By: Hunter, T. H.B. No. 820
73R1009 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adjudication and disposition of certain children
1-3 for engaging in certain conduct.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 34.54(b), Family Code, is amended to read
1-6 as follows:
1-7 (b) The department shall provide, directly or by contract,
1-8 services for a child and the child's family if the child is
1-9 referred to the department by a law enforcement agency for engaging
1-10 in conduct described by Section 51.03 of this code. The services
1-11 may include in-home programs, parenting skills training, youth
1-12 coping skills, and individual and family counseling. A child who
1-13 is referred to the department by a law enforcement agency must be
1-14 referred under Section 52.03 of this code if the child is eight
1-15 years of age or older and under 10 years of age.
1-16 SECTION 2. Section 51.02(1), Family Code, is amended to read
1-17 as follows:
1-18 (1) "Child" means a person who is:
1-19 (A) eight <ten> years of age or older and under
1-20 17 years of age; or
1-21 (B) seventeen years of age or older and under 18
1-22 years of age who is alleged or found to have engaged in delinquent
1-23 conduct or conduct indicating a need for supervision as a result of
1-24 acts committed before becoming 17 years of age.
2-1 SECTION 3. Section 51.09(b), Family Code, as amended by
2-2 Chapters 429 and 593, Acts of the 72nd Legislature, Regular
2-3 Session, 1991, is conformed to Chapter 557, Acts of the 72nd
2-4 Legislature, Regular Session, 1991, and amended to read as follows:
2-5 (b) Notwithstanding any of the provisions of Subsection (a)
2-6 of this section, the statement of a child is admissible in evidence
2-7 in any future proceeding concerning the matter about which the
2-8 statement was given if:
2-9 (1) when the child is in a detention facility or other
2-10 place of confinement or in the custody of an officer, the statement
2-11 is made in writing and the statement shows that the child has at
2-12 some time prior to the making thereof received from a magistrate a
2-13 warning that:
2-14 (A) the child may remain silent and not make any
2-15 statement at all and that any statement that the child makes may be
2-16 used in evidence against the child;
2-17 (B) the child has the right to have an attorney
2-18 present to advise the child either prior to any questioning or
2-19 during the questioning;
2-20 (C) if the child is unable to employ an
2-21 attorney, the child has the right to have an attorney appointed to
2-22 counsel with the child prior to or during any interviews with peace
2-23 officers or attorneys representing the state;
2-24 (D) the child has the right to terminate the
2-25 interview at any time;
2-26 (E) if the child is 14 <15> years of age or
2-27 older at the time of the violation of a penal law of the grade of
3-1 felony the juvenile court may waive its jurisdiction and the child
3-2 may be tried as an adult;
3-3 (F) the child may be sentenced to commitment in
3-4 the Texas Youth Commission with a transfer to the institutional
3-5 division of the Texas Department of Criminal Justice for a term not
3-6 to exceed 40 years if the child is found to have engaged in
3-7 delinquent conduct, alleged in a petition approved by a grand jury,
3-8 that included the violation of a penal statute that is punishable
3-9 as a felony of the first degree or a felony of the second degree<:>
3-10 <(i) murder;>
3-11 <(ii) capital murder;>
3-12 <(iii) aggravated kidnapping;>
3-13 <(iv) aggravated sexual assault;>
3-14 <(v) deadly assault on a law enforcement
3-15 officer, corrections officer, court participant, or probation
3-16 personnel; or>
3-17 <(vi) attempted capital murder>; and
3-18 (G) the statement must be signed in the presence
3-19 of a magistrate by the child with no law enforcement officer or
3-20 prosecuting attorney present, except that a magistrate may require
3-21 a bailiff or a law enforcement officer if a bailiff is not
3-22 available to be present if the magistrate determines that the
3-23 presence of the bailiff or law enforcement officer is necessary for
3-24 the personal safety of the magistrate or other court personnel,
3-25 provided that the bailiff or law enforcement officer may not carry
3-26 a weapon in the presence of the child. The magistrate must be
3-27 fully convinced that the child understands the nature and contents
4-1 of the statement and that the child is signing the same
4-2 voluntarily. If such a statement is taken, the magistrate shall
4-3 sign a written statement verifying the foregoing requisites have
4-4 been met.
4-5 The child must knowingly, intelligently, and voluntarily
4-6 waive these rights prior to and during the making of the statement
4-7 and sign the statement in the presence of a magistrate who must
4-8 certify that he has examined the child independent of any law
4-9 enforcement officer or prosecuting attorney, except as required to
4-10 ensure the personal safety of the magistrate or other court
4-11 personnel, and has determined that the child understands the nature
4-12 and contents of the statement and has knowingly, intelligently, and
4-13 voluntarily waived these rights.
4-14 (2) it be made orally and the child makes a statement
4-15 of facts or circumstances that are found to be true, which conduct
4-16 tends to establish his guilt, such as the finding of secreted or
4-17 stolen property, or the instrument with which he states the offense
4-18 was committed.
4-19 (3) the statement was res gestae of the delinquent
4-20 conduct or the conduct indicating a need for supervision or of the
4-21 arrest.
4-22 SECTION 4. Section 51.09(c), Family Code, as amended by
4-23 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
4-24 Session, 1991, is reenacted to read as follows:
4-25 (c) A warning under Subsection (b)(1)(E) or Subsection
4-26 (b)(1)(F) of this section is required only when applicable to the
4-27 facts of the case. A failure to warn a child under Subsection
5-1 (b)(1)(E) of this section does not render a statement made by the
5-2 child inadmissible unless the child is transferred to a criminal
5-3 district court under Section 54.02 of this code. A failure to warn
5-4 a child under Subsection (b)(1)(F) of this section does not render
5-5 a statement made by the child inadmissible unless the state
5-6 proceeds against the child on a petition approved by a grand jury
5-7 under Section 53.045 of this code.
5-8 SECTION 5. Sections 51.15(a) and (b), Family Code, are
5-9 amended to read as follows:
5-10 (a) No child may be fingerprinted without the consent of the
5-11 juvenile court except as provided by this subsection or by
5-12 Subsections (f) and (i) of this section. A child's fingerprints
5-13 may be taken and filed by a law-enforcement officer investigating a
5-14 case if:
5-15 (1) the child is 14 <15> years of age or older and is
5-16 referred to the juvenile court for any felony; or
5-17 (2) the child is under 14 <15> years of age and is
5-18 referred to the juvenile court for a felony covered by <listed in>
5-19 Section 53.045(a) of this code.
5-20 (b) Except as provided in Subsections (h) and (i) of this
5-21 section, no child taken into custody may be photographed without
5-22 the consent of the juvenile court unless:
5-23 (1) the child is 14 <15> years of age or older and is
5-24 referred to the juvenile court for a felony; or
5-25 (2) the child is under 14 <15> years of age and is
5-26 referred to the juvenile court for a felony covered by <listed in>
5-27 Section 53.045(a) of this code.
6-1 SECTION 6. Section 53.045(a), Family Code, is amended to
6-2 read as follows:
6-3 (a) Except as provided by Subsection (e) of this section,
6-4 the prosecuting attorney may refer the petition to the grand jury
6-5 of the county in which the court in which the petition is filed
6-6 presides if the petition alleges that the child engaged in
6-7 delinquent conduct that included the violation of a penal statute
6-8 that is punishable as a felony of the first degree or a felony of
6-9 the second degree <any of the following provisions of the Penal
6-10 Code:>
6-11 <(1) Section 19.02 (murder);>
6-12 <(2) Section 19.03 (capital murder);>
6-13 <(3) Section 20.04 (aggravated kidnapping);>
6-14 <(4) Section 22.021 (aggravated sexual assault);>
6-15 <(5) Section 22.03 (deadly assault on a law
6-16 enforcement officer, corrections officer, or court participant); or>
6-17 <(6) Section 15.01 (criminal attempt), if the offense
6-18 attempted was an offense under Section 19.03 (capital murder)>.
6-19 SECTION 7. Sections 54.02(a) and (j), Family Code, are
6-20 amended to read as follows:
6-21 (a) The juvenile court may waive its exclusive original
6-22 jurisdiction and transfer a child to the appropriate district court
6-23 or criminal district court for criminal proceedings if:
6-24 (1) the child is alleged to have violated a penal law
6-25 of the grade of felony;
6-26 (2) the child was 14 <15> years of age or older at the
6-27 time he is alleged to have committed the offense and no
7-1 adjudication hearing has been conducted concerning that offense;
7-2 and
7-3 (3) after full investigation and hearing the juvenile
7-4 court determines that there is probable cause to believe that the
7-5 child before the court committed the offense alleged and
7-6 that because of the seriousness of the offense or the background of
7-7 the child the welfare of the community requires criminal
7-8 proceedings.
7-9 (j) The juvenile court may waive its exclusive original
7-10 jurisdiction and transfer a person to the appropriate district
7-11 court or criminal district court for criminal proceedings if:
7-12 (1) the person is 18 years of age or older;
7-13 (2) the person was 14 <15> years of age or older and
7-14 under 17 years of age at the time he is alleged to have committed a
7-15 felony;
7-16 (3) no adjudication concerning the alleged offense has
7-17 been made or no adjudication hearing concerning the offense has
7-18 been conducted;
7-19 (4) the juvenile court finds from a preponderance of
7-20 the evidence that after due diligence of the state it was not
7-21 practicable to proceed in juvenile court before the 18th birthday
7-22 of the person because:
7-23 (A) the state did not have probable cause to
7-24 proceed in juvenile court and new evidence has been found since the
7-25 18th birthday of the person; or
7-26 (B) the person could not be found; and
7-27 (5) the juvenile court determines that there is
8-1 probable cause to believe that the child before the court committed
8-2 the offense alleged.
8-3 SECTION 8. Chapter 54, Family Code, is amended by adding
8-4 Section 54.022 to read as follows:
8-5 Sec. 54.022. WAIVER OF JURISDICTION AND MANDATORY TRANSFER
8-6 TO CRIMINAL COURT. The juvenile court shall waive its exclusive
8-7 original jurisdiction and transfer a child to the appropriate
8-8 district court or criminal district court for criminal proceedings
8-9 if:
8-10 (1) the child is alleged to have violated a penal law;
8-11 (2) the child was 14 years of age or older at the time
8-12 the child is alleged to have committed the offense and an
8-13 adjudication hearing has not been conducted concerning that
8-14 offense; and
8-15 (3) the child has been transferred under Section 54.02
8-16 of this code for a previous offense.
8-17 SECTION 9. Section 54.04(d), Family Code, is amended to read
8-18 as follows:
8-19 (d) If the court or jury makes the finding specified in
8-20 Subsection (c) of this section:
8-21 (1) the court or jury may, in addition to any order
8-22 required or authorized under Section 54.041 or 54.042 of this code,
8-23 place the child on probation on such reasonable and lawful terms as
8-24 the court may determine for a period not to exceed one year,
8-25 subject to extensions not to exceed one year each:
8-26 (A) in his own home or in the custody of a
8-27 relative or other fit person;
9-1 (B) in a suitable foster home; or
9-2 (C) in a suitable public or private institution
9-3 or agency, except the Texas Youth Commission;
9-4 (2) if the court or jury found at the conclusion of
9-5 the adjudication hearing that the child engaged in delinquent
9-6 conduct and if the petition was not approved by the grand jury
9-7 under Section 53.045 of this code, the court may commit the child
9-8 to the Texas Youth Commission without a determinate sentence; or
9-9 (3) if the court or jury found at the conclusion of
9-10 the adjudication hearing that the child engaged in delinquent
9-11 conduct that included a violation of a penal law covered by <listed
9-12 in> Section 53.045(a) of this code and if the petition was approved
9-13 by the grand jury under Section 53.045 of this code, the court or
9-14 jury may sentence the child to commitment in the Texas Youth
9-15 Commission with a transfer to the institutional division of the
9-16 Texas Department of Criminal Justice for any term of years not to
9-17 exceed 40 years.
9-18 SECTION 10. Section 54.041(b), Family Code, is amended to
9-19 read as follows:
9-20 (b) If a child is found to have engaged in delinquent
9-21 conduct arising from the commission of an offense in which property
9-22 damage or loss or personal injury occurred, the juvenile court, on
9-23 notice to all persons affected and on hearing, may order the child
9-24 or a parent to make full or partial restitution to the victim of
9-25 the offense. The program of restitution must promote the
9-26 rehabilitation of the child, be appropriate to the age and
9-27 physical, emotional, and mental abilities of the child, and not
10-1 conflict with the child's schooling. When practicable and subject
10-2 to court supervision, the court may approve a restitution program
10-3 based on a settlement between the child and the victim of the
10-4 offense. An order under this subsection may provide for periodic
10-5 payments by the child or a parent of the child for the period
10-6 specified in the order but that period may not extend past the 18th
10-7 birthday of the child. If <the child or parent is unable to make
10-8 full or partial restitution or if> a restitution order is not
10-9 appropriate under the circumstances, the court may order the child
10-10 to render personal services to a charitable or educational
10-11 institution in the manner prescribed in the court order in lieu of
10-12 restitution. The financial status of a child or a child's family
10-13 may not be considered in determining whether a restitution order
10-14 or an order requiring a child to render personal services to a
10-15 charitable or educational institution is appropriate under this
10-16 subsection. Restitution under this section is cumulative of any
10-17 other remedy allowed by law and may be used in addition to other
10-18 remedies; except that a victim of an offense is not entitled to
10-19 receive more than actual damages under a juvenile court order. A
10-20 city, town, or county that establishes a program to assist children
10-21 in rendering personal services to a charitable or educational
10-22 institution as authorized by this subsection may purchase insurance
10-23 policies protecting the city, town, or county against claims
10-24 brought by a person other than the child for a cause of action that
10-25 arises from an act of the child while rendering those services.
10-26 The city, town, or county is not liable under this Act to the
10-27 extent that damages are recoverable under a contract of insurance
11-1 or under a plan of self-insurance authorized by statute. The
11-2 liability of the city, town, or county for a cause of action that
11-3 arises from an action of the child while rendering those services
11-4 may not exceed $100,000 to a single person and $300,000 for a
11-5 single occurrence in the case of personal injury or death, and
11-6 $10,000 for a single occurrence of property damage. Liability may
11-7 not extend to punitive or exemplary damages. This subsection does
11-8 not waive a defense, immunity, or jurisdictional bar available to
11-9 the city, town, or county or its officers or employees, nor shall
11-10 this Act be construed to waive, repeal, or modify any provision of
11-11 the Texas Tort Claims Act, as amended (Article 6252-19, Vernon's
11-12 Texas Civil Statutes).
11-13 SECTION 11. Section 54.05(f), Family Code, is amended to
11-14 read as follows:
11-15 (f) A disposition based on a finding that the child engaged
11-16 in delinquent conduct may be modified so as to commit the child to
11-17 the Texas Youth Commission if the court after a hearing to modify
11-18 disposition finds beyond a reasonable doubt that the child violated
11-19 a reasonable and lawful order of the court. A disposition based on
11-20 a finding that the child engaged in a delinquent conduct that
11-21 included a violation of a penal law covered by <listed in> Section
11-22 53.045(a) of this code may be modified to commit the child to the
11-23 Texas Youth Commission with a transfer to the institutional
11-24 division of the Texas Department of Criminal Justice for a definite
11-25 term not to exceed 40 years if the original petition was approved
11-26 by the grand jury under Section 53.045 of this code and if after a
11-27 hearing to modify the disposition the court or jury finds that the
12-1 child violated a reasonable and lawful order of the court.
12-2 SECTION 12. Section 8.07(a), Penal Code, is amended to read
12-3 as follows:
12-4 (a) A person may not be prosecuted for or convicted of any
12-5 offense that he committed when younger than 14 <15> years of age
12-6 except:
12-7 (1) perjury and aggravated perjury when it appears by
12-8 proof that he had sufficient discretion to understand the nature
12-9 and obligation of an oath;
12-10 (2) a violation of a penal statute cognizable under
12-11 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957,
12-12 as amended (Article 6701l-4, Vernon's Texas Civil Statutes), except
12-13 conduct which violates the laws of this state prohibiting driving
12-14 while intoxicated or under the influence of intoxicating liquor
12-15 (first or subsequent offense) or driving while under the influence
12-16 of any narcotic drug or of any other drug to a degree which renders
12-17 him incapable of safely driving a vehicle (first or subsequent
12-18 offense);
12-19 (3) a violation of a motor vehicle traffic ordinance
12-20 of an incorporated city or town in this state;
12-21 (4) a misdemeanor punishable by fine only other than
12-22 public intoxication; or
12-23 (5) a violation of a penal ordinance of a political
12-24 subdivision.
12-25 SECTION 13. (a) The change in law made by this Act applies
12-26 only to conduct that occurs on or after the effective date of this
12-27 Act. Conduct violating a penal law of the state occurs on or after
13-1 the effective date of this Act if every element of the violation
13-2 occurs on or after that date.
13-3 (b) Conduct that occurs before the effective date of this
13-4 Act is covered by the law in effect at the time the conduct
13-5 occurred, and the former law is continued in effect for that
13-6 purpose.
13-7 SECTION 14. This Act takes effect September 1, 1993.
13-8 SECTION 15. The importance of this legislation and the
13-9 crowded condition of the calendars in both houses create an
13-10 emergency and an imperative public necessity that the
13-11 constitutional rule requiring bills to be read on three several
13-12 days in each house be suspended, and this rule is hereby suspended.