By Pitts                                              H.B. No. 1040
       74R2480 DD-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the jurisdiction, adjudication, and disposition of
    1-3  certain children who engage in certain conduct.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 8.07(a), Penal Code, is amended to read
    1-6  as follows:
    1-7        (a)  A person may not be prosecuted for or convicted of any
    1-8  offense that he committed when younger than 13 <15> years of age
    1-9  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.
    2-4        SECTION 2.  Section 34.54(b), Family Code, is amended to read
    2-5  as follows:
    2-6        (b)  The department shall provide, directly or by contract,
    2-7  services for a child and the child's family if the child is
    2-8  referred to the department by a law enforcement agency for engaging
    2-9  in conduct described by Section 51.03 of this code.  The services
   2-10  may include in-home programs, parenting skills training, youth
   2-11  coping skills, and individual and family counseling.  A child who
   2-12  is referred to the department by a law enforcement agency must be
   2-13  referred under Section 52.03.
   2-14        SECTION 3.  Section 51.02(1), Family Code, is amended to read
   2-15  as follows:
   2-16              (1)  "Child" means a person who is:
   2-17                    (A)  seven <ten> years of age or older and under
   2-18  17 years of age; or
   2-19                    (B)  seventeen years of age or older and under 18
   2-20  years of age who is alleged or found to have engaged in delinquent
   2-21  conduct or conduct indicating a need for supervision as a result of
   2-22  acts committed before becoming 17 years of age.
   2-23        SECTION 4.  Section 51.09(b), Family Code, as amended by
   2-24  Chapters 429 and 593, Acts of the 72nd Legislature, Regular
   2-25  Session, 1991, is conformed to Chapter 557, Acts of the 72nd
   2-26  Legislature, Regular Session, 1991, and amended to read as follows:
   2-27        (b)  Notwithstanding any of the provisions of Subsection (a)
    3-1  of this section, the statement of a child is admissible in evidence
    3-2  in any future proceeding concerning the matter about which the
    3-3  statement was given if:
    3-4              (1)  when the child is in a detention facility or other
    3-5  place of confinement or in the custody of an officer, the statement
    3-6  is made in writing and the statement shows that the child has at
    3-7  some time prior to the making thereof received from a magistrate a
    3-8  warning that:
    3-9                    (A)  the child may remain silent and not make any
   3-10  statement at all and that any statement that the child makes may be
   3-11  used in evidence against the child;
   3-12                    (B)  the child has the right to have an attorney
   3-13  present to advise the child either prior to any questioning or
   3-14  during the questioning;
   3-15                    (C)  if the child is unable to employ an
   3-16  attorney, the child has the right to have an attorney appointed to
   3-17  counsel with the child prior to or during any interviews with peace
   3-18  officers or attorneys representing the state;
   3-19                    (D)  the child has the right to terminate the
   3-20  interview at any time;
   3-21                    (E)  if the child is 13 <15> years of age or
   3-22  older at the time of the violation of a penal law of the grade of
   3-23  felony the juvenile court may waive its jurisdiction and the child
   3-24  may be tried as an adult;
   3-25                    (F)  the child may be sentenced to commitment in
   3-26  the Texas Youth Commission with a transfer to the institutional
   3-27  division of the Texas Department of Criminal Justice for a term not
    4-1  to exceed 40 years if the child is found to have engaged in
    4-2  delinquent conduct, alleged in a petition approved by a grand jury,
    4-3  that included:
    4-4                          (i)  murder;
    4-5                          (ii)  capital murder;
    4-6                          (iii)  aggravated kidnapping;
    4-7                          (iv)  aggravated sexual assault;
    4-8                          (v)  aggravated <deadly> assault that is
    4-9  punishable under Section 22.02(b)(2), Penal Code (assault against a
   4-10  public servant) <on a law enforcement officer, corrections officer,
   4-11  court participant, or probation personnel>; <or>
   4-12                          (vi)  aggravated robbery; or
   4-13                          (vii)  attempted capital murder; and
   4-14                    (G)  the statement must be signed in the presence
   4-15  of a magistrate by the child with no law enforcement officer or
   4-16  prosecuting attorney present, except that a magistrate may require
   4-17  a bailiff or a law enforcement officer if a bailiff is not
   4-18  available to be present if the magistrate determines that the
   4-19  presence of the bailiff or law enforcement officer is necessary for
   4-20  the personal safety of the magistrate or other court personnel,
   4-21  provided that the bailiff or law enforcement officer may not carry
   4-22  a weapon in the presence of the child.  The magistrate must be
   4-23  fully convinced that the child understands the nature and contents
   4-24  of the statement and that the child is signing the same
   4-25  voluntarily.  If such a statement is taken, the magistrate shall
   4-26  sign a written statement verifying the foregoing requisites have
   4-27  been met.
    5-1        The child must knowingly, intelligently, and voluntarily
    5-2  waive these rights prior to and during the making of the statement
    5-3  and sign the statement in the presence of a magistrate who must
    5-4  certify that he has examined the child independent of any law
    5-5  enforcement officer or prosecuting attorney, except as required to
    5-6  ensure the personal safety of the magistrate or other court
    5-7  personnel, and has determined that the child understands the nature
    5-8  and contents of the statement and has knowingly, intelligently, and
    5-9  voluntarily waived these rights.
   5-10              (2)  it be made orally and the child makes a statement
   5-11  of facts or circumstances that are found to be true, which conduct
   5-12  tends to establish his guilt, such as the finding of secreted or
   5-13  stolen property, or the instrument with which he states the offense
   5-14  was committed.
   5-15              (3)  the statement was res gestae of the delinquent
   5-16  conduct or the conduct indicating a need for supervision or of the
   5-17  arrest.
   5-18        SECTION 5.  Section 51.09(c), Family Code, as amended by
   5-19  Chapters 429 and 557, Acts of the 72nd Legislature, Regular
   5-20  Session, 1991, is reenacted to read as follows:
   5-21        (c)  A warning under Subsection (b)(1)(E) or Subsection
   5-22  (b)(1)(F) of this section is required only when applicable to the
   5-23  facts of the case.  A failure to warn a child under Subsection
   5-24  (b)(1)(E) of this section does not render a statement made by the
   5-25  child inadmissible unless the child is transferred to a criminal
   5-26  district court under Section 54.02 of this code.  A failure to warn
   5-27  a child under Subsection (b)(1)(F) of this section does not render
    6-1  a statement made by the child inadmissible unless the state
    6-2  proceeds against the child on a petition approved by a grand jury
    6-3  under Section 53.045 of this code.
    6-4        SECTION 6.  Sections 51.14(a)-(c), Family Code, are amended
    6-5  to read as follows:
    6-6        (a)  Except as provided by Subsection (e) of this section, or
    6-7  by Article 15.27, Code of Criminal Procedure, all files and records
    6-8  of a juvenile court, a clerk of court, the bureau of identification
    6-9  and records of the Department of Public Safety of the State of
   6-10  Texas, or a prosecuting attorney relating to a child who is a party
   6-11  to a proceeding under this title are open to inspection only by:
   6-12              (1)  the judge, probation officers, and professional
   6-13  staff or consultants of the juvenile court;
   6-14              (2)  an attorney for a party to the proceeding;
   6-15              (3)  a public or private agency or institution
   6-16  providing supervision of the child by arrangement of the juvenile
   6-17  court, or having custody of the child under juvenile court order;
   6-18  <or>
   6-19              (4)  a law-enforcement agency; or
   6-20              (5)  with leave of juvenile court, any other person,
   6-21  agency, or institution having a legitimate interest in the
   6-22  proceeding or in the work of the court.
   6-23        (b)  All files and records of a public or private agency or
   6-24  institution providing supervision of a child by arrangement of the
   6-25  juvenile court or having custody of the child under order of the
   6-26  juvenile court are open to inspection only by:
   6-27              (1)  the professional staff or consultants of the
    7-1  agency or institution;
    7-2              (2)  the judge, probation officers, and professional
    7-3  staff or consultants of the juvenile court;
    7-4              (3)  an attorney for the child;
    7-5              (4)  with leave of the juvenile court, any other
    7-6  person, agency, or institution having a legitimate interest in the
    7-7  work of the agency or institution; or
    7-8              (5)  a law-enforcement agency, the institutional
    7-9  division of the Texas Department of Criminal Justice <Corrections>,
   7-10  the Department of Public Safety, and the Texas Juvenile Probation
   7-11  Commission, for the purpose of maintaining statistical records of
   7-12  recidivism, and for diagnosis and classification.
   7-13        (c)  The <Except as provided by this subsection,>
   7-14  law-enforcement files and records concerning a child who is
   7-15  referred to juvenile court for conduct constituting a felony shall
   7-16  be sent to the bureau of identification and records of the
   7-17  Department of Public Safety of the State of Texas <kept separate
   7-18  from files and records of arrests of adults> and may <shall> be
   7-19  maintained on a local basis, but may <only and> not be sent to a
   7-20  <central state or> federal depository.  <The law-enforcement files
   7-21  and records of a person who is transferred from the Texas Youth
   7-22  Commission to the Texas Department of Corrections under a
   7-23  determinate sentence may be transferred to a central state or
   7-24  federal depository for adult records on or after the date of
   7-25  transfer.>  If a child has been reported as missing by a parent,
   7-26  guardian, or conservator of that child, has escaped from the
   7-27  custody of a juvenile detention facility, the Texas Youth
    8-1  Commission, or any other agency to which the child has been
    8-2  committed, or is the subject of a bench warrant or felony arrest
    8-3  warrant issued by a court after the child has fled the jurisdiction
    8-4  of the court, any information or records concerning that child may
    8-5  be transferred to and disseminated by the Texas Crime Information
    8-6  Center and the National Crime Information Center.  A
    8-7  law-enforcement agency that maintains on a local basis
    8-8  law-enforcement files and records concerning a child shall notify
    8-9  the bureau of identification and records of the Department of
   8-10  Public Safety of the State of Texas in writing that it has
   8-11  maintained copies of law-enforcement files and records sent to the
   8-12  bureau under this subsection.
   8-13        SECTION 7.  Section 51.15, Family Code, as amended by
   8-14  Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
   8-15  Session, 1987, is amended by amending Subsections (a)-(c), (f), and
   8-16  (h) to read as follows:
   8-17        (a)  No child may be fingerprinted without the consent of the
   8-18  juvenile court except as provided by this subsection or by
   8-19  subsections (f) and (i) of this section.  A child's fingerprints
   8-20  may be taken and filed by a law-enforcement officer investigating a
   8-21  case if:
   8-22              (1)  the child is 13 <15> years of age or older and is
   8-23  referred to the juvenile court for any felony; or
   8-24              (2)  the child is under 13 <15> years of age and is
   8-25  referred to the juvenile court for a felony listed in Section
   8-26  53.045(a) of this code.
   8-27        (b)  Except as provided in Subsections (h) and (i) of this
    9-1  section, no child taken into custody may be photographed without
    9-2  the consent of the juvenile court unless:
    9-3              (1)  the child is 13 <15> years of age or older and is
    9-4  referred to the juvenile court for a felony; or
    9-5              (2)  the child is under 13 <15> years of age and is
    9-6  referred to the juvenile court for a felony listed in Section
    9-7  53.045(a) of this code.
    9-8        (c)  Except as provided by this subsection, fingerprint and
    9-9  photograph files or records of children shall be treated in the
   9-10  manner provided for law-enforcement files and records under Section
   9-11  51.14(c) <kept separate from those of adults, and fingerprints or
   9-12  photographs known to be those of a child shall be maintained on a
   9-13  local basis only and not sent to a central state or federal
   9-14  depository>.  If a child has been reported as missing by a parent,
   9-15  guardian, or conservator of that child or a child has escaped from
   9-16  the custody of a juvenile detention facility, the Texas Youth
   9-17  Commission, or any other agency to which the child has been
   9-18  committed, the child's fingerprints and photograph may be sent to
   9-19  and indexed into the files of the Department of Public Safety and
   9-20  the Federal Bureau of Investigation to aid in the location and
   9-21  identification of the child.
   9-22        (f)  If latent fingerprints are found during the
   9-23  investigation of conduct constituting a felony <an> offense, and a
   9-24  law-enforcement officer has reasonable cause to believe that they
   9-25  are those of a particular child, the law-enforcement officer <if
   9-26  otherwise authorized by law, he> may fingerprint the child
   9-27  regardless of the age or offense for purpose of immediate
   10-1  comparison with the latent fingerprints.  If the comparison is
   10-2  negative, the fingerprint card and other copies of the fingerprints
   10-3  taken shall be destroyed immediately.  If the comparison is
   10-4  positive, and the child is referred to the juvenile court, the
   10-5  fingerprint card and other copies of the fingerprints taken shall
   10-6  be delivered to the court for disposition, except that one copy of
   10-7  the fingerprints shall be sent to the bureau of identification and
   10-8  records of the Department of Public Safety of the State of Texas
   10-9  and one copy may be retained by the local law-enforcement agency
  10-10  for law-enforcement purposes.  If the child is not referred to the
  10-11  court, the fingerprint card and other copies of the fingerprints
  10-12  taken shall be sent to the bureau of identification and records of
  10-13  the Department of Public Safety of the State of Texas, except that
  10-14  one copy of the fingerprints may be retained by the local
  10-15  law-enforcement agency for law-enforcement purposes.  A
  10-16  law-enforcement agency that maintains on a local basis a copy of a
  10-17  child's fingerprints under this subsection shall promptly notify
  10-18  the bureau of identification and records in writing of the agency's
  10-19  intent to retain a copy of the fingerprints <destroyed
  10-20  immediately>.
  10-21        (h)  If, during the investigation of conduct constituting a
  10-22  felony <criminal> offense, a law enforcement officer has reason to
  10-23  believe that a photograph of a child taken into custody or detained
  10-24  as permitted under this title will assist in the identification of
  10-25  the offender <and if not otherwise prohibited by law>, the officer
  10-26  may photograph the <face of the> child.  If the child is not
  10-27  identified as an offender, the photograph and its negative shall be
   11-1  destroyed immediately.  If the child is identified through the
   11-2  photograph and the child is referred to the juvenile court for the
   11-3  offense investigated, the photograph and its negative shall be
   11-4  delivered to the juvenile court for disposition, except that one
   11-5  copy of the photograph shall be sent to the bureau of
   11-6  identification and records of the Department of Public Safety of
   11-7  the State of Texas and one copy may be retained by the local law
   11-8  enforcement agency for law enforcement purposes.  If the child is
   11-9  not referred to the juvenile court for the offense investigated,
  11-10  the photograph and its negative shall be sent to the bureau of
  11-11  identification and records of the Department of Public Safety of
  11-12  the State of Texas, except that one copy of the photograph of the
  11-13  child may be retained by the local law enforcement agency for law
  11-14  enforcement purposes.  A law enforcement agency that maintains on a
  11-15  local basis a copy of a child's photograph under this subsection
  11-16  shall promptly notify the bureau of identification and records in
  11-17  writing of the agency's intent to retain the copy <destroyed
  11-18  immediately>.
  11-19        SECTION 8.  Section 51.16(d), Family Code, is amended to read
  11-20  as follows:
  11-21        (d)  Copies of the sealing order shall be sent to the bureau
  11-22  of identification and records of the Department of Public Safety of
  11-23  the State of Texas and to each agency or official <therein> named
  11-24  in the order.
  11-25        SECTION 9.  Section 53.045(a), Family Code, is amended to
  11-26  read as follows:
  11-27        (a)  Except as provided by Subsection (e) of this section,
   12-1  the prosecuting attorney may refer the petition to the grand jury
   12-2  of the county in which the court in which the petition is filed
   12-3  presides if the petition alleges that the child engaged in
   12-4  delinquent conduct that included the violation of any of the
   12-5  following provisions of the Penal Code:
   12-6              (1)  Section 19.02 (murder);
   12-7              (2)  Section 19.03 (capital murder);
   12-8              (3)  Section 20.04 (aggravated kidnapping);
   12-9              (4)  Section 22.021 (aggravated sexual assault);
  12-10              (5)  Section 22.02(b)(2) (aggravated assault against a
  12-11  public servant) <22.03 (deadly assault on a law enforcement
  12-12  officer, corrections officer, or court participant)>; <or>
  12-13              (6)  Section 29.03 (aggravated robbery); or
  12-14              (7)  Section 15.01 (criminal attempt), if the offense
  12-15  attempted was an offense under Section 19.03 (capital murder).
  12-16        SECTION 10.  Sections 54.02(a) and (j), Family Code, are
  12-17  amended to read as follows:
  12-18        (a)  The juvenile court may waive its exclusive original
  12-19  jurisdiction and transfer a child to the appropriate district court
  12-20  or criminal district court for criminal proceedings if:
  12-21              (1)  the child is alleged to have violated a penal law
  12-22  of the grade of felony;
  12-23              (2)  the child was 13 <15> years of age or older at the
  12-24  time he is alleged to have committed the offense and no
  12-25  adjudication hearing has been conducted concerning that offense;
  12-26  and
  12-27              (3)  after full investigation and hearing the juvenile
   13-1  court determines that there is probable cause to believe that the
   13-2  child before the court committed the offense alleged and that
   13-3  because of the seriousness of the offense or the background of the
   13-4  child the welfare of the community requires criminal proceedings.
   13-5        (j)  The juvenile court may waive its exclusive original
   13-6  jurisdiction and transfer a person to the appropriate district
   13-7  court or criminal district court for criminal proceedings if:
   13-8              (1)  the person is 18 years of age or older;
   13-9              (2)  the person was 13 <15> years of age or older and
  13-10  under 17 years of age at the time he is alleged to have committed a
  13-11  felony;
  13-12              (3)  no adjudication concerning the alleged offense has
  13-13  been made or no adjudication hearing concerning the offense has
  13-14  been conducted;
  13-15              (4)  the juvenile court finds from a preponderance of
  13-16  the evidence that after due diligence of the state it was not
  13-17  practicable to proceed in juvenile court before the 18th birthday
  13-18  of the person because:
  13-19                    (A)  the state did not have probable cause to
  13-20  proceed in juvenile court and new evidence has been found since the
  13-21  18th birthday of the person; or
  13-22                    (B)  the person could not be found; and
  13-23              (5)  the juvenile court determines that there is
  13-24  probable cause to believe that the child before the court committed
  13-25  the offense alleged.
  13-26        SECTION 11.  Chapter 54, Family Code, is amended by adding
  13-27  Section 54.055 to read as follows:
   14-1        Sec. 54.055.  CLERK TO SUBMIT FINGERPRINTS AND PHOTOGRAPHS
   14-2  AFTER DISPOSITION.  Not later than the 60th day after the date an
   14-3  order is entered under Section 54.04 or 54.05 in the disposition of
   14-4  a case involving felony conduct, the clerk of the court that issued
   14-5  the order shall transmit to the bureau of identification and
   14-6  records of the Department of Public Safety of the State of Texas:
   14-7              (1)  the name of the child;
   14-8              (2)  the original and all copies of fingerprints taken
   14-9  of the child by a law enforcement agency that the court obtained
  14-10  under Section 51.15;
  14-11              (3)  photographs and negatives of photographs taken of
  14-12  the child by a law enforcement agency that the court obtained under
  14-13  Section 51.15; and
  14-14              (4)  a statement of the disposition of the case.
  14-15        SECTION 12.  Section 411.042, Government Code, is amended by
  14-16  amending Subsection (b) and adding Subsections (h) and (i) to read
  14-17  as follows:
  14-18        (b)  The bureau of identification and records shall:
  14-19              (1)  procure and file for record photographs, pictures,
  14-20  descriptions, fingerprints, measurements, and other pertinent
  14-21  information of all persons arrested for or charged with a criminal
  14-22  offense or convicted of a criminal offense, regardless of whether
  14-23  the conviction is probated;
  14-24              (2)  procure and file for record the fingerprints,
  14-25  photographs, and other pertinent information regarding a child
  14-26  received under Title 3, Family Code;
  14-27              (3)  collect information concerning the number and
   15-1  nature of offenses reported or known to have been committed in the
   15-2  state and the legal steps taken in connection with the offenses,
   15-3  and other information useful in the study of crime and the
   15-4  administration of justice, including a statistical breakdown of
   15-5  those offenses in which family violence was involved;
   15-6              (4) <(3)>  make ballistic tests of bullets and firearms
   15-7  and chemical analyses of bloodstains, cloth, materials, and other
   15-8  substances for law enforcement officers of the state; and
   15-9              (5) <(4)>  cooperate with identification and crime
  15-10  records bureaus in other states and the United States Department of
  15-11  Justice.
  15-12        (h)  Information received by the bureau of identification and
  15-13  records under Title 3, Family Code, is subject to the sealing
  15-14  requirements of Section 51.16, Family Code.  The bureau shall
  15-15  include with any files and records sent to a juvenile court under
  15-16  an order issued under Section 51.16, Family Code, a copy of a
  15-17  notice that records are being maintained on a local basis received
  15-18  by the bureau from a law enforcement agency under Section 51.14 or
  15-19  51.15, Family Code.
  15-20        (i)  Information received by the bureau of identification and
  15-21  records under Title 3, Family Code, is confidential information and
  15-22  may not be disseminated by the bureau except as provided by Section
  15-23  51.14(a), Family Code.
  15-24        SECTION 13.  (a)  The change in law made by this Act applies
  15-25  only to conduct that occurs on or after the effective date of this
  15-26  Act.  Conduct violating a penal law of the state occurs on or after
  15-27  the effective date of this Act if every element of the violation
   16-1  occurs on or after that date.
   16-2        (b)  Conduct that occurs before the effective date of this
   16-3  Act is covered by the law in effect at the time the conduct
   16-4  occurred, and the former law is continued in effect for that
   16-5  purpose.
   16-6        SECTION 14.  This Act takes effect September 1, 1995.
   16-7        SECTION 15.  The importance of this legislation and the
   16-8  crowded condition of the calendars in both houses create an
   16-9  emergency and an imperative public necessity that the
  16-10  constitutional rule requiring bills to be read on three several
  16-11  days in each house be suspended, and this rule is hereby suspended.