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.