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.