By Turner of Harris H.B. No. 2671
76R5785 JMC-D
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
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) This section applies to the statement of 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.
5-7 SECTION 2. Subchapter B, Chapter 262, Family Code, is
5-8 amended by adding Section 262.1045 to read as follows:
5-9 Sec. 262.1045. CHILD SUSPECTED OF CONDUCT THAT VIOLATES
5-10 PENAL LAW. (a) This section applies only to a child taken into
5-11 possession in an emergency without a court order by the Department
5-12 of Protective and Regulatory Services.
5-13 (b) The Department of Protective and Regulatory Services may
5-14 not request a law enforcement agency to take possession of a child
5-15 to whom this section applies unless:
5-16 (1) the department has notified the parent, managing
5-17 conservator, or guardian of the child that the department:
5-18 (A) is in possession of the child;
5-19 (B) suspects that the child has engaged in
5-20 behavior that violates a penal law of this state; and
5-21 (C) intends to allow a law enforcement agency to
5-22 take possession of the child;
5-23 (2) the parent, managing conservator, or guardian
5-24 agrees to allow the law enforcement agency to take possession of
5-25 the child; and
5-26 (3) the department obtains the signature or other
5-27 demonstrable proof of the agreement of the parent, managing
6-1 conservator, or guardian.
6-2 SECTION 3. (a) The change in law made by Section 1 of this
6-3 Act applies only to the admissibility of a statement made on or
6-4 after the effective date of this Act without regard to whether the
6-5 child making the statement was taken into custody or possession
6-6 before, on, or after that date. A statement made before the
6-7 effective date of this Act is governed by the law in effect at the
6-8 time the statement was given, and that law is continued in effect
6-9 for that purpose.
6-10 (b) The change in law made by Section 2 of this Act applies
6-11 only to a child taken into possession in an emergency without a
6-12 court order by the Department of Protective and Regulatory Services
6-13 on or after the effective date of this Act.
6-14 SECTION 4. This Act takes effect September 1, 1999.
6-15 SECTION 5. The importance of this legislation and the
6-16 crowded condition of the calendars in both houses create an
6-17 emergency and an imperative public necessity that the
6-18 constitutional rule requiring bills to be read on three several
6-19 days in each house be suspended, and this rule is hereby suspended.