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.