By Tillery, Dukes                                     H.B. No. 1224
       74R2802 DD-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the files and records of children who engage in certain
    1-3  delinquent conduct constituting a felony.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 51.02, Family Code, is amended by adding
    1-6  Subdivision (11) to read as follows:
    1-7              (11)  "Deadly weapon" has the meaning assigned by
    1-8  Section 1.07, Penal Code.
    1-9        SECTION 2.  Section 51.14, Family Code, is amended by
   1-10  amending Subsections (a)-(c) and adding Subsection (f) to read as
   1-11  follows:
   1-12        (a)  Except as provided by Subsection (e) of this section, or
   1-13  by Article 15.27, Code of Criminal Procedure, all files and records
   1-14  of a juvenile court, a clerk of court, or a prosecuting attorney
   1-15  relating to a child who is a party to a proceeding under this title
   1-16  are open to inspection only by:
   1-17              (1)  the judge, probation officers, and professional
   1-18  staff or consultants of the juvenile court;
   1-19              (2)  an attorney for a party to the proceeding;
   1-20              (3)  a public or private agency or institution
   1-21  providing supervision of the child by arrangement of the juvenile
   1-22  court, or having custody of the child under juvenile court order;
   1-23  <or>
   1-24              (4)  a law-enforcement agency; or
    2-1              (5)  with leave of juvenile court, any other person,
    2-2  agency, or institution having a legitimate interest in the
    2-3  proceeding or in the work of the court.
    2-4        (b)  All files and records of a public or private agency or
    2-5  institution providing supervision of a child by arrangement of the
    2-6  juvenile court or having custody of the child under order of the
    2-7  juvenile court are open to inspection only by:
    2-8              (1)  the professional staff or consultants of the
    2-9  agency or institution;
   2-10              (2)  the judge, probation officers, and professional
   2-11  staff or consultants of the juvenile court;
   2-12              (3)  an attorney for the child;
   2-13              (4)  with leave of the juvenile court, any other
   2-14  person, agency, or institution having a legitimate interest in the
   2-15  work of the agency or institution; <or>
   2-16              (5)  a law-enforcement agency, the institutional
   2-17  division of the Texas Department of Criminal Justice <Corrections>,
   2-18  the Department of Public Safety of the State of Texas, and the
   2-19  Texas Juvenile Probation Commission, for the purpose of maintaining
   2-20  statistical records of recidivism, and for diagnosis and
   2-21  classification.
   2-22        (c)  Except as provided by this subsection and Subsection
   2-23  (f), law-enforcement files and records concerning a child shall be
   2-24  kept separate from files and records of arrests of adults and shall
   2-25  be maintained on a local basis only and not sent to a central state
   2-26  or federal depository.  The law-enforcement files and records of a
   2-27  person who is transferred from the Texas Youth Commission to the
    3-1  institutional division of the Texas Department of Criminal Justice
    3-2  <Corrections> under a determinate sentence may be transferred to a
    3-3  central state or federal depository for adult records on or after
    3-4  the date of transfer.  If a child has been reported as missing by a
    3-5  parent, guardian, or conservator of that child, has escaped from
    3-6  the custody of a juvenile detention facility, the Texas Youth
    3-7  Commission, or any other agency to which the child has been
    3-8  committed, or is the subject of a bench warrant or felony arrest
    3-9  warrant issued by a court after the child has fled the jurisdiction
   3-10  of the court, any information or records concerning that child may
   3-11  be transferred to and disseminated by the Texas Crime Information
   3-12  Center and the National Crime Information Center.
   3-13        (f)  The law-enforcement files and records of a child who is
   3-14  referred to the juvenile court for conduct that constitutes an
   3-15  offense under Title 5, Penal Code, and that involves the use or
   3-16  exhibition by the child of a deadly weapon shall be sent to the
   3-17  bureau of identification and records of the Department of Public
   3-18  Safety of the State of Texas and may be maintained on a local
   3-19  basis.  A law-enforcement agency that maintains on a local basis
   3-20  law-enforcement files and records concerning a child under this
   3-21  subsection shall notify the bureau of identification and records in
   3-22  writing of the agency's intent to retain copies of law-enforcement
   3-23  files and records sent to the bureau.  Records maintained under
   3-24  this subsection may not be sent to a federal depository.
   3-25        SECTION 3.  Section 51.15, Family Code, as amended by
   3-26  Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
   3-27  Session, 1987, is amended to read as follows:
    4-1        Sec. 51.15.  FINGERPRINTS AND PHOTOGRAPHS.  (a)  No child may
    4-2  be fingerprinted without the consent of the juvenile court except
    4-3  as provided by this subsection or by Subsections (g) <(f)> and (j)
    4-4  <(i)> of this section.  A child's fingerprints may be taken and
    4-5  filed by a law-enforcement officer investigating a case if:
    4-6              (1)  the child is 15 years of age or older and is
    4-7  referred to the juvenile court for any felony; <or>
    4-8              (2)  the child is under 15 years of age and is referred
    4-9  to the juvenile court for a felony listed in Section 53.045(a) of
   4-10  this code; or
   4-11              (3)  the child is referred to the juvenile court for
   4-12  conduct that constitutes an offense under Title 5, Penal Code, and
   4-13  that involves the use or exhibition by the child of a deadly
   4-14  weapon.
   4-15        (b)  Except as provided in Subsections (i) <(h)> and (j)
   4-16  <(i)> of this section, no child taken into custody may be
   4-17  photographed without the consent of the juvenile court unless:
   4-18              (1)  the child is 15 years of age or older and is
   4-19  referred to the juvenile court for a felony; <or>
   4-20              (2)  the child is under 15 years of age and is referred
   4-21  to the juvenile court for a felony listed in Section 53.045(a) of
   4-22  this code; or
   4-23              (3)  the child is referred to the juvenile court for
   4-24  conduct that constitutes an offense under Title 5, Penal Code, and
   4-25  that involves the use or exhibition by the child of a deadly
   4-26  weapon.
   4-27        (c)  Except as provided by this subsection, fingerprint and
    5-1  photograph files or records of children shall be kept separate from
    5-2  those of adults, and fingerprints or photographs known to be those
    5-3  of a child shall be maintained on a local basis only and not sent
    5-4  to a central state or federal depository.  The <However,>
    5-5  fingerprint and photograph files or records of a person who is
    5-6  transferred from the Texas Youth Commission to the institutional
    5-7  division of the Texas Department of Criminal Justice <Corrections>
    5-8  under a determinate sentence may be transferred to adult records on
    5-9  or after the date of transfer.   The photograph files or records of
   5-10  children referred to the juvenile court for conduct that
   5-11  constitutes an offense under Title 5, Penal Code, and that involves
   5-12  the use or exhibition by the child of a deadly weapon shall be
   5-13  treated in the same manner as law-enforcement files and records
   5-14  under Section 51.14(f).
   5-15        (d)  If a child has been reported as missing by a parent,
   5-16  guardian, or conservator of that child or a child has escaped from
   5-17  the custody of a juvenile detention facility, the Texas Youth
   5-18  Commission, or any other agency to which the child has been
   5-19  committed, the child's fingerprints and photograph may be sent to
   5-20  and indexed into the files of the Department of Public Safety of
   5-21  the State of Texas and the Federal Bureau of Investigation to aid
   5-22  in the location and identification of the child.
   5-23        (e) <(d)>  Fingerprint and photograph files or records of
   5-24  children are subject to inspection as provided in Subsections (a)
   5-25  and (d) of Section 51.14 of this code.
   5-26        (f) <(e)>  A child's fingerprints and photographs that are
   5-27  not transferred under Subsection (c) of this section shall be
    6-1  removed from files or records and destroyed if:
    6-2              (1)  a petition alleging that the child engaged in
    6-3  delinquent conduct or conduct indicating a need for supervision is
    6-4  not filed, or the proceedings are dismissed after a petition is
    6-5  filed, or the child is found not to have engaged in the alleged
    6-6  conduct;
    6-7              (2)  the person reaches 18 years of age, is not subject
    6-8  to commitment to the Texas Youth Commission or to transfer under a
    6-9  determinate sentence to the institutional division of the Texas
   6-10  Department of Criminal Justice <Corrections>, and there is no
   6-11  record that he committed a criminal offense after reaching 17 years
   6-12  of age; or
   6-13              (3)  the person is older than 18 years, at least three
   6-14  years have elapsed after the person's release from commitment, and
   6-15  there is no evidence that he committed a criminal offense after the
   6-16  release.
   6-17        (g) <(f)>  If latent fingerprints are found during the
   6-18  investigation of an offense, and a law-enforcement officer has
   6-19  reasonable cause to believe that they are those of a particular
   6-20  child, the law-enforcement officer <if otherwise authorized by law,
   6-21  he> may fingerprint the child regardless of the age or offense for
   6-22  purpose of immediate comparison with the latent fingerprints.  If
   6-23  the comparison is negative, the fingerprint card and other copies
   6-24  of the fingerprints taken shall be destroyed immediately.  If the
   6-25  comparison is positive, and the child is referred to the juvenile
   6-26  court, the fingerprint card and other copies of the fingerprints
   6-27  taken shall be delivered to the court for disposition, except if
    7-1  the referral was for conduct described by Subsection (a)(3), one
    7-2  copy of the fingerprints shall be sent to the bureau of
    7-3  identification and records of the Department of Public Safety of
    7-4  the State of Texas and one copy may be retained locally.  If the
    7-5  child is not referred to the court, the fingerprint card and other
    7-6  copies of the fingerprints taken shall be destroyed immediately.
    7-7  A law-enforcement agency that maintains on a local basis a copy of
    7-8  a child's fingerprints under this subsection shall promptly notify
    7-9  the bureau of identification and records in writing of the agency's
   7-10  intent to retain the copy.
   7-11        (h) <(g)>  When destruction of fingerprints or photographs is
   7-12  required by Subsection <(e),> (f), (g), or (i) <(h)> of this
   7-13  section, the agency with custody of the fingerprints or photographs
   7-14  shall proceed with destruction without judicial order.  However, if
   7-15  the fingerprints or photographs are not destroyed, the juvenile
   7-16  court, on its own motion or on application by the person
   7-17  fingerprinted or photographed, shall order the destruction as
   7-18  required by this section.
   7-19        (i) <(h)>  If, during the investigation of a criminal
   7-20  offense, a law enforcement officer has reason to believe that a
   7-21  photograph of a child taken into custody or detained as permitted
   7-22  under this title will assist in the identification of the offender
   7-23  <and if not otherwise prohibited by law,> the officer may
   7-24  photograph the <face of the> child.  If the child is not identified
   7-25  as an offender, the photograph and its negative shall be destroyed
   7-26  immediately.  If the child is identified through the photograph and
   7-27  the child is referred to the juvenile court for the offense
    8-1  investigated, the photograph and its negative shall be delivered to
    8-2  the juvenile court for disposition, except if the referral was for
    8-3  conduct described by Subsection (a)(3), one copy of the photograph
    8-4  shall be sent to the bureau of identification and records of the
    8-5  Department of Public Safety of the State of Texas and one copy may
    8-6  be retained locally.  If the child is not referred to the juvenile
    8-7  court for the offense investigated, the photograph and its negative
    8-8  shall be destroyed immediately.  A law enforcement agency that
    8-9  maintains on a local basis a copy of a child's photograph under
   8-10  this subsection shall promptly notify the bureau of identification
   8-11  and records in writing of the agency's intent to retain the copy.
   8-12        (j) <(i)>  A law enforcement officer may fingerprint or
   8-13  photograph a child taken into custody, or detained as permitted
   8-14  under this title, for delinquent conduct if the officer is unable
   8-15  to identify the child after making a reasonable effort to do so.
   8-16        SECTION 4.  Section 51.16(k), Family Code, is amended to read
   8-17  as follows:
   8-18        (k)  A court may not order under this section the sealing of
   8-19  files and records concerning a person adjudicated as having engaged
   8-20  in delinquent conduct that violated a penal law of the grade of
   8-21  felony unless:
   8-22              (1)  the person is 23 years of age or older;
   8-23              (2)  the files and records have not been:
   8-24                    (A)  made a part of the person's adult record as
   8-25  a result of the use of the files or records after the juvenile
   8-26  court under Section 54.02 of this code transferred the person to a
   8-27  criminal court for prosecution; <or>
    9-1                    (B)  sent to the Department of Public Safety of
    9-2  the State of Texas as a result of the referral of the child to
    9-3  juvenile court for conduct that constitutes an offense under Title
    9-4  5, Penal Code, and that involves the use or exhibition by the child
    9-5  of a deadly weapon; or
    9-6                    (C)  used as evidence in the punishment phase of
    9-7  a criminal proceeding under Section 3(a), Article 37.07, Code of
    9-8  Criminal Procedure; and
    9-9              (3)  the person has not been convicted of a penal law
   9-10  of the grade of felony after becoming age 17.
   9-11        SECTION 5.  Section 3(a), Article 37.07, Code of Criminal
   9-12  Procedure, is amended to read as follows:
   9-13        (a)  Regardless of the plea and whether the punishment be
   9-14  assessed by the judge or the jury, evidence may be offered by the
   9-15  state and the defendant as to any matter the court deems relevant
   9-16  to sentencing, including but not limited to the prior criminal
   9-17  record of the defendant, his general reputation, his character, an
   9-18  opinion regarding his character, the circumstances of the offense
   9-19  for which he is being tried, and, notwithstanding Rules 404 and
   9-20  405, Texas Rules of Criminal Evidence, any other evidence of an
   9-21  extraneous crime or bad act that is shown beyond a reasonable doubt
   9-22  by evidence to have been committed by the defendant or for which he
   9-23  could be held criminally responsible, regardless of whether he has
   9-24  previously been charged with or finally convicted of the crime or
   9-25  act.   A court may consider as a factor in mitigating punishment
   9-26  the conduct of a defendant while participating in a program under
   9-27  Chapter 17 of this code as a condition of release on bail.
   10-1  Additionally, notwithstanding Rule 609(d), Texas Rules of Criminal
   10-2  Evidence, evidence may be offered by the state and the defendant of
   10-3  an adjudication of delinquency based on a violation by the
   10-4  defendant of:
   10-5              (1)  any penal law under Title 5, Penal Code, if the
   10-6  conduct involved the use or exhibition by the defendant of a deadly
   10-7  weapon; or
   10-8              (2)  a penal law of the grade of felony, other than a
   10-9  felony described by Subdivision (1), unless:
  10-10                    (A) <(1)>  the adjudication is based on conduct
  10-11  committed more than five years before the commission of the offense
  10-12  for which the person is being tried; and
  10-13                    (B) <(2)>  in the five years preceding the date
  10-14  of the commission of the offense for which the person is being
  10-15  tried, the person did not engage in conduct for which the person
  10-16  has been adjudicated as a delinquent child or a child in need of
  10-17  supervision and did not commit an offense for which the person has
  10-18  been convicted.
  10-19        SECTION 6.  (a) The change in law made by this Act applies
  10-20  only to conduct that occurs on or after the effective date of this
  10-21  Act.  Conduct violating a penal law of the state occurs on or after
  10-22  the effective date of this Act if every element of the violation
  10-23  occurs on or after that date.
  10-24        (b)  Conduct that occurs before the effective date of this
  10-25  Act is covered by the law in effect at the time the conduct
  10-26  occurred, and the former law is continued in effect for that
  10-27  purpose.
   11-1        SECTION 7.  This Act takes effect September 1, 1995.
   11-2        SECTION 8.  The importance of this legislation and the
   11-3  crowded condition of the calendars in both houses create an
   11-4  emergency and an imperative public necessity that the
   11-5  constitutional rule requiring bills to be read on three several
   11-6  days in each house be suspended, and this rule is hereby suspended.