By De La Garza                                         H.B. No. 214
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the adjudication and disposition of children for
    1-3  delinquent conduct that violates a penal law of this state of the
    1-4  grade of felony.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 51.09(b), Family Code, as amended by
    1-7  Chapters 429 and 593, Acts of the 72nd Legislature, Regular
    1-8  Session, 1991, is conformed to chapter 557, Acts of the 72nd
    1-9  Legislature, Regular Session, 1991, and amended to read as follows.
   1-10        (b)  Notwithstanding any of the provisions of Subsection (a)
   1-11  of this section, the statement of a child is admissible in evidence
   1-12  in any future proceeding concerning the matter about which the
   1-13  statement was given if:
   1-14              (1)  when the child is in a detention facility or other
   1-15  place of confinement or in the custody of an officer, the statement
   1-16  is made in writing and the statement shows that the child has at
   1-17  some time prior to the making thereof received from a magistrate a
   1-18  warning that:
   1-19                    (A)  the child may remain silent and not make any
   1-20  statement at all and that any statement that the child makes may be
   1-21  used in evidence against the child;
   1-22                    (B)  the child has the right to have an attorney
   1-23  present to advise the child either prior to any questioning or
    2-1  during the questioning;
    2-2                    (C)  if the child is unable to employ an
    2-3  attorney, the child has the right to have an attorney appointed to
    2-4  counsel with the child prior to or during any interviews with peace
    2-5  officers or attorneys representing the state;
    2-6                    (D)  the child has the right to terminate the
    2-7  interview at any time;
    2-8                    (E)  if the child is 15 years of age or older at
    2-9  the time of the violation of a penal law of the grade of felony the
   2-10  juvenile court may waive its jurisdiction and the child may be
   2-11  tried as an adult;
   2-12                    (F)  the child may be sentenced to commitment in
   2-13  the Texas Youth Commission with a transfer to the institutional
   2-14  division of the Texas Department of Criminal Justice for a term not
   2-15  to exceed 40 years if the child is found to have engaged in
   2-16  delinquent conduct, alleged in a petition approved by a grand jury,
   2-17  that included:
   2-18                          (i)  murder;
   2-19                          (ii)  capital murder;
   2-20                          (iii)  aggravated kidnapping;
   2-21                          (iv)  aggravated sexual assault;
   2-22                          (v)  aggravated robbery;
   2-23                          (vi)  aggravated assault;
   2-24                          (vii)  manslaughter; or <deadly assault on a
   2-25  law enforcement officer, corrections officer, court participant, or
    3-1  probation personnel; or>
    3-2                          (viii) <(vi)>  attempted murder or capital
    3-3  murder; and
    3-4                    (G)  the statement must be signed in the presence
    3-5  of a magistrate by the child with no law enforcement officer or
    3-6  prosecuting attorney present, except that a magistrate may require
    3-7  a bailiff or a law enforcement officer if a bailiff is not
    3-8  available to be present if the magistrate determines that the
    3-9  presence of the bailiff or law enforcement officer is necessary for
   3-10  the personal safety of the magistrate or other court personnel,
   3-11  provided that the bailiff or law enforcement officer may not carry
   3-12  a weapon in the presence of the child.  The magistrate must be
   3-13  fully convinced that the child understand the nature and contents
   3-14  of the statement and that the child is signing the same
   3-15  voluntarily.  If such a statement is taken, the magistrate shall
   3-16  sign a written statement verifying the foregoing requisites have
   3-17  been met.
   3-18        The child must knowingly, intelligently, and voluntarily
   3-19  waive these rights prior to and during the making of the statement
   3-20  and sign the statement in the presence of a magistrate who must
   3-21  certify that he has examined the child independent of any law
   3-22  enforcement officer or prosecuting attorney, except as required to
   3-23  ensure the personal safety of the magistrate or other court
   3-24  personnel, and has determined that the child understands the nature
   3-25  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        SECTION 2.  Section 51.09(c), Family Code, as amended by
    4-8  Chapters 429 and 557, Acts of the 72nd Legislature, Regular
    4-9  Session, 1991, is reenacted to read as follows:
   4-10        (c)  A warning under Subsection (b)(1)(E) or Subsection
   4-11  (b)(1)(F) of this section is required only when applicable to the
   4-12  facts of the case.  A failure to warn a child under
   4-13  Subsection(b)(1)(E) of this section does not render a statement
   4-14  made by the child inadmissible unless the child is transferred to a
   4-15  criminal district court under Section 54.02 of this code.  A
   4-16  failure to warn a child under Subsection(b)(1)(F) of this section
   4-17  does not render a statement made by the child inadmissible unless
   4-18  the state proceeds against the child on a petition approved by a
   4-19  grand jury under Section 53.045 of this code.
   4-20        SECTION 3.  Section 53.045(a), Family Code is amended to read
   4-21  as follows:
   4-22        (a)  Except as provided by Subsection (e) of this section,
   4-23  the prosecuting attorney may refer the petition to the grand jury
   4-24  of the county in which the court in which the petition is filed
   4-25  presides if the petition alleges that the child engaged in
    5-1  delinquent conduct that included the violation of any of the
    5-2  following provisions of the Penal Code:
    5-3              (1)  Section 19.02 (murder);
    5-4              (2)  Section 19.03 (capital murder);
    5-5              (3)  Section 20.04 (aggravated kidnapping);
    5-6              (4)  Section 22.021 (aggravated sexual assault);
    5-7              (5)  Section 29.03 (aggravated robbery);
    5-8              (6)  Section 22.02 (aggravated assault);
    5-9              (7)  Section 19.04 (manslaughter); or <SECTION 22.03
   5-10  (deadly assault on a law enforcement officer, corrections officer,
   5-11  or court participant); or>
   5-12              (8) <(6)> Section 15.01 (criminal attempt), if the
   5-13  offense attempted was an offense under Section 19.02 (murder) or
   5-14  Section 19.03 (capital murder).
   5-15        SECTION 4.  Section 54.04(d), Family Code, is amended to read
   5-16  as follows:
   5-17        (d)  If the court or jury makes the finding specified in
   5-18  Subsection (c) of this section:
   5-19              (1)  the court or jury may, in addition to any order
   5-20  required or authorized under Section 54.041 or 54.042 of this code,
   5-21  place the child on probation on such reasonable and lawful terms as
   5-22  the court may determine:
   5-23                    (A)  in his own home or in the custody of a
   5-24  relative or other fit person;
   5-25                    (B)  subject to the finding under Subsection (c)
    6-1  of this section on the placement of the child outside the child's
    6-2  home, in:
    6-3                          (i)  a suitable foster home; or
    6-4                          (ii)  a suitable public or private
    6-5  institution or agency, except the Texas Youth Commission;
    6-6                    (C)  in a suitable public or private institution
    6-7  or agency, except the Texas Youth Commission;
    6-8              (2)  if the court or jury found at the conclusion of
    6-9  the adjudication hearing that the child engaged in delinquent
   6-10  conduct and if the petition was not approved by the grand jury
   6-11  under Section 53.045 of this code, the court may commit the child
   6-12  to the Texas Youth Commission without a determinate sentence; or
   6-13              (3)  if the court or jury found at the conclusion of
   6-14  the adjudication hearing that the child engaged in delinquent
   6-15  conduct that included a violation of the penal law listed in
   6-16  Section 53.045(a) of this code and if the petition was approved by
   6-17  the grand jury under Section 53.045 of this code, the court or jury
   6-18  may sentence the child to commitment in the Texas Youth Commission
   6-19  with a transfer to the institutional division of the Texas
   6-20  Department of Criminal Justice for any term of years not to exceed:
   6-21                    (A)  40 years if the conduct included a violation
   6-22  of a penal law that is a capital felony or a felony of the first
   6-23  degree; or
   6-24                    (B)  10 years if the conduct included a violation
   6-25  of a penal law that is a felony of the second degree.
    7-1        SECTION 5.  (a)  This Act takes effect September 1, 1995, and
    7-2  applies only to conduct that occurs on or after that date.  Conduct
    7-3  violating the penal law of this state occurs on or after the
    7-4  effective date of this Act if every element of the violation occurs
    7-5  on or after that date.
    7-6        (b)  Conduct that occurs before the effective date of this
    7-7  Act is governed by the law in effect at the time the conduct
    7-8  occurred, and that law is continued in effect for that purpose.
    7-9        SECTION 5.  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.