodial interrogation will take place or receives a warning |
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described by Section 2(a), Article 38.22, whichever is earlier; and |
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(2) continues, without interruption, until the time |
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the interrogation ceases. |
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(d) For purposes of Subsection (b), good cause that makes |
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electronic recording infeasible includes the following: |
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(1) the person being interrogated refused to respond |
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or cooperate in a custodial interrogation at which an electronic |
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recording was being made, provided that: |
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(A) a contemporaneous recording of the refusal |
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was made; or |
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(B) the peace officer or agent of the law |
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enforcement agency conducting the interrogation attempted, in good |
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faith, to record the person's refusal but the person was unwilling |
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to have the refusal recorded, and the peace officer or agent |
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contemporaneously, in writing, documented the refusal; |
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(2) the statement was not made as the result of a |
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custodial interrogation, including a statement that was made |
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spontaneously by the accused and not in response to a question by a |
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peace officer; |
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(3) the peace officer or agent of the law enforcement |
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agency conducting the interrogation attempted, in good faith, to |
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record the interrogation but the recording equipment did not |
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function, the officer or agent inadvertently operated the equipment |
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incorrectly, or the equipment malfunctioned or stopped operating |
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without the knowledge of the officer or agent; |
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(4) exigent public safety concerns prevented or |
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rendered infeasible the making of an electronic recording of the |
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statement; or |
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(5) the peace officer or agent of the law enforcement |
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agency conducting the interrogation reasonably believed at the time |
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the interrogation commenced that the person being interrogated was |
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not taken into custody for or being interrogated concerning the |
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commission of an offense listed in Subsection (b). |
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(e) The attorney representing the state shall provide to the |
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defendant, in a timely manner and not later than the 30th day before |
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the date the trial begins, a copy of an electronic recording |
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described by Subsection (b). |
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(f) A recording of a custodial interrogation that complies |
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with this article is exempt from public disclosure except as |
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provided by Section 552.108, Government Code. |
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SECTION 2. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.24 to read as follows: |
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Art. 38.24. USE OF CERTAIN EVIDENCE CONCERNING ELECTRONIC |
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RECORDING OF CUSTODIAL INTERROGATIONS. (a) Unless the attorney |
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representing the state offers proof satisfactory to the court that |
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good cause, as described by Article 2.32(d), existed that made |
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electronic recording of the custodial interrogation infeasible, |
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evidence of compliance or noncompliance with Article 2.32 |
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concerning the electronic recording of a custodial interrogation |
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that occurs in a place of detention and is of a person suspected of |
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committing or charged with the commission of an offense listed in |
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Article 2.32(b): |
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(1) is relevant and admissible before the trier of |
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fact; and |
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(2) may be considered in determining the admissibility |
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of a defendant's statement under Article 38.22, Article 38.23, |
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another provision of this chapter, or another law. |
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(b) If a statement made by a person during a custodial |
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interrogation described by Subsection (a) is admitted in evidence |
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during trial, and if an electronic recording of the complete |
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interrogation is not available, the court: |
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(1) if the court is the trier of fact, may consider the |
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absence of an electronic recording of the interrogation in |
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evaluating the evidence relating to and resulting from the |
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interrogation; and |
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(2) if the jury is the trier of fact, shall on request |
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of the defendant instruct the jury that: |
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(A) it is the policy of this state to |
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electronically record custodial interrogations of persons |
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suspected of committing or charged with the commission of an |
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offense listed in Article 2.32(b); |
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(B) the jury may consider the absence of an |
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electronic recording of the interrogation in evaluating the |
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evidence relating to and resulting from the interrogation; and |
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(C) the jury may draw a negative inference from |
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the failure to make an electronic recording of an interrogation in |
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compliance with the law. |
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SECTION 3. Article 38.24, Code of Criminal Procedure, as |
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added by this Act, applies to the use of a statement resulting from |
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a custodial interrogation that occurs on or after September 1, |
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2018, regardless of whether the criminal offense giving rise to |
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that interrogation is committed before, on, or after that date. |
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SECTION 4. This Act takes effect September 1, 2017. |
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