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.