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.