85R1936 MEW-D     By: Canales H.B. No. 229       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)  "Law enforcement agency" means a governmental   agency authorized by law to employ peace officers.                (2)  "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 of the state or of a   municipality, county, or other political subdivision of the state   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.          (e)  Evidence from a custodial interrogation conducted by a   federal law enforcement agency or a law enforcement agency of   another state is not admissible in a criminal proceeding unless the   interrogation complied with that agency's custodial interrogation   procedures.          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 statement"[, a written statement of an   accused] means:                      (A) [(1)]  a statement made by the accused in the   accused's [his] own handwriting; or                      (B) [(2)]  a statement made in a language the   accused can read or understand that:                            (i) [(A)]  is signed by the accused; or                            (ii) [(B)]  bears the mark of the accused,   if the accused is unable to write and the mark is 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, an 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 not   admissible against the accused in a criminal proceeding, and an   [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   not [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 receiving [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)  Each [Every] electronic recording of [any statement   made by an accused during] a custodial interrogation must be   preserved until:                (1)  [such time as] the defendant's conviction for any   offense relating to the recording [thereto] is final and[,] all   direct appeals from the conviction [therefrom] are exhausted;[,] or                (2)  the prosecution of an offense described by   Subdivision (1) [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 or agent of the law enforcement agency conducting   the interrogation;                (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 offense giving rise to that interrogation is   committed before, on, or after that date.          SECTION 6.  This Act takes effect September 1, 2017.