Bill Text: TX HB405 | 2023-2024 | 88th Legislature | Introduced

---

Bill Title: Relating to the appearance of an arrested person before a magistrate and to the retention of certain related records.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2023-02-28 - Referred directly to subcommittee by chair [HB405 Detail]

Download: Texas-2023-HB405-Introduced.html

---

88R3276 AJZ-F
By: Collier H.B. No. 405

A BILL TO BE ENTITLED
AN ACT
relating to the appearance of an arrested person before a
magistrate and to the retention of certain related records.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 15.17(a) and (f), Code of Criminal
Procedure, are amended to read as follows:
(a)(1) In each case enumerated in this Code, the person
making the arrest or the person having custody of the person
arrested shall without unnecessary delay, but not later than 48
hours after the person is arrested, take the person arrested or have
the person [him] taken before some magistrate of the county where
the person [accused] was arrested or, to provide more expeditiously
to the person arrested the warnings described by this article,
before a magistrate in any other county of this state. The arrested
person may be taken before the magistrate in person or the image and
sound of the arrested person may be presented to the magistrate by
means of a videoconference. For purposes of this subsection,
"videoconference" means a two-way electronic communication of
image and sound between the arrested person and the magistrate and
includes secure Internet videoconferencing.
(2) The magistrate shall inform in clear language the
person arrested, either in person or through a videoconference, of:
(A) the accusation against the person [him] and
of any affidavit filed with the accusation;
(B) the person's [therewith, of his] right to
retain counsel;
(C) the person's [, of his] right to remain
silent and to not make a statement;
(D) the fact that any statement the person makes
may be used against the person;
(E) the person's [, of his] right to have an
attorney present during any interview with peace officers or
attorneys representing the state;
(F) the person's [, of his] right to terminate
the interview at any time;
(G) the person's [, and of his] right to have an
examining trial;
(H) [. The magistrate shall also inform the
person arrested of] the person's right to request the appointment
of counsel if the person cannot afford counsel; and
(I) [. The magistrate shall inform the person
arrested of] the procedures for requesting appointment of counsel.
(3) If applicable, the magistrate shall inform the
arrested person that the person may file the affidavit described by
Article 17.028(f).
(4) If the arrested person does not speak and
understand the English language or is deaf, the magistrate shall
inform the person in a manner consistent with Articles 38.30 and
38.31, as appropriate.
(5) If the proceeding is conducted through a
videoconference, the magistrate shall ensure that the arrested
person is able to connect to and understand the image and sound of
the videoconference.
(6) If the magistrate has reasonable cause to believe
that the arrested person has a mental illness or is a person with an
intellectual disability, the magistrate shall follow the
procedures under Article 16.22.
(7) If the magistrate is unable to ensure that the
arrested person is able to understand and participate in the
proceeding, the magistrate shall:
(A) if the magistrate has appointing authority,
appoint counsel for the person; or
(B) if the magistrate does not have appointing
authority, notify the appointing authority of the person's
inability to understand and participate in the proceeding.
(8) The magistrate shall ensure that reasonable
assistance in completing the necessary forms for requesting
appointment of counsel is provided to the arrested person at the
same time the person is informed of the person's rights under this
subsection.
(9) If the arrested person [arrested] is indigent and
requests appointment of counsel and if the magistrate is authorized
under Article 26.04 to appoint counsel for indigent defendants in
the county, the magistrate shall appoint counsel in accordance with
Article 1.051. If the magistrate is not authorized to appoint
counsel, the magistrate shall without unnecessary delay, but not
later than 24 hours after the arrested person [arrested] requests
appointment of counsel, transmit, or cause to be transmitted to the
court or to the courts' designee authorized under Article 26.04 to
appoint counsel in the county, the necessary forms for requesting
and ruling on the appointment of counsel. [The magistrate shall
also inform the person arrested that he is not required to make a
statement and that any statement made by him may be used against
him.]
(10) The magistrate shall allow the arrested person
[arrested] reasonable time and opportunity to consult counsel and
shall, after determining whether the person is currently on bail
for a separate criminal offense and whether the bail decision is
subject to Article 17.027, admit the person [arrested] to bail if
allowed by law.
(11) A record of the communication between the
arrested person and the magistrate shall be made. [The record shall
be preserved until the earlier of the following dates:
[(1) the date on which the pretrial hearing ends; or
[(2) the 91st day after the date on which the record is
made if the person is charged with a misdemeanor or the 120th day
after the date on which the record is made if the person is charged
with a felony. For purposes of this subsection, "videoconference"
means a two-way electronic communication of image and sound between
the arrested person and the magistrate and includes secure Internet
videoconferencing.]
(f) A record required under Subsection (a) or (e) may
consist of written forms, electronic recordings, or other
documentation as authorized by procedures adopted in the county
under Article 26.04(a). The record must be retained for at least
three years after final judgment is entered in the case or the
proceedings are otherwise terminated. The counsel for the defendant
may obtain a copy of the record on payment of a reasonable amount to
cover the costs of reproduction or, if the defendant is indigent,
the court shall provide a copy to the defendant without charging a
cost for the copy.
SECTION 2. The change in law made by this Act applies only
to a person who is arrested on or after the effective date of this
Act. A person arrested before the effective date of this Act is
governed by the law in effect immediately before the effective date
of this Act, and the former law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2023.