By Brown S.B. No. 105
74R1779 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adjudication and disposition of children for
1-3 delinquent conduct that violates certain penal laws of this state.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 51.09(b), Family Code, is conformed to
1-6 Chapter 557, Acts of the 72nd Legislature, Regular Session, 1991,
1-7 and amended to read as follows:
1-8 (b) Notwithstanding any of the provisions of Subsection (a)
1-9 of this section, the statement of a child is admissible in evidence
1-10 in any future proceeding concerning the matter about which the
1-11 statement was given if:
1-12 (1) when the child is in a detention facility or other
1-13 place of confinement or in the custody of an officer, the statement
1-14 is made in writing and the statement shows that the child has at
1-15 some time prior to the making thereof received from a magistrate a
1-16 warning that:
1-17 (A) the child may remain silent and not make any
1-18 statement at all and that any statement that the child makes may be
1-19 used in evidence against the child;
1-20 (B) the child has the right to have an attorney
1-21 present to advise the child either prior to any questioning or
1-22 during the questioning;
1-23 (C) if the child is unable to employ an
1-24 attorney, the child has the right to have an attorney appointed to
2-1 counsel with the child prior to or during any interviews with peace
2-2 officers or attorneys representing the state;
2-3 (D) the child has the right to terminate the
2-4 interview at any time;
2-5 (E) if the child is 15 years of age or older at
2-6 the time of the violation of a penal law of the grade of felony the
2-7 juvenile court may waive its jurisdiction and the child may be
2-8 tried as an adult;
2-9 (F) the child may be sentenced to commitment in
2-10 the Texas Youth Commission with a transfer to the institutional
2-11 division of the Texas Department of Criminal Justice for a term not
2-12 to exceed 40 years if the child is found to have engaged in
2-13 delinquent conduct, alleged in a petition approved by a grand jury,
2-14 that included:
2-15 (i) murder;
2-16 (ii) capital murder;
2-17 (iii) aggravated kidnapping;
2-18 (iv) aggravated sexual assault;
2-19 (v) aggravated robbery;
2-20 (vi) aggravated assault punishable under
2-21 Section 22.02(b)(2), Penal Code <deadly assault on a law
2-22 enforcement officer, corrections officer, court participant, or
2-23 probation personnel>; <or>
2-24 (vii) <(vi)> attempted capital murder;
2-25 (viii) attempted murder;
2-26 (ix) manslaughter;
2-27 (x) attempted aggravated kidnapping;
3-1 (xi) indeceny with a child, if the offense
3-2 is punishable under Section 21.11(a)(1), Penal Code;
3-3 (xii) sexual assault;
3-4 (xiii) attempted aggravated sexual
3-5 assault;
3-6 (xiv) injury to a child, elderly
3-7 individual, or disabled individual, if the offense is punishable
3-8 under Section 22.04(a)(1) or (2), Penal Code;
3-9 (xv) abandoning or endangering a child, if
3-10 the offense is punishable under Section 22.041(e), Penal Code;
3-11 (xvi) tampering with a consumer product,
3-12 if the offense is punishable under Section 22.09(b), Penal Code;
3-13 (xvii) arson, if the offense is punishable
3-14 as a first degree felony under Section 28.02(d), Penal Code;
3-15 (xviii) burglary, if the offense is
3-16 punishable under Section 30.02(d), Penal Code;
3-17 (xix) escape, if the offense is punishable
3-18 under Section 38.06(e), Penal Code; or
3-19 (xx) manufacture, delivery, possession
3-20 with intent to manufacture or deliver, or possession of a
3-21 controlled substance or controlled substance analogue, if the
3-22 offense is punishable by imprisonment for life under Section
3-23 481.112, 481.113, 481.114, 481.115, 481.116, 481.117, 481.118,
3-24 481.120, 481.121, 481.122, or 481.123, Health and Safety Code; and
3-25 (G) the statement must be signed in the presence
3-26 of a magistrate by the child with no law enforcement officer or
3-27 prosecuting attorney present, except that a magistrate may require
4-1 a bailiff or a law enforcement officer if a bailiff is not
4-2 available to be present if the magistrate determines that the
4-3 presence of the bailiff or law enforcement officer is necessary for
4-4 the personal safety of the magistrate or other court personnel,
4-5 provided that the bailiff or law enforcement officer may not carry
4-6 a weapon in the presence of the child. The magistrate must be
4-7 fully convinced that the child understands the nature and contents
4-8 of the statement and that the child is signing the same
4-9 voluntarily. If such a statement is taken, the magistrate shall
4-10 sign a written statement verifying the foregoing requisites have
4-11 been met.
4-12 The child must knowingly, intelligently, and voluntarily
4-13 waive these rights prior to and during the making of the statement
4-14 and sign the statement in the presence of a magistrate who must
4-15 certify that he has examined the child independent of any law
4-16 enforcement officer or prosecuting attorney, except as required to
4-17 ensure the personal safety of the magistrate or other court
4-18 personnel, and has determined that the child understands the nature
4-19 and contents of the statement and has knowingly, intelligently, and
4-20 voluntarily waived these rights.
4-21 (2) it be made orally and the child makes a statement
4-22 of facts or circumstances that are found to be true, which conduct
4-23 tends to establish his guilt, such as the finding of secreted or
4-24 stolen property, or the instrument with which he states the offense
4-25 was committed.
4-26 (3) the statement was res gestae of the delinquent
4-27 conduct or the conduct indicating a need for supervision or of the
5-1 arrest.
5-2 SECTION 2. Section 51.09(c), Family Code, as amended by
5-3 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
5-4 Session, 1991, is reenacted to read as follows:
5-5 (c) A warning under Subsection (b)(1)(E) or Subsection
5-6 (b)(1)(F) of this section is required only when applicable to the
5-7 facts of the case. A failure to warn a child under Subsection
5-8 (b)(1)(E) of this section does not render a statement made by the
5-9 child inadmissible unless the child is transferred to a criminal
5-10 district court under Section 54.02 of this code. A failure to warn
5-11 a child under Subsection (b)(1)(F) of this section does not render
5-12 a statement made by the child inadmissible unless the state
5-13 proceeds against the child on a petition approved by a grand jury
5-14 under Section 53.045 of this code.
5-15 SECTION 3. Section 53.045(a), Family Code, is amended to
5-16 read as follows:
5-17 (a) Except as provided by Subsection (e) of this section,
5-18 the prosecuting attorney may refer the petition to the grand jury
5-19 of the county in which the court in which the petition is filed
5-20 presides if the petition alleges that the child engaged in
5-21 delinquent conduct that included the violation of any of the
5-22 following <provisions of the Penal Code>:
5-23 (1) Section 19.02, Penal Code (murder);
5-24 (2) Section 19.03, Penal Code (capital murder);
5-25 (3) Section 20.04, Penal Code (aggravated kidnapping);
5-26 (4) Section 22.021, Penal Code (aggravated sexual
5-27 assault);
6-1 (5) Section 22.02(b)(2), Penal Code <22.03>
6-2 (aggravated assault against a public servant <deadly assault on a
6-3 law enforcement officer, corrections officer, or court
6-4 participant>); <or>
6-5 (6) Section 29.03, Penal Code (aggravated robbery);
6-6 (7) Section 19.04, Penal Code (manslaughter);
6-7 (8) Section 21.11(a)(1), Penal Code (indecency with a
6-8 child);
6-9 (9) Section 22.011, Penal Code (sexual assault);
6-10 (10) Section 22.04(a)(1) or (2), Penal Code (injury to
6-11 a child, elderly individual, or disabled individual);
6-12 (11) Section 22.041(e), Penal Code (abandoning or
6-13 endangering a child);
6-14 (12) Section 22.09(b), Penal Code (tampering with a
6-15 consumer product);
6-16 (13) Section 28.02(d), Penal Code (arson), if the
6-17 offense is punishable as a first degree felony;
6-18 (14) Section 30.02(d), Penal Code (burglary);
6-19 (15) Section 38.06(e), Penal Code (escape);
6-20 (16) <(6)> Section 15.01, Penal Code (criminal
6-21 attempt), if the offense attempted was an offense under:
6-22 (A) Section 19.02, Penal Code (murder);
6-23 (B) Section 19.03, Penal Code (capital murder);
6-24 (C) Section 20.04, Penal Code (aggravated
6-25 kidnapping); or
6-26 (D) Section 22.021, Penal Code (aggravated
6-27 sexual assault); or
7-1 (17) Section 481.112, 481.113, 481.114, 481.115,
7-2 481.116, 481.117, 481.118, 481.120, 481.121, 481.122, or 481.123,
7-3 Health and Safety Code (manufacture, delivery, possession with
7-4 intent to manufacture or deliver, or possession of a controlled
7-5 substance or controlled substance analogue), if the offense is
7-6 punishable by imprisonment for life.
7-7 SECTION 4. (a) This Act takes effect September 1, 1995, and
7-8 applies only to conduct that occurs on or after that date. Conduct
7-9 violating the penal law of this state occurs on or after the
7-10 effective date of this Act if every element of the violation occurs
7-11 on or after that date.
7-12 (b) Conduct that occurs before the effective date of this
7-13 Act is governed by the law in effect at the time the conduct
7-14 occurred, and that law is continued in effect for that purpose.
7-15 SECTION 5. The importance of this legislation and the
7-16 crowded condition of the calendars in both houses create an
7-17 emergency and an imperative public necessity that the
7-18 constitutional rule requiring bills to be read on three several
7-19 days in each house be suspended, and this rule is hereby suspended.