By:  Uher                                             H.B. No. 1578
       73R5778 NSC-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the criminal responsibility of a person who is 13 years
    1-3  of age or older for certain felony offenses and to the application
    1-4  of the death penalty to a person who is 16 years of age or older.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Sections 8.07(a), (b), and (d), Penal Code, are
    1-7  amended to read as follows:
    1-8        (a)  A person may not be prosecuted for or convicted of any
    1-9  offense that he committed when younger than 15 years of age except:
   1-10              (1)  perjury and aggravated perjury when it appears by
   1-11  proof that he had sufficient discretion to understand the nature
   1-12  and obligation of an oath;
   1-13              (2)  a violation of a penal statute cognizable under
   1-14  Chapter 302, Acts of the 55th Legislature, Regular Session, 1957,
   1-15  as amended (Article 6701l-4, Vernon's Texas Civil Statutes), except
   1-16  conduct which violates the laws of this state prohibiting driving
   1-17  while intoxicated or under the influence of intoxicating liquor
   1-18  (first or subsequent offense) or driving while under the influence
   1-19  of any narcotic drug or of any other drug to a degree which renders
   1-20  him incapable of safely driving a vehicle (first or subsequent
   1-21  offense);
   1-22              (3)  a violation of a motor vehicle traffic ordinance
   1-23  of an incorporated city or town in this state;
   1-24              (4)  a misdemeanor punishable by fine only other than
    2-1  public intoxication; <or>
    2-2              (5)  a violation of a penal ordinance of a political
    2-3  subdivision; or
    2-4              (6)  a felony under Title 5 of this code, if the person
    2-5  was at least 13 years of age when the person committed the offense.
    2-6        (b)  Unless the juvenile court waives jurisdiction and
    2-7  certifies the individual for criminal prosecution, a person may not
    2-8  be prosecuted for or convicted of any offense committed before
    2-9  reaching 17 years of age except:
   2-10              (1)  perjury and aggravated perjury when it appears by
   2-11  proof that he had sufficient discretion to understand the nature
   2-12  and obligation of an oath;
   2-13              (2)  a violation of a penal statute cognizable under
   2-14  Chapter 302, Acts of the 55th Legislature, Regular Session, 1957,
   2-15  as amended (Article 6701l-4, Vernon's Texas Civil Statutes), except
   2-16  conduct which violates the laws of this state prohibiting driving
   2-17  while intoxicated or under the influence of intoxicating liquor
   2-18  (first or subsequent offense) or driving while under the influence
   2-19  of any narcotic drug or of any other drug to a degree which renders
   2-20  him incapable of safely driving a vehicle (first or subsequent
   2-21  offense);
   2-22              (3)  a violation of a motor vehicle traffic ordinance
   2-23  of an incorporated city or town in this state;
   2-24              (4)  a misdemeanor punishable by fine only other than
   2-25  public intoxication; <or>
   2-26              (5)  a violation of a penal ordinance of a political
   2-27  subdivision; or
    3-1              (6)  a felony under Title 5 of this code, if the person
    3-2  was at least 13 years of age when the person committed the offense.
    3-3        (d)  No person may, in any case, be punished by death for an
    3-4  offense committed while he was younger than 16 <17> years.
    3-5        SECTION 2.  Section 51.09(b), Family Code, is amended to read
    3-6  as follows:
    3-7        (b)  Notwithstanding any of the provisions of Subsection (a)
    3-8  of this section, the statement of a child is admissible in evidence
    3-9  in any future proceeding concerning the matter about which the
   3-10  statement was given if:
   3-11              (1)  when the child is in a detention facility or other
   3-12  place of confinement or in the custody of an officer, the statement
   3-13  is made in writing and the statement shows that the child has at
   3-14  some time prior to the making thereof received from a magistrate a
   3-15  warning that:
   3-16                    (A)  the child may remain silent and not make any
   3-17  statement at all and that any statement that the child makes may be
   3-18  used in evidence against the child;
   3-19                    (B)  the child has the right to have an attorney
   3-20  present to advise the child either prior to any questioning or
   3-21  during the questioning;
   3-22                    (C)  if the child is unable to employ an
   3-23  attorney, the child has the right to have an attorney appointed to
   3-24  counsel with the child prior to or during any interviews with peace
   3-25  officers or attorneys representing the state;
   3-26                    (D)  the child has the right to terminate the
   3-27  interview at any time;
    4-1                    (E)  the juvenile court may waive its
    4-2  jurisdiction and the child may be tried as an adult if the child
    4-3  is:
    4-4                          (i)  15 years of age or older at the time
    4-5  of the violation of a penal law of the grade of felony, other than
    4-6  a violation under Title 5, Penal Code <the juvenile court may waive
    4-7  its jurisdiction and the child may be tried as an adult>; or
    4-8                          (ii)  13 years of age or older at the time
    4-9  of the violation of a penal law of the grade of felony under Title
   4-10  5, Penal Code;
   4-11                    (F)  the child may be sentenced to commitment in
   4-12  the Texas Youth Commission with a transfer to the institutional
   4-13  division of the Texas Department of Criminal Justice for a term not
   4-14  to exceed 30 years if the child is found to have engaged in
   4-15  delinquent conduct, alleged in a petition approved by a grand jury,
   4-16  that included:
   4-17                          (i)  murder;
   4-18                          (ii)  capital murder;
   4-19                          (iii)  aggravated kidnapping;
   4-20                          (iv)  aggravated sexual assault;
   4-21                          (v)  deadly assault on a law enforcement
   4-22  officer, corrections officer, court participant, or probation
   4-23  personnel; or
   4-24                          (vi)  attempted capital murder; and
   4-25                    (G)  the statement must be signed in the presence
   4-26  of a magistrate by the child with no law enforcement officer or
   4-27  prosecuting attorney present, except that a magistrate may require
    5-1  a bailiff or a law enforcement officer if a bailiff is not
    5-2  available to be present if the magistrate determines that the
    5-3  presence of the bailiff or law enforcement officer is necessary for
    5-4  the personal safety of the magistrate or other court personnel,
    5-5  provided that the bailiff or law enforcement officer may not carry
    5-6  a weapon in the presence of the child.  The magistrate must be
    5-7  fully convinced that the child understands the nature and contents
    5-8  of the statement and that the child is signing the same
    5-9  voluntarily.  If such a statement is taken, the magistrate shall
   5-10  sign a written statement verifying the foregoing requisites have
   5-11  been met.
   5-12        The child must knowingly, intelligently, and voluntarily
   5-13  waive these rights prior to and during the making of the statement
   5-14  and sign the statement in the presence of a magistrate who must
   5-15  certify that he has examined the child independent of any law
   5-16  enforcement officer or prosecuting attorney, except as required to
   5-17  ensure the personal safety of the magistrate or other court
   5-18  personnel, and has determined that the child understands the nature
   5-19  and contents of the statement and has knowingly, intelligently, and
   5-20  voluntarily waived these rights.
   5-21              (2)  it be made orally and the child makes a statement
   5-22  of facts or circumstances that are found to be true, which conduct
   5-23  tends to establish his guilt, such as the finding of secreted or
   5-24  stolen property, or the instrument with which he states the offense
   5-25  was committed.
   5-26              (3)  the statement was res gestae of the delinquent
   5-27  conduct or the conduct indicating a need for supervision or of the
    6-1  arrest.
    6-2        SECTION 3.  Sections 51.15(a) and (b), Family Code, are
    6-3  amended to read as follows:
    6-4        (a)  No child may be fingerprinted without the consent of the
    6-5  juvenile court except as provided by this subsection or by
    6-6  subsections (f) and (i) of this section.  A child's fingerprints
    6-7  may be taken and filed by a law-enforcement officer investigating a
    6-8  case if:
    6-9              (1)  the child is:
   6-10                    (A)  15 years of age or older and is referred to
   6-11  the juvenile court for any felony, other than a felony under Title
   6-12  5, Penal Code; or
   6-13                    (B)  13 years of age or older and is referred to
   6-14  the juvenile court for a felony under Title 5, Penal Code; or
   6-15              (2)  the child is under 13 <15> years of age and is
   6-16  referred to the juvenile court for a felony listed in Section
   6-17  53.045(a) of this code.
   6-18        (b)  Except as provided in Subsections (h) and (i) of this
   6-19  section, no child taken into custody may be photographed without
   6-20  the consent of the juvenile court unless:
   6-21              (1)  the child is:
   6-22                    (A)  15 years of age or older and is referred to
   6-23  the juvenile court for a felony, other than a felony under Title 5,
   6-24  Penal Code; or
   6-25                    (B)  13 years of age or older and is referred to
   6-26  the juvenile court for a felony under Title 5, Penal Code; or
   6-27              (2)  the child is under 13 <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        SECTION 4.  Sections 54.02(a) and (j), Family Code, are
    7-4  amended to read as follows:
    7-5        (a)  The juvenile court may waive its exclusive original
    7-6  jurisdiction and transfer a child to the appropriate district court
    7-7  or criminal district court for criminal proceedings if:
    7-8              (1)  <the child is alleged to have violated a penal law
    7-9  of the grade of felony;>
   7-10              <(2)>  the child was:
   7-11                    (A)  15 years of age or older at the time the
   7-12  child <he> is alleged to have violated a penal law of the grade of
   7-13  felony, other than a felony under Title 5, Penal Code; or
   7-14                    (B)  13 years of age or older at the time the
   7-15  child is alleged to have violated a penal law of the grade of
   7-16  felony under Title 5, Penal Code; <committed the offense and>
   7-17              (2)  no adjudication hearing has been conducted
   7-18  concerning that offense; and
   7-19              (3)  after full investigation and hearing the juvenile
   7-20  court determines that there is probable cause to believe that the
   7-21  child before the court committed the offense alleged and that
   7-22  because of the seriousness of the offense or the background of the
   7-23  child the welfare of the community requires criminal proceedings.
   7-24        (j)  The juvenile court may waive its exclusive original
   7-25  jurisdiction and transfer a person to the appropriate district
   7-26  court or criminal district court for criminal proceedings if:
   7-27              (1)  the person is 18 years of age or older;
    8-1              (2)  the person was:
    8-2                    (A)  15 years of age or older and under 17 years
    8-3  of age at the time he is alleged to have committed a felony, other
    8-4  than a felony under Title 5, Penal Code; or
    8-5                    (B)  13 years of age or older and under 17 years
    8-6  of age at the time the person is alleged to have committed a felony
    8-7  under Title 5, Penal Code;
    8-8              (3)  no adjudication concerning the alleged offense has
    8-9  been made or no adjudication hearing  concerning the offense has
   8-10  been conducted;
   8-11              (4)  the juvenile court finds from a preponderance of
   8-12  the evidence that after due diligence of the state it was not
   8-13  practicable to proceed in juvenile court before the 18th birthday
   8-14  of the person because:
   8-15                    (A)  the state did not have probable cause to
   8-16  proceed in juvenile court and new evidence has been found since the
   8-17  18th birthday of the person; or
   8-18                    (B)  the person could not be found; and
   8-19              (5)  the juvenile court determines that there is
   8-20  probable cause to believe that the child before the court committed
   8-21  the offense alleged.
   8-22        SECTION 5.  (a)  The change in law made by this Act applies
   8-23  only to conduct constituting an offense that occurs on or after the
   8-24  effective date of this Act.  For purposes of this section, conduct
   8-25  that constitutes an offense occurs before the effective date of
   8-26  this Act if any element of the offense occurs before the effective
   8-27  date.
    9-1        (b)  Conduct constituting an offense that occurs before the
    9-2  effective date of this Act is covered by the law in effect when the
    9-3  conduct occurred, and the former law is continued in effect for
    9-4  that purpose.
    9-5        SECTION 6.  This Act takes effect September 1, 1993.
    9-6        SECTION 7.  The importance of this legislation and the
    9-7  crowded condition of the calendars in both houses create an
    9-8  emergency and an imperative public necessity that the
    9-9  constitutional rule requiring bills to be read on three several
   9-10  days in each house be suspended, and this rule is hereby suspended.