By Siebert H.B. No. 117
74R1694 DD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the waiver of juvenile court jurisdiction over a child
1-3 and transfer of certain children to district or criminal courts.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 8.07(a), Penal Code, is amended to read
1-6 as follows:
1-7 (a) A person may not be prosecuted for or convicted of any
1-8 offense that he committed when younger than 13 <15> years of age
1-9 except:
1-10 (1) perjury and aggravated perjury when it appears by
1-11 proof that he had sufficient discretion to understand the nature
1-12 and obligation of an oath;
1-13 (2) a violation of a penal statute cognizable under
1-14 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957
1-15 (Article 6701l-4, Vernon's Texas Civil Statutes), except conduct
1-16 which violates the laws of this state prohibiting driving while
1-17 intoxicated or under the influence of intoxicating liquor (first or
1-18 subsequent offense) or driving while under the influence of any
1-19 narcotic drug or of any other drug to a degree which renders him
1-20 incapable of safely driving a vehicle (first or subsequent
1-21 offense);
1-22 (3) a violation of a motor vehicle traffic ordinance
1-23 of an incorporated city or town in this state;
1-24 (4) a misdemeanor punishable by fine only other than
2-1 public intoxication; or
2-2 (5) a violation of a penal ordinance of a political
2-3 subdivision.
2-4 SECTION 2. Section 51.09(b), Family Code, is amended to read
2-5 as follows:
2-6 (b) Notwithstanding any of the provisions of Subsection (a)
2-7 of this section, the statement of a child is admissible in evidence
2-8 in any future proceeding concerning the matter about which the
2-9 statement was given if:
2-10 (1) when the child is in a detention facility or other
2-11 place of confinement or in the custody of an officer, the statement
2-12 is made in writing and the statement shows that the child has at
2-13 some time prior to the making thereof received from a magistrate a
2-14 warning that:
2-15 (A) the child may remain silent and not make any
2-16 statement at all and that any statement that the child makes may be
2-17 used in evidence against the child;
2-18 (B) the child has the right to have an attorney
2-19 present to advise the child either prior to any questioning or
2-20 during the questioning;
2-21 (C) if the child is unable to employ an
2-22 attorney, the child has the right to have an attorney appointed to
2-23 counsel with the child prior to or during any interviews with peace
2-24 officers or attorneys representing the state;
2-25 (D) the child has the right to terminate the
2-26 interview at any time;
2-27 (E) if the child is 13 <15> years of age or
3-1 older at the time of the violation of a penal law of the grade of
3-2 felony the juvenile court may waive its jurisdiction and the child
3-3 may be tried as an adult;
3-4 (F) the child may be sentenced to commitment in
3-5 the Texas Youth Commission with a transfer to the institutional
3-6 division of the Texas Department of Criminal Justice for a term not
3-7 to exceed 40 <30> years if the child is found to have engaged in
3-8 delinquent conduct, alleged in a petition approved by a grand jury,
3-9 that included:
3-10 (i) murder;
3-11 (ii) capital murder;
3-12 (iii) aggravated kidnapping;
3-13 (iv) aggravated sexual assault;
3-14 (v) aggravated <deadly> assault, if the
3-15 offense is classified as a felony of the first degree under Section
3-16 22.02(b)(2), Penal Code <on a law enforcement officer, corrections
3-17 officer, court participant, or probation personnel>; or
3-18 (vi) attempted capital murder; and
3-19 (G) the statement must be signed in the presence
3-20 of a magistrate by the child with no law enforcement officer or
3-21 prosecuting attorney present, except that a magistrate may require
3-22 a bailiff or a law enforcement officer if a bailiff is not
3-23 available to be present if the magistrate determines that the
3-24 presence of the bailiff or law enforcement officer is necessary for
3-25 the personal safety of the magistrate or other court personnel,
3-26 provided that the bailiff or law enforcement officer may not carry
3-27 a weapon in the presence of the child. The magistrate must be
4-1 fully convinced that the child understands the nature and contents
4-2 of the statement and that the child is signing the same
4-3 voluntarily. If such a statement is taken, the magistrate shall
4-4 sign a written statement verifying the foregoing requisites have
4-5 been met.
4-6 The child must knowingly, intelligently, and voluntarily
4-7 waive these rights prior to and during the making of the statement
4-8 and sign the statement in the presence of a magistrate who must
4-9 certify that he has examined the child independent of any law
4-10 enforcement officer or prosecuting attorney, except as required to
4-11 ensure the personal safety of the magistrate or other court
4-12 personnel, and has determined that the child understands the nature
4-13 and contents of the statement and has knowingly, intelligently, and
4-14 voluntarily waived these rights.
4-15 (2) it be made orally and the child makes a statement
4-16 of facts or circumstances that are found to be true, which conduct
4-17 tends to establish his guilt, such as the finding of secreted or
4-18 stolen property, or the instrument with which he states the offense
4-19 was committed.
4-20 (3) the statement was res gestae of the delinquent
4-21 conduct or the conduct indicating a need for supervision or of the
4-22 arrest.
4-23 SECTION 3. Sections 51.15(a) and (b), Family Code, are
4-24 amended to read as follows:
4-25 (a) No child may be fingerprinted without the consent of the
4-26 juvenile court except as provided by this subsection or by
4-27 Subsections (f) and (i) of this section. A child's fingerprints
5-1 may be taken and filed by a law-enforcement officer investigating a
5-2 case if:
5-3 (1) the child is 13 <15> years of age or older and is
5-4 referred to the juvenile court for any felony; or
5-5 (2) the child is under 13 <15> years of age and is
5-6 referred to the juvenile court for a felony listed in Section
5-7 53.045(a) of this code.
5-8 (b) Except as provided in Subsections (h) and (i) of this
5-9 section, no child taken into custody may be photographed without
5-10 the consent of the juvenile court unless:
5-11 (1) the child is 13 <15> years of age or older and is
5-12 referred to the juvenile court for a felony; or
5-13 (2) the child is under 13 <15> years of age and is
5-14 referred to the juvenile court for a felony listed in Section
5-15 53.045(a) of this code.
5-16 SECTION 4. Sections 54.02(a) and (j), Family Code, are
5-17 amended to read as follows:
5-18 (a) The juvenile court may waive its exclusive original
5-19 jurisdiction and transfer a child to the appropriate district court
5-20 or criminal district court for criminal proceedings if:
5-21 (1) the child is alleged to have violated a penal law
5-22 of the grade of felony;
5-23 (2) the child was 13 <15> years of age or older at the
5-24 time he is alleged to have committed the offense and no
5-25 adjudication hearing has been conducted concerning that offense;
5-26 and
5-27 (3) after full investigation and hearing the juvenile
6-1 court determines that there is probable cause to believe that the
6-2 child before the court committed the offense alleged and that
6-3 because of the seriousness of the offense or the background of the
6-4 child the welfare of the community requires criminal proceedings.
6-5 (j) The juvenile court may waive its exclusive original
6-6 jurisdiction and transfer a person to the appropriate district
6-7 court or criminal district court for criminal proceedings if:
6-8 (1) the person is 18 years of age or older;
6-9 (2) the person was 13 <15> years of age or older and
6-10 under 17 years of age at the time he is alleged to have committed a
6-11 felony;
6-12 (3) no adjudication concerning the alleged offense has
6-13 been made or no adjudication hearing concerning the offense has
6-14 been conducted;
6-15 (4) the juvenile court finds from a preponderance of
6-16 the evidence that after due diligence of the state it was not
6-17 practicable to proceed in juvenile court before the 18th birthday
6-18 of the person because:
6-19 (A) the state did not have probable cause to
6-20 proceed in juvenile court and new evidence has been found since the
6-21 18th birthday of the person; or
6-22 (B) the person could not be found; and
6-23 (5) the juvenile court determines that there is
6-24 probable cause to believe that the child before the court committed
6-25 the offense alleged.
6-26 SECTION 5. This Act takes effect September 1, 1995.
6-27 SECTION 6. (a) The change in law made by this Act applies
7-1 only to conduct that occurs on or after the effective date of this
7-2 Act. Conduct violating a penal law of the state occurs on or after
7-3 the effective date of this Act if every element of the violation
7-4 occurs on or after that date.
7-5 (b) Conduct that occurs before the effective date of this
7-6 Act is covered by the law in effect at the time the conduct
7-7 occurred, and the former law is continued in effect for that
7-8 purpose.
7-9 SECTION 7. The importance of this legislation and the
7-10 crowded condition of the calendars in both houses create an
7-11 emergency and an imperative public necessity that the
7-12 constitutional rule requiring bills to be read on three several
7-13 days in each house be suspended, and this rule is hereby suspended.