By Jones of Dallas H.B. No. 793
74R1893 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the criminal responsibility of a person who is 15 years
1-3 of age or older for possession of a handgun in violation of a penal
1-4 law.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 51.02, Family Code, is amended by adding
1-7 Subdivision (11) to read as follows:
1-8 (11) "Handgun" has the meaning assigned by Section
1-9 46.01, Penal Code.
1-10 SECTION 2. Section 51.09(b), Family Code, is amended to read
1-11 as follows:
1-12 (b) Notwithstanding any of the provisions of Subsection (a)
1-13 of this section, the statement of a child is admissible in evidence
1-14 in any future proceeding concerning the matter about which the
1-15 statement was given if:
1-16 (1) when the child is in a detention facility or other
1-17 place of confinement or in the custody of an officer, the statement
1-18 is made in writing and the statement shows that the child has at
1-19 some time prior to the making thereof received from a magistrate a
1-20 warning that:
1-21 (A) the child may remain silent and not make any
1-22 statement at all and that any statement that the child makes may be
1-23 used in evidence against the child;
1-24 (B) the child has the right to have an attorney
2-1 present to advise the child either prior to any questioning or
2-2 during the questioning;
2-3 (C) if the child is unable to employ an
2-4 attorney, the child has the right to have an attorney appointed to
2-5 counsel with the child prior to or during any interviews with peace
2-6 officers or attorneys representing the state;
2-7 (D) the child has the right to terminate the
2-8 interview at any time;
2-9 (E) the juvenile court may waive its
2-10 jurisdiction and the child may be tried as an adult if the child is
2-11 15 years of age or older at the time of the violation of:
2-12 (i) a penal law of the grade of felony
2-13 <the juvenile court may waive its jurisdiction and the child may be
2-14 tried as an adult>; or
2-15 (ii) a penal law prohibiting the
2-16 possession of a handgun;
2-17 (F) the child may be sentenced to commitment in
2-18 the Texas Youth Commission with a transfer to the institutional
2-19 division of the Texas Department of Criminal Justice for a term not
2-20 to exceed 40 years if the child is found to have engaged in
2-21 delinquent conduct, alleged in a petition approved by a grand jury,
2-22 that included:
2-23 (i) murder;
2-24 (ii) capital murder;
2-25 (iii) aggravated kidnapping;
2-26 (iv) aggravated sexual assault;
2-27 (v) deadly assault on a law enforcement
3-1 officer, corrections officer, court participant, or probation
3-2 personnel; or
3-3 (vi) attempted capital 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 understands 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
3-26 voluntarily waived these rights.
3-27 (2) it be made orally and the child makes a statement
4-1 of facts or circumstances that are found to be true, which conduct
4-2 tends to establish his guilt, such as the finding of secreted or
4-3 stolen property, or the instrument with which he states the offense
4-4 was committed.
4-5 (3) the statement was res gestae of the delinquent
4-6 conduct or the conduct indicating a need for supervision or of the
4-7 arrest.
4-8 SECTION 3. Sections 51.15(a) and (b), Family Code, are
4-9 amended to read as follows:
4-10 (a) No child may be fingerprinted without the consent of the
4-11 juvenile court except as provided by this subsection or by
4-12 Subsections (f) and (i) of this section. A child's fingerprints
4-13 may be taken and filed by a law-enforcement officer investigating a
4-14 case if:
4-15 (1) the child is 15 years of age or older and is
4-16 referred to the juvenile court for any felony; <or>
4-17 (2) the child is under 15 years of age and is referred
4-18 to the juvenile court for a felony listed in Section 53.045(a) of
4-19 this code; or
4-20 (3) the child is 15 years of age or older and is
4-21 referred to the juvenile court for a violation of a penal law
4-22 prohibiting the possession of a handgun.
4-23 (b) Except as provided in Subsections (h) and (i) of this
4-24 section, no child taken into custody may be photographed without
4-25 the consent of the juvenile court unless:
4-26 (1) the child is 15 years of age or older and is
4-27 referred to the juvenile court for a felony; <or>
5-1 (2) the child is under 15 years of age and is referred
5-2 to the juvenile court for a felony listed in Section 53.045(a) of
5-3 this code; or
5-4 (3) the child is 15 years of age or older and is
5-5 referred to the juvenile court for a violation of a penal law
5-6 prohibiting the possession of a handgun.
5-7 SECTION 4. Section 51.16(k), Family Code, is amended to read
5-8 as follows:
5-9 (k) A court may not order under this section the sealing of
5-10 files and records concerning a person adjudicated as having engaged
5-11 in delinquent conduct that violated a penal law of the grade of
5-12 felony or a penal law prohibiting the possession of a handgun
5-13 unless:
5-14 (1) the person is 23 years of age or older;
5-15 (2) the files and records have not been:
5-16 (A) made a part of the person's adult record as
5-17 a result of the use of the files or records after the juvenile
5-18 court under Section 54.02 of this code transferred the person to a
5-19 criminal court for prosecution; or
5-20 (B) used as evidence in the punishment phase of
5-21 a criminal proceeding under Section 3(a), Article 37.07, Code of
5-22 Criminal Procedure; and
5-23 (3) the person has not been convicted of a penal law
5-24 of the grade of felony or a penal law prohibiting the possession of
5-25 a handgun after becoming age 17.
5-26 SECTION 5. Sections 54.02(a) and (j), Family Code, are
5-27 amended to read as follows:
6-1 (a) The juvenile court may waive its exclusive original
6-2 jurisdiction and transfer a child to the appropriate district court
6-3 or criminal district court for criminal proceedings if:
6-4 (1) <the child is alleged to have violated a penal law
6-5 of the grade of felony;>
6-6 <(2)> the child was 15 years of age or older at the
6-7 time the child <he> is alleged to have violated:
6-8 (A) a penal law of the grade of felony; or
6-9 (B) a penal law prohibiting the possession of a
6-10 handgun; <committed the offense and>
6-11 (2) no adjudication hearing has been conducted
6-12 concerning that offense; and
6-13 (3) after full investigation and hearing the juvenile
6-14 court determines that there is probable cause to believe that the
6-15 child before the court committed the offense alleged and that
6-16 because of the seriousness of the offense or the background of the
6-17 child the welfare of the community requires criminal proceedings.
6-18 (j) The juvenile court may waive its exclusive original
6-19 jurisdiction and transfer a person to the appropriate district
6-20 court or criminal district court for criminal proceedings if:
6-21 (1) the person is 18 years of age or older;
6-22 (2) the person was 15 years of age or older and under
6-23 17 years of age at the time he is alleged to have:
6-24 (A) committed a felony; or
6-25 (B) violated a penal law prohibiting the
6-26 possession of a handgun;
6-27 (3) no adjudication concerning the alleged offense has
7-1 been made or no adjudication hearing concerning the offense has
7-2 been conducted;
7-3 (4) the juvenile court finds from a preponderance of
7-4 the evidence that after due diligence of the state it was not
7-5 practicable to proceed in juvenile court before the 18th birthday
7-6 of the person because:
7-7 (A) the state did not have probable cause to
7-8 proceed in juvenile court and new evidence has been found since the
7-9 18th birthday of the person; or
7-10 (B) the person could not be found; and
7-11 (5) the juvenile court determines that there is
7-12 probable cause to believe that the child before the court committed
7-13 the offense alleged.
7-14 SECTION 6. (a) The change in law made by this Act applies
7-15 only to conduct, and to the files and records relating to that
7-16 conduct, constituting an offense that occurs on or after the
7-17 effective date of this Act. For purposes of this section, conduct
7-18 that constitutes an offense occurs before the effective date of
7-19 this Act if any element of the offense occurs before the effective
7-20 date.
7-21 (b) Conduct constituting an offense that occurs before the
7-22 effective date of this Act and the files and records relating to
7-23 that conduct are covered by the law in effect when the conduct
7-24 occurred, and the former law is continued in effect for that
7-25 purpose.
7-26 SECTION 7. This Act takes effect September 1, 1995.
7-27 SECTION 8. The importance of this legislation and the
8-1 crowded condition of the calendars in both houses create an
8-2 emergency and an imperative public necessity that the
8-3 constitutional rule requiring bills to be read on three several
8-4 days in each house be suspended, and this rule is hereby suspended.