CHAPTER 104. EVIDENCE - Texas Statutes

FAMILY CODE

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE

PARENT-CHILD RELATIONSHIP

SUBTITLE A. GENERAL PROVISIONS

CHAPTER 104. EVIDENCE

Sec. 104.001. RULES OF EVIDENCE. Except as otherwise provided,

the Texas Rules of Evidence apply as in other civil cases.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 6.002, eff. September 1, 2005.

Sec. 104.002. PRERECORDED STATEMENT OF CHILD. If a child 12

years of age or younger is alleged in a suit under this title to

have been abused, the recording of an oral statement of the child

recorded prior to the proceeding is admissible into evidence if:

(1) no attorney for a party 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 was competent, 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) each voice on the recording is identified;

(6) the person conducting the interview of the child in the

recording is present at the proceeding and available to testify

or be cross-examined by either party; and

(7) each party is afforded an opportunity to view the recording

before it is offered into evidence.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 104.003. PRERECORDED VIDEOTAPED TESTIMONY OF CHILD. (a)

The court may, on the motion of a party to the proceeding, order

that the testimony of the child be taken outside the courtroom

and be recorded for showing in the courtroom before the court,

the finder of fact, and the parties to the proceeding.

(b) Only an attorney for each party, an attorney ad litem for

the child or other person whose presence would contribute to the

welfare and well-being of the child, and persons necessary to

operate the equipment may be present in the room with the child

during the child's testimony.

(c) Only the attorneys for the parties may question the child.

(d) The persons operating the equipment shall be placed in a

manner that prevents the child from seeing or hearing them.

(e) The court shall ensure that:

(1) the recording is both visual and aural and is recorded on

film or videotape or by other electronic means;

(2) the recording equipment was capable of making an accurate

recording, the operator was competent, and the recording is

accurate and is not altered;

(3) each voice on the recording is identified; and

(4) each party to the proceeding is afforded an opportunity to

view the recording before it is shown in the courtroom.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 104.004. REMOTE TELEVISED BROADCAST OF TESTIMONY OF CHILD.

(a) If in a suit a child 12 years of age or younger is alleged

to have been abused, the court may, on the motion of a party to

the proceeding, order that the testimony of the child be taken in

a room other than the courtroom and be televised by

closed-circuit equipment in the courtroom to be viewed by the

court and the parties.

(b) The procedures that apply to prerecorded videotaped

testimony of a child apply to the remote broadcast of testimony

of a child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 104.005. SUBSTITUTION FOR IN-COURT TESTIMONY OF CHILD. (a)

If the testimony of a child is taken as provided by this

chapter, the child may not be compelled to testify in court

during the proceeding.

(b) The court may allow the testimony of a child of any age to

be taken in any manner provided by this chapter if the child,

because of a medical condition, is incapable of testifying in

open court.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 11, eff.

Sept. 1, 1995.

Sec. 104.006. HEARSAY STATEMENT OF CHILD ABUSE VICTIM. In a

suit affecting the parent-child relationship, a statement made by

a child 12 years of age or younger that describes alleged abuse

against the child, without regard to whether the statement is

otherwise inadmissible as hearsay, is admissible as evidence if,

in a hearing conducted outside the presence of the jury, the

court finds that the time, content, and circumstances of the

statement provide sufficient indications of the statement's

reliability and:

(1) the child testifies or is available to testify at the

proceeding in court or in any other manner provided for by law;

or

(2) the court determines that the use of the statement in lieu

of the child's testimony is necessary to protect the welfare of

the child.

Added by Acts 1997, 75th Leg., ch. 575, Sec. 4, eff. Sept. 1,

1997.

Sec. 104.007. VIDEO TESTIMONY OF CERTAIN PROFESSIONALS. (a) In

this section, "professional" has the meaning assigned by Section

261.101(b).

(b) In a proceeding brought by the Department of Protective and

Regulatory Services concerning a child who is alleged in a suit

to have been abused or neglected, the court may order, with the

agreement of the state's counsel and the defendant's counsel,

that the testimony of a professional be taken outside the

courtroom by videoconference.

(c) In ordering testimony to be taken as provided by Subsection

(b), the court shall ensure that the videoconference testimony

allows:

(1) the parties and attorneys involved in the proceeding to be

able to see and hear the professional as the professional

testifies; and

(2) the professional to be able to see and hear the parties and

attorneys examining the professional while the professional is

testifying.

(d) If the court permits the testimony of a professional by

videoconference as provided by this section to be admitted during

the proceeding, the professional may not be compelled to be

physically present in court during the same proceeding to provide

the same testimony unless ordered by the court.

Added by Acts 2003, 78th Leg., ch. 266, Sec. 1, eff. Sept. 1,

2003.