By: Tallas H.B. No. 1175
73R2797 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 assault;
2-21 (v) aggravated sexual assault;
2-22 (vi) <(v)> aggravated robbery;
2-23 (vii) deadly assault on a law enforcement
2-24 officer, corrections officer, court participant, or probation
2-25 personnel; or
2-26 (viii) <(vi)> attempted capital murder;
2-27 and
3-1 (G) the statement must be signed in the presence
3-2 of a magistrate by the child with no law enforcement officer or
3-3 prosecuting attorney present, except that a magistrate may require
3-4 a bailiff or a law enforcement officer if a bailiff is not
3-5 available to be present if the magistrate determines that the
3-6 presence of the bailiff or law enforcement officer is necessary for
3-7 the personal safety of the magistrate or other court personnel,
3-8 provided that the bailiff or law enforcement officer may not carry
3-9 a weapon in the presence of the child. The magistrate must be
3-10 fully convinced that the child understands the nature and contents
3-11 of the statement and that the child is signing the same
3-12 voluntarily. If such a statement is taken, the magistrate shall
3-13 sign a written statement verifying the foregoing requisites have
3-14 been met.
3-15 The child must knowingly, intelligently, and voluntarily
3-16 waive these rights prior to and during the making of the statement
3-17 and sign the statement in the presence of a magistrate who must
3-18 certify that he has examined the child independent of any law
3-19 enforcement officer or prosecuting attorney, except as required to
3-20 ensure the personal safety of the magistrate or other court
3-21 personnel, and has determined that the child understands the nature
3-22 and contents of the statement and has knowingly, intelligently, and
3-23 voluntarily waived these rights.
3-24 (2) it be made orally and the child makes a statement
3-25 of facts or circumstances that are found to be true, which conduct
3-26 tends to establish his guilt, such as the finding of secreted or
3-27 stolen property, or the instrument with which he states the offense
4-1 was committed.
4-2 (3) the statement was res gestae of the delinquent
4-3 conduct or the conduct indicating a need for supervision or of the
4-4 arrest.
4-5 SECTION 2. Section 51.09(c), Family Code, as amended by
4-6 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
4-7 Session, 1991, is reenacted to read as follows:
4-8 (c) A warning under Subsection (b)(1)(E) or Subsection
4-9 (b)(1)(F) of this section is required only when applicable to the
4-10 facts of the case. A failure to warn a child under Subsection
4-11 (b)(1)(E) of this section does not render a statement made by the
4-12 child inadmissible unless the child is transferred to a criminal
4-13 district court under Section 54.02 of this code. A failure to warn
4-14 a child under Subsection (b)(1)(F) of this section does not render
4-15 a statement made by the child inadmissible unless the state
4-16 proceeds against the child on a petition approved by a grand jury
4-17 under Section 53.045 of this code.
4-18 SECTION 3. Section 53.045(a), Family Code, is amended to
4-19 read as follows:
4-20 (a) Except as provided by Subsection (e) of this section,
4-21 the prosecuting attorney may refer the petition to the grand jury
4-22 of the county in which the court in which the petition is filed
4-23 presides if the petition alleges that the child engaged in
4-24 delinquent conduct that included the violation of any of the
4-25 following provisions of the Penal Code:
4-26 (1) Section 19.02 (murder);
4-27 (2) Section 19.03 (capital murder);
5-1 (3) Section 20.04 (aggravated kidnapping);
5-2 (4) Section 22.02 (aggravated assault);
5-3 (5) Section 22.021 (aggravated sexual assault);
5-4 (6) <(5)> Section 22.03 (deadly assault on a law
5-5 enforcement officer, corrections officer, or court participant);
5-6 (7) Section 29.03 (aggravated robbery); or
5-7 (8) <(6)> Section 15.01 (criminal attempt), if the
5-8 offense attempted was an offense under Section 19.03 (capital
5-9 murder).
5-10 SECTION 4. (a) This Act takes effect September 1, 1993, and
5-11 applies only to conduct that occurs on or after that date. Conduct
5-12 violating the penal law of this state occurs on or after the
5-13 effective date of this Act if every element of the violation occurs
5-14 on or after that date.
5-15 (b) Conduct that occurs before the effective date of this
5-16 Act is governed by the law in effect at the time the conduct
5-17 occurred, and that law is continued in effect for that purpose.
5-18 SECTION 5. The importance of this legislation and the
5-19 crowded condition of the calendars in both houses create an
5-20 emergency and an imperative public necessity that the
5-21 constitutional rule requiring bills to be read on three several
5-22 days in each house be suspended, and this rule is hereby suspended.