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
 2-1     questioning or during the questioning;
 2-2                             (iii)  if the child is unable to employ an
 2-3     attorney, the child has the right to have an attorney appointed to
 2-4     counsel with the child before or during any interviews with peace
 2-5     officers or attorneys representing the state; and
 2-6                             (iv)  the child has the right to terminate
 2-7     the interview at any time;
 2-8                       (B)  and:
 2-9                             (i)  the statement must be signed in the
2-10     presence of a magistrate by the child with no law enforcement
2-11     officer or prosecuting attorney present, except that a magistrate
2-12     may require a bailiff or a law enforcement officer if a bailiff is
2-13     not available to be present if the magistrate determines that the
2-14     presence of the bailiff or law enforcement officer is necessary for
2-15     the personal safety of the magistrate or other court personnel,
2-16     provided that the bailiff or law enforcement officer may not carry
2-17     a weapon in the presence of the child; and
2-18                             (ii)  the magistrate must be fully
2-19     convinced that the child understands the nature and contents of the
2-20     statement and that the child is signing the same voluntarily, and
2-21     if a statement is taken, the magistrate must sign a written
2-22     statement verifying the foregoing requisites have been met;
2-23                       (C)  the child knowingly, intelligently, and
2-24     voluntarily waives these rights before and during the making of the
2-25     statement and signs the statement in the presence of a magistrate;
2-26     and
2-27                       (D)  the magistrate certifies that the magistrate
 3-1     has examined the child independent of any law enforcement officer
 3-2     or prosecuting attorney, except as required to ensure the personal
 3-3     safety of the magistrate or other court personnel, and has
 3-4     determined that the child understands the nature and contents of
 3-5     the statement and has knowingly, intelligently, and voluntarily
 3-6     waived these rights;
 3-7                 (2)  the statement is made orally and the child makes a
 3-8     statement of facts or circumstances that are found to be true,
 3-9     which conduct tends to establish the child's [his] guilt, such as
3-10     the finding of secreted or stolen property, or the instrument with
3-11     which the child [he] states the offense was committed;
3-12                 (3)  the statement was res gestae of the delinquent
3-13     conduct or the conduct indicating a need for supervision or of the
3-14     arrest;
3-15                 (4)  the statement is made:
3-16                       (A)  in open court at the child's adjudication
3-17     hearing;
3-18                       (B)  before a grand jury considering a petition,
3-19     under Section 53.045, that the child engaged in delinquent conduct;
3-20     or
3-21                       (C)  at a preliminary hearing concerning the
3-22     child held in compliance with this code, other than at a detention
3-23     hearing under Section 54.01; or
3-24                 (5)  the statement is made orally under a circumstance
3-25     described by Subsection (d) [when the child is in a detention
3-26     facility or other place of confinement or in the custody of an
3-27     officer] and the statement is recorded by an electronic recording
 4-1     device, including a device that records images, and:
 4-2                       (A)  before making the statement, the child is
 4-3     given the warning described by Subdivision (1)(A) by a magistrate,
 4-4     the warning is a part of the recording, and the child knowingly,
 4-5     intelligently, and voluntarily waives each right stated in the
 4-6     warning;
 4-7                       (B)  the recording device is capable of making an
 4-8     accurate recording, the operator of the device is competent to use
 4-9     the device, the recording is accurate, and the recording has not
4-10     been altered;
4-11                       (C)  each voice on the recording is identified;
4-12     and
4-13                       (D)  not later than the 20th day before the date
4-14     of the proceeding, the attorney representing the child is given a
4-15     complete and accurate copy of each recording of the child made
4-16     under this subdivision.
4-17           (b)  This section and Section 51.09 do not preclude the
4-18     admission of a statement made by the child if:
4-19                 (1)  the statement does not stem from [custodial]
4-20     interrogation of the child under a circumstance described by
4-21     Subsection (d); or
4-22                 (2)  without regard to whether the statement stems from
4-23     [custodial] interrogation of the child under a circumstance
4-24     described by Subsection (d), the statement is voluntary and has a
4-25     bearing on the credibility of the child as a witness.
4-26           (d)  Subsections (a)(1) and (a)(5) apply to the statement of
4-27     a child made:
 5-1                 (1)  while the child is in a detention facility or
 5-2     other place of confinement;
 5-3                 (2)  while the child is in the custody of an officer;
 5-4     or
 5-5                 (3)  during or after the interrogation of the child by
 5-6     an officer if the child is in the possession of the Department of
 5-7     Protective and Regulatory Services and is suspected to have engaged
 5-8     in conduct that violates a penal law of this state.
 5-9           SECTION 2.  The change in law made by Section 1 of this Act
5-10     applies only to the admissibility of a statement made on or after
5-11     the effective date of this Act without regard to whether the child
5-12     making the statement was taken into custody or possession before,
5-13     on, or after that date.  A statement made before the effective date
5-14     of this Act is governed by the law in effect at the time the
5-15     statement was given, and that law is continued in effect for that
5-16     purpose.
5-17           SECTION 3.  This Act takes effect September 1, 1999.
5-18           SECTION 4.  The importance of this legislation and the
5-19     crowded condition of the calendars in both houses create an
5-20     emergency and an imperative public necessity that the
5-21     constitutional rule requiring bills to be read on three several
5-22     days in each house be suspended, and this rule is hereby suspended.
         _______________________________     _______________________________
             President of the Senate              Speaker of the House
               I certify that H.B. No. 2671 was passed by the House on April
         29, 1999, by a non-record vote; and that the House concurred in
         Senate amendments to H.B. No. 2671 on May 20, 1999, by a non-record
         vote.
                                             _______________________________
                                                 Chief Clerk of the House
               I certify that H.B. No. 2671 was passed by the Senate, with
         amendments, on May 18, 1999, by a viva-voce vote.
                                             _______________________________
                                                 Secretary of the Senate
         APPROVED:  _____________________
                            Date
                    _____________________
                          Governor