87R5564 EAS-D
 
  By: Krause H.B. No. 2631
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the use of in-custody informant testimony in a criminal
  trial.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 38, Code of Criminal Procedure, is
  amended by adding Article 38.0751 to read as follows:
         Art. 38.0751.  TESTIMONY OF IN-CUSTODY INFORMANT
         Sec. 1.  DEFINITIONS.  In this article:
               (1)  "Attorney representing the state" means a district
  attorney, a criminal district attorney, or a county attorney with
  criminal jurisdiction.
               (2)  "Benefit" means any express or implied grant,
  promise, or offer of a reduction in sentence, immunity from
  prosecution, or other form of leniency or special treatment, made
  or given to an in-custody informant in exchange for testimony.
               (3)  "Correctional facility" has the meaning assigned
  by Section 1.07, Penal Code.
               (4)  "In-custody informant" means a person to whom a
  defendant makes a statement against the defendant's interest while
  the person is confined in the same correctional facility as the
  defendant.
         Sec. 2.  APPLICABILITY. This article applies to a
  proceeding in the prosecution of an offense under any of the
  following provisions of the Penal Code:
               (1)  Section 19.02 (Murder);
               (2)  Section 19.03 (Capital Murder);
               (3)  Section 20.03 (Kidnapping);
               (4)  Section 20.04 (Aggravated Kidnapping);
               (5)  Section 21.02 (Continuous Sexual Abuse of Young
  Child or Children);
               (6)  Section 21.11 (Indecency with a Child);
               (7)  Section 22.011 (Sexual Assault);
               (8)  Section 22.02 (Aggravated Assault);
               (9)  Section 22.021 (Aggravated Sexual Assault);
               (10)  Section 22.04 (Injury to a Child, Elderly
  Individual, or Disabled Individual);
               (11)  Section 28.02 (Arson);
               (12)  Section 29.02 (Robbery);
               (13)  Section 29.03 (Aggravated Robbery); or
               (14)  Section 30.02 (Burglary).
         Sec. 3.  PRETRIAL ADMISSIBILITY HEARING. (a)  The testimony
  of an in-custody informant is not admissible against a defendant in
  a criminal trial, whether offered in the guilt or innocence phase or
  the punishment phase of the trial, unless:
               (1)  on or before the 21st day before the date the trial
  begins, the attorney representing the state notifies the defendant
  of the state's intention to offer the testimony; and
               (2)  in a hearing conducted outside the presence of the
  jury, the judge finds by clear and convincing evidence that:
                     (A)  any benefit offered to the informant was not
  of a type that would unduly influence the informant's testimony;
                     (B)  the informant could be found by a rational
  juror to be reliable and credible; and
                     (C)  the value of the testimony is not outweighed
  by the danger of causing unfair prejudice to the defendant, causing
  unnecessary complication of the issues for the jury, or misleading
  the jury.
         (b)  The court shall consider the following factors at the
  hearing:
               (1)  any benefit offered or provided to the in-custody
  informant;
               (2)  the time, date, location, and substance of:
                     (A)  any statement allegedly made by the defendant
  to the informant; and
                     (B)  any informant statement that was given to a
  law enforcement agency, attorney representing the state, or other
  state official that implicates the defendant in the offense
  charged;
               (3)  whether the informant has at any time changed the
  informant's statement or testimony regarding a statement allegedly
  made by the defendant and, if so, the time, date, and location of
  the change in the informant's statement or testimony and the
  persons present at that time;
               (4)  the complete criminal history of the informant,
  including any charges that were dismissed or reduced as part of a
  plea bargain;
               (5)  previous prosecutions in which the informant
  testified or offered to testify against a defendant with whom the
  informant was confined in the same correctional facility, and any
  benefits offered or provided to the informant;
               (6)  any information relevant to the credibility of the
  informant and the credibility of the informant's statement;
               (7)  any information relevant to the informant's
  character relating to truthfulness or untruthfulness; and
               (8)  expert testimony the court considers useful to
  make the finding required by Subsection (a)(2), including testimony
  regarding:
                     (A)  the practices of the applicable law
  enforcement agency or attorney representing the state regarding
  in-custody informants;
                     (B)  the use of in-custody informant testimony in
  similar cases; or
                     (C)  any risk factors associated with
  characteristics particular to the informant or the case.
         (c)  The judge may not inform the jury of the judge's ruling
  at the admissibility hearing.
         (d)  The defendant has the right to call the in-custody
  informant as a witness at the admissibility hearing.
         Sec. 4.  REQUIREMENT TO PROVIDE INFORMATION AND RECORDS.
  (a) The attorney representing the state shall provide to the
  defendant and the defendant's attorney all information and records
  that the state intends to offer at the admissibility hearing,
  including the information described by Section 3(b).
         (b)  The attorney representing the state must provide the
  information not later than the 10th day before the date the
  admissibility hearing begins, except for good cause shown.
         Sec. 5.  JURY INSTRUCTION. If testimony of an in-custody
  informant is admitted at trial, the court shall instruct the jury to
  disregard the informant's testimony unless the jury determines
  that:
               (1)  any benefit granted, promised, or offered to the
  informant did not unduly influence the testimony; and
               (2)  the testimony is truthful.
         SECTION 2.  The change in law made 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 3.  This Act takes effect September 1, 2021.