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.