83R1558 GCB-D
 
  By: Ellis S.B. No. 87
 
 
 
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 Articles 2.32 and 2.33 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)  "Law enforcement agency" means an agency of the
  state, or of a county, municipality, or other political subdivision
  of the state, authorized by law to employ peace officers described
  by Subdivision (1), (2), (3), (4), (5), (6), (7), or (8), Article
  2.12.
               (3)  "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 qualified under Article 2.33 to
  conduct a custodial interrogation of the offense 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.
         Art. 2.33.  LAW ENFORCEMENT AGENCIES QUALIFIED TO CONDUCT
  CERTAIN CUSTODIAL INTERROGATIONS. Only a law enforcement agency
  that employs peace officers described by Subdivision (1), (2), (3),
  (4), (5), (6), (7), or (8), Article 2.12, is qualified to conduct a
  custodial interrogation of an individual suspected of committing an
  offense listed in Article 2.32(b).
         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 [, a written] statement" [of an accused]
  means a statement of an accused signed by the accused or a statement
  made by the accused in the accused's [his] own handwriting or, if
  the accused is unable to write, a statement bearing the accused's 
  [his] mark, when the mark has been 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, no 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
  admissible against the accused in a criminal proceeding, and no
  [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
  [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 being [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)  Every electronic recording of [any statement made by an
  accused during] a custodial interrogation must be preserved until
  such time as the defendant's conviction for any offense relating
  thereto is final, all direct appeals therefrom are exhausted, or
  the prosecution of 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;
               (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 criminal offense giving rise to that interrogation
  is committed before, on, or after that date.
         SECTION 6.  This Act takes effect September 1, 2013.