By Turner of Harris, Reyna of Bexar, Dukes, H.B. No. 2671
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the admissibility of a statement made by a child and to
1-3 the requirement that the Department of Protective and Regulatory
1-4 Services notify the parent or guardian of certain children taken
1-5 into possession by a law enforcement agency.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 51.095, Family Code, is amended by
1-8 amending Subsections (a) and (b) and adding Subsection (d) to read
1-9 as follows:
1-10 (a) Notwithstanding Section 51.09, the statement of a child
1-11 is admissible in evidence in any future proceeding concerning the
1-12 matter about which the statement was given if:
1-13 (1) the statement is made in writing under a
1-14 circumstance described by Subsection (d) [when the child is in a
1-15 detention facility or other place of confinement or in the custody
1-16 of an officer] and:
1-17 (A) the statement shows that the child has at
1-18 some time before the making of the statement received from a
1-19 magistrate a warning that:
1-20 (i) the child may remain silent and not
1-21 make any statement at all and that any statement that the child
1-22 makes may be used in evidence against the child;
1-23 (ii) the child has the right to have an
1-24 attorney present to advise the child either prior to any
1-25 questioning or during the questioning;
2-1 (iii) if the child is unable to employ an
2-2 attorney, the child has the right to have an attorney appointed to
2-3 counsel with the child before or during any interviews with peace
2-4 officers or attorneys representing the state; and
2-5 (iv) the child has the right to terminate
2-6 the interview at any time;
2-7 (B) and:
2-8 (i) the statement must be signed in the
2-9 presence of a magistrate by the child with no law enforcement
2-10 officer or prosecuting attorney present, except that a magistrate
2-11 may require a bailiff or a law enforcement officer if a bailiff is
2-12 not available to be present if the magistrate determines that the
2-13 presence of the bailiff or law enforcement officer is necessary for
2-14 the personal safety of the magistrate or other court personnel,
2-15 provided that the bailiff or law enforcement officer may not carry
2-16 a weapon in the presence of the child; and
2-17 (ii) the magistrate must be fully
2-18 convinced that the child understands the nature and contents of the
2-19 statement and that the child is signing the same voluntarily, and
2-20 if a statement is taken, the magistrate must sign a written
2-21 statement verifying the foregoing requisites have been met;
2-22 (C) the child knowingly, intelligently, and
2-23 voluntarily waives these rights before and during the making of the
2-24 statement and signs the statement in the presence of a magistrate;
2-25 and
2-26 (D) the magistrate certifies that the magistrate
2-27 has examined the child independent of any law enforcement officer
3-1 or prosecuting attorney, except as required to ensure the personal
3-2 safety of the magistrate or other court personnel, and has
3-3 determined that the child understands the nature and contents of
3-4 the statement and has knowingly, intelligently, and voluntarily
3-5 waived these rights;
3-6 (2) the statement is made orally and the child makes a
3-7 statement of facts or circumstances that are found to be true,
3-8 which conduct tends to establish the child's [his] guilt, such as
3-9 the finding of secreted or stolen property, or the instrument with
3-10 which the child [he] states the offense was committed;
3-11 (3) the statement was res gestae of the delinquent
3-12 conduct or the conduct indicating a need for supervision or of the
3-13 arrest;
3-14 (4) the statement is made:
3-15 (A) in open court at the child's adjudication
3-16 hearing;
3-17 (B) before a grand jury considering a petition,
3-18 under Section 53.045, that the child engaged in delinquent conduct;
3-19 or
3-20 (C) at a preliminary hearing concerning the
3-21 child held in compliance with this code, other than at a detention
3-22 hearing under Section 54.01; or
3-23 (5) the statement is made orally under a circumstance
3-24 described by Subsection (d) [when the child is in a detention
3-25 facility or other place of confinement or in the custody of an
3-26 officer] and the statement is recorded by an electronic recording
3-27 device, including a device that records images, and:
4-1 (A) before making the statement, the child is
4-2 given the warning described by Subdivision (1)(A) by a magistrate,
4-3 the warning is a part of the recording, and the child knowingly,
4-4 intelligently, and voluntarily waives each right stated in the
4-5 warning;
4-6 (B) the recording device is capable of making an
4-7 accurate recording, the operator of the device is competent to use
4-8 the device, the recording is accurate, and the recording has not
4-9 been altered;
4-10 (C) each voice on the recording is identified;
4-11 and
4-12 (D) not later than the 20th day before the date
4-13 of the proceeding, the attorney representing the child is given a
4-14 complete and accurate copy of each recording of the child made
4-15 under this subdivision.
4-16 (b) This section and Section 51.09 do not preclude the
4-17 admission of a statement made by the child if:
4-18 (1) the statement does not stem from [custodial]
4-19 interrogation of the child under a circumstance described by
4-20 Subsection (d); or
4-21 (2) without regard to whether the statement stems from
4-22 [custodial] interrogation of the child under a circumstance
4-23 described by Subsection (d), the statement is voluntary and has a
4-24 bearing on the credibility of the child as a witness.
4-25 (d) Subsections (a)(1) and (a)(5) apply to the statement of
4-26 a child made:
4-27 (1) while the child is in a detention facility or
5-1 other place of confinement;
5-2 (2) while the child is in the custody of an officer;
5-3 or
5-4 (3) during or after the questioning of the child by an
5-5 officer if the child is in the possession of the Department of
5-6 Protective and Regulatory Services and is suspected to have engaged
5-7 in behavior that violates a penal law of this state.
5-8 SECTION 2. The change in law made by Section 1 of this Act
5-9 applies only to the admissibility of a statement made on or after
5-10 the effective date of this Act without regard to whether the child
5-11 making the statement was taken into custody or possession before,
5-12 on, or after that date. A statement made before the effective date
5-13 of this Act is governed by the law in effect at the time the
5-14 statement was given, and that law is continued in effect for that
5-15 purpose.
5-16 SECTION 3. This Act takes effect September 1, 1999.
5-17 SECTION 4. The importance of this legislation and the
5-18 crowded condition of the calendars in both houses create an
5-19 emergency and an imperative public necessity that the
5-20 constitutional rule requiring bills to be read on three several
5-21 days in each house be suspended, and this rule is hereby suspended.