By: Barrientos S.B. No. 1172
73R6128 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to juvenile court jurisdiction over and procedures for
1-3 children who are eight or nine years of age and to services for
1-4 those children.
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 who is:
1-9 (A) eight <ten> years of age or older and under
1-10 17 years of age; or
1-11 (B) seventeen years of age or older and under 18
1-12 years of age who is alleged or found to have engaged in delinquent
1-13 conduct or conduct indicating a need for supervision as a result of
1-14 acts committed before becoming 17 years of age.
1-15 SECTION 2. Section 51.09(b), Family Code, is amended to read
1-16 as follows:
1-17 (b) Notwithstanding any of the provisions of Subsection (a)
1-18 of this section, the statement of a child is admissible in evidence
1-19 in any future proceeding concerning the matter about which the
1-20 statement was given if:
1-21 (1) when the child is in a detention facility or other
1-22 place of confinement or in the custody of an officer, the statement
1-23 is made in writing and the statement shows that the child has at
1-24 some time prior to the making thereof received from a magistrate a
2-1 warning that:
2-2 (A) the child may remain silent and not make any
2-3 statement at all and that any statement that the child makes may be
2-4 used in evidence against the child;
2-5 (B) the child has the right to have an attorney
2-6 present to advise the child either prior to any questioning or
2-7 during the questioning;
2-8 (C) if the child is unable to employ an
2-9 attorney, the child has the right to have an attorney appointed to
2-10 counsel with the child prior to or during any interviews with peace
2-11 officers or attorneys representing the state;
2-12 (D) the child has the right to terminate the
2-13 interview at any time;
2-14 (E) if the child is 15 years of age or older at
2-15 the time of the violation of a penal law of the grade of felony the
2-16 juvenile court may waive its jurisdiction and the child may be
2-17 tried as an adult;
2-18 (F) if the child is 10 years of age or older,
2-19 the child may be sentenced to commitment in the Texas Youth
2-20 Commission with a transfer to the institutional division of the
2-21 Texas Department of Criminal Justice for a term not to exceed
2-22 40 <30> years if the child is found to have engaged in delinquent
2-23 conduct, alleged in a petition approved by a grand jury, that
2-24 included:
2-25 (i) murder;
2-26 (ii) capital murder;
2-27 (iii) aggravated kidnapping;
3-1 (iv) aggravated sexual assault;
3-2 (v) deadly assault on a law enforcement
3-3 officer, corrections officer, court participant, or probation
3-4 personnel; or
3-5 (vi) attempted capital murder; and
3-6 (G) the statement must be signed in the presence
3-7 of a magistrate by the child with no law enforcement officer or
3-8 prosecuting attorney present, except that a magistrate may require
3-9 a bailiff or a law enforcement officer if a bailiff is not
3-10 available to be present if the magistrate determines that the
3-11 presence of the bailiff or law enforcement officer is necessary for
3-12 the personal safety of the magistrate or other court personnel,
3-13 provided that the bailiff or law enforcement officer may not carry
3-14 a weapon in the presence of the child. The magistrate must be
3-15 fully convinced that the child understands the nature and contents
3-16 of the statement and that the child is signing the same
3-17 voluntarily. If such a statement is taken, the magistrate shall
3-18 sign a written statement verifying the foregoing requisites have
3-19 been met.
3-20 The child must knowingly, intelligently, and voluntarily
3-21 waive these rights prior to and during the making of the statement
3-22 and sign the statement in the presence of a magistrate who must
3-23 certify that he has examined the child independent of any law
3-24 enforcement officer or prosecuting attorney, except as required to
3-25 ensure the personal safety of the magistrate or other court
3-26 personnel, and has determined that the child understands the nature
3-27 and contents of the statement and has knowingly, intelligently, and
4-1 voluntarily waived these rights.
4-2 (2) it be made orally and the child makes a statement
4-3 of facts or circumstances that are found to be true, which conduct
4-4 tends to establish his guilt, such as the finding of secreted or
4-5 stolen property, or the instrument with which he states the offense
4-6 was committed.
4-7 (3) the statement was res gestae of the delinquent
4-8 conduct or the conduct indicating a need for supervision or of the
4-9 arrest.
4-10 SECTION 3. Section 51.09(c), Family Code, as amended by
4-11 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
4-12 Session, 1991, is reenacted to read as follows:
4-13 (c) A warning under Subsection (b)(1)(E) or Subsection
4-14 (b)(1)(F) of this section is required only when applicable to the
4-15 facts of the case. A failure to warn a child under Subsection
4-16 (b)(1)(E) of this section does not render a statement made by the
4-17 child inadmissible unless the child is transferred to a criminal
4-18 district court under Section 54.02 of this code. A failure to warn
4-19 a child under Subsection (b)(1)(F) of this section does not render
4-20 a statement made by the child inadmissible unless the state
4-21 proceeds against the child on a petition approved by a grand jury
4-22 under Section 53.045 of this code.
4-23 SECTION 4. Chapter 51, Family Code, is amended by adding
4-24 Section 51.20 to read as follows:
4-25 Sec. 51.20. SERVICES FOR CHILDREN UNDER 10 YEARS OF AGE. To
4-26 the extent that funds are available, a local juvenile probation
4-27 department may provide services to children under 10 years of age
5-1 in accordance with guidelines established by the Texas Juvenile
5-2 Probation Commission under Section 141.0415, Human Resources Code.
5-3 SECTION 5. Section 53.02, Family Code, is amended by adding
5-4 Subsection (d) to read as follows:
5-5 (d) A child under 10 years of age may not be detained under
5-6 this section.
5-7 SECTION 6. Section 53.045, Family Code, is amended by
5-8 amending Subsection (a) and adding Subsection (f) to read as
5-9 follows:
5-10 (a) Except as provided by Subsection (e) or (f) of this
5-11 section, the prosecuting attorney may refer the petition to the
5-12 grand jury of the county in which the court in which the petition
5-13 is filed presides if the petition alleges that the child engaged in
5-14 delinquent conduct that included the violation of any of the
5-15 following provisions of the Penal Code:
5-16 (1) Section 19.02 (murder);
5-17 (2) Section 19.03 (capital murder);
5-18 (3) Section 20.04 (aggravated kidnapping);
5-19 (4) Section 22.021 (aggravated sexual assault);
5-20 (5) Section 22.03 (deadly assault on a law enforcement
5-21 officer, corrections officer, or court participant); or
5-22 (6) Section 15.01 (criminal attempt), if the offense
5-23 attempted was an offense under Section 19.03 (capital murder).
5-24 (f) The prosecuting attorney may not refer the petition for
5-25 a child to a grand jury under this section if the child engaged in
5-26 delinquent conduct covered by this section at the time the child
5-27 was under 10 years of age.
6-1 SECTION 7. Section 54.04, Family Code, is amended by
6-2 amending Subsection (d) and adding Subsection (l) to read as
6-3 follows:
6-4 (d) Subject to Subsection (l) of this section, if <If> the
6-5 court or jury makes the finding specified in Subsection (c) of this
6-6 section:
6-7 (1) the court or jury may, in addition to any order
6-8 required or authorized under Section 54.041 or 54.042 of this code,
6-9 place the child on probation on such reasonable and lawful terms as
6-10 the court may determine for a period not to exceed one year,
6-11 subject to extensions not to exceed one year each:
6-12 (A) in his own home or in the custody of a
6-13 relative or other fit person;
6-14 (B) in a suitable foster home; or
6-15 (C) in a suitable public or private institution
6-16 or agency, except the Texas Youth Commission;
6-17 (2) if the court or jury found at the conclusion of
6-18 the adjudication hearing that the child engaged in delinquent
6-19 conduct and if the petition was not approved by the grand jury
6-20 under Section 53.045 of this code, the court may commit the child
6-21 to the Texas Youth Commission without a determinate sentence; or
6-22 (3) if the court or jury found at the conclusion of
6-23 the adjudication hearing that the child engaged in delinquent
6-24 conduct that included a violation of a penal law listed in Section
6-25 53.045(a) of this code and if the petition was approved by the
6-26 grand jury under Section 53.045 of this code, the court or jury may
6-27 sentence the child to commitment in the Texas Youth Commission with
7-1 a transfer to the institutional division of the Texas Department of
7-2 Criminal Justice for any term of years not to exceed 40 years.
7-3 (l) The court may not commit a child found to have engaged
7-4 in delinquent conduct or conduct indicating a need for supervision
7-5 to the Texas Youth Commission if the child engaged in the conduct
7-6 at the time the child was under 10 years of age.
7-7 SECTION 8. Subchapter C, Chapter 141, Human Resources Code,
7-8 is amended by adding Section 141.0415 to read as follows:
7-9 Sec. 141.0415. SERVICES FOR JUVENILES UNDER 10 YEARS OF AGE.
7-10 The commission shall adopt rules that establish guidelines for
7-11 local juvenile probation departments to develop probation services
7-12 and programs for juveniles under 10 years of age that adequately
7-13 address the needs of those juveniles.
7-14 SECTION 9. Subchapter C, Chapter 34, Family Code, is amended
7-15 by adding Section 34.541 to read as follows:
7-16 Sec. 34.541. PROVISION OF SERVICES IN COOPERATION WITH
7-17 JUVENILE PROBATION DEPARTMENTS. (a) The Department of Protective
7-18 and Regulatory Services shall assist local juvenile probation
7-19 departments in providing services to children under 10 years of age
7-20 who are under the jurisdiction of those departments.
7-21 (b) The Department of Protective and Regulatory Services
7-22 shall provide the assistance in a manner designed to aid local
7-23 juvenile probation departments to implement the guidelines
7-24 established by the Texas Juvenile Probation Commission under
7-25 Section 141.0415, Human Resources Code.
7-26 SECTION 10. (a) The change in law made by this Act applies
7-27 only to conduct that occurs on or after the effective date of this
8-1 Act. Conduct violating a penal law of the state occurs on or after
8-2 the effective date of this Act if every element of the violation
8-3 occurs on or after that date.
8-4 (b) Conduct that occurs before the effective date of this
8-5 Act is covered by the law in effect at the time the conduct
8-6 occurred, and the former law is continued in effect for that
8-7 purpose.
8-8 SECTION 11. This Act takes effect September 1, 1993.
8-9 SECTION 12. The importance of this legislation and the
8-10 crowded condition of the calendars in both houses create an
8-11 emergency and an imperative public necessity that the
8-12 constitutional rule requiring bills to be read on three several
8-13 days in each house be suspended, and this rule is hereby suspended.