By Driver H.B. No. 372
74R2594 DD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the criminal responsibility of a person who is 14 years
1-3 of age or older for using a deadly weapon during the commission of
1-4 an offense.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 8.07, Penal Code, is amended by amending
1-7 Subsection (a) and adding Subsection (e) to read as follows:
1-8 (a) A person may not be prosecuted for or convicted of any
1-9 offense that he committed when younger than 15 years of age 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; or
2-4 (6) a violation of a penal statute, if:
2-5 (A) the person was at least 14 years of age when
2-6 the person committed the offense; and
2-7 (B) a juvenile court finds probable cause to
2-8 believe the person used a deadly weapon during the commission of
2-9 the offense.
2-10 (e) In this section, "deadly weapon" has the meaning
2-11 assigned by Section 1.07(a).
2-12 SECTION 2. Section 51.02, Family Code, is amended by adding
2-13 Subdivision (11) to read as follows:
2-14 (11) "Deadly weapon" has the meaning assigned by
2-15 Section 1.07(a), Penal Code.
2-16 SECTION 3. Section 51.09(b), Family Code, is amended to read
2-17 as follows:
2-18 (b) Notwithstanding any of the provisions of Subsection (a)
2-19 of this section, the statement of a child is admissible in evidence
2-20 in any future proceeding concerning the matter about which the
2-21 statement was given if:
2-22 (1) when the child is in a detention facility or other
2-23 place of confinement or in the custody of an officer, the statement
2-24 is made in writing and the statement shows that the child has at
2-25 some time prior to the making thereof received from a magistrate a
2-26 warning that:
2-27 (A) the child may remain silent and not make any
3-1 statement at all and that any statement that the child makes may be
3-2 used in evidence against the child;
3-3 (B) the child has the right to have an attorney
3-4 present to advise the child either prior to any questioning or
3-5 during the questioning;
3-6 (C) if the child is unable to employ an
3-7 attorney, the child has the right to have an attorney appointed to
3-8 counsel with the child prior to or during any interviews with peace
3-9 officers or attorneys representing the state;
3-10 (D) the child has the right to terminate the
3-11 interview at any time;
3-12 (E) the juvenile court may waive its
3-13 jurisdiction and the child may be tried as an adult if:
3-14 (i) the child is 15 years of age or older
3-15 at the time of the violation of a penal law of the grade of felony
3-16 <the juvenile court may waive its jurisdiction and the child may be
3-17 tried as an adult>; or
3-18 (ii) the child is 14 years of age or older
3-19 at the time of the violation of a penal law and there is probable
3-20 cause to believe the child used a deadly weapon during the
3-21 commission of the offense;
3-22 (F) the child may be sentenced to commitment in
3-23 the Texas Youth Commission with a transfer to the institutional
3-24 division of the Texas Department of Criminal Justice for a term not
3-25 to exceed 40 years if the child is found to have engaged in
3-26 delinquent conduct, alleged in a petition approved by a grand jury,
3-27 that included:
4-1 (i) murder;
4-2 (ii) capital murder;
4-3 (iii) aggravated kidnapping;
4-4 (iv) aggravated sexual assault;
4-5 (v) deadly assault on a law enforcement
4-6 officer, corrections officer, court participant, or probation
4-7 personnel; or
4-8 (vi) attempted capital murder; and
4-9 (G) the statement must be signed in the presence
4-10 of a magistrate by the child with no law enforcement officer or
4-11 prosecuting attorney present, except that a magistrate may require
4-12 a bailiff or a law enforcement officer if a bailiff is not
4-13 available to be present if the magistrate determines that the
4-14 presence of the bailiff or law enforcement officer is necessary for
4-15 the personal safety of the magistrate or other court personnel,
4-16 provided that the bailiff or law enforcement officer may not carry
4-17 a weapon in the presence of the child. The magistrate must be
4-18 fully convinced that the child understands the nature and contents
4-19 of the statement and that the child is signing the same
4-20 voluntarily. If such a statement is taken, the magistrate shall
4-21 sign a written statement verifying the foregoing requisites have
4-22 been met.
4-23 The child must knowingly, intelligently, and voluntarily
4-24 waive these rights prior to and during the making of the statement
4-25 and sign the statement in the presence of a magistrate who must
4-26 certify that he has examined the child independent of any law
4-27 enforcement officer or prosecuting attorney, except as required to
5-1 ensure the personal safety of the magistrate or other court
5-2 personnel, and has determined that the child understands the nature
5-3 and contents of the statement and has knowingly, intelligently, and
5-4 voluntarily waived these rights.
5-5 (2) it be made orally and the child makes a statement
5-6 of facts or circumstances that are found to be true, which conduct
5-7 tends to establish his guilt, such as the finding of secreted or
5-8 stolen property, or the instrument with which he states the offense
5-9 was committed.
5-10 (3) the statement was res gestae of the delinquent
5-11 conduct or the conduct indicating a need for supervision or of the
5-12 arrest.
5-13 SECTION 4. Sections 51.15(a) and (b), Family Code, are
5-14 amended to read as follows:
5-15 (a) No child may be fingerprinted without the consent of the
5-16 juvenile court except as provided by this subsection or by
5-17 Subsections (f) and (i) of this section. A child's fingerprints
5-18 may be taken and filed by a law-enforcement officer investigating a
5-19 case if:
5-20 (1) the child is 15 years of age or older and is
5-21 referred to the juvenile court for any felony; <or>
5-22 (2) the child is under 15 years of age and is referred
5-23 to the juvenile court for a felony listed in Section 53.045(a) of
5-24 this code; or
5-25 (3) the child is 14 years of age or older and is
5-26 referred to the juvenile court for a violation of a penal law and
5-27 there is probable cause to believe the child used a deadly weapon
6-1 during the commission of the offense.
6-2 (b) Except as provided in Subsections (h) and (i) of this
6-3 section, no child taken into custody may be photographed without
6-4 the consent of the juvenile court unless:
6-5 (1) the child is 15 years of age or older and is
6-6 referred to the juvenile court for a felony; <or>
6-7 (2) the child is under 15 years of age and is referred
6-8 to the juvenile court for a felony listed in Section 53.045(a) of
6-9 this code; or
6-10 (3) the child is 14 years of age or older and is
6-11 referred to the juvenile court for a violation of a penal law and
6-12 there is probable cause to believe the child used a deadly weapon
6-13 during the commission of the offense.
6-14 SECTION 5. Sections 54.02(a) and (j), Family Code, are
6-15 amended to read as follows:
6-16 (a) The juvenile court may waive its exclusive original
6-17 jurisdiction and transfer a child to the appropriate district court
6-18 or criminal district court for criminal proceedings if:
6-19 (1) <the child is alleged to have violated a penal law
6-20 of the grade of felony;>
6-21 <(2)> the child was:
6-22 (A) 15 years of age or older at the time the
6-23 child <he> is alleged to have violated a penal law of the grade of
6-24 felony; or
6-25 (B) 14 years of age or older at the time the
6-26 child is alleged to have violated a penal law and there is probable
6-27 cause to believe the child used a deadly weapon during the
7-1 commission of the offense; <committed the offense and>
7-2 (2) no adjudication hearing has been conducted
7-3 concerning the <that> offense; and
7-4 (3) after full investigation and hearing the juvenile
7-5 court determines that there is probable cause to believe that the
7-6 child before the court committed the offense alleged and that
7-7 because of the seriousness of the offense or the background of the
7-8 child the welfare of the community requires criminal proceedings.
7-9 (j) The juvenile court may waive its exclusive original
7-10 jurisdiction and transfer a person to the appropriate district
7-11 court or criminal district court for criminal proceedings if:
7-12 (1) the person is 18 years of age or older;
7-13 (2) the person was:
7-14 (A) 15 years of age or older and under 17 years
7-15 of age at the time the person <he> is alleged to have committed a
7-16 felony; or
7-17 (B) 14 years of age or older and under 17 years
7-18 of age at the time the person is alleged to have violated a penal
7-19 law and there is probable cause to believe the person used a deadly
7-20 weapon during the commission of the offense;
7-21 (3) no adjudication concerning the alleged offense has
7-22 been made or no adjudication hearing concerning the offense has
7-23 been conducted;
7-24 (4) the juvenile court finds from a preponderance of
7-25 the evidence that after due diligence of the state it was not
7-26 practicable to proceed in juvenile court before the 18th birthday
7-27 of the person because:
8-1 (A) the state did not have probable cause to
8-2 proceed in juvenile court and new evidence has been found since the
8-3 18th birthday of the person; or
8-4 (B) the person could not be found; and
8-5 (5) the juvenile court determines that there is
8-6 probable cause to believe that the person <child> before the court
8-7 committed the offense alleged.
8-8 SECTION 6. (a) The change in law made by this Act applies
8-9 only to conduct that occurs on or after the effective date of this
8-10 Act. Conduct violating a penal law of the state occurs on or after
8-11 the effective date of this Act if every element of the violation
8-12 occurs on or after that date.
8-13 (b) Conduct that occurs before the effective date of this
8-14 Act is covered by the law in effect at the time the conduct
8-15 occurred, and the former law is continued in effect for that
8-16 purpose.
8-17 SECTION 7. This Act takes effect September 1, 1995.
8-18 SECTION 8. The importance of this legislation and the
8-19 crowded condition of the calendars in both houses create an
8-20 emergency and an imperative public necessity that the
8-21 constitutional rule requiring bills to be read on three several
8-22 days in each house be suspended, and this rule is hereby suspended.