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.