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.