85R13885 MEW-F     By: Smithee H.B. No. 3134       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 a felony   offense.          (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 a felony offense.          (e)  The attorney representing the state shall provide to the   defendant, in a timely manner and not later than the 60th 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 a felony offense:                (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 a felony   offense;                      (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.