By: Smithee, et al. (Senate Sponsor - Perry)	H.B. No. 34
	(In the Senate - Received from the House May 3, 2017;
	May 18, 2017, read first time and referred to Committee on Criminal
	Justice; May 21, 2017, reported adversely, with favorable
	Committee Substitute by the following vote:  Yeas 7, Nays 0;
	May 21, 2017, sent to printer.)
Click here to see the committee vote
	COMMITTEE SUBSTITUTE FOR H.B. No. 34	By:  Whitmire

	A BILL TO BE ENTITLED
	AN ACT
	relating to measures to prevent wrongful convictions.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Chapter 2, Code of Criminal Procedure, is
	amended by adding Articles 2.023 and 2.32 to read as follows:
	Art. 2.023.  TRACKING USE OF CERTAIN TESTIMONY. (a) In this
	article:
	(1)  "Attorney representing the state" means a district
	attorney, a criminal district attorney, or a county attorney with
	criminal jurisdiction.
	(2)  "Correctional facility" has the meaning assigned
	by Section 1.07, Penal Code.
	(b)  An attorney representing the state shall track:
	(1)  the use of testimony of a person to whom a
	defendant made a statement against the defendant's interest while
	the person was imprisoned or confined in the same correctional
	facility as the defendant, regardless of whether the testimony is
	presented at trial; and
	(2)  any benefits offered or provided to a person in
	exchange for testimony described by Subdivision (1).
	Art. 2.32.  ELECTRONIC RECORDING OF CUSTODIAL
	INTERROGATIONS. (a)  In this article:
	(1)  "Electronic recording" means an audiovisual
	electronic recording, or an audio recording if an audiovisual
	electronic recording is unavailable, that is authentic, accurate,
	and unaltered.
	(2)  "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.
	(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 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 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:
	(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 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 an offense listed in Subsection (b).
	(e)  A recording of a custodial interrogation that complies
	with this article is exempt from public disclosure as provided by
	Section 552.108, Government Code.
	SECTION 2.  Article 38.075, Code of Criminal Procedure, is
	amended by adding Subsection (c) to read as follows:
	(c)  Evidence of a prior offense committed by a person who
	gives testimony described by Subsection (a) may be admitted for the
	purpose of impeachment if the person received a benefit described
	by Article 39.14(h-1)(2) with respect to the offense, regardless of
	whether the person was convicted of the offense.
	SECTION 3.  Section 3, Article 38.20, Code of Criminal
	Procedure, is amended by amending Subsection (c) and adding
	Subsection (d) to read as follows:
	(c)  The model policy or any other policy adopted by a law
	enforcement agency under Subsection (a) must:
	(1)  be based on:
	(A)  credible field, academic, or laboratory
	research on eyewitness memory;
	(B)  relevant policies, guidelines, and best
	practices designed to reduce erroneous eyewitness identifications
	and to enhance the reliability and objectivity of eyewitness
	identifications; and
	(C)  other relevant information as appropriate;
	and
	(2)  include [address] the following information
	regarding evidence-based practices [topics]:
	(A)  procedures for selecting [the selection of]
	photograph and live lineup filler photographs or participants to
	ensure that the photographs or participants:
	(i)  are consistent in appearance with the
	description of the alleged perpetrator that was provided by a
	witness; and
	(ii)  do not make the suspect noticeably
	stand out;
	(B)  instructions given to a witness before
	conducting a photograph or live lineup identification procedure
	that must include a statement that the person who committed the
	offense may or may not be present in the procedure and that the
	investigation will continue regardless of whether the witness
	identifies a person in the procedure;
	(C)  procedures for documenting and preserving
	the [documentation and preservation of] results of a photograph or
	live lineup identification procedure, including the documentation
	of witness statements, regardless of the outcome of the procedure;
	(D)  procedures for administering a photograph or
	live lineup identification procedure to an illiterate person or a
	person with limited English language proficiency;
	(E)  for a live lineup identification procedure,
	[if practicable,] procedures for assigning an administrator who is
	unaware of which member of the live lineup is the suspect in the
	case [or alternative procedures designed to prevent opportunities
	to influence the witness];
	(F)  for a photograph identification procedure,
	procedures for assigning an administrator who is capable of
	administering a photograph array in a blind manner or in a manner
	consistent with other proven or supported best practices designed
	to prevent opportunities to influence the witness; and
	(G)  any other procedures or best practices
	supported by credible research or commonly accepted as a means to
	reduce erroneous eyewitness identifications and to enhance the
	objectivity and reliability of eyewitness identifications.
	(d)  A witness who makes an identification based on a
	photograph or live lineup identification procedure shall be asked
	immediately after the procedure to state, in the witness's own
	words, the witness's level of confidence in making the
	identification.  A law enforcement agency shall document in
	accordance with Subsection (c)(2)(C) any statement made under this
	subsection.
	SECTION 4.  Section 5, Article 38.20, Code of Criminal
	Procedure, is amended to read as follows:
	Sec. 5.  (a)  Any evidence or expert testimony presented by
	the state or the defendant on the subject of eyewitness
	identification is admissible only subject to compliance with the
	Texas Rules of Evidence.  Except as provided by Subsection (c),
	evidence [Evidence] of compliance with the model policy or any
	other policy adopted under this article [or with the minimum
	requirements of this article] is not a condition precedent to the
	admissibility of an out-of-court eyewitness identification.
	(b)  Notwithstanding Article 38.23 as that article relates
	to a violation of a state statute and except as provided by
	Subsection (c), a failure to conduct a photograph or live lineup
	identification procedure in substantial compliance with the model
	policy or any other policy adopted under this article [or with the
	minimum requirements of this article] does not bar the admission of
	eyewitness identification testimony in the courts of this state.
	(c)  If a witness who has previously made an out-of-court
	photograph or live lineup identification of the accused makes an
	in-court identification of the accused, the eyewitness
	identification is admissible into evidence against the accused only
	if the evidence is accompanied by:
	(1)  the details of each prior photograph or live
	lineup identification made of the accused by the witness, including
	the manner in which the identification procedure was conducted; and
	(2)  evidence showing the witness's confidence level as
	described by the witness at the time of a prior photograph or live
	lineup identification specified under Subdivision (1).
	SECTION 5.  Article 38.22, Code of Criminal Procedure, is
	amended by adding Section 9 to read as follows:
	Sec. 9.  Notwithstanding any other provision of this
	article, no oral, sign language, or written statement that is made
	by a person accused of an offense listed in Article 2.32(b) and made
	as a result of a custodial interrogation occurring in a place of
	detention, as that term is defined by Article 2.32, is admissible
	against the accused in a criminal proceeding unless:
	(1)  an electronic recording was made of the statement,
	as required by Article 2.32(b); or
	(2)  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.
	SECTION 6.  Article 39.14, Code of Criminal Procedure, is
	amended by adding Subsection (h-1) to read as follows:
	(h-1)  In this subsection, "correctional facility" has the
	meaning assigned by Section 1.07, Penal Code. Notwithstanding any
	other provision of this article, if the state intends to use at a
	defendant's trial testimony of a person to whom the defendant made a
	statement against the defendant's interest while the person was
	imprisoned or confined in the same correctional facility as the
	defendant, the state shall disclose to the defendant:
	(1)  the person's complete criminal history, including
	any charges that were dismissed or reduced as part of a plea
	bargain;
	(2)  any grant, promise, or offer of immunity from
	prosecution, reduction of sentence, or other leniency or special
	treatment, given by the state in exchange for the person's
	testimony;
	(3)  information concerning other criminal cases in
	which the person has testified, or offered to testify, against a
	defendant with whom the person was imprisoned or confined,
	including any grant, promise, or offer as described by Subdivision
	(2) given by the state in exchange for the testimony; and
	(4)  other information in the possession, custody, or
	control of the state that is relevant to the person's credibility.
	SECTION 7.  Section 1701.253, Occupations Code, is amended
	by adding Subsection (n) to read as follows:
	(n)  As part of the minimum curriculum requirements, the
	commission shall establish a statewide comprehensive education and
	training program on eyewitness identification, including the
	variables that affect a witness's vision and memory, practices for
	minimizing contamination, and effective eyewitness identification
	protocols.
	SECTION 8.  STUDY REGARDING USE OF DRUG FIELD TEST KITS. (a)
	The Texas Forensic Science Commission shall conduct a study
	regarding the use of drug field test kits by law enforcement
	agencies in this state. The commission shall:
	(1)  evaluate the quality, accuracy, and reliability of
	drug field test kits;
	(2)  identify any common problems with drug field test
	kits;
	(3)  evaluate the availability and adequacy of training
	for law enforcement officers regarding the use of drug field test
	kits and the interpretation of the test results; and
	(4)  develop legislative recommendations regarding the
	use of drug field test kits by law enforcement agencies and
	regarding related training for law enforcement officers.
	(b)  Not later than December 1, 2018, the Texas Forensic
	Science Commission shall submit to the governor, the lieutenant
	governor, and each member of the legislature a written report that
	summarizes the results of the study conducted under this section
	and includes any legislative recommendations.
	SECTION 9.  CRIME SCENE INVESTIGATION STUDY. (a) The Texas
	Forensic Science Commission shall conduct a study regarding the
	manner in which crime scene investigations are conducted in this
	state. The commission shall:
	(1)  evaluate the standard procedures used in
	processing a crime scene and evaluate the quality of crime scene
	investigations;
	(2)  evaluate the availability and adequacy of the
	training or continuing education provided to crime scene
	investigators; and
	(3)  develop legislative recommendations regarding
	improvements to crime scene investigation procedures and training.
	(b)  Not later than December 1, 2018, the Texas Forensic
	Science Commission shall submit to the governor, the lieutenant
	governor, and each member of the legislature a written report that
	summarizes the results of the study conducted under this section
	and includes any legislative recommendations.
	SECTION 10.  Article 2.32 and Section 9, Article 38.22, Code
	of Criminal Procedure, as added by this Act, apply to the use of a
	statement resulting from a custodial interrogation that occurs on
	or after March 1, 2018, regardless of whether the criminal offense
	giving rise to that interrogation is committed before, on, or after
	that date.
	SECTION 11.  Article 38.075(c), Code of Criminal Procedure,
	as added 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 12.  (a)  Section 3(d), Article 38.20, Code of
	Criminal Procedure, as added by this Act, applies only to a
	photograph or live lineup identification procedure conducted on or
	after the effective date of this Act, regardless of whether the
	offense to which the procedure is related was committed before, on,
	or after the effective date of this Act.
	(b)  Section 5, Article 38.20, Code of Criminal Procedure, as
	amended by this Act, applies only to the trial of an offense with
	respect to which a prior photograph or live lineup identification
	of the accused occurred on or after the effective date of this Act,
	regardless of whether the offense that is the subject of the trial
	was committed before, on, or after the effective date of this Act.
	SECTION 13.  Article 39.14(h-1), Code of Criminal Procedure,
	as added by this Act, applies to the prosecution of an offense
	committed on or after the effective date of this Act. The
	prosecution of an offense committed before the effective date of
	this Act is governed by the law in effect on the date the offense was
	committed, and the former law is continued in effect for that
	purpose. For purposes of this section, an offense is committed
	before the effective date of this Act if any element of the offense
	occurs before the effective date.
	SECTION 14.  Not later than January 1, 2018, the Texas
	Commission on Law Enforcement shall establish the eyewitness
	identification education and training program as required by
	Section 1701.253(n), Occupations Code, as added by this Act.
	SECTION 15.  This Act takes effect September 1, 2017.
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