By:  Schechter                                        H.B. No. 1295
       73R1613 DAK-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the admissibility into evidence of a recording of an
    1-3  oral statement of a child who is the victim of certain crimes.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 5(a), Article 38.071, Code of Criminal
    1-6  Procedure, is amended to read as follows:
    1-7        (a)  On the motion of the attorney representing the state or
    1-8  the attorney representing the defendant and on a finding by the
    1-9  trial court that the following requirements have been substantially
   1-10  satisfied, the recording of an oral statement of the child made
   1-11  before a complaint has been filed or an indictment returned
   1-12  charging any person with an offense to which this article applies
   1-13  is admissible into evidence if:
   1-14              (1)  no attorney <or peace officer> was present when
   1-15  the statement was made;
   1-16              (2)  the recording is both visual and aural and is
   1-17  recorded on film or videotape or by other electronic means;
   1-18              (3)  the recording equipment was capable of making an
   1-19  accurate recording, the operator of the equipment was competent,
   1-20  the quality of the recording is sufficient to allow the court and
   1-21  the finder of fact to assess the demeanor of the child and the
   1-22  interviewer, and the recording is accurate and has not been
   1-23  altered;
   1-24              (4)  the statement was not made in response to
    2-1  questioning calculated to lead the child to make a particular
    2-2  statement;
    2-3              (5)  every voice on the recording is identified;
    2-4              (6)  the person conducting the interview of the child
    2-5  in the recording is expert in the handling, treatment, or <and>
    2-6  investigation of child abuse cases, present at the proceeding,
    2-7  called by the state as part of the state's case in chief to testify
    2-8  at trial, and subject to cross-examination;
    2-9              (7)  immediately after a complaint was filed or an
   2-10  indictment returned charging the defendant with an offense to which
   2-11  this article applies, the attorney representing the state notified
   2-12  the court, the defendant, and the attorney representing the
   2-13  defendant of the existence of the recording and that the recording
   2-14  may be used at the trial of the offense;
   2-15              (8)  the defendant, the attorney for the defendant, and
   2-16  the expert witnesses for the defendant were afforded an opportunity
   2-17  to view the recording before it is offered into evidence and, if a
   2-18  proceeding was requested as provided by Subsection (b) of this
   2-19  section, in a proceeding conducted before a district court judge
   2-20  but outside the presence of the jury were afforded an opportunity
   2-21  to cross-examine the child as provided by Subsection (b) of this
   2-22  section from any time immediately following the filing of the
   2-23  complaint or the returning of an indictment charging the defendant
   2-24  with an offense to which this article applies until the date the
   2-25  trial begins;
   2-26              (9)  the recording of the cross-examination, if there
   2-27  is one, is admissible under Subsection (b) of this section;
    3-1              (10)  before giving his testimony, the child was placed
    3-2  under oath or was otherwise admonished in a manner appropriate to
    3-3  the child's age and maturity to testify truthfully;
    3-4              (11)  the court finds from the recording or through an
    3-5  in camera examination of the child that the child was competent to
    3-6  testify at the time that the recording was made; and
    3-7              (12)  only one continuous recording of the child was
    3-8  made or the necessity for pauses in the recordings or for multiple
    3-9  recordings has been established at trial.
   3-10        SECTION 2.  This Act takes effect September 1, 1993, and
   3-11  applies only to the recording of an oral statement made on or after
   3-12  that date.  An oral statement recorded before the effective date of
   3-13  this Act is governed by the law in effect at the time the statement
   3-14  was recorded and that law is continued in effect for that purpose.
   3-15        SECTION 3.  The importance of this legislation and the
   3-16  crowded condition of the calendars in both houses create an
   3-17  emergency and an imperative public necessity that the
   3-18  constitutional rule requiring bills to be read on three several
   3-19  days in each house be suspended, and this rule is hereby suspended.