FAMILY CODE
CHAPTER 104. EVIDENCE
§ 104.001. RULES OF EVIDENCE. Except as otherwise
provided, the Texas Rules of Civil Evidence apply as in other civil
cases.
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995.
§ 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, § 1, eff. April 20, 1995.
§ 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, § 1, eff. April 20, 1995.
§ 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, § 1, eff. April 20, 1995.
§ 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, § 1, eff. April 20, 1995.
Amended by Acts 1995, 74th Leg., ch. 751, § 11, eff. Sept. 1,
1995.
§ 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, § 4, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 2003.
