By Patterson S.B. No. 73
74R123 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the mandatory waiver of exclusive jurisdiction by
1-3 juvenile courts for certain delinquent children, the transfer of
1-4 the jurisdiction for those children to the criminal courts, and the
1-5 adjudication and disposition of those children for whom the
1-6 juvenile court retains jurisdiction.
1-7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-8 SECTION 1. Chapter 53, Family Code, is amended by adding
1-9 Section 53.041 to read as follows:
1-10 Sec. 53.041. MANDATORY WAIVER OF JURISDICTION. (a) Except
1-11 as provided by Section 54.02(b), the juvenile court shall waive the
1-12 court's exclusive jurisdiction and transfer a child to the
1-13 appropriate district court or criminal district court for criminal
1-14 proceedings if the child is alleged in a petition under Section
1-15 53.04 to have engaged in delinquent conduct that included a
1-16 violation of any of the following provisions:
1-17 (1) Section 19.02, Penal Code (murder);
1-18 (2) Section 19.03, Penal Code (capital murder);
1-19 (3) Section 20.04, Penal Code (aggravated kidnapping);
1-20 (4) Section 22.021, Penal Code (aggravated sexual
1-21 assault);
1-22 (5) Section 22.02, Penal Code (aggravated assault), if
1-23 the offense is classified as a felony of the first degree under
1-24 Section 22.02(b)(2), Penal Code;
2-1 (6) Section 29.03, Penal Code (aggravated robbery);
2-2 (7) Section 15.01, Penal Code (criminal attempt), if
2-3 the offense attempted was an offense under Section 19.03, Penal
2-4 Code (capital murder); or
2-5 (8) Sections 481.112, 481.113, 481.114, 481.120, or
2-6 481.122, Health and Safety Code.
2-7 SECTION 2. Section 53.045(a), Family Code, is amended to
2-8 read as follows:
2-9 (a) Except as provided by Subsection (e) of this section,
2-10 the prosecuting attorney may refer the petition to the grand jury
2-11 of the county in which the court in which the petition is filed
2-12 presides if the court has retained jurisdiction under Section
2-13 54.02(b) and the petition alleges that the child engaged in
2-14 delinquent conduct that included the violation of any of the
2-15 following provisions <of the Penal Code>:
2-16 (1) Section 19.02, Penal Code (murder);
2-17 (2) Section 19.03, Penal Code (capital murder);
2-18 (3) Section 20.04, Penal Code (aggravated kidnapping);
2-19 (4) Section 22.021, Penal Code (aggravated sexual
2-20 assault);
2-21 (5) Section 22.02, Penal Code (aggravated <22.03
2-22 (deadly> assault), if the offense is classified as a felony of the
2-23 first degree under Section 22.02(b)(2), Penal Code;
2-24 (6) Section 29.03, Penal Code (aggravated robbery);
2-25 (7) <on a law enforcement officer, corrections
2-26 officer, or court participant); or>
2-27 <(6)> Section 15.01, Penal Code (criminal attempt), if
3-1 the offense attempted was an offense under Section 19.03, Penal
3-2 Code (capital murder); or
3-3 (8) Sections 481.112, 481.113, 481.114, 481.120, or
3-4 481.122, Health and Safety Code.
3-5 SECTION 3. Section 54.02, Family Code, is amended to read as
3-6 follows:
3-7 Sec. 54.02. Waiver of Jurisdiction and <Discretionary>
3-8 Transfer to Criminal Court. (a) Except as provided by Subsection
3-9 (b), the <The> juvenile court may waive its exclusive original
3-10 jurisdiction and transfer a child to the appropriate district court
3-11 or criminal district court for criminal proceedings if:
3-12 (1) the child is alleged to have violated a penal law
3-13 of the grade of felony;
3-14 (2) the child was 15 years of age or older at the time
3-15 he is alleged to have committed the offense and no adjudication
3-16 hearing has been conducted concerning that offense; and
3-17 (3) after full investigation and hearing the juvenile
3-18 court determines that there is probable cause to believe that the
3-19 child before the court committed the offense alleged and that
3-20 because of the seriousness of the offense or the background of the
3-21 child the welfare of the community requires criminal proceedings.
3-22 (b) The juvenile court shall waive the court's exclusive
3-23 original jurisdiction and transfer to the appropriate district
3-24 court or criminal district court for criminal proceedings without
3-25 the hearing required under Subsection (a) a child who is alleged in
3-26 a petition under Section 53.04 to have engaged in delinquent
3-27 conduct that includes a violation of an offense listed in Section
4-1 53.041. A child alleged to have engaged in conduct that includes
4-2 an offense listed in Section 53.041 may petition the juvenile court
4-3 to retain the court's exclusive original jurisdiction by filing
4-4 with the court a petition to retain jurisdiction not later than the
4-5 15th day after the date the petition under Section 53.04 was filed.
4-6 The filing of a petition to retain jurisdiction under this
4-7 subsection stays the transfer of the child to a district court or
4-8 criminal district court for criminal proceedings. The juvenile
4-9 court shall conduct a hearing without a jury to consider the
4-10 child's petition to retain jurisdiction. Subsections (c), (e), and
4-11 (f) apply to a hearing on a petition to retain jurisdiction under
4-12 this subsection.
4-13 (c) <(b)> The petition and notice requirements of Sections
4-14 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and
4-15 the summons must state that the hearing is for the purpose of
4-16 considering <discretionary> transfer to criminal court.
4-17 (d) <(c)> The juvenile court shall conduct a hearing without
4-18 a jury to consider transfer of the child for criminal proceedings.
4-19 (e) <(d)> Prior to the hearing, the juvenile court shall
4-20 order and obtain a complete diagnostic study, social evaluation,
4-21 and full investigation of the child, his circumstances, and the
4-22 circumstances of the alleged offense.
4-23 (f) <(e)> At the transfer hearing the court may consider
4-24 written reports from probation officers, professional court
4-25 employees, or professional consultants in addition to the testimony
4-26 of witnesses. At least one day prior to the transfer hearing, the
4-27 court shall provide the attorney for the child with access to all
5-1 written matter to be considered by the court in making the transfer
5-2 decision. The court may order counsel not to reveal items to the
5-3 child or his parent, guardian, or guardian ad litem if such
5-4 disclosure would materially harm the treatment and rehabilitation
5-5 of the child or would substantially decrease the likelihood of
5-6 receiving information from the same or similar sources in the
5-7 future.
5-8 (g) <(f)> In making the determination whether to waive
5-9 jurisdiction as required by Subsection (a) of this section or to
5-10 retain jurisdiction as required by Subsection (b) of this section,
5-11 the court shall consider, among other matters:
5-12 (1) whether the alleged offense was against person or
5-13 property, with greater weight in favor of transfer given to
5-14 offenses against the person;
5-15 (2) whether the alleged offense was committed in an
5-16 aggressive and premeditated manner;
5-17 (3) whether there is evidence on which a grand jury
5-18 may be expected to return an indictment;
5-19 (4) the sophistication and maturity of the child;
5-20 (5) the record and previous history of the child; and
5-21 (6) the prospects of adequate protection of the public
5-22 and the likelihood of the rehabilitation of the child by use of
5-23 procedures, services, and facilities currently available to the
5-24 juvenile court.
5-25 (h) <(g)> If the juvenile court retains jurisdiction, the
5-26 child is not subject to criminal prosecution at any time for any
5-27 offense alleged in the petition or for any offense within the
6-1 knowledge of the juvenile court judge as evidenced by anything in
6-2 the record of the proceedings.
6-3 (i) <(h)> If the juvenile court waives jurisdiction, it
6-4 shall state specifically in the order its reasons for waiver and
6-5 certify its action, including the written order and findings of the
6-6 court, and shall transfer the child to the appropriate court for
6-7 criminal proceedings. On transfer of the child for criminal
6-8 proceedings, he shall be dealt with as an adult and in accordance
6-9 with the Code of Criminal Procedure. The transfer of custody is an
6-10 arrest. The court to which the child is transferred shall
6-11 determine if good cause exists for an examining trial. If there is
6-12 no good cause for an examining trial, the court shall refer the
6-13 case to the grand jury. If there is good cause for an examining
6-14 trial, the court shall conduct an examining trial and may remand
6-15 the child to the jurisdiction of the juvenile court.
6-16 (j) <(i)> If the child's case is brought to the attention of
6-17 the grand jury and the grand jury does not indict for the offense
6-18 charged in the complaint forwarded by the juvenile court, the
6-19 district court or criminal district court shall certify the grand
6-20 jury's failure to indict to the juvenile court. On receipt of the
6-21 certification, the juvenile court may resume jurisdiction of the
6-22 case. A case in which the juvenile court resumes jurisdiction
6-23 under this section that was transferred to the criminal court under
6-24 Subsection (b) may not be referred to a grand jury under Section
6-25 53.045.
6-26 (k) <(j)> The juvenile court may waive its exclusive
6-27 original jurisdiction and transfer a person to the appropriate
7-1 district court or criminal district court for criminal proceedings
7-2 if:
7-3 (1) the person is 18 years of age or older;
7-4 (2) the person was 15 years of age or older and under
7-5 17 years of age at the time he is alleged to have committed a
7-6 felony;
7-7 (3) no adjudication concerning the alleged offense has
7-8 been made or no adjudication hearing concerning the offense has
7-9 been conducted;
7-10 (4) the juvenile court finds from a preponderance of
7-11 the evidence that after due diligence of the state it was not
7-12 practicable to proceed in juvenile court before the 18th birthday
7-13 of the person because:
7-14 (A) the state did not have probable cause to
7-15 proceed in juvenile court and new evidence has been found since the
7-16 18th birthday of the person; or
7-17 (B) the person could not be found; and
7-18 (5) the juvenile court determines that there is
7-19 probable cause to believe that the child before the court committed
7-20 the offense alleged.
7-21 (l) <(k)> The petition and notice requirements of Sections
7-22 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and
7-23 the summons must state that the hearing is for the purpose of
7-24 considering waiver of jurisdiction under Subsection (k) <(j)> of
7-25 this section.
7-26 (m) <(l)> The juvenile court shall conduct a hearing without
7-27 a jury to consider waiver of jurisdiction under Subsection (k)
8-1 <(j)> of this section.
8-2 SECTION 4. Section 51.09(b), Family Code, as amended by
8-3 Chapters 429 and 593, Acts of the 72nd Legislature, Regular
8-4 Session, 1991, is conformed to Chapter 557, Acts of the 72nd
8-5 Legislature, Regular Session, 1991, and amended to read as follows:
8-6 (b) Notwithstanding any of the provisions of Subsection (a)
8-7 of this section, the statement of a child is admissible in evidence
8-8 in any future proceeding concerning the matter about which the
8-9 statement was given if:
8-10 (1) when the child is in a detention facility or other
8-11 place of confinement or in the custody of an officer, the statement
8-12 is made in writing and the statement shows that the child has at
8-13 some time prior to the making thereof received from a magistrate a
8-14 warning that:
8-15 (A) the child may remain silent and not make any
8-16 statement at all and that any statement that the child makes may be
8-17 used in evidence against the child;
8-18 (B) the child has the right to have an attorney
8-19 present to advise the child either prior to any questioning or
8-20 during the questioning;
8-21 (C) if the child is unable to employ an
8-22 attorney, the child has the right to have an attorney appointed to
8-23 counsel with the child prior to or during any interviews with peace
8-24 officers or attorneys representing the state;
8-25 (D) the child has the right to terminate the
8-26 interview at any time;
8-27 (E) the juvenile court is required to waive its
9-1 jurisdiction and transfer the child to criminal court if a petition
9-2 is filed in which the child is alleged to have engaged in
9-3 delinquent conduct that includes a violation of any of the
9-4 following provisions:
9-5 (i) Section 19.02, Penal Code (murder);
9-6 (ii) Section 19.03, Penal Code (capital
9-7 murder);
9-8 (iii) Section 20.04, Penal Code
9-9 (aggravated kidnapping);
9-10 (iv) Section 22.021, Penal Code
9-11 (aggravated sexual assault);
9-12 (v) Section 22.02, Penal Code (aggravated
9-13 assault), if the offense is classified as a felony of the first
9-14 degree under Section 22.02(b)(2), Penal Code;
9-15 (vi) Section 29.03, Penal Code (aggravated
9-16 robbery);
9-17 (vii) Section 15.01, Penal Code (criminal
9-18 attempt), if the offense attempted was an offense under Section
9-19 19.03, Penal Code (capital murder); or
9-20 (viii) Sections 481.112, 481.113, 481.114,
9-21 481.120, or 481.122, Health and Safety Code <if the child is 15
9-22 years of age or older at the time of the violation of a penal law
9-23 of the grade of felony the juvenile court may waive its
9-24 jurisdiction and the child may be tried as an adult>;
9-25 (F) the child may be sentenced to commitment in
9-26 the Texas Youth Commission with a transfer to the institutional
9-27 division of the Texas Department of Criminal Justice for a term not
10-1 to exceed 40 years if the court has retained jurisdiction under
10-2 Section 54.02(b) and the child is found to have engaged in
10-3 delinquent conduct, alleged in a petition approved by a grand jury,
10-4 that included:
10-5 (i) Section 19.02, Penal Code (murder);
10-6 (ii) Section 19.03, Penal Code (capital
10-7 murder);
10-8 (iii) Section 20.04, Penal Code
10-9 (aggravated kidnapping);
10-10 (iv) Section 22.021, Penal Code
10-11 (aggravated sexual assault);
10-12 (v) Section 22.02, Penal Code (aggravated
10-13 assault), if the offense is classified as a felony of the first
10-14 degree under Section 22.02(b)(2), Penal Code;
10-15 (vi) Section 29.03, Penal Code (aggravated
10-16 robbery);
10-17 (vii) Section 15.01, Penal Code (criminal
10-18 attempt), if the offense attempted was an offense under Section
10-19 19.03, Penal Code (capital murder); or
10-20 (viii) Sections 481.112, 481.113, 481.114,
10-21 481.120, or 481.122, Health and Safety Code; <deadly assault on a
10-22 law enforcement officer, corrections officer, court participant, or
10-23 probation personnel; or>
10-24 <(vi) attempted capital murder; and>
10-25 (G) in addition to the circumstances in which a
10-26 juvenile court is required to waive its jurisdiction and transfer
10-27 the child to criminal court, the juvenile court may waive its
11-1 jurisdiction and transfer the child to criminal court if the child
11-2 is 15 years of age or older and the court determines that there is
11-3 probable cause to believe that the child committed a felony other
11-4 than a felony that requires the court to waive its jurisdiction;
11-5 and
11-6 (H) the statement must be signed in the presence
11-7 of a magistrate by the child with no law enforcement officer or
11-8 prosecuting attorney present, except that a magistrate may require
11-9 a bailiff or a law enforcement officer if a bailiff is not
11-10 available to be present if the magistrate determines that the
11-11 presence of the bailiff or law enforcement officer is necessary for
11-12 the personal safety of the magistrate or other court personnel,
11-13 provided that the bailiff or law enforcement officer may not carry
11-14 a weapon in the presence of the child. The magistrate must be
11-15 fully convinced that the child understands the nature and contents
11-16 of the statement and that the child is signing the same
11-17 voluntarily. If such a statement is taken, the magistrate shall
11-18 sign a written statement verifying the foregoing requisites have
11-19 been met.
11-20 The child must knowingly, intelligently, and voluntarily
11-21 waive these rights prior to and during the making of the statement
11-22 and sign the statement in the presence of a magistrate who must
11-23 certify that he has examined the child independent of any law
11-24 enforcement officer or prosecuting attorney, except as required to
11-25 ensure the personal safety of the magistrate or other court
11-26 personnel, and has determined that the child understands the nature
11-27 and contents of the statement and has knowingly, intelligently, and
12-1 voluntarily waived these rights.
12-2 (2) it be made orally and the child makes a statement
12-3 of facts or circumstances that are found to be true, which conduct
12-4 tends to establish his guilt, such as the finding of secreted or
12-5 stolen property, or the instrument with which he states the offense
12-6 was committed.
12-7 (3) the statement was res gestae of the delinquent
12-8 conduct or the conduct indicating a need for supervision or of the
12-9 arrest.
12-10 SECTION 5. Section 51.09(c), Family Code, as amended by
12-11 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
12-12 Session, 1991, is amended and reenacted to read as follows:
12-13 (c) A warning under Subsection (b)(1)(E), <or> Subsection
12-14 (b)(1)(F), or Subsection (b)(1)(G) of this section is required only
12-15 when applicable to the facts of the case. A failure to warn a
12-16 child under these subsections <Subsection (b)(1)(E) of this
12-17 section> does not render a statement made by the child inadmissible
12-18 unless the child is transferred to a criminal district court under
12-19 Section 54.02 of this code. A failure to warn a child under
12-20 Subsection (b)(1)(F) of this section does not render a statement
12-21 made by the child inadmissible unless the state proceeds against
12-22 the child on a petition approved by a grand jury under Section
12-23 53.045 of this code.
12-24 SECTION 6. Subchapter C, Chapter 499, Government Code, is
12-25 amended by adding Section 499.055 to read as follows:
12-26 Sec. 499.055. CONFINEMENT OF YOUTHFUL FELONS. (a) This
12-27 section applies to an inmate sentenced to confinement in the
13-1 institutional division of the Texas Department of Criminal Justice
13-2 if the inmate's sentence:
13-3 (1) is for an offense for which the inmate was
13-4 transferred from juvenile court to criminal court under Section
13-5 54.02, Family Code; and
13-6 (2) begins at least 30 days before the inmate's 21st
13-7 birthday.
13-8 (b) The Texas Youth Commission shall contract with the
13-9 institutional division of the Texas Department of Criminal Justice
13-10 to provide the division with a facility for the confinement of
13-11 inmates described by Subsection (a). The division shall provide
13-12 guards and other personnel necessary to confine the inmates. The
13-13 contract between the division and the commission shall establish
13-14 the respective responsibility of the two agencies for the
13-15 confinement of inmates described by Subsection (a). The division
13-16 and the commission shall each by rule adopt policies and practices
13-17 in furtherance of the contract and may enter into a memorandum of
13-18 understanding about shared duties and powers under the contract.
13-19 (c) If an inmate confined in a facility provided by the
13-20 Texas Youth Commission has at least 30 days of a sentence remaining
13-21 to serve on the inmate's 21st birthday, the institutional division
13-22 of the Texas Department of Criminal Justice shall transfer the
13-23 inmate from the facility to any other unit operated by the
13-24 division.
13-25 (d) An inmate confined in a facility provided by the Texas
13-26 Youth Commission is under the custody and control of the
13-27 institutional division of the Texas Department of Criminal Justice
14-1 and all laws relating to good conduct time and eligibility for
14-2 release on parole or mandatory supervision apply to the inmate in
14-3 the same manner as those laws apply to an inmate confined in any
14-4 other unit of the division.
14-5 SECTION 7. This Act takes effect September 1, 1995.
14-6 SECTION 8. (a) The change in law made by this Act applies
14-7 only to conduct that occurs on or after the effective date of this
14-8 Act. Conduct violating a penal law of the state occurs on or after
14-9 the effective date of this Act if every element of the violation
14-10 occurs on or after that date.
14-11 (b) Conduct that occurs before the effective date of this
14-12 Act is covered by the law in effect at the time the conduct
14-13 occurred, and the former law is continued in effect for that
14-14 purpose.
14-15 SECTION 9. On the 120th day after the effective date of this
14-16 Act, the institutional division of the Texas Department of Criminal
14-17 Justice shall transfer to a facility provided by the Texas Youth
14-18 Commission any inmate in its custody who is under 20 years and nine
14-19 months of age on that date and who has at least 30 days remaining
14-20 to serve of a sentence for an offense for which the person was
14-21 transferred to criminal court under Section 54.02, Family Code.
14-22 SECTION 10. The importance of this legislation and the
14-23 crowded condition of the calendars in both houses create an
14-24 emergency and an imperative public necessity that the
14-25 constitutional rule requiring bills to be read on three several
14-26 days in each house be suspended, and this rule is hereby suspended.