1-1 By: Turner of Harris, et al. H.B. No. 2671
1-2 (Senate Sponsor - Shapleigh)
1-3 (In the Senate - Received from the House April 30, 1999;
1-4 May 3, 1999, read first time and referred to Committee on
1-5 Jurisprudence; May 11, 1999, reported favorably, as amended, by the
1-6 following vote: Yeas 3, Nays 0; May 11, 1999, sent to printer.)
1-7 COMMITTEE AMENDMENT NO. 1 By: Harris
1-8 Amend H.B. 2671, Section 1, Section 51.095, Family Code, page 2,
1-9 line 58, strike "questioning". Insert "interrogation", page 2,
1-10 line 61, strike "behavior" insert "conduct"
1-11 A BILL TO BE ENTITLED
1-12 AN ACT
1-13 relating to the admissibility of a statement made by a child and to
1-14 the requirement that the Department of Protective and Regulatory
1-15 Services notify the parent or guardian of certain children taken
1-16 into possession by a law enforcement agency.
1-17 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-18 SECTION 1. Section 51.095, Family Code, is amended by
1-19 amending Subsections (a) and (b) and adding Subsection (d) to read
1-20 as follows:
1-21 (a) Notwithstanding Section 51.09, the statement of a child
1-22 is admissible in evidence in any future proceeding concerning the
1-23 matter about which the statement was given if:
1-24 (1) the statement is made in writing under a
1-25 circumstance described by Subsection (d) [when the child is in a
1-26 detention facility or other place of confinement or in the custody
1-27 of an officer] and:
1-28 (A) the statement shows that the child has at
1-29 some time before the making of the statement received from a
1-30 magistrate a warning that:
1-31 (i) the child may remain silent and not
1-32 make any statement at all and that any statement that the child
1-33 makes may be used in evidence against the child;
1-34 (ii) the child has the right to have an
1-35 attorney present to advise the child either prior to any
1-36 questioning or during the questioning;
1-37 (iii) if the child is unable to employ an
1-38 attorney, the child has the right to have an attorney appointed to
1-39 counsel with the child before or during any interviews with peace
1-40 officers or attorneys representing the state; and
1-41 (iv) the child has the right to terminate
1-42 the interview at any time;
1-43 (B) and:
1-44 (i) the statement must be signed in the
1-45 presence of a magistrate by the child with no law enforcement
1-46 officer or prosecuting attorney present, except that a magistrate
1-47 may require a bailiff or a law enforcement officer if a bailiff is
1-48 not available to be present if the magistrate determines that the
1-49 presence of the bailiff or law enforcement officer is necessary for
1-50 the personal safety of the magistrate or other court personnel,
1-51 provided that the bailiff or law enforcement officer may not carry
1-52 a weapon in the presence of the child; and
1-53 (ii) the magistrate must be fully
1-54 convinced that the child understands the nature and contents of the
1-55 statement and that the child is signing the same voluntarily, and
1-56 if a statement is taken, the magistrate must sign a written
1-57 statement verifying the foregoing requisites have been met;
1-58 (C) the child knowingly, intelligently, and
1-59 voluntarily waives these rights before and during the making of the
1-60 statement and signs the statement in the presence of a magistrate;
1-61 and
1-62 (D) the magistrate certifies that the magistrate
1-63 has examined the child independent of any law enforcement officer
2-1 or prosecuting attorney, except as required to ensure the personal
2-2 safety of the magistrate or other court personnel, and has
2-3 determined that the child understands the nature and contents of
2-4 the statement and has knowingly, intelligently, and voluntarily
2-5 waived these rights;
2-6 (2) the statement is made orally and the child makes a
2-7 statement of facts or circumstances that are found to be true,
2-8 which conduct tends to establish the child's [his] guilt, such as
2-9 the finding of secreted or stolen property, or the instrument with
2-10 which the child [he] states the offense was committed;
2-11 (3) the statement was res gestae of the delinquent
2-12 conduct or the conduct indicating a need for supervision or of the
2-13 arrest;
2-14 (4) the statement is made:
2-15 (A) in open court at the child's adjudication
2-16 hearing;
2-17 (B) before a grand jury considering a petition,
2-18 under Section 53.045, that the child engaged in delinquent conduct;
2-19 or
2-20 (C) at a preliminary hearing concerning the
2-21 child held in compliance with this code, other than at a detention
2-22 hearing under Section 54.01; or
2-23 (5) the statement is made orally under a circumstance
2-24 described by Subsection (d) [when the child is in a detention
2-25 facility or other place of confinement or in the custody of an
2-26 officer] and the statement is recorded by an electronic recording
2-27 device, including a device that records images, and:
2-28 (A) before making the statement, the child is
2-29 given the warning described by Subdivision (1)(A) by a magistrate,
2-30 the warning is a part of the recording, and the child knowingly,
2-31 intelligently, and voluntarily waives each right stated in the
2-32 warning;
2-33 (B) the recording device is capable of making an
2-34 accurate recording, the operator of the device is competent to use
2-35 the device, the recording is accurate, and the recording has not
2-36 been altered;
2-37 (C) each voice on the recording is identified;
2-38 and
2-39 (D) not later than the 20th day before the date
2-40 of the proceeding, the attorney representing the child is given a
2-41 complete and accurate copy of each recording of the child made
2-42 under this subdivision.
2-43 (b) This section and Section 51.09 do not preclude the
2-44 admission of a statement made by the child if:
2-45 (1) the statement does not stem from [custodial]
2-46 interrogation of the child under a circumstance described by
2-47 Subsection (d); or
2-48 (2) without regard to whether the statement stems from
2-49 [custodial] interrogation of the child under a circumstance
2-50 described by Subsection (d), the statement is voluntary and has a
2-51 bearing on the credibility of the child as a witness.
2-52 (d) Subsections (a)(1) and (a)(5) apply to the statement of
2-53 a child made:
2-54 (1) while the child is in a detention facility or
2-55 other place of confinement;
2-56 (2) while the child is in the custody of an officer;
2-57 or
2-58 (3) during or after the questioning of the child by an
2-59 officer if the child is in the possession of the Department of
2-60 Protective and Regulatory Services and is suspected to have engaged
2-61 in behavior that violates a penal law of this state.
2-62 SECTION 2. The change in law made by Section 1 of this Act
2-63 applies only to the admissibility of a statement made on or after
2-64 the effective date of this Act without regard to whether the child
2-65 making the statement was taken into custody or possession before,
2-66 on, or after that date. A statement made before the effective date
2-67 of this Act is governed by the law in effect at the time the
2-68 statement was given, and that law is continued in effect for that
2-69 purpose.
3-1 SECTION 3. This Act takes effect September 1, 1999.
3-2 SECTION 4. The importance of this legislation and the
3-3 crowded condition of the calendars in both houses create an
3-4 emergency and an imperative public necessity that the
3-5 constitutional rule requiring bills to be read on three several
3-6 days in each house be suspended, and this rule is hereby suspended.
3-7 * * * * *