By Eiland H.B. No. 1528
74R3888 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the waiver of exclusive jurisdiction by juvenile courts
1-3 for certain delinquent children and the mandatory transfer of the
1-4 jurisdiction for those children to the criminal courts.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 8.07(a), Penal Code, is amended to read
1-7 as follows:
1-8 (a) A person may not be prosecuted for or convicted of any
1-9 offense that he committed when younger than 14 <15> years of age
1-10 except:
1-11 (1) perjury and aggravated perjury when it appears by
1-12 proof that he had sufficient discretion to understand the nature
1-13 and obligation of an oath;
1-14 (2) a violation of a penal statute cognizable under
1-15 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957
1-16 (Article 6701l-4, Vernon's Texas Civil Statutes)<, except conduct
1-17 which violates the laws of this state prohibiting driving while
1-18 intoxicated or under the influence of intoxicating liquor (first or
1-19 subsequent offense) or driving while under the influence of any
1-20 narcotic drug or of any other drug to a degree which renders him
1-21 incapable of safely driving a vehicle (first or subsequent
1-22 offense)>;
1-23 (3) a violation of a motor vehicle traffic ordinance
1-24 of an incorporated city or town in this state;
2-1 (4) a misdemeanor punishable by fine only other than
2-2 public intoxication; or
2-3 (5) a violation of a penal ordinance of a political
2-4 subdivision.
2-5 SECTION 2. Section 51.02, Family Code, is amended by adding
2-6 Subdivisions (11) and (12) to read as follows:
2-7 (11) "Firearm" has the meaning assigned by Section
2-8 46.01, Penal Code.
2-9 (12) "Knife" has the meaning assigned by Section
2-10 46.01, Penal Code.
2-11 SECTION 3. Section 51.08(a), Family Code, is amended to read
2-12 as follows:
2-13 (a) If the defendant in a criminal proceeding is a child who
2-14 is charged with an offense other than perjury, a traffic offense, a
2-15 misdemeanor punishable by fine only other than public intoxication,
2-16 or a violation of a penal ordinance of a political subdivision,
2-17 unless he has been transferred to criminal court under Section
2-18 53.041 or 54.02 of this code, the court exercising criminal
2-19 jurisdiction shall transfer the case to the juvenile court,
2-20 together with a copy of the accusatory pleading and other papers,
2-21 documents, and transcripts of testimony relating to the case, and
2-22 shall order that the child be taken to the place of detention
2-23 designated by the juvenile court, or shall release him to the
2-24 custody of his parent, guardian, or custodian, to be brought before
2-25 the juvenile court at a time designated by that court.
2-26 SECTION 4. Section 51.09(b), Family Code, as amended by
2-27 Chapters 429 and 593, Acts of the 72nd Legislature, Regular
3-1 Session, 1991, is conformed to Chapter 557, Acts of the 72nd
3-2 Legislature, Regular Session, 1991, and amended to read as follows:
3-3 (b) Notwithstanding any of the provisions of Subsection (a)
3-4 of this section, the statement of a child is admissible in evidence
3-5 in any future proceeding concerning the matter about which the
3-6 statement was given if:
3-7 (1) when the child is in a detention facility or other
3-8 place of confinement or in the custody of an officer, the statement
3-9 is made in writing and the statement shows that the child has at
3-10 some time prior to the making thereof received from a magistrate a
3-11 warning that:
3-12 (A) the child may remain silent and not make any
3-13 statement at all and that any statement that the child makes may be
3-14 used in evidence against the child;
3-15 (B) the child has the right to have an attorney
3-16 present to advise the child either prior to any questioning or
3-17 during the questioning;
3-18 (C) if the child is unable to employ an
3-19 attorney, the child has the right to have an attorney appointed to
3-20 counsel with the child prior to or during any interviews with peace
3-21 officers or attorneys representing the state;
3-22 (D) the child has the right to terminate the
3-23 interview at any time;
3-24 (E) the juvenile court is required to waive its
3-25 jurisdiction and transfer the child to criminal court if the child
3-26 has previously been transferred under Section 54.02 to a criminal
3-27 court for criminal proceedings <if the child is 15 years of age or
4-1 older at the time of the violation of a penal law of the grade of
4-2 felony the juvenile court may waive its jurisdiction and the child
4-3 may be tried as an adult>;
4-4 (F) the child may be sentenced to commitment in
4-5 the Texas Youth Commission with a transfer to the institutional
4-6 division of the Texas Department of Criminal Justice for a term not
4-7 to exceed 40 years if the child is found to have engaged in
4-8 delinquent conduct, alleged in a petition approved by a grand jury,
4-9 that included:
4-10 (i) Section 19.02, Penal Code (murder);
4-11 (ii) Section 19.03, Penal Code (capital
4-12 murder);
4-13 (iii) Section 20.04, Penal Code
4-14 (aggravated kidnapping);
4-15 (iv) Section 22.021, Penal Code
4-16 (aggravated sexual assault);
4-17 (v) Section 22.02, Penal Code (aggravated
4-18 assault), if the offense is classified as a felony of the first
4-19 degree under Section 22.02(b)(2), Penal Code;
4-20 (vi) Section 15.01, Penal Code (criminal
4-21 attempt), if the offense attempted was an offense under Section
4-22 19.03, Penal Code (capital murder) or Section 19.02, Penal Code
4-23 (murder); or
4-24 (vii) any violation of a penal law of the
4-25 grade of felony in which the child used or exhibited a firearm or
4-26 knife during the commission of the violation or during immediate
4-27 flight from commission of the violation; <deadly assault on a law
5-1 enforcement officer, corrections officer, court participant, or
5-2 probation personnel; or>
5-3 <(vi) attempted capital murder; and>
5-4 (G) in addition to the circumstances in which a
5-5 juvenile court is required to waive its jurisdiction and transfer
5-6 the child to criminal court, the juvenile court may waive its
5-7 jurisdiction and transfer the child to criminal court if:
5-8 (i) the child was 14 years of age or older
5-9 at the time the child allegedly committed a felony; and
5-10 (ii) the court determines that there is
5-11 probable cause to believe that the child committed the felony other
5-12 than a felony that requires the court to waive its jurisdiction;
5-13 and
5-14 (H) the statement must be signed in the presence
5-15 of a magistrate by the child with no law enforcement officer or
5-16 prosecuting attorney present, except that a magistrate may require
5-17 a bailiff or a law enforcement officer if a bailiff is not
5-18 available to be present if the magistrate determines that the
5-19 presence of the bailiff or law enforcement officer is necessary for
5-20 the personal safety of the magistrate or other court personnel,
5-21 provided that the bailiff or law enforcement officer may not carry
5-22 a weapon in the presence of the child. The magistrate must be
5-23 fully convinced that the child understands the nature and contents
5-24 of the statement and that the child is signing the same
5-25 voluntarily. If such a statement is taken, the magistrate shall
5-26 sign a written statement verifying the foregoing requisites have
5-27 been met.
6-1 The child must knowingly, intelligently, and voluntarily
6-2 waive these rights prior to and during the making of the statement
6-3 and sign the statement in the presence of a magistrate who must
6-4 certify that he has examined the child independent of any law
6-5 enforcement officer or prosecuting attorney, except as required to
6-6 ensure the personal safety of the magistrate or other court
6-7 personnel, and has determined that the child understands the nature
6-8 and contents of the statement and has knowingly, intelligently, and
6-9 voluntarily waived these rights.
6-10 (2) it be made orally and the child makes a statement
6-11 of facts or circumstances that are found to be true, which conduct
6-12 tends to establish his guilt, such as the finding of secreted or
6-13 stolen property, or the instrument with which he states the offense
6-14 was committed.
6-15 (3) the statement was res gestae of the delinquent
6-16 conduct or the conduct indicating a need for supervision or of the
6-17 arrest.
6-18 SECTION 5. Section 51.09(c), Family Code, as amended by
6-19 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
6-20 Session, 1991, is amended and reenacted to read as follows:
6-21 (c) A warning under Subsection (b)(1)(E), <or> Subsection
6-22 (b)(1)(F), or Subsection (b)(1)(G) of this section is required only
6-23 when applicable to the facts of the case. A failure to warn a
6-24 child under those subsections <Subsection (b)(1)(E) of this
6-25 section> does not render a statement made by the child inadmissible
6-26 unless the child is transferred to a criminal district court under
6-27 Section 53.041 or 54.02 of this code. A failure to warn a child
7-1 under Subsection (b)(1)(F) of this section does not render a
7-2 statement made by the child inadmissible unless the state proceeds
7-3 against the child on a petition approved by a grand jury under
7-4 Section 53.045 of this code.
7-5 SECTION 6. Section 51.12(a), Family Code, is amended to read
7-6 as follows:
7-7 (a) Except after transfer to criminal court for prosecution
7-8 under Section 53.041 or 54.02 of this code, a child shall not be
7-9 detained in or committed to a compartment of a jail or lockup in
7-10 which adults arrested for, charged with, or convicted of crime are
7-11 detained or committed, nor be permitted contact with such persons.
7-12 SECTION 7. Section 51.13(c), Family Code, is amended to read
7-13 as follows:
7-14 (c) A child may not be committed or transferred to a penal
7-15 institution or other facility used primarily for the execution of
7-16 sentences of persons convicted of crime, except:
7-17 (1) for temporary detention in a jail or lockup
7-18 pending juvenile court hearing or disposition under conditions
7-19 meeting the requirements of Section 51.12 of this code;
7-20 (2) after transfer for prosecution in criminal court
7-21 under Section 53.041 or 54.02 of this code; or
7-22 (3) after transfer from the Texas Youth Commission
7-23 under Section 61.084, Human Resources Code.
7-24 SECTION 8. Section 51.14(d), Family Code, is amended to read
7-25 as follows:
7-26 (d) Except as provided by Article 15.27, Code of Criminal
7-27 Procedure, and except for files and records relating to a charge
8-1 for which a child is transferred under Section 53.041 or 54.02 of
8-2 this code to a criminal court for prosecution, the law-enforcement
8-3 files and records are not open to public inspection nor may their
8-4 contents be disclosed to the public, but inspection of the files
8-5 and records is permitted by:
8-6 (1) a juvenile court having the child before it in any
8-7 proceeding;
8-8 (2) an attorney for a party to the proceeding; and
8-9 (3) law-enforcement officers when necessary for the
8-10 discharge of their official duties.
8-11 SECTION 9. Sections 51.15(a) and (b), Family Code, are
8-12 amended to read as follows:
8-13 (a) No child may be fingerprinted without the consent of the
8-14 juvenile court except as provided by this subsection or by
8-15 Subsections (f) and (i) of this section. A child's fingerprints
8-16 may be taken and filed by a law-enforcement officer investigating a
8-17 case if:
8-18 (1) the child is 14 <15> years of age or older and is
8-19 referred to the juvenile court for any felony; or
8-20 (2) the child is under 14 <15> years of age and is
8-21 referred to the juvenile court for a felony listed in Section
8-22 53.045(a) of this code.
8-23 (b) Except as provided in Subsections (h) and (i) of this
8-24 section, no child taken into custody may be photographed without
8-25 the consent of the juvenile court unless:
8-26 (1) the child is 14 <15> years of age or older and is
8-27 referred to the juvenile court for a felony; or
9-1 (2) the child is under 14 <15> years of age and is
9-2 referred to the juvenile court for a felony listed in Section
9-3 53.045(a) of this code.
9-4 SECTION 10. Section 51.151, Family Code, is amended to read
9-5 as follows:
9-6 Sec. 51.151. Polygraph Examination. If a child is taken
9-7 into custody under Section 52.01 of this code, a person may not
9-8 administer a polygraph examination to the child without the consent
9-9 of the child's attorney or the juvenile court unless the child is
9-10 transferred to criminal court for prosecution under Section 53.041
9-11 or 54.02 of this code.
9-12 SECTION 11. Section 51.16(k), Family Code, is amended to
9-13 read as follows:
9-14 (k) A court may not order under this section the sealing of
9-15 files and records concerning a person adjudicated as having engaged
9-16 in delinquent conduct that violated a penal law of the grade of
9-17 felony unless:
9-18 (1) the person is 23 years of age or older;
9-19 (2) the files and records have not been:
9-20 (A) made a part of the person's adult record as
9-21 a result of the use of the files or records after the juvenile
9-22 court under Section 53.041 or 54.02 of this code transferred the
9-23 person to a criminal court for prosecution; or
9-24 (B) used as evidence in the punishment phase of
9-25 a criminal proceeding under Section 3(a), Article 37.07, Code of
9-26 Criminal Procedure; and
9-27 (3) the person has not been convicted of a penal law
10-1 of the grade of felony after becoming age 17.
10-2 SECTION 12. Section 53.04(d), Family Code, is amended to
10-3 read as follows:
10-4 (d) The petition must state:
10-5 (1) with reasonable particularity the time, place, and
10-6 manner of the acts alleged and the penal law or standard of conduct
10-7 allegedly violated by the acts, including whether the child
10-8 allegedly used or exhibited a firearm or a knife during the
10-9 commission of the violation or during the immediate flight from
10-10 commission of the violation;
10-11 (2) the name, age, and residence address, if known, of
10-12 the child who is the subject of the petition;
10-13 (3) the names and residence addresses, if known, of
10-14 the parent, guardian, or custodian of the child and of the child's
10-15 spouse, if any; and
10-16 (4) if the child's parent, guardian, or custodian does
10-17 not reside or cannot be found in the state, or if their places of
10-18 residence are unknown, the name and residence address of any known
10-19 adult relative residing in the county or, if there is none, the
10-20 name and residence address of the known adult relative residing
10-21 nearest to the location of the court.
10-22 SECTION 13. Chapter 53, Family Code, is amended by adding
10-23 Section 53.041 to read as follows:
10-24 Sec. 53.041. REQUIRED TRANSFER TO CRIMINAL COURT. The
10-25 juvenile court shall waive the court's exclusive jurisdiction and
10-26 transfer a child to the appropriate district court or criminal
10-27 district court for criminal proceedings if the child has previously
11-1 been transferred under Section 54.02 to a criminal court for
11-2 criminal proceedings, unless:
11-3 (1) the child is not indicted by the grand jury in the
11-4 matter transferred;
11-5 (2) the child is found not guilty in the matter
11-6 transferred;
11-7 (3) the matter transferred is dismissed with
11-8 prejudice; or
11-9 (4) the child is convicted in the matter transferred,
11-10 the conviction is reversed on appeal, and the appeal is final.
11-11 SECTION 14. Section 53.045, Family Code, is amended by
11-12 amending Subsection (a) and adding Subsection (f) to read as
11-13 follows:
11-14 (a) Except as provided by Subsections <Subsection> (e) and
11-15 (f) of this section, the prosecuting attorney may refer the
11-16 petition to the grand jury of the county in which the court in
11-17 which the petition is filed presides if the petition alleges that
11-18 the child engaged in delinquent conduct that included:
11-19 (1) the violation of any of the following provisions
11-20 of the Penal Code:
11-21 (A) <(1)> Section 19.02 (murder);
11-22 (B) <(2)> Section 19.03 (capital murder);
11-23 (C) <(3)> Section 20.04 (aggravated kidnapping);
11-24 (D) <(4)> Section 22.021 (aggravated sexual
11-25 assault);
11-26 (E) <(5)> Section 22.02 (aggravated assault), if
11-27 the offense is classified as a felony of the first degree under
12-1 Subsection (b)(2) of that section <22.03 (deadly assault on a law
12-2 enforcement officer, corrections officer, or court participant)>;
12-3 or
12-4 (F) <(6)> Section 15.01 (criminal attempt), if
12-5 the offense attempted was an offense under Section 19.03 (capital
12-6 murder) or Section 19.02 (murder); or
12-7 (2) any violation of a penal law of the grade of
12-8 felony in which the child used or exhibited a firearm or knife
12-9 during the commission of the violation or during immediate flight
12-10 from commission of the violation.
12-11 (f) This section does not apply to a child for whom the
12-12 court has waived jurisdiction and transferred to another court for
12-13 criminal proceedings under Section 53.041.
12-14 SECTION 15. Sections 54.02(a) and (j), Family Code, are
12-15 amended to read as follows:
12-16 (a) Except as provided by Section 53.041, the <The> juvenile
12-17 court may waive its exclusive original jurisdiction and transfer a
12-18 child to the appropriate district court or criminal district court
12-19 for criminal proceedings if:
12-20 (1) the child is alleged to have violated a penal law
12-21 of the grade of felony;
12-22 (2) the child was 14 <15> years of age or older at the
12-23 time he is alleged to have committed the offense and no
12-24 adjudication hearing has been conducted concerning that offense;
12-25 and
12-26 (3) after full investigation and hearing the juvenile
12-27 court determines that there is probable cause to believe that the
13-1 child before the court committed the offense alleged and that
13-2 because of the seriousness of the offense or the background of the
13-3 child the welfare of the community requires criminal proceedings.
13-4 (j) The juvenile court may waive its exclusive original
13-5 jurisdiction and transfer a person to the appropriate district
13-6 court or criminal district court for criminal proceedings if:
13-7 (1) the person is 18 years of age or older;
13-8 (2) the person was 14 <15> years of age or older and
13-9 under 17 years of age at the time he is alleged to have committed a
13-10 felony;
13-11 (3) no adjudication concerning the alleged offense has
13-12 been made or no adjudication hearing concerning the offense has
13-13 been conducted;
13-14 (4) the juvenile court finds from a preponderance of
13-15 the evidence that after due diligence of the state it was not
13-16 practicable to proceed in juvenile court before the 18th birthday
13-17 of the person because:
13-18 (A) the state did not have probable cause to
13-19 proceed in juvenile court and new evidence has been found since the
13-20 18th birthday of the person; or
13-21 (B) the person could not be found; and
13-22 (5) the juvenile court determines that there is
13-23 probable cause to believe that the child before the court committed
13-24 the offense alleged.
13-25 SECTION 16. (a) The change in law made by this Act applies
13-26 only to conduct violating a penal law of this state that occurs on
13-27 or after the effective date of this Act. For purposes of this
14-1 section, conduct violating a penal law occurs before the effective
14-2 date of this Act if any element of the violation occurs before the
14-3 effective date.
14-4 (b) Conduct that occurs before the effective date of this
14-5 Act is covered by the law in effect when the conduct occurred, and
14-6 the former law is continued in effect for that purpose.
14-7 SECTION 17. This Act takes effect September 1, 1995.
14-8 SECTION 18. The importance of this legislation and the
14-9 crowded condition of the calendars in both houses create an
14-10 emergency and an imperative public necessity that the
14-11 constitutional rule requiring bills to be read on three several
14-12 days in each house be suspended, and this rule is hereby suspended.