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.