By Hunter of Nueces H.B. No. 2222
74R1502 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adjudication and disposition of certain children
1-3 for engaging in certain conduct.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 34.54(b), Family Code, is amended to read
1-6 as follows:
1-7 (b) The department shall provide, directly or by contract,
1-8 services for a child and the child's family if the child is
1-9 referred to the department by a law enforcement agency for engaging
1-10 in conduct described by Section 51.03 of this code. The services
1-11 may include in-home programs, parenting skills training, youth
1-12 coping skills, and individual and family counseling. A child who
1-13 is referred to the department by a law enforcement agency must be
1-14 referred under Section 52.03 of this code if the child is eight
1-15 years of age or older and under 10 years of age.
1-16 SECTION 2. Section 51.02(1), Family Code, is amended to read
1-17 as follows:
1-18 (1) "Child" means a person who is:
1-19 (A) eight <ten> years of age or older and under
1-20 17 years of age; or
1-21 (B) seventeen years of age or older and under 18
1-22 years of age who is alleged or found to have engaged in delinquent
1-23 conduct or conduct indicating a need for supervision as a result of
1-24 acts committed before becoming 17 years of age.
2-1 SECTION 3. Section 51.09(b), Family Code, is conformed to
2-2 Chapter 557, Acts of the 72nd Legislature, Regular Session, 1991,
2-3 and is amended to read as follows:
2-4 (b) Notwithstanding any of the provisions of Subsection (a)
2-5 of this section, the statement of a child is admissible in evidence
2-6 in any future proceeding concerning the matter about which the
2-7 statement was given if:
2-8 (1) when the child is in a detention facility or other
2-9 place of confinement or in the custody of an officer, the statement
2-10 is made in writing and the statement shows that the child has at
2-11 some time prior to the making thereof received from a magistrate a
2-12 warning that:
2-13 (A) the child may remain silent and not make any
2-14 statement at all and that any statement that the child makes may be
2-15 used in evidence against the child;
2-16 (B) the child has the right to have an attorney
2-17 present to advise the child either prior to any questioning or
2-18 during the questioning;
2-19 (C) if the child is unable to employ an
2-20 attorney, the child has the right to have an attorney appointed to
2-21 counsel with the child prior to or during any interviews with peace
2-22 officers or attorneys representing the state;
2-23 (D) the child has the right to terminate the
2-24 interview at any time;
2-25 (E) if the child is 14 <15> years of age or
2-26 older at the time of the violation of a penal law of the grade of
2-27 felony the juvenile court may waive its jurisdiction and the child
3-1 may be tried as an adult;
3-2 (F) the child may be sentenced to commitment in
3-3 the Texas Youth Commission with a transfer to the institutional
3-4 division of the Texas Department of Criminal Justice for a term not
3-5 to exceed 40 years if the child is found to have engaged in
3-6 delinquent conduct, alleged in a petition approved by a grand jury,
3-7 that included the violation of a penal statute that is punishable
3-8 as a felony of the first degree or a felony of the second degree<:>
3-9 <(i) murder;>
3-10 <(ii) capital murder;>
3-11 <(iii) aggravated kidnapping;>
3-12 <(iv) aggravated sexual assault;>
3-13 <(v) deadly assault on a law enforcement
3-14 officer, corrections officer, court participant, or probation
3-15 personnel; or>
3-16 <(vi) attempted capital murder>; and
3-17 (G) the statement must be signed in the presence
3-18 of a magistrate by the child with no law enforcement officer or
3-19 prosecuting attorney present, except that a magistrate may require
3-20 a bailiff or a law enforcement officer if a bailiff is not
3-21 available to be present if the magistrate determines that the
3-22 presence of the bailiff or law enforcement officer is necessary for
3-23 the personal safety of the magistrate or other court personnel,
3-24 provided that the bailiff or law enforcement officer may not carry
3-25 a weapon in the presence of the child. The magistrate must be
3-26 fully convinced that the child understands the nature and contents
3-27 of the statement and that the child is signing the same
4-1 voluntarily. If such a statement is taken, the magistrate shall
4-2 sign a written statement verifying the foregoing requisites have
4-3 been met.
4-4 The child must knowingly, intelligently, and voluntarily
4-5 waive these rights prior to and during the making of the statement
4-6 and sign the statement in the presence of a magistrate who must
4-7 certify that he has examined the child independent of any law
4-8 enforcement officer or prosecuting attorney, except as required to
4-9 ensure the personal safety of the magistrate or other court
4-10 personnel, and has determined that the child understands the nature
4-11 and contents of the statement and has knowingly, intelligently, and
4-12 voluntarily waived these rights.
4-13 (2) it be made orally and the child makes a statement
4-14 of facts or circumstances that are found to be true, which conduct
4-15 tends to establish his guilt, such as the finding of secreted or
4-16 stolen property, or the instrument with which he states the offense
4-17 was committed.
4-18 (3) the statement was res gestae of the delinquent
4-19 conduct or the conduct indicating a need for supervision or of the
4-20 arrest.
4-21 SECTION 4. Section 51.09(c), Family Code, as amended by
4-22 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
4-23 Session, 1991, is reenacted to read as follows:
4-24 (c) A warning under Subsection (b)(1)(E) or Subsection
4-25 (b)(1)(F) of this section is required only when applicable to the
4-26 facts of the case. A failure to warn a child under Subsection
4-27 (b)(1)(E) of this section does not render a statement made by the
5-1 child inadmissible unless the child is transferred to a criminal
5-2 district court under Section 54.02 of this code. A failure to warn
5-3 a child under Subsection (b)(1)(F) of this section does not render
5-4 a statement made by the child inadmissible unless the state
5-5 proceeds against the child on a petition approved by a grand jury
5-6 under Section 53.045 of this code.
5-7 SECTION 5. Sections 51.15(a) and (b), Family Code, are
5-8 amended to read as follows:
5-9 (a) No child may be fingerprinted without the consent of the
5-10 juvenile court except as provided by this subsection or by
5-11 Subsections (f) and (i) of this section. A child's fingerprints
5-12 may be taken and filed by a law-enforcement officer investigating a
5-13 case if:
5-14 (1) the child is 14 <15> years of age or older and is
5-15 referred to the juvenile court for any felony; or
5-16 (2) the child is under 14 <15> years of age and is
5-17 referred to the juvenile court for a felony covered by <listed in>
5-18 Section 53.045(a) of this code.
5-19 (b) Except as provided in Subsections (h) and (i) of this
5-20 section, no child taken into custody may be photographed without
5-21 the consent of the juvenile court unless:
5-22 (1) the child is 14 <15> years of age or older and is
5-23 referred to the juvenile court for a felony; or
5-24 (2) the child is under 14 <15> years of age and is
5-25 referred to the juvenile court for a felony covered by <listed in>
5-26 Section 53.045(a) of this code.
5-27 SECTION 6. Section 53.045(a), Family Code, is amended to
6-1 read as follows:
6-2 (a) Except as provided by Subsection (e) of this section,
6-3 the prosecuting attorney may refer the petition to the grand jury
6-4 of the county in which the court in which the petition is filed
6-5 presides if the petition alleges that the child engaged in
6-6 delinquent conduct that included the violation of a penal statute
6-7 that is punishable as a felony of the first degree or a felony of
6-8 the second degree <any of the following provisions of the Penal
6-9 Code:>
6-10 <(1) Section 19.02 (murder);>
6-11 <(2) Section 19.03 (capital murder);>
6-12 <(3) Section 20.04 (aggravated kidnapping);>
6-13 <(4) Section 22.021 (aggravated sexual assault);>
6-14 <(5) Section 22.03 (deadly assault on a law
6-15 enforcement officer, corrections officer, or court participant); or>
6-16 <(6) Section 15.01 (criminal attempt), if the offense
6-17 attempted was an offense under Section 19.03 (capital murder)>.
6-18 SECTION 7. Sections 54.02(a) and (j), Family Code, are
6-19 amended to read as follows:
6-20 (a) The juvenile court may waive its exclusive original
6-21 jurisdiction and transfer a child to the appropriate district court
6-22 or criminal district court for criminal proceedings if:
6-23 (1) the child is alleged to have violated a penal law
6-24 of the grade of felony;
6-25 (2) the child was 14 <15> years of age or older at the
6-26 time he is alleged to have committed the offense and no
6-27 adjudication hearing has been conducted concerning that offense;
7-1 and
7-2 (3) after full investigation and hearing the juvenile
7-3 court determines that there is probable cause to believe that the
7-4 child before the court committed the offense alleged and
7-5 that because of the seriousness of the offense or the background of
7-6 the child the welfare of the community requires criminal
7-7 proceedings.
7-8 (j) The juvenile court may waive its exclusive original
7-9 jurisdiction and transfer a person to the appropriate district
7-10 court or criminal district court for criminal proceedings if:
7-11 (1) the person is 18 years of age or older;
7-12 (2) the person was 14 <15> years of age or older and
7-13 under 17 years of age at the time he is alleged to have committed a
7-14 felony;
7-15 (3) no adjudication concerning the alleged offense has
7-16 been made or no adjudication hearing concerning the offense has
7-17 been conducted;
7-18 (4) the juvenile court finds from a preponderance of
7-19 the evidence that after due diligence of the state it was not
7-20 practicable to proceed in juvenile court before the 18th birthday
7-21 of the person because:
7-22 (A) the state did not have probable cause to
7-23 proceed in juvenile court and new evidence has been found since the
7-24 18th birthday of the person; or
7-25 (B) the person could not be found; and
7-26 (5) the juvenile court determines that there is
7-27 probable cause to believe that the child before the court committed
8-1 the offense alleged.
8-2 SECTION 8. Chapter 54, Family Code, is amended by adding
8-3 Section 54.022 to read as follows:
8-4 Sec. 54.022. WAIVER OF JURISDICTION AND MANDATORY TRANSFER
8-5 TO CRIMINAL COURT. The juvenile court shall waive its exclusive
8-6 original jurisdiction and transfer a child to the appropriate
8-7 district court or criminal district court for criminal proceedings
8-8 if:
8-9 (1) the child is alleged to have violated a penal law;
8-10 (2) the child was 14 years of age or older at the time
8-11 the child is alleged to have committed the offense and an
8-12 adjudication hearing has not been conducted concerning that
8-13 offense; and
8-14 (3) the child has been transferred under Section 54.02
8-15 for a previous offense.
8-16 SECTION 9. Section 54.04(d), Family Code, is amended to read
8-17 as follows:
8-18 (d) If the court or jury makes the finding specified in
8-19 Subsection (c) of this section allowing the court to make a
8-20 disposition in the case:
8-21 (1) the court or jury may, in addition to any order
8-22 required or authorized under Section 54.041 or 54.042 of this code,
8-23 place the child on probation on such reasonable and lawful terms as
8-24 the court may determine:
8-25 (A) in his own home or in the custody of a
8-26 relative or other fit person; or
8-27 (B) subject to the finding under Subsection (c)
9-1 of this section on the placement of the child outside the child's
9-2 home, in:
9-3 (i) a suitable foster home; or
9-4 (ii) a suitable public or private
9-5 institution or agency, except the Texas Youth Commission;
9-6 (2) if the court or jury found at the conclusion of
9-7 the adjudication hearing that the child engaged in delinquent
9-8 conduct and if the petition was not approved by the grand jury
9-9 under Section 53.045 of this code, the court may commit the child
9-10 to the Texas Youth Commission without a determinate sentence; or
9-11 (3) if the court or jury found at the conclusion of
9-12 the adjudication hearing that the child engaged in delinquent
9-13 conduct that included a violation of a penal law covered by <listed
9-14 in> Section 53.045(a) of this code and if the petition was approved
9-15 by the grand jury under Section 53.045 of this code, the court or
9-16 jury may sentence the child to commitment in the Texas Youth
9-17 Commission with a transfer to the institutional division of the
9-18 Texas Department of Criminal Justice for any term of years not to
9-19 exceed 40 years.
9-20 SECTION 10. Section 54.041(b), Family Code, is amended to
9-21 read as follows:
9-22 (b) If a child is found to have engaged in delinquent
9-23 conduct arising from the commission of an offense in which property
9-24 damage or loss or personal injury occurred, the juvenile court, on
9-25 notice to all persons affected and on hearing, may order the child
9-26 or a parent to make full or partial restitution to the victim of
9-27 the offense. The program of restitution must promote the
10-1 rehabilitation of the child, be appropriate to the age and
10-2 physical, emotional, and mental abilities of the child, and not
10-3 conflict with the child's schooling. When practicable and subject
10-4 to court supervision, the court may approve a restitution program
10-5 based on a settlement between the child and the victim of the
10-6 offense. An order under this subsection may provide for periodic
10-7 payments by the child or a parent of the child for the period
10-8 specified in the order but that period may not extend past the 18th
10-9 birthday of the child. If <the child or parent is unable to make
10-10 full or partial restitution or if> a restitution order is not
10-11 appropriate under the circumstances, the court may order the child
10-12 to render personal services to a charitable or educational
10-13 institution in the manner prescribed in the court order in lieu of
10-14 restitution. The financial status of a child or a child's family
10-15 may not be considered in determining whether a restitution order
10-16 or an order requiring a child to render personal services to a
10-17 charitable or educational institution is appropriate under this
10-18 subsection. Restitution under this section is cumulative of any
10-19 other remedy allowed by law and may be used in addition to other
10-20 remedies; except that a victim of an offense is not entitled to
10-21 receive more than actual damages under a juvenile court order. A
10-22 city, town, or county that establishes a program to assist children
10-23 in rendering personal services to a charitable or educational
10-24 institution as authorized by this subsection may purchase insurance
10-25 policies protecting the city, town, or county against claims
10-26 brought by a person other than the child for a cause of action that
10-27 arises from an act of the child while rendering those services.
11-1 The city, town, or county is not liable under this Act to the
11-2 extent that damages are recoverable under a contract of insurance
11-3 or under a plan of self-insurance authorized by statute. The
11-4 liability of the city, town, or county for a cause of action that
11-5 arises from an action of the child while rendering those services
11-6 may not exceed $100,000 to a single person and $300,000 for a
11-7 single occurrence in the case of personal injury or death, and
11-8 $10,000 for a single occurrence of property damage. Liability may
11-9 not extend to punitive or exemplary damages. This subsection does
11-10 not waive a defense, immunity, or jurisdictional bar available to
11-11 the city, town, or county or its officers or employees, nor shall
11-12 this Act be construed to waive, repeal, or modify any provision of
11-13 Chapter 101, Civil Practice and Remedies Code <the Texas Tort
11-14 Claims Act, as amended (Article 6252-19, Vernon's Texas Civil
11-15 Statutes)>.
11-16 SECTION 11. Section 54.05(f), Family Code, is amended to
11-17 read as follows:
11-18 (f) A disposition based on a finding that the child engaged
11-19 in delinquent conduct may be modified so as to commit the child to
11-20 the Texas Youth Commission if the court after a hearing to modify
11-21 disposition finds beyond a reasonable doubt that the child violated
11-22 a reasonable and lawful order of the court. A disposition based on
11-23 a finding that the child engaged in a delinquent conduct that
11-24 included a violation of a penal law covered by <listed in> Section
11-25 53.045(a) of this code may be modified to commit the child to the
11-26 Texas Youth Commission with a transfer to the institutional
11-27 division of the Texas Department of Criminal Justice for a definite
12-1 term not to exceed 40 years if the original petition was approved
12-2 by the grand jury under Section 53.045 of this code and if after a
12-3 hearing to modify the disposition the court or jury finds that the
12-4 child violated a reasonable and lawful order of the court.
12-5 SECTION 12. Section 8.07(a), Penal Code, is amended to read
12-6 as follows:
12-7 (a) A person may not be prosecuted for or convicted of any
12-8 offense that he committed when younger than 14 <15> years of age
12-9 except:
12-10 (1) perjury and aggravated perjury when it appears by
12-11 proof that he had sufficient discretion to understand the nature
12-12 and obligation of an oath;
12-13 (2) a violation of a penal statute cognizable under
12-14 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957
12-15 (Article 6701l-4, Vernon's Texas Civil Statutes), except conduct
12-16 which violates the laws of this state prohibiting driving while
12-17 intoxicated or under the influence of intoxicating liquor (first or
12-18 subsequent offense) or driving while under the influence of any
12-19 narcotic drug or of any other drug to a degree which renders him
12-20 incapable of safely driving a vehicle (first or subsequent
12-21 offense);
12-22 (3) a violation of a motor vehicle traffic ordinance
12-23 of an incorporated city or town in this state;
12-24 (4) a misdemeanor punishable by fine only other than
12-25 public intoxication; or
12-26 (5) a violation of a penal ordinance of a political
12-27 subdivision.
13-1 SECTION 13. (a) The change in law made by this Act applies
13-2 only to conduct that occurs on or after the effective date of this
13-3 Act. Conduct violating a penal law of the state occurs on or after
13-4 the effective date of this Act if every element of the violation
13-5 occurs on or after that date.
13-6 (b) Conduct that occurs before the effective date of this
13-7 Act is covered by the law in effect at the time the conduct
13-8 occurred, and the former law is continued in effect for that
13-9 purpose.
13-10 SECTION 14. This Act takes effect September 1, 1995.
13-11 SECTION 15. The importance of this legislation and the
13-12 crowded condition of the calendars in both houses create an
13-13 emergency and an imperative public necessity that the
13-14 constitutional rule requiring bills to be read on three several
13-15 days in each house be suspended, and this rule is hereby suspended.