By: Brown of Kaufman H.B. No. 2076
A BILL TO BE ENTITLED
AN ACT
relating to the impact of the presence of certain peace officers on
the admissibility of certain statements made by children.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 5(a), Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
(a) On the motion of the attorney representing the state or
the attorney representing the defendant and on a finding by the
court that the following requirements have been substantially
satisfied, the recording of an oral statement of the child made
before a complaint has been filed or an indictment returned is
admissible into evidence if:
(1) no attorney or active, appointed peace officer was
present when the statement was made;
(2) the recording is both visual and aural and is
recorded on film or videotape or by other electronic means;
(3) the recording equipment was capable of making an
accurate recording, the operator of the equipment was competent,
the quality of the recording is sufficient to allow the court and
the finder of fact to assess the demeanor of the child and the
interviewer, and the recording is accurate and has not been
altered;
(4) the statement was not made in response to
questioning calculated to lead the child to make a particular
statement;
(5) every voice on the recording is identified;
(6) the person conducting the interview of the child
in the recording is expert in the handling, treatment, and
investigation of child abuse cases, present at the hearing or
proceeding, called by the state, and subject to cross-examination;
(7) immediately after a complaint was filed or an
indictment returned, the attorney representing the state notified
the court, the defendant, and the attorney representing the
defendant of the existence of the recording;
(8) the defendant, the attorney for the defendant, and
the expert witnesses for the defendant were afforded an opportunity
to view the recording before it is offered into evidence and, if a
proceeding was requested as provided by Subsection (b) [of this
section], in a proceeding conducted before a district court judge
but outside the presence of the jury were afforded an opportunity to
cross-examine the child as provided by Subsection (b) [of this
section] from any time immediately following the filing of the
complaint or the returning of an indictment charging the defendant
until the date the hearing or proceeding begins;
(9) the recording of the cross-examination, if there
is one, is admissible under Subsection (b) [of this section];
(10) before giving his testimony, the child was placed
under oath or was otherwise admonished in a manner appropriate to
the child's age and maturity to testify truthfully;
(11) the court finds from the recording or through an
in camera examination of the child that the child was competent to
testify at the time that the recording was made; and
(12) only one continuous recording of the child was
made or the necessity for pauses in the recordings or for multiple
recordings has been established at the hearing or proceeding.
SECTION 2. This Act applies only to the admissibility of a
recorded oral statement at a hearing or proceeding that commences
on or after the effective date of this Act, regardless of whether
the statement was made before, on, or after that date.
SECTION 3. This Act takes effect September 1, 2009.