By Allen                                                H.B. No. 16
       74R394 DD-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the disposition and records of a juvenile who engages
    1-3  in delinquent conduct punishable by a determinate sentence.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 51.09(b), Family Code, is amended to read
    1-6  as follows:
    1-7        (b)  Notwithstanding any of the provisions of Subsection (a)
    1-8  of this section, the statement of a child is admissible in evidence
    1-9  in any future proceeding concerning the matter about which the
   1-10  statement was given if:
   1-11              (1)  when the child is in a detention facility or other
   1-12  place of confinement or in the custody of an officer, the statement
   1-13  is made in writing and the statement shows that the child has at
   1-14  some time prior to the making thereof received from a magistrate a
   1-15  warning that:
   1-16                    (A)  the child may remain silent and not make any
   1-17  statement at all and that any statement that the child makes may be
   1-18  used in evidence against the child;
   1-19                    (B)  the child has the right to have an attorney
   1-20  present to advise the child either prior to any questioning or
   1-21  during the questioning;
   1-22                    (C)  if the child is unable to employ an
   1-23  attorney, the child has the right to have an attorney appointed to
   1-24  counsel with the child prior to or during any interviews with peace
    2-1  officers or attorneys representing the state;
    2-2                    (D)  the child has the right to terminate the
    2-3  interview at any time;
    2-4                    (E)  if the child is 15 years of age or older at
    2-5  the time of the violation of a penal law of the grade of felony the
    2-6  juvenile court may waive its jurisdiction and the child may be
    2-7  tried as an adult;
    2-8                    (F)  the child may be sentenced to commitment in
    2-9  the Texas Youth Commission with a transfer to the institutional
   2-10  division of the Texas Department of Criminal Justice for a term not
   2-11  to exceed 40 <30> years if the child is found to have engaged in
   2-12  delinquent conduct, alleged in a petition approved by a grand jury,
   2-13  that included:
   2-14                          (i)  murder;
   2-15                          (ii)  capital murder;
   2-16                          (iii)  aggravated kidnapping;
   2-17                          (iv)  aggravated sexual assault;
   2-18                          (v)  aggravated <deadly> assault, if the
   2-19  offense is classified as a felony of the first degree under Section
   2-20  22.02(b)(2), Penal Code <on a law enforcement officer, corrections
   2-21  officer, court participant, or probation personnel>; <or>
   2-22                          (vi)  aggravated robbery;
   2-23                          (vii)  indecency with a child;
   2-24                          (viii)  injury to a child, elderly
   2-25  individual, or disabled individual;
   2-26                          (ix)  arson; or
   2-27                          (x)  attempted capital murder; and
    3-1                    (G)  the statement must be signed in the presence
    3-2  of a magistrate by the child with no law enforcement officer or
    3-3  prosecuting attorney present, except that a magistrate may require
    3-4  a bailiff or a law enforcement officer if a bailiff is not
    3-5  available to be present if the magistrate determines that the
    3-6  presence of the bailiff or law enforcement officer is necessary for
    3-7  the personal safety of the magistrate or other court personnel,
    3-8  provided that the bailiff or law enforcement officer may not carry
    3-9  a weapon in the presence of the child.  The magistrate must be
   3-10  fully convinced that the child understands the nature and contents
   3-11  of the statement and that the child is signing the same
   3-12  voluntarily.  If such a statement is taken, the magistrate shall
   3-13  sign a written statement verifying the foregoing requisites have
   3-14  been met.
   3-15        The child must knowingly, intelligently, and voluntarily
   3-16  waive these rights prior to and during the making of the statement
   3-17  and sign the statement in the presence of a magistrate who must
   3-18  certify that he has examined the child independent of any law
   3-19  enforcement officer or prosecuting attorney, except as required to
   3-20  ensure the personal safety of the magistrate or other court
   3-21  personnel, and has determined that the child understands the nature
   3-22  and contents of the statement and has knowingly, intelligently, and
   3-23  voluntarily waived these rights.
   3-24              (2)  it be made orally and the child makes a statement
   3-25  of facts or circumstances that are found to be true, which conduct
   3-26  tends to establish his guilt, such as the finding of secreted or
   3-27  stolen property, or the instrument with which he states the offense
    4-1  was committed.
    4-2              (3)  the statement was res gestae of the delinquent
    4-3  conduct or the conduct indicating a need for supervision or of the
    4-4  arrest.
    4-5        SECTION 2.  Section 51.09(c), Family Code, as amended by
    4-6  Chapter 557, Acts of the 72nd Legislature, Regular Session, 1991,
    4-7  is amended to read as follows:
    4-8        (c)  In addition to the warnings that a child must receive
    4-9  under Subsection (b)(1) of this section for the child's statement
   4-10  to be admissible in evidence, the child must also receive a warning
   4-11  from the magistrate that the child may be sentenced to commitment
   4-12  in 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 40 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              (1)  murder (Section 19.02, Penal Code);
   4-18              (2)  capital murder (Section 19.03, Penal Code);
   4-19              (3)  aggravated kidnapping (Section 20.04, Penal Code);
   4-20              (4)  aggravated sexual assault (Section 22.021, Penal
   4-21  Code);
   4-22              (5)  aggravated <deadly> assault <on a law enforcement
   4-23  officer, corrections officer, or court participant> (Section 22.02
   4-24  <22.03>, Penal Code), if the offense is classified as a felony of
   4-25  the first degree under Section 22.02(b)(2), Penal Code; <or>
   4-26              (6)  aggravated robbery (Section 29.03, Penal Code);
   4-27              (7)  indecency with a child (Section 21.11, Penal
    5-1  Code);
    5-2              (8)  injury to a child, elderly individual, or disabled
    5-3  individual (Section 22.04, Penal Code);
    5-4              (9)  arson (Section 28.02, Penal Code); or
    5-5              (10)  criminal attempt (Section 15.01, Penal Code) if
    5-6  the offense attempted was capital murder (Section 19.03, Penal
    5-7  Code).
    5-8        SECTION 3.  Sections 51.14(c) and (d), Family Code, are
    5-9  amended to read as follows:
   5-10        (c)  Except as provided by this subsection, law-enforcement
   5-11  files and records concerning a child, other than a child who has
   5-12  been adjudicated to have engaged in delinquent conduct that
   5-13  included the violation of an offense listed in Section 53.045(a) of
   5-14  this code and who is the subject of a determinate sentence, shall
   5-15  be kept separate from files and records of arrests of adults and
   5-16  shall be maintained on a local basis only and not sent to a central
   5-17  state or federal depository.  The Texas Youth Commission shall
   5-18  transfer the law-enforcement files and records of a person who has
   5-19  been adjudicated to have engaged in delinquent conduct that
   5-20  included the violation of an offense listed in Section 53.045(a) of
   5-21  this code and is the subject of a determinate sentence <is
   5-22  transferred from the Texas Youth Commission to the Texas Department
   5-23  of Corrections under a determinate sentence may be transferred> to
   5-24  a central state or federal depository for adult records on or after
   5-25  the date that the person is discharged from the Texas Youth
   5-26  Commission or transferred from the Texas Youth Commission to the
   5-27  institutional division of the Texas Department of Criminal Justice
    6-1  <of transfer>.  If a child has been reported as missing by a
    6-2  parent, guardian, or conservator of that child, has escaped from
    6-3  the custody of a juvenile detention facility, the Texas Youth
    6-4  Commission, or any other agency to which the child has been
    6-5  committed, or is the subject of a bench warrant or felony arrest
    6-6  warrant issued by a court after the child has fled the jurisdiction
    6-7  of the court, any information or records concerning that child may
    6-8  be transferred to and disseminated by the Texas Crime Information
    6-9  Center and the National Crime Information Center.
   6-10        (d)  Except as provided by Article 15.27, Code of Criminal
   6-11  Procedure, and except for files and records relating to a charge
   6-12  for which a child is either transferred under Section 54.02 of this
   6-13  code to a criminal court for prosecution or adjudicated to have
   6-14  engaged in delinquent conduct that included the violation of an
   6-15  offense listed in Section 53.045(a) of this code for which the
   6-16  child is the subject of a determinate sentence, the law-enforcement
   6-17  files and records are not open to public inspection nor may their
   6-18  contents be disclosed to the public, but inspection of the files
   6-19  and records is permitted by:
   6-20              (1)  a juvenile court having the child before it in any
   6-21  proceeding;
   6-22              (2)  an attorney for a party to the proceeding; and
   6-23              (3)  law-enforcement officers when necessary for the
   6-24  discharge of their official duties.
   6-25        SECTION 4.  Section 51.15(c), Family Code, as amended by
   6-26  Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
   6-27  Session, 1987, is amended to read as follows:
    7-1        (c)  Except as provided by this subsection, fingerprint and
    7-2  photograph files or records of children shall be kept separate from
    7-3  those of adults, and fingerprints or photographs known to be those
    7-4  of a child shall be maintained on a local basis only and not sent
    7-5  to a central state or federal depository.  However, fingerprint and
    7-6  photograph files or records of a person who is transferred from the
    7-7  Texas Youth Commission to the institutional division of the Texas
    7-8  Department of Criminal Justice <Corrections> under a determinate
    7-9  sentence shall <may> be transferred to a central state or federal
   7-10  depository for dissemination on or after the date that the person
   7-11  is discharged from the Texas Youth Commission or transferred from
   7-12  the Texas Youth Commission to the institutional division <adult
   7-13  records on or after the date of transfer>.  If a child has been
   7-14  reported as missing by a parent, guardian, or conservator of that
   7-15  child or a child has escaped from the custody of a juvenile
   7-16  detention facility, the Texas Youth Commission, or any other agency
   7-17  to which the child has been committed, the child's fingerprints and
   7-18  photograph may be sent to and indexed into the files of the
   7-19  Department of Public Safety and the Federal Bureau of Investigation
   7-20  to aid in the location and identification of the child.
   7-21        SECTION 5.  Section 51.16, Family Code, is amended by
   7-22  amending Subsection (a) and adding Subsection (m) to read as
   7-23  follows:
   7-24        (a)  Except as otherwise provided by <Subsection (j) of> this
   7-25  section, on the application of a person who has been found to have
   7-26  engaged in delinquent conduct or conduct indicating a need for
   7-27  supervision, or a person taken into custody to determine whether he
    8-1  engaged in delinquent conduct or conduct indicating a need for
    8-2  supervision, or on the juvenile court's own motion, the court,
    8-3  after hearing, shall order the sealing of the files and records in
    8-4  the case, including those specified in Sections 51.14 and 51.15 of
    8-5  this code, if the court finds that:
    8-6              (1)  two years have elapsed since final discharge of
    8-7  the person, or since the last official action in his case if there
    8-8  was no adjudication;
    8-9              (2)  since the time specified in Subdivision (1) of
   8-10  this subsection, he has not been convicted of a felony or a
   8-11  misdemeanor involving moral turpitude or found to have engaged in
   8-12  delinquent conduct or conduct indicating a need for supervision,
   8-13  and no proceeding is pending seeking conviction or adjudication;
   8-14  and
   8-15              (3)  it is unlikely the person will engage in further
   8-16  delinquent conduct or conduct indicating a need for supervision or
   8-17  will commit a felony or a misdemeanor involving moral turpitude.
   8-18        (m)  A court may not order under this section the sealing of
   8-19  files and records of a person who has been adjudicated to have
   8-20  engaged in conduct that included the violation of an offense listed
   8-21  in Section 53.045(a) of this code and who was the subject of a
   8-22  determinate sentence.
   8-23        SECTION 6.  Sections 53.045(a) and (e), Family Code, are
   8-24  amended to read as follows:
   8-25        (a)  Except as provided by Subsection (e) of this section,
   8-26  the prosecuting attorney may refer the petition to the grand jury
   8-27  of the county in which the court in which the petition is filed
    9-1  presides if the petition alleges that the child engaged in
    9-2  delinquent conduct that included the violation of any of the
    9-3  following provisions of the Penal Code:
    9-4              (1)  Section 19.02 (murder);
    9-5              (2)  Section 19.03 (capital murder);
    9-6              (3)  Section 20.04 (aggravated kidnapping);
    9-7              (4)  Section 22.021 (aggravated sexual assault);
    9-8              (5)  Section 22.02 (aggravated <22.03 (deadly>
    9-9  assault), if the offense is classified as a felony of the first
   9-10  degree under Section 22.02(b)(2), Penal Code <on a law enforcement
   9-11  officer, corrections officer, or court participant)>;
   9-12              (6)  Section 29.03 (aggravated robbery);
   9-13              (7)  Section 21.11 (indecency with a child);
   9-14              (8)  Section 22.04 (injury to a child, elderly
   9-15  individual, or disabled individual);
   9-16              (9)  Section 28.02 (arson); or
   9-17              (10) <(6)>  Section 15.01 (criminal attempt), if the
   9-18  offense attempted was an offense under Section 19.03 (capital
   9-19  murder).
   9-20        (e)  The prosecuting attorney may not refer a petition that:
   9-21              (1)  alleges the child engaged in conduct that violated
   9-22  Sections 22.021(a)(1)(B) and (2)(B), Penal Code, unless the child
   9-23  is more than two years older than the victim of the conduct; or
   9-24              (2)  alleges the child engaged in conduct that violated
   9-25  Section 21.11, Penal Code, unless the child is more than three
   9-26  years older than the victim at the time of the conduct.
   9-27        SECTION 7.  Section 54.04(d), Family Code, is amended to read
   10-1  as follows:
   10-2        (d)  If the court or jury makes the finding specified in
   10-3  Subsection (c) of this section allowing the court to make a
   10-4  disposition in the case:
   10-5              (1)  the court or jury may, in addition to any order
   10-6  required or authorized under Section 54.041 or 54.042 of this code,
   10-7  place the child on probation on such reasonable and lawful terms as
   10-8  the court may determine:
   10-9                    (A)  in his own home or in the custody of a
  10-10  relative or other fit person; or
  10-11                    (B)  subject to the finding under Subsection (c)
  10-12  of this section on the placement of the child outside the child's
  10-13  home, in:
  10-14                          (i)  a suitable foster home; or
  10-15                          (ii)  a suitable public or private
  10-16  institution or agency, except the Texas Youth Commission;
  10-17              (2)  if the court or jury found at the conclusion of
  10-18  the adjudication hearing that the child engaged in delinquent
  10-19  conduct and if the petition was not approved by the grand jury
  10-20  under Section 53.045 of this code, the court may commit the child
  10-21  to the Texas Youth Commission without a determinate sentence; or
  10-22              (3)  if the court or jury found at the conclusion of
  10-23  the adjudication hearing that the child engaged in delinquent
  10-24  conduct that included a violation of a penal law listed in Section
  10-25  53.045(a) of this code and if the petition was approved by the
  10-26  grand jury under Section 53.045 of this code, the court or jury
  10-27  shall <may> sentence the child to commitment in the Texas Youth
   11-1  Commission with a transfer to the institutional division of the
   11-2  Texas Department of Criminal Justice for any term of years not to
   11-3  exceed 40 years.
   11-4        SECTION 8.  Section 54.05(f), Family Code, is amended to read
   11-5  as follows:
   11-6        (f)  A disposition based on a finding that the child engaged
   11-7  in delinquent conduct may be modified so as to commit the child to
   11-8  the Texas Youth Commission if the court after a hearing to modify
   11-9  disposition finds beyond a reasonable doubt that the child violated
  11-10  a reasonable and lawful order of the court.  <A disposition based
  11-11  on a finding that the child engaged in a delinquent conduct that
  11-12  included a violation of a penal law listed in Section 53.045(a) of
  11-13  this code may be modified to commit the child to the Texas Youth
  11-14  Commission with a transfer to the institutional division of the
  11-15  Texas Department of Criminal Justice for a definite term not to
  11-16  exceed 40 years if the original petition was approved by the grand
  11-17  jury under Section 53.045 of this code and if after a hearing to
  11-18  modify the disposition the court or jury finds that the child
  11-19  violated a reasonable and lawful order of the court.>
  11-20        SECTION 9.  Section 54.11, Family Code, is amended by
  11-21  amending Subsection (i) and adding Subsection (k) to read as
  11-22  follows:
  11-23        (i)  Except as provided by Subsection (k) of this section, at
  11-24  the <On> conclusion of the release hearing on a person who is the
  11-25  subject of a notice of transfer, the court may order:
  11-26              (1)  the recommitment of the person to the Texas Youth
  11-27  Commission without a determinate sentence;
   12-1              (2)  the transfer of the person to the custody of the
   12-2  Texas Department of Criminal Justice for the completion of the
   12-3  person's determinate sentence; or
   12-4              (3)  the final discharge of the person.
   12-5        (k)  The court may not order under this section the
   12-6  recommitment of a person to the Texas Youth Commission without a
   12-7  determinate sentence or the final discharge of the person until the
   12-8  person has served time equal to one-half of the time to which the
   12-9  person was sentenced or five years, whichever is more.
  12-10        SECTION 10.  This Act takes effect September 1, 1995.
  12-11        SECTION 11.  (a)  The change in law made by this Act applies
  12-12  only to conduct that occurs on or after the effective date of this
  12-13  Act.  Conduct violating a penal law of the state occurs on or after
  12-14  the effective date of this Act if every element of the violation
  12-15  occurs on or after that date.
  12-16        (b)  Conduct that occurs before the effective date of this
  12-17  Act is covered by the law in effect at the time the conduct
  12-18  occurred, and the former law is continued in effect for that
  12-19  purpose.
  12-20        SECTION 12.  The importance of this legislation and the
  12-21  crowded condition of the calendars in both houses create an
  12-22  emergency and an imperative public necessity that the
  12-23  constitutional rule requiring bills to be read on three several
  12-24  days in each house be suspended, and this rule is hereby suspended.