By: Brown S.B. No. 789
73R3122 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adjudication and disposition of children for
1-3 certain conduct that violates a penal law of the grade of felony.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 51.09(b), Family Code, as amended by
1-6 Chapters 429 and 593, Acts of the 72nd Legislature, Regular
1-7 Session, 1991, is conformed to Chapter 557, Acts of the 72nd
1-8 Legislature, Regular Session, 1991, and amended to read as follows:
1-9 (b) Notwithstanding any of the provisions of Subsection (a)
1-10 of this section, the statement of a child is admissible in evidence
1-11 in any future proceeding concerning the matter about which the
1-12 statement was given if:
1-13 (1) when the child is in a detention facility or other
1-14 place of confinement or in the custody of an officer, the statement
1-15 is made in writing and the statement shows that the child has at
1-16 some time prior to the making thereof received from a magistrate a
1-17 warning that:
1-18 (A) the child may remain silent and not make any
1-19 statement at all and that any statement that the child makes may be
1-20 used in evidence against the child;
1-21 (B) the child has the right to have an attorney
1-22 present to advise the child either prior to any questioning or
1-23 during the questioning;
1-24 (C) if the child is unable to employ an
2-1 attorney, the child has the right to have an attorney appointed to
2-2 counsel with the child prior to or during any interviews with peace
2-3 officers or attorneys representing the state;
2-4 (D) the child has the right to terminate the
2-5 interview at any time;
2-6 (E) if the child is 15 years of age or older at
2-7 the time of the violation of a penal law of the grade of felony the
2-8 juvenile court may waive its jurisdiction and the child may be
2-9 tried as an adult;
2-10 (F) the child may be sentenced to commitment in
2-11 the Texas Youth Commission with a transfer to the institutional
2-12 division of the Texas Department of Criminal Justice for a term not
2-13 to exceed 40 years if the child is found to have engaged in
2-14 delinquent conduct, alleged in a petition approved by a grand jury,
2-15 that included:
2-16 (i) murder;
2-17 (ii) capital murder;
2-18 (iii) aggravated kidnapping;
2-19 (iv) aggravated sexual assault;
2-20 (v) deadly assault on a law enforcement
2-21 officer, corrections officer, or court participant<, or probation
2-22 personnel>; <or>
2-23 (vi) attempted capital murder or attempted
2-24 murder; <and>
2-25 (vii) aggravated robbery;
2-26 (viii) aggravated assault;
2-27 (ix) voluntary manslaughter; or
3-1 (x) involuntary manslaughter; and
3-2 (G) the statement must be signed in the presence
3-3 of a magistrate by the child with no law enforcement officer or
3-4 prosecuting attorney present, except that a magistrate may require
3-5 a bailiff or a law enforcement officer if a bailiff is not
3-6 available to be present if the magistrate determines that the
3-7 presence of the bailiff or law enforcement officer is necessary for
3-8 the personal safety of the magistrate or other court personnel,
3-9 provided that the bailiff or law enforcement officer may not carry
3-10 a weapon in the presence of the child. The magistrate must be
3-11 fully convinced that the child understands the nature and contents
3-12 of the statement and that the child is signing the same
3-13 voluntarily. If such a statement is taken, the magistrate shall
3-14 sign a written statement verifying the foregoing requisites have
3-15 been met.
3-16 The child must knowingly, intelligently, and voluntarily
3-17 waive these rights prior to and during the making of the statement
3-18 and sign the statement in the presence of a magistrate who must
3-19 certify that he has examined the child independent of any law
3-20 enforcement officer or prosecuting attorney, except as required to
3-21 ensure the personal safety of the magistrate or other court
3-22 personnel, and has determined that the child understands the nature
3-23 and contents of the statement and has knowingly, intelligently, and
3-24 voluntarily waived these rights.
3-25 (2) it be made orally and the child makes a statement
3-26 of facts or circumstances that are found to be true, which conduct
3-27 tends to establish his guilt, such as the finding of secreted or
4-1 stolen property, or the instrument with which he states the offense
4-2 was committed.
4-3 (3) the statement was res gestae of the delinquent
4-4 conduct or the conduct indicating a need for supervision or of the
4-5 arrest.
4-6 SECTION 2. Section 51.09(c), Family Code, as amended by
4-7 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
4-8 Session, 1991, is reenacted to read as follows:
4-9 (c) A warning under Subsection (b)(1)(E) or Subsection
4-10 (b)(1)(F) of this section is required only when applicable to the
4-11 facts of the case. A failure to warn a child under Subsection
4-12 (b)(1)(E) of this section does not render a statement made by the
4-13 child inadmissible unless the child is transferred to a criminal
4-14 district court under Section 54.02 of this code. A failure to warn
4-15 a child under Subsection (b)(1)(F) of this section does not render
4-16 a statement made by the child inadmissible unless the state
4-17 proceeds against the child on a petition approved by a grand jury
4-18 under Section 53.045 of this code.
4-19 SECTION 3. Section 53.045(a), Family Code, is amended to
4-20 read as follows:
4-21 (a) Except as provided by Subsection (e) of this section,
4-22 the prosecuting attorney may refer the petition to the grand jury
4-23 of the county in which the court in which the petition is filed
4-24 presides if the petition alleges that the child engaged in
4-25 delinquent conduct that included the violation of any of the
4-26 following provisions of the Penal Code:
4-27 (1) Section 19.02 (murder);
5-1 (2) Section 19.03 (capital murder);
5-2 (3) Section 20.04 (aggravated kidnapping);
5-3 (4) Section 22.021 (aggravated sexual assault);
5-4 (5) Section 22.03 (deadly assault on a law enforcement
5-5 officer, corrections officer, or court participant); <or>
5-6 (6) Section 29.03 (aggravated robbery);
5-7 (7) Section 22.02(a) (aggravated assault);
5-8 (8) Section 19.04 (voluntary manslaughter);
5-9 (9) Section 19.05 (involuntary manslaughter); or
5-10 (10) Section 15.01 (criminal attempt), if the offense
5-11 attempted was an offense under Section 19.03 (capital murder) or
5-12 Section 19.02 (murder).
5-13 SECTION 4. Section 54.04(d), Family Code, is amended to read
5-14 as follows:
5-15 (d) If the court or jury makes the finding specified in
5-16 Subsection (c) of this section:
5-17 (1) the court or jury may, in addition to any order
5-18 required or authorized under Section 54.041 or 54.042 of this code,
5-19 place the child on probation on such reasonable and lawful terms as
5-20 the court may determine for a period not to exceed one year,
5-21 subject to extensions not to exceed one year each:
5-22 (A) in his own home or in the custody of a
5-23 relative or other fit person;
5-24 (B) in a suitable foster home; or
5-25 (C) in a suitable public or private institution
5-26 or agency, except the Texas Youth Commission;
5-27 (2) if the court or jury found at the conclusion of
6-1 the adjudication hearing that the child engaged in delinquent
6-2 conduct and if the petition was not approved by the grand jury
6-3 under Section 53.045 of this code, the court may commit the child
6-4 to the Texas Youth Commission without a determinate sentence; or
6-5 (3) if the court or jury found at the conclusion of
6-6 the adjudication hearing that the child engaged in delinquent
6-7 conduct that included a violation of a penal law listed in Section
6-8 53.045(a) of this code and if the petition was approved by the
6-9 grand jury under Section 53.045 of this code, the court or jury may
6-10 sentence the child to commitment in the Texas Youth Commission with
6-11 a transfer to the institutional division of the Texas Department of
6-12 Criminal Justice for any term of years not to exceed:
6-13 (A) 40 years if the conduct included a violation
6-14 of a penal law that is a capital felony or a felony of the first
6-15 degree;
6-16 (B) 10 years if the conduct included a violation
6-17 of a penal law that is a felony of the second degree; or
6-18 (C) five years if the conduct included a
6-19 violation of a penal law that is a felony of the third degree.
6-20 SECTION 5. Section 54.11, Family Code, is amended by
6-21 amending Subsection (i) and adding Subsections (k) and (l) to read
6-22 as follows:
6-23 (i) On conclusion of the release hearing on a person who is
6-24 the subject of a notice of transfer, the court may order:
6-25 (1) the recommitment of the person to the Texas Youth
6-26 Commission until the person's 21st birthday or the completion of
6-27 the person's <without a> determinate sentence, whichever occurs
7-1 first;
7-2 (2) the transfer of the person to the custody of the
7-3 Texas Department of Criminal Justice for the completion of the
7-4 person's determinate sentence; or
7-5 (3) the final discharge of the person.
7-6 (k) The court shall consider the following in making a
7-7 determination under this section for a person who is the subject of
7-8 a notice of transfer:
7-9 (1) the education level of the person both before and
7-10 after commitment to the Texas Youth Commission;
7-11 (2) any trade or marketable skill the person has
7-12 learned;
7-13 (3) any violent behavior exhibited by the person while
7-14 in the custody of the Texas Youth Commission;
7-15 (4) any services offered by the Texas Youth Commission
7-16 to the person's family;
7-17 (5) whether the person has resolved a drug or alcohol
7-18 abuse problem identified by the court at the time of the person's
7-19 commitment; and
7-20 (6) whether the person is capable of living
7-21 independently without resorting to criminal behavior.
7-22 (l) If a person 18 years of age or older has been
7-23 recommitted to the Texas Youth Commission on an indeterminate
7-24 sentence as a result of the release hearing required under this
7-25 section, the commission or the prosecuting attorney for the county
7-26 in which the committing court is located may apply to the
7-27 committing court at any time before the person's 21st birthday to
8-1 revoke the person's recommitment to the Texas Youth Commission and
8-2 to transfer the person to the institutional division of the Texas
8-3 Department of Criminal Justice to complete the person's original
8-4 commitment. The hearing to revoke the person's recommitment to the
8-5 Texas Youth Commission shall be conducted in accordance with this
8-6 section.
8-7 SECTION 6. Chapter 54, Family Code, is amended by adding
8-8 Section 54.12 to read as follows:
8-9 Sec. 54.12. LIST FOR PLAN FOR REHABILITATION. A court that
8-10 commits a child to the Texas Youth Commission may direct the
8-11 juvenile probation department of the county in which the court is
8-12 located to prepare a complete list of any problems that the
8-13 department determines should be addressed in the child's plan for
8-14 rehabilitation prepared by the commission under Section 61.0711,
8-15 Human Resources Code. The court may include this list with the
8-16 court's commitment order.
8-17 SECTION 7. Subchapter E, Chapter 61, Human Resources Code,
8-18 is amended by adding Section 61.0711 to read as follows:
8-19 Sec. 61.0711. PLAN FOR REHABILITATION. (a) The commission
8-20 shall prepare a plan for rehabilitation for each child committed to
8-21 the commission and shall consider any list prepared by the juvenile
8-22 probation department under Section 54.12, Family Code, in the
8-23 preparation of the plan.
8-24 (b) The commission has the final authority for the creation
8-25 and implementation of the rehabilitation plan.
8-26 (c) A child's plan for rehabilitation may include:
8-27 (1) the degree of security for the child that is
9-1 necessary to protect the public during the rehabilitation process;
9-2 (2) a description of the child's educational abilities
9-3 and a recommendation as to how to correct any educational
9-4 deficiencies to enable the child to be able to read, write, and
9-5 make arithmetic computations at a level appropriate to the child's
9-6 age as determined by appropriate psychological testing;
9-7 (3) recommendations for vocational training;
9-8 (4) recommendations to treat the child in a
9-9 residential facility to correct problems detected by psychological
9-10 or psychiatric testing;
9-11 (5) a recommendation to treat the child for alcohol,
9-12 tobacco, or drug abuse;
9-13 (6) a recommendation for treatment to correct any of
9-14 the child's habits that may adversely affect the rehabilitation
9-15 process;
9-16 (7) a recommendation for programs to rehabilitate the
9-17 child's family; and
9-18 (8) the observations of a local probation officer that
9-19 may assist the commission in the implementation of the
9-20 rehabilitation plan.
9-21 SECTION 8. This Act takes effect September 1, 1993.
9-22 SECTION 9. (a) The change in law made by this Act applies
9-23 only to conduct that occurs on or after the effective date of this
9-24 Act. Conduct violating a penal law of the state occurs on or after
9-25 the effective date of this Act if every element of the violation
9-26 occurs on or after that date.
9-27 (b) Conduct that occurs before the effective date of this
10-1 Act is covered by the law in effect at the time the conduct
10-2 occurred, and the former law is continued in effect for that
10-3 purpose.
10-4 SECTION 10. The importance of this legislation and the
10-5 crowded condition of the calendars in both houses create an
10-6 emergency and an imperative public necessity that the
10-7 constitutional rule requiring bills to be read on three several
10-8 days in each house be suspended, and this rule is hereby suspended.