Texas Family Code - Section 51.095. Admissibility Of A Statement Of A Child
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§ 51.095. ADMISSIBILITY OF A STATEMENT OF A CHILD. (a)
Notwithstanding Section 51.09, the statement of a child is
admissible in evidence in any future proceeding concerning the
matter about which the statement was given if:
(1) the statement is made in writing under a
circumstance described by Subsection (d) and:
(A) the statement shows that the child has at
some time before the making of the statement received from a
magistrate a warning that:
(i) the child may remain silent and not make
any statement at all and that any statement that the child makes may
be used in evidence against the child;
(ii) the child has the right to have an
attorney present to advise the child either prior to any
questioning or during the questioning;
(iii) if the child is unable to employ an
attorney, the child has the right to have an attorney appointed to
counsel with the child before or during any interviews with peace
officers or attorneys representing the state; and
(iv) the child has the right to terminate
the interview at any time;
(B) and:
(i) the statement must be signed in the
presence of a magistrate by the child with no law enforcement
officer or prosecuting attorney present, except that a magistrate
may require a bailiff or a law enforcement officer if a bailiff is
not available to be present if the magistrate determines that the
presence of the bailiff or law enforcement officer is necessary for
the personal safety of the magistrate or other court personnel,
provided that the bailiff or law enforcement officer may not carry a
weapon in the presence of the child; and
(ii) the magistrate must be fully convinced
that the child understands the nature and contents of the statement
and that the child is signing the same voluntarily, and if a
statement is taken, the magistrate must sign a written statement
verifying the foregoing requisites have been met;
(C) the child knowingly, intelligently, and
voluntarily waives these rights before and during the making of the
statement and signs the statement in the presence of a magistrate;
and
(D) the magistrate certifies that the magistrate
has examined the child independent of any law enforcement officer
or prosecuting attorney, except as required to ensure the personal
safety of the magistrate or other court personnel, and has
determined that the child understands the nature and contents of
the statement and has knowingly, intelligently, and voluntarily
waived these rights;
(2) the statement is made orally and the child makes a
statement of facts or circumstances that are found to be true and
tend to establish the child's guilt, such as the finding of secreted
or stolen property, or the instrument with which the child states
the offense was committed;
(3) the statement was res gestae of the delinquent
conduct or the conduct indicating a need for supervision or of the
arrest;
(4) the statement is made:
(A) in open court at the child's adjudication
hearing;
(B) before a grand jury considering a petition,
under Section 53.045, that the child engaged in delinquent conduct;
or
(C) at a preliminary hearing concerning the child
held in compliance with this code, other than at a detention hearing
under Section 54.01; or
(5) subject to Subsection (f), the statement is made
orally under a circumstance described by Subsection (d) and the
statement is recorded by an electronic recording device, including
a device that records images, and:
(A) before making the statement, the child is
given the warning described by Subdivision (1)(A) by a magistrate,
the warning is a part of the recording, and the child knowingly,
intelligently, and voluntarily waives each right stated in the
warning;
(B) the recording device is capable of making an
accurate recording, the operator of the device is competent to use
the device, the recording is accurate, and the recording has not
been altered;
(C) each voice on the recording is identified;
and
(D) not later than the 20th day before the date of
the proceeding, the attorney representing the child is given a
complete and accurate copy of each recording of the child made under
this subdivision.
(b) This section and Section 51.09 do not preclude the
admission of a statement made by the child if:
(1) the statement does not stem from interrogation of
the child under a circumstance described by Subsection (d); or
(2) without regard to whether the statement stems from
interrogation of the child under a circumstance described by
Subsection (d), the statement is voluntary and has a bearing on the
credibility of the child as a witness.
(c) An electronic recording of a child's statement made
under Subsection (a)(5) shall be preserved until all juvenile or
criminal matters relating to any conduct referred to in the
statement are final, including the exhaustion of all appeals, or
barred from prosecution.
(d) Subsections (a)(1) and (a)(5) apply to the statement of
a child made:
(1) while the child is in a detention facility or other
place of confinement;
(2) while the child is in the custody of an officer;
or
(3) during or after the interrogation of the child by
an officer if the child is in the possession of the Department of
Protective and Regulatory Services and is suspected to have engaged
in conduct that violates a penal law of this state.
(e) A juvenile law referee or master may perform the duties
imposed on a magistrate under this section without the approval of
the juvenile court if the juvenile board of the county in which the
statement of the child is made has authorized a referee or master to
perform the duties of a magistrate under this section.
(f) A magistrate who provides the warnings required by
Subsection (a)(5) for a videotaped statement may at the time the
warnings are provided request by speaking on the tape recording
that the officer return the child and the videotape to the
magistrate at the conclusion of the process of questioning. The
magistrate may then view the videotape with the child or have the
child view the videotape to enable the magistrate to determine
whether the child's statements were given voluntarily. If a
magistrate uses the procedure described by this subsection, a
child's statement is not admissible unless the magistrate
determines that the statement was given voluntarily.
Added by Acts 1997, 75th Leg., ch. 1086, § 4, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 982, § 1, eff. Sept. 1,
1999; Acts 1999, 76th Leg., ch. 1477, § 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 1297, § 7, eff. Sept. 1, 2001; Acts
2001, 77th Leg., ch. 1420, § 21.001(29), eff. Sept. 1, 2001;
Acts 2005, 79th Leg., ch. 949, § 5, eff. Sept. 1, 2005.
Section: 51.071 51.072 51.073 51.074 51.075 51.08 51.09 51.095 51.10 51.101 51.102 51.11 51.115 51.116 51.12
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Last modified: August 10, 2007
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