Texas Stamp


PD-0018-22 & PD-0019-22 03/30/2022

“Is a child’s statement to police inadmissible if a magistrate begins the process to determine voluntariness under Tex. Fam. Code § 51.095(f) but never finishes it?”

Torres was sixteen when he was arrested as part of an investigation into the disappearance of another teen. He was given statutory warnings by the magistrate, waived his rights, and agreed to a recorded interview with police. The magistrate indicated, orally and by checking a box on the waiver form, that he wished to see Torres and the recorded statement following questioning pursuant to Tex. Fam. Code § 51.095(f). That statute says the magistrate “may then view the recording with the child or have the child view the recording to enable the magistrate to determine whether the child’s statements were given voluntarily,” and his “determination of voluntariness shall be reduced to writing and signed and dated by the magistrate.” The final clause says, “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.” Here, no steps were taken after the magistrate’s original request.

The trial court granted Torres’s motion to suppress his recorded statement on the ground Section 51.095(f) was used but not followed. The court of appeals affirmed. Their reasoning was the same. Strictly construed, the magistrate “use[d]” the statutory procedure of Section 51.095(f) by invoking it. Because he never made a determination of voluntariness, the statement was inadmissible. The court noted there was no evidence of involuntariness, and acknowledged that its interpretation did not advance the overall purpose of the Juvenile Justice Code and “could lead to an unjust result.” It urged the Legislature to amend it.

The State argues that Section 51.095(f) is used when, at a minimum, the magistrate exercises his discretionary authority to view the recording with the child or by having the child view it. Only then is a determination of voluntariness enabled. Without that step, there can be no determination to be reduced to writing. And if the court of appeals’s interpretation is correct, the plain language of the statute leads to absurd results the Legislature could not possibly have intended for all the reasons stated in its opinion.


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