H.B. No. 34         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, if known by the attorney representing   the state, 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.  Chapter 2, Code of Criminal Procedure, is   amended by adding Article 2.1386 to read as follows:          Art. 2.1386.  EYEWITNESS IDENTIFICATION PROTOCOLS. (a) In   this article, "law enforcement agency" means an agency of the state   or an agency of a political subdivision of the state authorized by   law to employ peace officers.          (b)  The Texas Commission on Law Enforcement shall establish   a comprehensive education and training program on eyewitness   identification, including material regarding variables that affect   a witness's vision and memory, practices for minimizing   contamination, and effective eyewitness identification protocols.          (c)  Each law enforcement agency shall require each peace   officer who is employed by the agency and who performs eyewitness   identification procedures to complete the education and training   described by Subsection (b).          SECTION 3.  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 4.  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; 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;                      (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, how confident the witness is in making the identification.  A   law enforcement agency shall document in accordance with Subsection   (c)(2)(C) any statement made under this subsection.          SECTION 5.  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 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.          SECTION 6.  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 7.  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 any   information in the possession, custody, or control of the state   that is relevant to the person's credibility, including:                (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; and                (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.   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.  Not later than January 1, 2018, the Texas   Commission on Law Enforcement shall adopt the comprehensive   education and training program required by Article 2.1386, Code of   Criminal Procedure, as added by this Act.          SECTION 11.  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 12.  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 13.  (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 14.  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 15.  This Act takes effect September 1, 2017.       ______________________________ ______________________________      President of the Senate Speaker of the House                   I certify that H.B. No. 34 was passed by the House on May 2,   2017, by the following vote:  Yeas 140, Nays 3, 1 present, not   voting; and that the House concurred in Senate amendments to H.B.   No. 34 on May 26, 2017, by the following vote:  Yeas 140, Nays 3, 2   present, not voting.     ______________________________   Chief Clerk of the House               I certify that H.B. No. 34 was passed by the Senate, with   amendments, on May 23, 2017, by the following vote:  Yeas 31, Nays   0.     ______________________________   Secretary of the Senate      APPROVED: __________________                   Date                       __________________                 Governor