By: Martin H.B. No. 257
73R1765 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to delinquent children and children in need of
1-3 supervision, to the jurisdiction of courts for those children, and
1-4 to the offense of contributing to the delinquency or dependency of
1-5 a child.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 51.01, Family Code, is amended to read as
1-8 follows:
1-9 Sec. 51.01. Purpose and Interpretation. This title shall be
1-10 construed to effectuate the following public purposes:
1-11 (1) to provide for the care, the protection, and the
1-12 wholesome moral, mental, and physical development of children
1-13 coming within its provisions;
1-14 (2) to protect the welfare of the community and to
1-15 control the commission of unlawful acts by children;
1-16 (3) consistent with the protection of the public
1-17 interest, to remove from children committing unlawful acts the
1-18 taint of criminality and the consequences of criminal behavior and
1-19 to substitute a program of treatment, training, and rehabilitation;
1-20 (4) to provide greater responsibility for and
1-21 accountability by parents whose children commit unlawful acts;
1-22 (5) to achieve the foregoing purposes in a family
1-23 environment whenever possible, separating the child from the
1-24 child's <his> parents only when necessary for the child's <his>
2-1 welfare or in the interest of public safety and when a child is
2-2 removed from the child's <his> family, to give the child <him> the
2-3 care that should be provided by parents; <and>
2-4 (6) <(5)> to provide a simple judicial procedure
2-5 through which the provisions of this title are executed and
2-6 enforced and in which the parties are assured a fair hearing and
2-7 their constitutional and other legal rights recognized and
2-8 enforced; and
2-9 (7) to fully disseminate information about children
2-10 who commit unlawful acts to law enforcement officials to provide
2-11 greater efficiency in the enforcement of this title.
2-12 SECTION 2. Section 51.02(1), Family Code, is amended to read
2-13 as follows:
2-14 (1) "Child" means a person who is:
2-15 (A) six <ten> years of age or older and under 17
2-16 years of age; or
2-17 (B) seventeen years of age or older and under 18
2-18 years of age who is alleged or found to have engaged in delinquent
2-19 conduct or conduct indicating a need for supervision as a result of
2-20 acts committed before becoming 17 years of age.
2-21 SECTION 3. Section 51.09(b), Family Code, is amended to read
2-22 as follows:
2-23 (b) Notwithstanding any of the provisions of Subsection (a)
2-24 of this section, the statement of a child is admissible in evidence
2-25 in any future proceeding concerning the matter about which the
2-26 statement was given if:
2-27 (1) when the child is in a detention facility or other
3-1 place of confinement or in the custody of an officer, the statement
3-2 is made in writing and the statement shows that the child has at
3-3 some time prior to the making thereof received from a magistrate a
3-4 warning that:
3-5 (A) the child may remain silent and not make any
3-6 statement at all and that any statement that the child makes may be
3-7 used in evidence against the child;
3-8 (B) the child has the right to have an attorney
3-9 present to advise the child either prior to any questioning or
3-10 during the questioning;
3-11 (C) if the child is unable to employ an
3-12 attorney, the child has the right to have an attorney appointed to
3-13 counsel with the child prior to or during any interviews with peace
3-14 officers or attorneys representing the state;
3-15 (D) the child has the right to terminate the
3-16 interview at any time;
3-17 (E) if the child is 14 <15> years of age or
3-18 older at the time of the violation of a penal law of the grade of
3-19 felony the juvenile court may waive its jurisdiction and the child
3-20 may be tried as an adult;
3-21 (F) the child may be sentenced to commitment in
3-22 the Texas Youth Commission with a transfer to the institutional
3-23 division of the Texas Department of Criminal Justice for a term not
3-24 to exceed 30 years if the child is found to have engaged in
3-25 delinquent conduct, alleged in a petition approved by a grand jury,
3-26 that included:
3-27 (i) murder;
4-1 (ii) capital murder;
4-2 (iii) aggravated kidnapping;
4-3 (iv) aggravated sexual assault;
4-4 (v) deadly assault on a law enforcement
4-5 officer, corrections officer, court participant, or probation
4-6 personnel; or
4-7 (vi) attempted capital murder; and
4-8 (G) the statement must be signed in the presence
4-9 of a magistrate by the child with no law enforcement officer or
4-10 prosecuting attorney present, except that a magistrate may require
4-11 a bailiff or a law enforcement officer if a bailiff is not
4-12 available to be present if the magistrate determines that the
4-13 presence of the bailiff or law enforcement officer is necessary for
4-14 the personal safety of the magistrate or other court personnel,
4-15 provided that the bailiff or law enforcement officer may not carry
4-16 a weapon in the presence of the child. The magistrate must be
4-17 fully convinced that the child understands the nature and contents
4-18 of the statement and that the child is signing the same
4-19 voluntarily. If such a statement is taken, the magistrate shall
4-20 sign a written statement verifying the foregoing requisites have
4-21 been met.
4-22 The child must knowingly, intelligently, and voluntarily
4-23 waive these rights prior to and during the making of the statement
4-24 and sign the statement in the presence of a magistrate who must
4-25 certify that he has examined the child independent of any law
4-26 enforcement officer or prosecuting attorney, except as required to
4-27 ensure the personal safety of the magistrate or other court
5-1 personnel, and has determined that the child understands the nature
5-2 and contents of the statement and has knowingly, intelligently, and
5-3 voluntarily waived these rights.
5-4 (2) it be made orally and the child makes a statement
5-5 of facts or circumstances that are found to be true, which conduct
5-6 tends to establish his guilt, such as the finding of secreted or
5-7 stolen property, or the instrument with which he states the offense
5-8 was committed.
5-9 (3) the statement was res gestae of the delinquent
5-10 conduct or the conduct indicating a need for supervision or of the
5-11 arrest.
5-12 SECTION 4. Section 51.14(c), Family Code, as amended by
5-13 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
5-14 Session, 1987, is amended to read as follows:
5-15 (c) Law-enforcement <Except as provided by this subsection,
5-16 law-enforcement> files and records concerning a child may <shall>
5-17 be combined with <kept separate from> files and records of arrests
5-18 of adults and may <shall> be <maintained on a local basis only and
5-19 not> sent to a central state or federal depository. If a child has
5-20 been reported as missing by a parent, guardian, or conservator of
5-21 that child or a child has escaped from the custody of a juvenile
5-22 detention facility, the Texas Youth Commission, or any other agency
5-23 to which the child has been committed, any information or records
5-24 concerning that child may be transferred to and disseminated by the
5-25 Texas Crime Information Center and the National Crime Information
5-26 Center. <However, the law-enforcement files and records of a
5-27 person who is transferred from the Texas Youth Commission to the
6-1 Texas Department of Corrections under a determinate sentence may be
6-2 transferred to a central state or federal depository for adult
6-3 records on or after the date of transfer.>
6-4 SECTION 5. Section 51.15, Family Code, as amended by
6-5 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
6-6 Session, 1987, is amended to read as follows:
6-7 Sec. 51.15. Fingerprints and Photographs. (a) A child may
6-8 be fingerprinted or photographed or both by law-enforcement or
6-9 juvenile court personnel only as provided by this section <No child
6-10 may be fingerprinted without the consent of the juvenile court
6-11 except as provided by this subsection or by subsections (f) and (i)
6-12 of this section. A child's fingerprints may be taken and filed by
6-13 a law-enforcement officer investigating a case if:>
6-14 <(1) the child is 15 years of age or older and is
6-15 referred to the juvenile court for any felony; or>
6-16 <(2) the child is under 15 years of age and is
6-17 referred to the juvenile court for a felony listed in Section
6-18 53.045(a) of this code>.
6-19 (b) A child may be fingerprinted or photographed or both if
6-20 the child is referred to juvenile court under Section 52.04 of this
6-21 code for conduct violating a penal law <Except as provided in
6-22 Subsections (h) and (i) of this section, no child taken into
6-23 custody may be photographed without the consent of the juvenile
6-24 court unless:>
6-25 <(1) the child is 15 years of age or older and is
6-26 referred to the juvenile court for a felony; or>
6-27 <(2) the child is under 15 years of age and is
7-1 referred to the juvenile court for a felony listed in Section
7-2 53.045(a) of this code>.
7-3 (c) Fingerprint <Except as provided by this subsection,
7-4 fingerprint> and photograph files or records of children may
7-5 <shall> be combined with <kept separate from> those of adults, and
7-6 fingerprints or photographs known to be those of a child may
7-7 <shall> be <maintained on a local basis only and not> sent to a
7-8 central state or federal depository. If a child has been reported
7-9 as missing by a parent, guardian, or conservator of that child or a
7-10 child has escaped from the custody of a juvenile detention
7-11 facility, the Texas Youth Commission, or any other agency to which
7-12 the child has been committed, the child's fingerprints and
7-13 photograph may be sent to and indexed into the files of a central
7-14 state or federal depository <the Department of Public Safety and
7-15 the Federal Bureau of Investigation to aid in the location and
7-16 identification of the child. However, fingerprint and photograph
7-17 files or records of a person who is transferred from the Texas
7-18 Youth Commission to the Texas Department of Corrections under a
7-19 determinate sentence may be transferred to adult records on or
7-20 after the date of transfer>.
7-21 (d) Fingerprint and photograph files or records of children
7-22 are subject to inspection as provided in Subsections (a) and (d) of
7-23 Section 51.14 of this code.
7-24 (e) A child's fingerprints and photographs that are not
7-25 combined with adult records <transferred> under Subsection (c) of
7-26 this section shall be removed from files or records and destroyed
7-27 if:
8-1 (1) a petition alleging that the child engaged in
8-2 delinquent conduct or conduct indicating a need for supervision is
8-3 not filed, or the proceedings are dismissed after a petition is
8-4 filed, or the child is found not to have engaged in the alleged
8-5 conduct;
8-6 (2) the person reaches 18 years of age, is not subject
8-7 to commitment to the Texas Youth Commission or to transfer under a
8-8 determinate sentence to the institutional division of the Texas
8-9 Department of Criminal Justice <Corrections>, and there is no
8-10 record that the person <he> committed a criminal offense after
8-11 reaching 17 years of age; or
8-12 (3) the person is older than 18 years, at least three
8-13 years have elapsed after the person's release from commitment, and
8-14 there is no evidence that the person <he> committed a criminal
8-15 offense after the release.
8-16 (f) If latent fingerprints are found during the
8-17 investigation of an offense, and a law-enforcement officer has
8-18 reasonable cause to believe that they are those of a particular
8-19 child, if otherwise authorized by law, the officer <he> may
8-20 fingerprint the child regardless of the age or offense for purpose
8-21 of immediate comparison with the latent fingerprints. If the
8-22 comparison is negative, the fingerprint card and other copies of
8-23 the fingerprints taken shall be destroyed immediately. If the
8-24 comparison is positive, and the child is referred to the juvenile
8-25 court, the fingerprint card and other copies of the fingerprints
8-26 taken shall be delivered to the court for disposition. If the
8-27 child is not referred to the court, the fingerprint card and other
9-1 copies of the fingerprints taken shall be destroyed immediately.
9-2 (g) When destruction of fingerprints or photographs is
9-3 required by Subsection (e), (f), or (h) of this section, the agency
9-4 with custody of the fingerprints or photographs shall proceed with
9-5 destruction without judicial order. However, if the fingerprints
9-6 or photographs are not destroyed, the juvenile court, on its own
9-7 motion or on application by the person fingerprinted or
9-8 photographed, shall order the destruction as required by this
9-9 section.
9-10 (h) If, during the investigation of a criminal offense, a
9-11 law enforcement officer has reason to believe that a photograph of
9-12 a child taken into custody or detained as permitted under this
9-13 title will assist in the identification of the offender and if not
9-14 otherwise prohibited by law, the officer may photograph the face of
9-15 the child. If the child is not identified as an offender, the
9-16 photograph and its negative shall be destroyed immediately. If the
9-17 child is identified through the photograph and the child is
9-18 referred to the juvenile court for the offense investigated, the
9-19 photograph and its negative shall be delivered to the juvenile
9-20 court for disposition. If the child is not referred to the
9-21 juvenile court for the offense investigated, the photograph and its
9-22 negative shall be destroyed immediately.
9-23 (i) A law enforcement officer may fingerprint or photograph
9-24 a child taken into custody, or detained as permitted under this
9-25 title, <for delinquent conduct> if the officer is unable to
9-26 identify the child after making a reasonable effort to do so.
9-27 SECTION 6. Section 51.16(e), Family Code, is amended to read
10-1 as follows:
10-2 (e) On entry of the order:
10-3 (1) all law-enforcement, prosecuting attorney, clerk
10-4 of court, and juvenile court files and records ordered sealed shall
10-5 be sent to the court issuing the order;
10-6 (2) all files and records of a public or private
10-7 agency or institution ordered sealed shall be sent to the court
10-8 issuing the order;
10-9 (3) all index references to the files and records
10-10 ordered sealed shall be deleted;
10-11 (4) all fingerprints and photographs ordered sealed
10-12 shall be removed from any central state depository and sent to the
10-13 court issuing the order;
10-14 (5) any state agency that sent fingerprints or
10-15 photographs that have been ordered sealed to a central federal
10-16 depository shall request the depository to return them to the
10-17 agency and the agency shall send them to the court issuing the
10-18 order;
10-19 (6) the juvenile court, clerk of court, prosecuting
10-20 attorney, public or private agency or institution, and
10-21 law-enforcement officers and agencies shall properly reply that no
10-22 record exists with respect to such person upon inquiry in any
10-23 matter; and
10-24 (7) <(5)> the adjudication shall be vacated and the
10-25 proceeding dismissed and treated for all purposes, including the
10-26 purpose of showing a prior finding of delinquency, as if it had
10-27 never occurred.
11-1 SECTION 7. Sections 54.02(a) and (j), Family Code, are
11-2 amended to read as follows:
11-3 (a) The juvenile court may waive its exclusive original
11-4 jurisdiction and transfer a child to the appropriate district court
11-5 or criminal district court for criminal proceedings if:
11-6 (1) the child is alleged to have violated a penal law
11-7 of the grade of felony;
11-8 (2) the child was 14 <15> years of age or older at the
11-9 time he is alleged to have committed the offense and no
11-10 adjudication hearing has been conducted concerning that offense;
11-11 and
11-12 (3) after full investigation and hearing the juvenile
11-13 court determines that there is probable cause to believe that the
11-14 child before the court committed the offense alleged and that
11-15 because of the seriousness of the offense or the background of the
11-16 child the welfare of the community requires criminal proceedings.
11-17 (j) The juvenile court may waive its exclusive original
11-18 jurisdiction and transfer a person to the appropriate district
11-19 court or criminal district court for criminal proceedings if:
11-20 (1) the person is 18 years of age or older;
11-21 (2) the person was 14 <15> years of age or older and
11-22 under 17 years of age at the time he is alleged to have committed a
11-23 felony;
11-24 (3) no adjudication concerning the alleged offense has
11-25 been made or no adjudication hearing concerning the offense has
11-26 been conducted;
11-27 (4) the juvenile court finds from a preponderance of
12-1 the evidence that after due diligence of the state it was not
12-2 practicable to proceed in juvenile court before the 18th birthday
12-3 of the person because:
12-4 (A) the state did not have probable cause to
12-5 proceed in juvenile court and new evidence has been found since the
12-6 18th birthday of the person; or
12-7 (B) the person could not be found; and
12-8 (5) the juvenile court determines that there is
12-9 probable cause to believe that the child before the court committed
12-10 the offense alleged.
12-11 SECTION 8. Section 54.041(b), Family Code, is amended to
12-12 read as follows:
12-13 (b) If a child is found to have engaged in delinquent
12-14 conduct or conduct indicating a need for supervision arising from
12-15 the commission of an offense in which property damage or loss or
12-16 personal injury occurred, the juvenile court, on notice to all
12-17 persons affected and on hearing, shall <may> order the child and
12-18 the child's parents, or, if the child's parents are divorced, the
12-19 managing conservator and the possessory conservator of the child
12-20 <or a parent> to make full <or partial> restitution to the victim
12-21 of the offense. A court may excuse a person from making
12-22 restitution only if the person is physically unable to make
12-23 restitution. The program of restitution must promote the
12-24 rehabilitation of the child, be appropriate to the age and
12-25 physical, emotional, and mental abilities of the child, and not
12-26 conflict with the child's schooling. When practicable and subject
12-27 to court supervision, the court may approve a restitution program
13-1 based on a settlement between the child and the victim of the
13-2 offense. An order under this subsection may provide for periodic
13-3 payments by the child or a parent of the child for the period
13-4 specified in the order but that period may not extend past the 18th
13-5 birthday of the child. If the child or parent is unable to make
13-6 full or partial restitution <or if a restitution order is not
13-7 appropriate under the circumstances>, the court may order the child
13-8 to render personal services to a charitable or educational
13-9 institution in the manner prescribed in the court order in lieu of
13-10 restitution. Restitution under this section is cumulative of any
13-11 other remedy allowed by law and may be used in addition to other
13-12 remedies; except that a victim of an offense is not entitled to
13-13 receive more than actual damages under a juvenile court order. A
13-14 city, town, or county that establishes a program to assist children
13-15 in rendering personal services to a charitable or educational
13-16 institution as authorized by this subsection may purchase insurance
13-17 policies protecting the city, town, or county against claims
13-18 brought by a person other than the child for a cause of action that
13-19 arises from an act of the child while rendering those services.
13-20 The city, town, or county is not liable under this Act to the
13-21 extent that damages are recoverable under a contract of insurance
13-22 or under a plan of self-insurance authorized by statute. The
13-23 liability of the city, town, or county for a cause of action that
13-24 arises from an action of the child while rendering those services
13-25 may not exceed $100,000 to a single person and $300,000 for a
13-26 single occurrence in the case of personal injury or death, and
13-27 $10,000 for a single occurrence of property damage. Liability may
14-1 not extend to punitive or exemplary damages. This subsection does
14-2 not waive a defense, immunity, or jurisdictional bar available to
14-3 the city, town, or county or its officers or employees, nor shall
14-4 this Act be construed to waive, repeal, or modify any provision of
14-5 Chapter 101, Civil Practice and Remedies Code <the Texas Tort
14-6 Claims Act, as amended (Article 6252-19, Vernon's Texas Civil
14-7 Statutes)>.
14-8 SECTION 9. Section 54.07, Family Code, is amended by adding
14-9 Subsection (d) to read as follows:
14-10 (d) In addition to the fine and confinement in jail that the
14-11 court may impose as punishment for contempt of court under Section
14-12 21.002, Government Code, the court may also require community
14-13 service.
14-14 SECTION 10. Section 72.002, Family Code, is amended by
14-15 amending Subsection (b) and adding Subsection (c) to read as
14-16 follows:
14-17 (b) Except as provided by Subsection (c) of this section, an
14-18 <An> offense under this section is punishable by a fine of not more
14-19 than $500, by confinement in jail for not more than one year, or by
14-20 both.
14-21 (c) An offense under this section is a Class A misdemeanor
14-22 if the offense is committed by a person who is the parent of the
14-23 child and the delinquent conduct is:
14-24 (1) violation of a curfew imposed by a municipality;
14-25 or
14-26 (2) commission of an offense involving a firearm owned
14-27 by the parent.
15-1 SECTION 11. Section 34.54(b), Family Code, is amended to
15-2 read as follows:
15-3 (b) The department shall provide, directly or by contract,
15-4 services for a child and the child's family if the child is
15-5 referred to the department by a law enforcement agency under
15-6 Section 52.03 of this code for engaging in conduct described by
15-7 Section 51.03 of this code. The services may include in-home
15-8 programs, parenting skills training, youth coping skills, and
15-9 individual and family counseling.
15-10 SECTION 12. Section 8.07(a), Penal Code, is amended to read
15-11 as follows:
15-12 (a) A person may not be prosecuted for or convicted of any
15-13 offense that he committed when younger than 14 <15> years of age
15-14 except:
15-15 (1) perjury and aggravated perjury when it appears by
15-16 proof that he had sufficient discretion to understand the nature
15-17 and obligation of an oath;
15-18 (2) a violation of a penal statute cognizable under
15-19 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957,
15-20 as amended (Article 6701l-4, Vernon's Texas Civil Statutes), except
15-21 conduct which violates the laws of this state prohibiting driving
15-22 while intoxicated or under the influence of intoxicating liquor
15-23 (first or subsequent offense) or driving while under the influence
15-24 of any narcotic drug or of any other drug to a degree which renders
15-25 him incapable of safely driving a vehicle (first or subsequent
15-26 offense);
15-27 (3) a violation of a motor vehicle traffic ordinance
16-1 of an incorporated city or town in this state;
16-2 (4) a misdemeanor punishable by fine only other than
16-3 public intoxication; or
16-4 (5) a violation of a penal ordinance of a political
16-5 subdivision.
16-6 SECTION 13. This Act takes effect September 1, 1993.
16-7 SECTION 14. (a) Sections 2, 3, 7, 8, 9, and 11 of this Act
16-8 apply only to conduct that occurs on or after the effective date of
16-9 this Act. Conduct violating the penal law of this state occurs on
16-10 or after the effective date of this Act if every element of the
16-11 violation occurs on or after that date.
16-12 (b) Conduct that occurs before the effective date of this
16-13 Act is governed by the law in effect at the time the conduct
16-14 occurred, and that law is continued in effect for that purpose.
16-15 SECTION 15. (a) Sections 10 and 12 of this Act apply only
16-16 to the prosecution of an offense committed on or after the
16-17 effective date of this Act. For purposes of this section, an
16-18 offense is committed before the effective date of this Act if any
16-19 element of the offense occurs before the effective date.
16-20 (b) An offense committed before the effective date of this
16-21 Act is covered by the law in effect when the offense was committed,
16-22 and the former law is continued in effect for that purpose.
16-23 SECTION 16. Sections 4, 5, and 6 of this Act apply only to
16-24 fingerprints or photographs taken on or after the effective date of
16-25 this Act. Fingerprints or photographs taken before the effective
16-26 date of this Act are governed by the law in effect at the time the
16-27 fingerprints or photographs were taken, and that law is continued
17-1 in effect for that purpose.
17-2 SECTION 17. The importance of this legislation and the
17-3 crowded condition of the calendars in both houses create an
17-4 emergency and an imperative public necessity that the
17-5 constitutional rule requiring bills to be read on three several
17-6 days in each house be suspended, and this rule is hereby suspended.