By:  De la Garza                                       H.B. No. 248
       73R1130 DAK-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the adjudication and disposition of children for
    1-3  delinquent conduct that violates a penal law of this state of the
    1-4  grade of felony.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 51.09(b), Family Code, as amended by
    1-7  Chapters 429 and 593, Acts of the 72nd Legislature, Regular
    1-8  Session, 1991, is conformed to Chapter 557, Acts of the 72nd
    1-9  Legislature, Regular Session, 1991, and amended to read as follows:
   1-10        (b)  Notwithstanding any of the provisions of Subsection (a)
   1-11  of this section, the statement of a child is admissible in evidence
   1-12  in any future proceeding concerning the matter about which the
   1-13  statement was given if:
   1-14              (1)  when the child is in a detention facility or other
   1-15  place of confinement or in the custody of an officer, the statement
   1-16  is made in writing and the statement shows that the child has at
   1-17  some time prior to the making thereof received from a magistrate a
   1-18  warning that:
   1-19                    (A)  the child may remain silent and not make any
   1-20  statement at all and that any statement that the child makes may be
   1-21  used in evidence against the child;
   1-22                    (B)  the child has the right to have an attorney
   1-23  present to advise the child either prior to any questioning or
   1-24  during the questioning;
    2-1                    (C)  if the child is unable to employ an
    2-2  attorney, the child has the right to have an attorney appointed to
    2-3  counsel with the child prior to or during any interviews with peace
    2-4  officers or attorneys representing the state;
    2-5                    (D)  the child has the right to terminate the
    2-6  interview at any time;
    2-7                    (E)  if the child is 15 years of age or older at
    2-8  the time of the violation of a penal law of the grade of felony the
    2-9  juvenile court may waive its jurisdiction and the child may be
   2-10  tried as an adult;
   2-11                    (F)  the child may be sentenced to commitment in
   2-12  the Texas Youth Commission with a transfer to the institutional
   2-13  division of the Texas Department of Criminal Justice for a term not
   2-14  to exceed 40 years if the child is found to have engaged in
   2-15  delinquent conduct, alleged in a petition approved by a grand jury,
   2-16  that included:
   2-17                          (i)  murder;
   2-18                          (ii)  capital murder;
   2-19                          (iii)  aggravated kidnapping;
   2-20                          (iv)  aggravated sexual assault;
   2-21                          (v)  aggravated robbery;
   2-22                          (vi)  deadly assault on a law enforcement
   2-23  officer, corrections officer, court participant, or probation
   2-24  personnel; or
   2-25                          (vii) <(vi)>  attempted murder or capital
   2-26  murder; and
   2-27                    (G)  the statement must be signed in the presence
    3-1  of a magistrate by the child with no law enforcement officer or
    3-2  prosecuting attorney present, except that a magistrate may require
    3-3  a bailiff or a law enforcement officer if a bailiff is not
    3-4  available to be present if the magistrate determines that the
    3-5  presence of the bailiff or law enforcement officer is necessary for
    3-6  the personal safety of the magistrate or other court personnel,
    3-7  provided that the bailiff or law enforcement officer may not carry
    3-8  a weapon in the presence of the child.  The magistrate must be
    3-9  fully convinced that the child understands the nature and contents
   3-10  of the statement and that the child is signing the same
   3-11  voluntarily.  If such a statement is taken, the magistrate shall
   3-12  sign a written statement verifying the foregoing requisites have
   3-13  been met.
   3-14        The child must knowingly, intelligently, and voluntarily
   3-15  waive these rights prior to and during the making of the statement
   3-16  and sign the statement in the presence of a magistrate who must
   3-17  certify that he has examined the child independent of any law
   3-18  enforcement officer or prosecuting attorney, except as required to
   3-19  ensure the personal safety of the magistrate or other court
   3-20  personnel, and has determined that the child understands the nature
   3-21  and contents of the statement and has knowingly, intelligently, and
   3-22  voluntarily waived these rights.
   3-23              (2)  it be made orally and the child makes a statement
   3-24  of facts or circumstances that are found to be true, which conduct
   3-25  tends to establish his guilt, such as the finding of secreted or
   3-26  stolen property, or the instrument with which he states the offense
   3-27  was committed.
    4-1        SECTION 2.  Section 51.09(c), Family Code, as amended by
    4-2  Chapters 429 and 557, Acts of the 72nd Legislature, Regular
    4-3  Session, 1991, is reenacted to read as follows:
    4-4        (c)  A warning under Subsection (b)(1)(E) or Subsection
    4-5  (b)(1)(F) of this section is required only when applicable to the
    4-6  facts of the case.  A failure to warn a child under Subsection
    4-7  (b)(1)(E) of this section does not render a statement made by the
    4-8  child inadmissible unless the child is transferred to a criminal
    4-9  district court under Section 54.02 of this code.  A failure to warn
   4-10  a child under Subsection (b)(1)(F) of this section does not render
   4-11  a statement made by the child inadmissible unless the state
   4-12  proceeds against the child on a petition approved by a grand jury
   4-13  under Section 53.045 of this code.
   4-14        SECTION 3.  Section 53.045(a), Family Code, is amended to
   4-15  read as follows:
   4-16        (a)  Except as provided by Subsection (e) of this section,
   4-17  the prosecuting attorney may refer the petition to the grand jury
   4-18  of the county in which the court in which the petition is filed
   4-19  presides if the petition alleges that the child engaged in
   4-20  delinquent conduct that included the violation of any of the
   4-21  following provisions of the Penal Code:
   4-22              (1)  Section 19.02 (murder);
   4-23              (2)  Section 19.03 (capital murder);
   4-24              (3)  Section 20.04 (aggravated kidnapping);
   4-25              (4)  Section 22.021 (aggravated sexual assault);
   4-26              (5)  Section 22.03 (deadly assault on a law enforcement
   4-27  officer, corrections officer, or court participant);
    5-1              (6)  Section 29.03 (aggravated robbery); or
    5-2              (7) <(6)>  Section 15.01 (criminal attempt), if the
    5-3  offense attempted was an offense under Section 19.02 (murder) or
    5-4  Section 19.03 (capital murder).
    5-5        SECTION 4.  (a)  This Act takes effect September 1, 1993, and
    5-6  applies only to conduct that occurs on or after that date.  Conduct
    5-7  violating the penal law of this state occurs on or after the
    5-8  effective date of this Act if every element of the violation occurs
    5-9  on or after that date.
   5-10        (b)  Conduct that occurs before the effective date of this
   5-11  Act is governed by the law in effect at the time the conduct
   5-12  occurred, and that law is continued in effect for that purpose.
   5-13        SECTION 5.  The importance of this legislation and the
   5-14  crowded condition of the calendars in both houses create an
   5-15  emergency   and   an   imperative   public   necessity   that   the
   5-16  constitutional rule requiring bills to be read on three several
   5-17  days in each house be suspended, and this rule is hereby suspended.