By: Holzheauser H.B. No. 1814
73R3751 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the jurisdiction of the juvenile courts and criminal
1-3 courts for certain persons and to procedures for persons under the
1-4 jurisdiction of the juvenile courts.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 51.02(1), Family Code, is amended to read
1-7 as follows:
1-8 (1) "Child" means a person younger than 15 <who is:>
1-9 <(A) ten years of age or older and under 17>
1-10 years of age or a person 15<; or>
1-11 <(B) seventeen> years of age or older and under
1-12 16 <18> years of age who is alleged or found to have engaged in
1-13 delinquent conduct or conduct indicating a need for supervision as
1-14 a result of acts committed before becoming 15 <17> years of age.
1-15 The term does not include:
1-16 (A) a person who is younger than 8 years of age;
1-17 or
1-18 (B) a person for whom the juvenile court has
1-19 previously waived its exclusive original jurisdiction under Section
1-20 54.02 of this code and transferred the child to a court for
1-21 criminal proceedings.
1-22 SECTION 2. Section 51.09(b), Family Code, as amended by
1-23 Chapters 429 and 593, Acts of the 72nd Legislature, Regular
1-24 Session, 1991, is conformed to Chapter 557, Acts of the 72nd
2-1 Legislature, Regular Session, 1991, and is amended to read as
2-2 follows:
2-3 (b) Notwithstanding any of the provisions of Subsection (a)
2-4 of this section, the statement of a child is admissible in evidence
2-5 in any future proceeding concerning the matter about which the
2-6 statement was given if:
2-7 (1) when the child is in a detention facility or other
2-8 place of confinement or in the custody of an officer, the statement
2-9 is made in writing and the statement shows that the child has at
2-10 some time prior to the making thereof received from a magistrate or
2-11 a law enforcement officer a warning that:
2-12 (A) the child may remain silent and not make any
2-13 statement at all and that any statement that the child makes may be
2-14 used in evidence against the child;
2-15 (B) the child has the right to have an attorney
2-16 present to advise the child either prior to any questioning or
2-17 during the questioning;
2-18 (C) if the child is unable to employ an
2-19 attorney, the child has the right to have an attorney appointed to
2-20 counsel with the child prior to or during any interviews with peace
2-21 officers or attorneys representing the state;
2-22 (D) the child has the right to terminate the
2-23 interview at any time;
2-24 (E) if the child is 13 <15> years of age or
2-25 older at the time of the violation of a penal law of the grade of
2-26 felony the juvenile court may waive its jurisdiction and the child
2-27 may be tried as an adult;
3-1 (F) the child may be sentenced to commitment in
3-2 the Texas Youth Commission with a transfer to the institutional
3-3 division of the Texas Department of Criminal Justice for a term not
3-4 to exceed 40 years if the child is found to have engaged in
3-5 delinquent conduct, alleged in a petition approved by a grand jury,
3-6 that included:
3-7 (i) murder;
3-8 (ii) capital murder;
3-9 (iii) aggravated kidnapping;
3-10 (iv) aggravated sexual assault;
3-11 (v) deadly assault on a law enforcement
3-12 officer, corrections officer, court participant, or probation
3-13 personnel; or
3-14 (vi) attempted capital murder; and
3-15 (G) the statement must be signed in the presence
3-16 of a magistrate by the child with no law enforcement officer or
3-17 prosecuting attorney present, except that a magistrate may require
3-18 a bailiff or a law enforcement officer if a bailiff is not
3-19 available to be present if the magistrate determines that the
3-20 presence of the bailiff or law enforcement officer is necessary for
3-21 the personal safety of the magistrate or other court personnel,
3-22 provided that the bailiff or law enforcement officer may not carry
3-23 a weapon in the presence of the child. The magistrate must be
3-24 fully convinced that the child understands the nature and contents
3-25 of the statement and that the child is signing the same
3-26 voluntarily. If such a statement is taken, the magistrate shall
3-27 sign a written statement verifying the foregoing requisites have
4-1 been met.
4-2 The child must knowingly, intelligently, and voluntarily
4-3 waive these rights prior to and during the making of the statement
4-4 and sign the statement in the presence of a magistrate who must
4-5 certify that he has examined the child independent of any law
4-6 enforcement officer or prosecuting attorney, except as required to
4-7 ensure the personal safety of the magistrate or other court
4-8 personnel, and has determined that the child understands the nature
4-9 and contents of the statement and has knowingly, intelligently, and
4-10 voluntarily waived these rights.
4-11 (2) it be made orally and the child makes a statement
4-12 of facts or circumstances that are found to be true, which conduct
4-13 tends to establish his guilt, such as the finding of secreted or
4-14 stolen property, or the instrument with which he states the offense
4-15 was committed.
4-16 (3) the statement was res gestae of the delinquent
4-17 conduct or the conduct indicating a need for supervision or of the
4-18 arrest.
4-19 SECTION 3. Section 51.14(c), Family Code, as amended by
4-20 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
4-21 Session, 1987, is amended to read as follows:
4-22 (c) Law-enforcement <Except as provided by this subsection,
4-23 law-enforcement> files and records concerning a child may <shall>
4-24 be combined with <kept separate from> files and records of arrests
4-25 of adults and may <shall> be <maintained on a local basis only and
4-26 not> sent to a central state or federal depository. If a child has
4-27 been reported as missing by a parent, guardian, or conservator of
5-1 that child or a child has escaped from the custody of a juvenile
5-2 detention facility, the Texas Youth Commission, or any other agency
5-3 to which the child has been committed, any information or records
5-4 concerning that child may be transferred to and disseminated by the
5-5 Texas Crime Information Center and the National Crime Information
5-6 Center. However, the law-enforcement files and records of a person
5-7 who is transferred from the Texas Youth Commission to the Texas
5-8 Department of Corrections under a determinate sentence may be
5-9 transferred to a central state or federal depository for adult
5-10 records on or after the date of transfer.
5-11 SECTION 4. Section 51.15, Family Code, as amended by
5-12 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
5-13 Session, 1987, is amended to read as follows:
5-14 Sec. 51.15. Fingerprints and Photographs. (a) No child may
5-15 be fingerprinted without the consent of the juvenile court except
5-16 as provided by this subsection or by subsections (f) and (i) of
5-17 this section. A child's fingerprints may be taken and filed by a
5-18 law-enforcement officer investigating a case if:
5-19 (1) the child is 13 <15> years of age or older and is
5-20 referred to the juvenile court for any felony; or
5-21 (2) the child is under 13 <15> years of age and is
5-22 referred to the juvenile court for a felony listed in Section
5-23 53.045(a) of this code.
5-24 (b) Except as provided in Subsections (h) and (i) of this
5-25 section, no child taken into custody may be photographed without
5-26 the consent of the juvenile court unless:
5-27 (1) the child is 13 <15> years of age or older and is
6-1 referred to the juvenile court for a felony; or
6-2 (2) the child is under 13 <15> years of age and is
6-3 referred to the juvenile court for a felony listed in Section
6-4 53.045(a) of this code.
6-5 (c) Fingerprint <Except as provided by this subsection,
6-6 fingerprint> and photograph files or records of children may
6-7 <shall> be combined with <kept separate from> those of adults, and
6-8 fingerprints or photographs known to be those of a child may
6-9 <shall> be <maintained on a local basis only and not> sent to a
6-10 central state or federal depository. If a child has been reported
6-11 as missing by a parent, guardian, or conservator of that child or a
6-12 child has escaped from the custody of a juvenile detention
6-13 facility, the Texas Youth Commission, or any other agency to which
6-14 the child has been committed, the child's fingerprints and
6-15 photograph may be sent to and indexed into the files of a central
6-16 state or federal depository <the Department of Public Safety and
6-17 the Federal Bureau of Investigation to aid in the location and
6-18 identification of the child. However, fingerprint and photograph
6-19 files or records of a person who is transferred from the Texas
6-20 Youth Commission to the Texas Department of Corrections under a
6-21 determinate sentence may be transferred to adult records on or
6-22 after the date of transfer>.
6-23 (d) Fingerprint and photograph files or records of children
6-24 are subject to inspection as provided in Subsections (a) and (d) of
6-25 Section 51.14 of this code.
6-26 (e) A child's fingerprints and photographs that are not
6-27 combined with adult records <transferred> under Subsection (c) of
7-1 this section shall be removed from files or records and destroyed
7-2 if:
7-3 (1) a petition alleging that the child engaged in
7-4 delinquent conduct or conduct indicating a need for supervision is
7-5 not filed, or the proceedings are dismissed after a petition is
7-6 filed, or the child is found not to have engaged in the alleged
7-7 conduct;
7-8 (2) the person reaches 16 <18> years of age, is not
7-9 subject to commitment to the Texas Youth Commission or to transfer
7-10 under a determinate sentence to the institutional division of the
7-11 Texas Department of Criminal Justice <Corrections>, and there is no
7-12 record that the person <he> committed a criminal offense after
7-13 reaching 15 <17> years of age; or
7-14 (3) the person is older than 16 <18> years, at least
7-15 three years have elapsed after the person's release from
7-16 commitment, and there is no evidence that the person <he> committed
7-17 a criminal offense after the release.
7-18 (f) If latent fingerprints are found during the
7-19 investigation of an offense, and a law-enforcement officer has
7-20 reasonable cause to believe that they are those of a particular
7-21 child, if otherwise authorized by law, the officer <he> may
7-22 fingerprint the child regardless of the age or offense for purpose
7-23 of immediate comparison with the latent fingerprints. If the
7-24 comparison is negative, the fingerprint card and other copies of
7-25 the fingerprints taken shall be destroyed immediately. If the
7-26 comparison is positive, and the child is referred to the juvenile
7-27 court, the fingerprint card and other copies of the fingerprints
8-1 taken shall be delivered to the court for disposition. If the
8-2 child is not referred to the court, the fingerprint card and other
8-3 copies of the fingerprints taken shall be destroyed immediately.
8-4 (g) When destruction of fingerprints or photographs is
8-5 required by Subsection (e), (f), or (h) of this section, the agency
8-6 with custody of the fingerprints or photographs shall proceed with
8-7 destruction without judicial order. However, if the fingerprints
8-8 or photographs are not destroyed, the juvenile court, on its own
8-9 motion or on application by the person fingerprinted or
8-10 photographed, shall order the destruction as required by this
8-11 section.
8-12 (h) If, during the investigation of a criminal offense, a
8-13 law enforcement officer has reason to believe that a photograph of
8-14 a child taken into custody or detained as permitted under this
8-15 title will assist in the identification of the offender and if not
8-16 otherwise prohibited by law, the officer may photograph the face of
8-17 the child. If the child is not identified as an offender, the
8-18 photograph and its negative shall be destroyed immediately. If the
8-19 child is identified through the photograph and the child is
8-20 referred to the juvenile court for the offense investigated, the
8-21 photograph and its negative shall be delivered to the juvenile
8-22 court for disposition. If the child is not referred to the
8-23 juvenile court for the offense investigated, the photograph and its
8-24 negative shall be destroyed immediately.
8-25 (i) A law enforcement officer may fingerprint or photograph
8-26 a child taken into custody, or detained as permitted under this
8-27 title, <for delinquent conduct> if the officer is unable to
9-1 identify the child after making a reasonable effort to do so.
9-2 SECTION 5. Section 51.16(k), Family Code, is amended to read
9-3 as follows:
9-4 (k) A court may not order under this section the sealing of
9-5 files and records concerning a person adjudicated as having engaged
9-6 in delinquent conduct that violated a penal law of the grade of
9-7 felony unless:
9-8 (1) the person is 23 years of age or older;
9-9 (2) the files and records have not been:
9-10 (A) made a part of the person's adult record as
9-11 a result of the use of the files or records after the juvenile
9-12 court under Section 54.02 of this code transferred the person to a
9-13 criminal court for prosecution; or
9-14 (B) used as evidence in the punishment phase of
9-15 a criminal proceeding under Section 3(a), Article 37.07, Code of
9-16 Criminal Procedure; and
9-17 (3) the person has not been convicted of a penal law
9-18 of the grade of felony after becoming age 15 <17>.
9-19 SECTION 6. Section 54.02, Family Code, is amended to read as
9-20 follows:
9-21 Sec. 54.02. WAIVER OF JURISDICTION AND <DISCRETIONARY>
9-22 TRANSFER TO CRIMINAL COURT. (a) The juvenile court shall <may>
9-23 waive its exclusive original jurisdiction and transfer a child to
9-24 the appropriate district court or criminal district court for
9-25 criminal proceedings if:
9-26 (1) the child is alleged to have violated a penal law
9-27 of the grade of felony;
10-1 (2) the child was 13 <15> years of age or older at the
10-2 time the child <he> is alleged to have committed the offense and no
10-3 adjudication hearing has been conducted concerning that offense;
10-4 <and>
10-5 (3) after full investigation and hearing the juvenile
10-6 court determines that there is probable cause to believe that the
10-7 child before the court committed the offense alleged and that the
10-8 child does not show good cause why the child should not be
10-9 transferred <because of the seriousness of the offense or the
10-10 background of the child the welfare of the community requires
10-11 criminal proceedings>.
10-12 (b) The petition and notice requirements of Sections 53.04,
10-13 53.05, 53.06, and 53.07 of this code must be satisfied, and the
10-14 summons must state that the hearing is for the purpose of
10-15 considering <discretionary> transfer to criminal court.
10-16 (c) The juvenile court shall conduct a hearing without a
10-17 jury to consider transfer of the child for criminal proceedings.
10-18 (d) Prior to the hearing, the juvenile court shall order and
10-19 obtain a complete diagnostic study, social evaluation, and full
10-20 investigation of the child, the child's <his> circumstances, and
10-21 the circumstances of the alleged offense.
10-22 (e) At the transfer hearing the court may consider written
10-23 reports from probation officers, professional court employees, or
10-24 professional consultants in addition to the testimony of witnesses.
10-25 At least one week <day> prior to the transfer hearing, the court
10-26 shall provide the attorney for the child with access to all written
10-27 matter to be considered by the court in making the transfer
11-1 decision. The court may order counsel not to reveal items to the
11-2 child or the child's <his> parent, guardian, or guardian ad litem
11-3 if such disclosure would materially harm the treatment and
11-4 rehabilitation of the child or would substantially decrease the
11-5 likelihood of receiving information from the same or similar
11-6 sources in the future.
11-7 (f) In determining whether the child shows good cause not to
11-8 be transferred under <making the determination required by>
11-9 Subsection (a) of this section, the court shall consider, among
11-10 other matters:
11-11 (1) whether the alleged offense was against person or
11-12 property, with greater weight in favor of transfer given to
11-13 offenses against the person;
11-14 (2) whether the alleged offense was committed in an
11-15 aggressive and premeditated manner;
11-16 (3) whether there is evidence on which a grand jury
11-17 may be expected to return an indictment;
11-18 (4) the sophistication and maturity of the child;
11-19 (5) the record and previous history of the child; and
11-20 (6) the prospects of adequate protection of the public
11-21 and the likelihood of the rehabilitation of the child by use of
11-22 procedures, services, and facilities currently available to the
11-23 juvenile court.
11-24 (g) If the juvenile court retains jurisdiction, the child is
11-25 not subject to criminal prosecution at any time for any offense
11-26 alleged in the petition or for any offense within the knowledge of
11-27 the juvenile court judge as evidenced by anything in the record of
12-1 the proceedings.
12-2 (h) If the juvenile court waives jurisdiction, it shall
12-3 state specifically in the order its reasons for waiver and certify
12-4 its action, including the written order and findings of the court,
12-5 and shall transfer the child to the appropriate court for criminal
12-6 proceedings. On transfer of the child for criminal proceedings, he
12-7 shall be dealt with as an adult and in accordance with the Code of
12-8 Criminal Procedure. The transfer of custody is an arrest. <The
12-9 court to which the child is transferred shall determine if good
12-10 cause exists for an examining trial. If there is no good cause for
12-11 an examining trial, the court shall refer the case to the grand
12-12 jury. If there is good cause for an examining trial, the court
12-13 shall conduct an examining trial and may remand the child to the
12-14 jurisdiction of the juvenile court.>
12-15 (i) A waiver under this section is a waiver of jurisdiction
12-16 over the child and the criminal court may not remand the child to
12-17 the jurisdiction of the juvenile court. <If the child's case is
12-18 brought to the attention of the grand jury and the grand jury does
12-19 not indict for the offense charged in the complaint forwarded by
12-20 the juvenile court, the district court or criminal district court
12-21 shall certify the grand jury's failure to indict to the juvenile
12-22 court. On receipt of the certification, the juvenile court may
12-23 resume jurisdiction of the case.>
12-24 (j) The juvenile court shall <may> waive its exclusive
12-25 original jurisdiction and transfer a person to the appropriate
12-26 district court or criminal district court for criminal proceedings
12-27 if:
13-1 (1) the person is 16 <18> years of age or older;
13-2 (2) the person was 13 <15> years of age or older and
13-3 under 15 <17> years of age at the time the person <he> is alleged
13-4 to have committed a felony;
13-5 (3) no adjudication concerning the alleged offense has
13-6 been made or no adjudication hearing concerning the offense has
13-7 been conducted;
13-8 (4) the juvenile court finds from a preponderance of
13-9 the evidence that after due diligence of the state it was not
13-10 practicable to proceed in juvenile court before the 16th <18th>
13-11 birthday of the person because:
13-12 (A) the state did not have probable cause to
13-13 proceed in juvenile court and new evidence has been found since the
13-14 16th <18th> birthday of the person; or
13-15 (B) the person could not be found; and
13-16 (5) the juvenile court determines that there is
13-17 probable cause to believe that the child before the court committed
13-18 the offense alleged.
13-19 (k) The petition and notice requirements of Sections 53.04,
13-20 53.05, 53.06, and 53.07 of this code must be satisfied, and the
13-21 summons must state that the hearing is for the purpose of
13-22 considering waiver of jurisdiction under Subsection (j) of this
13-23 section.
13-24 (l) The juvenile court shall conduct a hearing without a
13-25 jury to consider waiver of jurisdiction under Subsection (j) of
13-26 this section.
13-27 SECTION 7. Section 54.04(e), Family Code, is amended to read
14-1 as follows:
14-2 (e) The Texas Youth Commission shall accept a child properly
14-3 committed to it by a juvenile court even though the child may be 15
14-4 <17> years of age or older at the time of commitment.
14-5 SECTION 8. Sections 54.05(a) and (b), Family Code, are
14-6 amended to read as follows:
14-7 (a) Any disposition, except a commitment to the Texas Youth
14-8 Commission, may be modified by the juvenile court as provided in
14-9 this section until:
14-10 (1) the child reaches the child's 16th <his 18th>
14-11 birthday; or
14-12 (2) the child is earlier discharged by the court or
14-13 operation of law.
14-14 (b) Except for a commitment to the Texas Youth Commission,
14-15 all dispositions automatically terminate when the child reaches the
14-16 child's 16th <his 18th> birthday.
14-17 SECTION 9. Sections 8.07(b) and (d), Penal Code, are amended
14-18 to read as follows:
14-19 (b) Unless the juvenile court waives jurisdiction under
14-20 Section 54.02, Family Code, and certifies the individual for
14-21 criminal prosecution or the juvenile court has previously waived
14-22 jurisdiction under that section and certified the individual for
14-23 criminal prosecution, a person may not be prosecuted for or
14-24 convicted of any offense committed before reaching 15 <17> years of
14-25 age except:
14-26 (1) perjury and aggravated perjury when it appears by
14-27 proof that he had sufficient discretion to understand the nature
15-1 and obligation of an oath;
15-2 (2) a violation of a penal statute cognizable under
15-3 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957,
15-4 as amended (Article 6701l-4, Vernon's Texas Civil Statutes), except
15-5 conduct which violates the laws of this state prohibiting driving
15-6 while intoxicated or under the influence of intoxicating liquor
15-7 (first or subsequent offense) or driving while under the influence
15-8 of any narcotic drug or of any other drug to a degree which renders
15-9 him incapable of safely driving a vehicle (first or subsequent
15-10 offense);
15-11 (3) a violation of a motor vehicle traffic ordinance
15-12 of an incorporated city or town in this state;
15-13 (4) a misdemeanor punishable by fine only other than
15-14 public intoxication; or
15-15 (5) a violation of a penal ordinance of a political
15-16 subdivision.
15-17 (d) No person may, in any case, be punished by death for an
15-18 offense committed while he was younger than 15 <17> years.
15-19 SECTION 10. Section 61.001(6), Human Resources Code, is
15-20 amended to read as follows:
15-21 (6) "Child" means a person 8 <10> years old or older
15-22 and under 21 years old who is committed to the commission under
15-23 Title 3, Family Code.
15-24 SECTION 11. This Act takes effect September 1, 1993.
15-25 SECTION 12. (a) Sections 1, 2, 5, 6, 7, 8, and 10 of this
15-26 Act apply only to a person who engages in delinquent conduct or
15-27 conduct indicating a need for supervision under Title 3, Family
16-1 Code, on or after the effective date of this Act. Delinquent
16-2 conduct or conduct indicating a need for supervision occurs on or
16-3 after the effective date of this Act if every element of the
16-4 conduct occurs on or after that date.
16-5 (b) A person who engages in delinquent conduct or conduct
16-6 indicating a need for supervision under Title 3, Family Code,
16-7 before the effective date of this Act is governed by the law in
16-8 effect at the time the conduct occurred, and that law is continued
16-9 in effect for that purpose.
16-10 SECTION 13. (a) Section 9 of this Act applies only to the
16-11 prosecution of an offense committed on or after the effective date
16-12 of this Act. For purposes of this section, an offense is committed
16-13 before the effective date of this Act if any element of the offense
16-14 occurs before the effective date.
16-15 (b) An offense committed before the effective date of this
16-16 Act is covered by the law in effect when the offense was committed,
16-17 and the former law is continued in effect for that purpose.
16-18 SECTION 14. Section 3 of this Act applies to the files and
16-19 records of any person, without regard to whether the person engages
16-20 in delinquent conduct or conduct indicating a need for supervision
16-21 under Title 3, Family Code, before, on, or after the effective date
16-22 of this Act.
16-23 SECTION 15. Section 4 of this Act applies only to
16-24 fingerprints or photographs taken on or after the effective date of
16-25 this Act. Fingerprints or photographs taken before the effective
16-26 date of this Act are governed by the law in effect at the time the
16-27 fingerprints or photographs were taken, and that law is continued
17-1 in effect for that purpose.
17-2 SECTION 16. The importance of this legislation and the
17-3 crowded condition of the calendars in both houses create an
17-4 emergency and an imperative public necessity that the
17-5 constitutional rule requiring bills to be read on three several
17-6 days in each house be suspended, and this rule is hereby suspended.