Art. 38.20. PHOTOGRAPH AND LIVE LINEUP IDENTIFICATION PROCEDURES.
Sec. 1.  In this article, "institute" means the Bill Blackwood Law Enforcement Management Institute of Texas located at Sam Houston State University.
Sec. 2.  This article applies only to a law enforcement agency of this state or of a county, municipality, or other political subdivision of this state that employs peace officers who conduct photograph or live lineup identification procedures in the routine performance of the officers' official duties.
Sec. 3.  (a)  Each law enforcement agency shall adopt, implement, and as necessary amend a detailed written policy regarding the administration of photograph and live lineup identification procedures in accordance with this article.  A law enforcement agency may adopt:
(1)  the model policy adopted under Subsection (b); or
(2)  the agency's own policy that, at a minimum, conforms to the requirements of Subsection (c).
(b)  The institute, in consultation with large, medium, and small law enforcement agencies and with law enforcement associations, scientific experts in eyewitness memory research, and appropriate organizations engaged in the development of law enforcement policy, shall develop, adopt, and disseminate to all law enforcement agencies in this state a model policy and associated training materials regarding the administration of photograph and live lineup identification procedures.  The institute shall provide for a period of public comment before adopting the policy and materials.
(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 the following information regarding evidence-based practices:
(A)  procedures for selecting 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 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.
Sec. 4.  (a)  Not later than December 31 of each odd-numbered year, the institute shall review the model policy and training materials adopted under this article and shall modify the policy and materials as appropriate.
(b)  Not later than September 1 of each even-numbered year, each law enforcement agency shall review its policy adopted under this article and shall modify that policy as appropriate.
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 of compliance with the model policy or any other policy adopted under 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 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.
Added by Acts 2011, 82nd Leg., R.S., Ch. 219 (H.B. 215), Sec. 1, eff. September 1, 2011.
Amended by: 
Acts 2017, 85th Leg., R.S., Ch. 686 (H.B. 34), Sec. 4, eff. September 1, 2017.
Acts 2017, 85th Leg., R.S., Ch. 686 (H.B. 34), Sec. 5, eff. September 1, 2017.