B. Facilitating Child Testimony at Trial

1. Prerecorded Statement of Child

If a child 12 years of age or younger is alleged in a suit under Tex. Fam. Code Title 5 to have been abused, the recording of an oral statement of the child recorded prior to the proceeding is admissible into evidence if:

•   No attorney for a party was present when the statement was made;

•   The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

•   The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

•   The statement was not made in response to questioning calculated to lead the child to make a particular statement;

•   Each voice on the recording is identified;

•   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

•   Each party is afforded the opportunity to view the recording before it is offered into evidence. Tex. Fam. Code § 104.002.

2. Prerecorded Videotaped Testimony of the Child

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. Tex. Fam. Code § 104.003(a).

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. Tex. Fam. Code § 104.003(b).

Only the attorneys for the parties may question the child. Tex. Fam. Code § 104.003(c).

The persons operating the equipment shall be placed in a manner that prevents the child from seeing or hearing them. Tex. Fam. Code § 104.003(d).

The court shall ensure that:

•   The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

•   The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and not altered;

•   Each voice on the recording is identified; and

•   Each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom. Tex. Fam. Code § 104.003(e).

3. Remote Televised Broadcast of Testimony of Child

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. Tex. Fam. Code § 104.004(a).

The procedures that apply to prerecorded videotaped testimony of a child [see Tex. Fam. Code § 104.003] apply to the remote broadcast testimony of a child. Tex. Fam. Code § 104.004(b).

4. Substitution for In-Court Testimony of Child

If the testimony of a child is taken as provided by Tex. Fam. Code Chapter 104, the child may not be compelled to testify in court during the proceeding. Tex. Fam. Code § 104.005(a).

The court may allow the testimony of a child of any age to be taken in any manner provided by Tex. Fam. Code Chapter 104 if the child, because of a medical condition, is incapable of testifying in open court. Tex. Fam. Code § 104.005(b).

5. 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:

•   The child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or

•   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. Tex. Fam. Code § 104.006.