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.
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