By Brown S.B. No. 106
74R1898 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the jurisdiction of juvenile courts over certain
1-3 persons who have previously been certified as adults.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 51.02(1), Family Code, is amended to read
1-6 as follows:
1-7 (1) "Child" means a person for whom the juvenile court
1-8 has or may exercise jurisdiction under Sections 51.035 and 51.036
1-9 <who is:>
1-10 <(A) ten years of age or older and under 17
1-11 years of age; or>
1-12 <(B) seventeen years of age or older and under
1-13 18 years of age who is alleged or found to have engaged in
1-14 delinquent conduct or conduct indicating a need for supervision as
1-15 a result of acts committed before becoming 17 years of age>.
1-16 SECTION 2. Chapter 51, Family Code, is amended by adding
1-17 Sections 51.035 and 51.036 to read as follows:
1-18 Sec. 51.035. PERSONS FOR WHOM THE JUVENILE COURT HAS
1-19 JURISDICTION: AGE LIMITS. (a) The juvenile court has
1-20 jurisdiction in a suit under this title over a person:
1-21 (1) younger than 17 years of age; or
1-22 (2) 17 years of age or older and under 18 years of age
1-23 who is alleged or found to have engaged in delinquent conduct or
1-24 conduct indicating a need for supervision as a result of acts
2-1 committed before becoming 17 years of age.
2-2 (b) The juvenile court does not have jurisdiction over a
2-3 person younger than 10 years of age.
2-4 Sec. 51.036. PERSONS FOR WHOM THE JUVENILE COURT HAS
2-5 JURISDICTION: EXCEPTIONS. (a) The juvenile court does not have
2-6 jurisdiction over a person for whom a criminal court has original
2-7 jurisdiction unless the criminal court waives its jurisdiction and
2-8 transfers the child to the juvenile court under Section 51.08.
2-9 (b) The juvenile court does not have jurisdiction over a
2-10 person for whom the court has previously waived its exclusive
2-11 original jurisdiction under Section 54.02 and transferred the
2-12 person to a court for criminal proceedings. The juvenile court
2-13 resumes jurisdiction over the person transferred if the person is
2-14 found not guilty in the matter transferred or the matter is
2-15 dismissed with prejudice.
2-16 SECTION 3. Section 51.06(b), Family Code, is amended to read
2-17 as follows:
2-18 (b) An application for a writ of habeas corpus brought by or
2-19 on behalf of a person <child> who has been committed to an
2-20 institution under the jurisdiction of the Texas Youth Commission
2-21 and which attacks the validity of the judgment of commitment shall
2-22 be brought in the county in which the court that entered the
2-23 judgment of commitment is located.
2-24 SECTION 4. Sections 51.08(b) and (c), Family Code, are
2-25 amended to read as follows:
2-26 (b) A court in which there is pending a complaint against a
2-27 person whose age is within limits described by Section 51.035
3-1 <child> alleging a violation of a misdemeanor offense punishable by
3-2 fine only other than a traffic offense or public intoxication or a
3-3 violation of a penal ordinance of a political subdivision other
3-4 than a traffic offense:
3-5 (1) shall waive its original jurisdiction and refer
3-6 the person <a child> to juvenile court if the person <child> has
3-7 previously been convicted of:
3-8 (A) two or more misdemeanors punishable by fine
3-9 only other than a traffic offense or public intoxication;
3-10 (B) two or more violations of a penal ordinance
3-11 of a political subdivision other than a traffic offense; or
3-12 (C) one or more of each of the types of
3-13 misdemeanors described in Paragraph (A) or (B) of this subdivision;
3-14 and
3-15 (2) may waive its original jurisdiction and refer the
3-16 person <a child> to juvenile court if the person <child>:
3-17 (A) has not previously been convicted of a
3-18 misdemeanor punishable by fine only other than a traffic offense or
3-19 public intoxication or a violation of a penal ordinance of a
3-20 political subdivision other than a traffic offense; or
3-21 (B) has previously been convicted of fewer than
3-22 two misdemeanors punishable by fine only other than a traffic
3-23 offense or public intoxication or two violations of a penal
3-24 ordinance of a political subdivision other than a traffic offense.
3-25 (c) A court in which there is pending a complaint against a
3-26 person whose age is within limits described by Section 51.035
3-27 <child> alleging a violation of a misdemeanor offense punishable by
4-1 fine only other than a traffic offense or public intoxication or a
4-2 violation of a penal ordinance of a political subdivision other
4-3 than a traffic offense shall notify the juvenile court of the
4-4 county in which the court is located of the pending complaint and
4-5 shall furnish to the juvenile court a copy of the final disposition
4-6 of any matter for which the court does not waive its original
4-7 jurisdiction under Subsection (b) of this section.
4-8 SECTION 5. Section 51.15(c), Family Code, is amended to read
4-9 as follows:
4-10 (c) Except as provided by this subsection, fingerprint and
4-11 photograph files or records of children shall be kept separate from
4-12 those of adults, and fingerprints or photographs known to be those
4-13 of a child shall be maintained on a local basis only and not sent
4-14 to a central state or federal depository. A person's <If a child
4-15 has been reported as missing by a parent, guardian, or conservator
4-16 of that child or a child has escaped from the custody of a juvenile
4-17 detention facility, the Texas Youth Commission, or any other agency
4-18 to which the child has been committed, the child's> fingerprints
4-19 and photograph may be sent to and indexed into the files of the
4-20 Department of Public Safety and the Federal Bureau of Investigation
4-21 to aid in the location and identification of the person if the
4-22 person:
4-23 (1) is younger than 18 years of age and has been
4-24 reported as missing by a parent, guardian, or conservator of that
4-25 child;
4-26 (2) is a child who has escaped from the custody of a
4-27 juvenile detention facility or any other facility to which the
5-1 child has been committed; or
5-2 (3) has escaped from the custody of the Texas Youth
5-3 Commission <child>.
5-4 SECTION 6. Sections 53.01(a) and (b), Family Code, are
5-5 amended to read as follows:
5-6 (a) On referral of a person presumed to be a child or the
5-7 person's <a child's> case to the office or official designated by
5-8 the juvenile court, the intake officer, probation officer, or other
5-9 person authorized by the court shall conduct a preliminary
5-10 investigation to determine whether:
5-11 (1) the person referred to juvenile court is a child
5-12 within the meaning of this title;
5-13 (2) there is probable cause to believe the person
5-14 <child> engaged in delinquent conduct or conduct indicating a need
5-15 for supervision; and
5-16 (3) further proceedings in the case are in the
5-17 interest of the person <child> or the public.
5-18 (b) If it is determined that the person is not a child, or
5-19 there is no probable cause, or further proceedings are not
5-20 warranted, the person <child> shall immediately be released and
5-21 proceedings terminated.
5-22 SECTION 7. Sections 54.02(a), (g), (h), (i), and (j), Family
5-23 Code, are amended to read as follows:
5-24 (a) The juvenile court may waive its exclusive original
5-25 jurisdiction and transfer a child to the appropriate district court
5-26 or criminal district court for criminal proceedings if:
5-27 (1) the child is alleged to have violated a penal law
6-1 of the grade of felony;
6-2 (2) the child was 14 <15> years of age or older at the
6-3 time he is alleged to have committed the offense and no
6-4 adjudication hearing has been conducted concerning that offense;
6-5 and
6-6 (3) after full investigation and hearing the juvenile
6-7 court determines that there is probable cause to believe that the
6-8 child before the court committed the offense alleged and that
6-9 because of the seriousness of the offense or the background of the
6-10 child the welfare of the community requires criminal proceedings.
6-11 (g) If the petition alleges multiple offenses that
6-12 constitute more than one criminal transaction, the juvenile court
6-13 shall either retain or transfer all offenses relating to a single
6-14 transaction. A <juvenile court retains jurisdiction, the> child
6-15 is not subject to criminal prosecution at any time for any offense
6-16 arising out of a criminal transaction for which the juvenile court
6-17 retains jurisdiction <alleged in the petition or for any offense
6-18 within the knowledge of the juvenile court judge as evidenced by
6-19 anything in the record of the proceedings>.
6-20 (h) If the juvenile court waives jurisdiction, it shall
6-21 state specifically in the order its reasons for waiver and certify
6-22 its action, including the written order and findings of the court,
6-23 and shall transfer the person <child> to the appropriate court for
6-24 criminal proceedings. On transfer of the person <child> for
6-25 criminal proceedings, the person <he> shall be dealt with as an
6-26 adult and in accordance with the Code of Criminal Procedure. The
6-27 transfer of custody is an arrest. <The court to which the child is
7-1 transferred shall determine if good cause exists for an examining
7-2 trial. If there is no good cause for an examining trial, the court
7-3 shall refer the case to the grand jury. If there is good cause for
7-4 an examining trial, the court shall conduct an examining trial and
7-5 may remand the child to the jurisdiction of the juvenile court.>
7-6 (i) A waiver under this section is a waiver of jurisdiction
7-7 over the child and the criminal court may not remand the child to
7-8 the jurisdiction of the juvenile court. <If the child's case is
7-9 brought to the attention of the grand jury and the grand jury does
7-10 not indict for the offense charged in the complaint forwarded by
7-11 the juvenile court, the district court or criminal district court
7-12 shall certify the grand jury's failure to indict to the juvenile
7-13 court. On receipt of the certification, the juvenile court may
7-14 resume jurisdiction of the case.>
7-15 (j) The juvenile court may waive its exclusive original
7-16 jurisdiction and transfer a person to the appropriate district
7-17 court or criminal district court for criminal proceedings if:
7-18 (1) the person is 18 years of age or older;
7-19 (2) the person was 14 <15> years of age or older and
7-20 under 17 years of age at the time he is alleged to have committed a
7-21 felony;
7-22 (3) no adjudication concerning the alleged offense has
7-23 been made or no adjudication hearing concerning the offense has
7-24 been conducted;
7-25 (4) the juvenile court finds from a preponderance of
7-26 the evidence that:
7-27 (A) for a reason beyond the control of the state
8-1 it was not practicable to proceed in juvenile court before the 18th
8-2 birthday of the person; or
8-3 (B) after due diligence of the state it was not
8-4 practicable to proceed in juvenile court before the 18th birthday
8-5 of the person because:
8-6 (i) <(A)> the state did not have probable
8-7 cause to proceed in juvenile court and new evidence has been found
8-8 since the 18th birthday of the person; <or>
8-9 (ii) <(B)> the person could not be found;
8-10 or
8-11 (iii) a previous transfer order was
8-12 reversed by an appellate court or set aside by a district court;
8-13 and
8-14 (5) the juvenile court determines that there is
8-15 probable cause to believe that the child before the court committed
8-16 the offense alleged.
8-17 SECTION 8. Sections 54.021(b), (c), (d), (f), and (g),
8-18 Family Code, are amended to read as follows:
8-19 (b) A justice court may exercise jurisdiction over a person
8-20 <child> alleged to have engaged in conduct indicating a need for
8-21 supervision by engaging in conduct described in Section 51.03(b)(2)
8-22 in a case where the juvenile court has waived its original
8-23 jurisdiction under this section. A justice court may exercise
8-24 jurisdiction under this section without regard to whether the
8-25 justice of the peace for the court is a licensed attorney or the
8-26 hearing for a case is before a jury consisting of six persons.
8-27 (c) On a finding that a person <child> has engaged in
9-1 conduct described by Section 51.03(b)(2), the justice court shall
9-2 enter an order appropriate to the nature of the conduct.
9-3 (d) On a finding by the justice court that the person
9-4 <child> has engaged in truant conduct and that the conduct is of a
9-5 recurrent nature, the court may enter an order that includes one or
9-6 more of the following provisions requiring that:
9-7 (1) the person <child> attend a preparatory class for
9-8 the high school equivalency examination provided under Section
9-9 11.35, Education Code, if the court determines that the person
9-10 <child> is too old to do well in a formal classroom environment;
9-11 (2) the person <child> attend a special program that
9-12 the court determines to be in the best interests of the person
9-13 <child>, including an alcohol and drug abuse program;
9-14 (3) the person <child> and the person's <child's>
9-15 parents, managing conservator, or guardian attend a class for
9-16 students at risk of dropping out of school designed for both the
9-17 person <child> and the person's <child's> parents, managing
9-18 conservator, or guardian;
9-19 (4) the person <child> complete reasonable community
9-20 service requirements;
9-21 (5) the person's <child's> driver's license be
9-22 suspended in the manner provided by Section 54.042 of this code;
9-23 (6) the person <child> attend school without unexcused
9-24 absences; or
9-25 (7) the person <child> participate in a tutorial
9-26 program provided by the school attended by the person <child> in
9-27 the academic subjects in which the person <child> is enrolled for a
10-1 total number of hours ordered by the court.
10-2 (f) A school attendance officer may refer a person <child>
10-3 alleged to have engaged in conduct described in Section 51.03(b)(2)
10-4 of this code to the justice court in the precinct where the person
10-5 <child> resides or in the precinct where the person's <child's>
10-6 school is located if the juvenile court having exclusive original
10-7 jurisdiction has waived its jurisdiction as provided by Subsection
10-8 (a) of this section for all cases involving conduct described by
10-9 Section 51.03(b)(2) of this code.
10-10 (g) A court having jurisdiction under this section shall
10-11 endorse on the summons issued to the parent, guardian, or custodian
10-12 of the person <child> who is the subject of the hearing an order
10-13 directing the parent, guardian, or custodian to appear personally
10-14 at the hearing and directing the person having custody of the
10-15 person <child> to bring the person <child> to the hearing.
10-16 SECTION 9. Sections 54.04(e) and (k), Family Code, are
10-17 amended to read as follows:
10-18 (e) The Texas Youth Commission shall accept a person <child>
10-19 properly committed to it by a juvenile court even though the person
10-20 <child> may be 17 years of age or older at the time of commitment.
10-21 (k) The period to which a court or jury may sentence a
10-22 person <child> to commitment to the Texas Youth Commission with a
10-23 transfer to the Texas Department of Criminal Justice under
10-24 Subsection (d)(3) of this section applies without regard to whether
10-25 the person <child> has previously been adjudicated as having
10-26 engaged in delinquent conduct.
10-27 SECTION 10. Section 57.002, Family Code, is amended to read
11-1 as follows:
11-2 Sec. 57.002. VICTIM'S RIGHTS. A victim, guardian of a
11-3 victim, or close relative of a deceased victim is entitled to the
11-4 following rights within the juvenile justice system:
11-5 (1) the right to receive from law enforcement agencies
11-6 adequate protection from harm and threats of harm arising from
11-7 cooperation with prosecution efforts;
11-8 (2) the right to have the court or person appointed by
11-9 the court take the safety of the victim or the victim's family into
11-10 consideration as an element in determining whether the child should
11-11 be detained before the child's conduct is adjudicated;
11-12 (3) the right, if requested, to be informed of
11-13 relevant court proceedings and to be informed in a timely manner if
11-14 those court proceedings have been canceled or rescheduled;
11-15 (4) the right to be informed, when requested, by the
11-16 court or a person appointed by the court concerning the procedures
11-17 in the juvenile justice system, including general procedures
11-18 relating to the preliminary investigation and informal adjustment
11-19 of a case;
11-20 (5) the right to provide pertinent information to a
11-21 juvenile court conducting a disposition hearing concerning the
11-22 impact of the offense on the victim and the victim's family by
11-23 testimony, written statement, or any other manner before the court
11-24 renders its disposition;
11-25 (6) the right to receive information regarding
11-26 compensation to victims as provided by the Crime Victims
11-27 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes),
12-1 including information related to the costs that may be compensated
12-2 under that Act and the amount of compensation, eligibility for
12-3 compensation, and procedures for application for compensation under
12-4 that Act, the payment of medical expenses under Section 1, Chapter
12-5 299, Acts of the 63rd Legislature, Regular Session, 1973 (Article
12-6 4447m, Vernon's Texas Civil Statutes), for a victim of a sexual
12-7 assault, and when requested, to referral to available social
12-8 service agencies that may offer additional assistance;
12-9 (7) the right to be informed, upon request, of
12-10 procedures for release under supervision, to participate in the
12-11 release process, to be notified, if requested, of release
12-12 proceedings concerning the person <child>, to provide to the Texas
12-13 Youth Commission for inclusion in the person's <child's> file
12-14 information to be considered by the commission before the release
12-15 under supervision of the person <child>, and to be notified, if
12-16 requested, of the person's <child's> release;
12-17 (8) the right to be provided with a waiting area,
12-18 separate or secure from other witnesses, including the child
12-19 alleged to have committed the conduct and relatives of the child,
12-20 before testifying in any proceeding concerning the child, or, if a
12-21 separate waiting area is not available, other safeguards should be
12-22 taken to minimize the victim's contact with the child and the
12-23 child's relatives and witnesses, before and during court
12-24 proceedings;
12-25 (9) the right to prompt return of any property of the
12-26 victim that is held by a law enforcement agency or the attorney for
12-27 the state as evidence when the property is no longer required for
13-1 that purpose;
13-2 (10) the right to have the attorney for the state
13-3 notify the employer of the victim, if requested, of the necessity
13-4 of the victim's cooperation and testimony in a proceeding that may
13-5 necessitate the absence of the victim from work for good cause; and
13-6 (11) the right to be present at all public court
13-7 proceedings related to the conduct of the child, subject to the
13-8 approval of the court.
13-9 SECTION 11. Sections 8.07(a) and (b), Penal Code, are
13-10 amended to read as follows:
13-11 (a) A person may not be prosecuted for or convicted of any
13-12 offense that he committed when younger than 15 years of age except:
13-13 (1) perjury and aggravated perjury when it appears by
13-14 proof that he had sufficient discretion to understand the nature
13-15 and obligation of an oath;
13-16 (2) a violation of a penal statute cognizable under
13-17 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957
13-18 (Article 6701l-4, Vernon's Texas Civil Statutes)<, except conduct
13-19 which violates the laws of this state prohibiting driving while
13-20 intoxicated or under the influence of intoxicating liquor (first or
13-21 subsequent offense) or driving while under the influence of any
13-22 narcotic drug or of any other drug to a degree which renders him
13-23 incapable of safely driving a vehicle (first or subsequent
13-24 offense)>;
13-25 (3) a violation of a motor vehicle traffic ordinance
13-26 of an incorporated city or town in this state;
13-27 (4) a misdemeanor punishable by fine only other than
14-1 public intoxication; or
14-2 (5) a violation of a penal ordinance of a political
14-3 subdivision.
14-4 (b) Unless the juvenile court waives jurisdiction under
14-5 Section 54.02, Family Code, and certifies the individual for
14-6 criminal prosecution or the juvenile court has previously waived
14-7 jurisdiction under that section and certified the individual for
14-8 criminal prosecution, a person may not be prosecuted for or
14-9 convicted of any offense committed before reaching 17 years of age
14-10 except an offense described by Subsections (a)(1)-(5)<:>
14-11 <(1) perjury and aggravated perjury when it appears by
14-12 proof that he had sufficient discretion to understand the nature
14-13 and obligation of an oath;>
14-14 <(2) a violation of a penal statute cognizable under
14-15 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957,
14-16 as amended (Article 6701l-4, Vernon's Texas Civil Statutes), except
14-17 conduct which violates the laws of this state prohibiting driving
14-18 while intoxicated or under the influence of intoxicating liquor
14-19 (first or subsequent offense) or driving while under the influence
14-20 of any narcotic drug or of any other drug to a degree which renders
14-21 him incapable of safely driving a vehicle (first or subsequent
14-22 offense);>
14-23 <(3) a violation of a motor vehicle traffic ordinance
14-24 of an incorporated city or town in this state;>
14-25 <(4) a misdemeanor punishable by fine only other than
14-26 public intoxication; or>
14-27 <(5) a violation of a penal ordinance of a political
15-1 subdivision>.
15-2 SECTION 12. Chapter 4, Code of Criminal Procedure, is
15-3 amended by adding Article 4.18 to read as follows:
15-4 Art. 4.18. TRANSFER OF JURISDICTION FROM JUVENILE COURT.
15-5 (a) A claim that a district court or criminal district court does
15-6 not have jurisdiction over a person transferred to it by a juvenile
15-7 court under Section 54.02, Family Code, because the juvenile court
15-8 could not waive jurisdiction under Section 8.07(a), Penal Code, or
15-9 did not waive jurisdiction under Section 8.07(b), Penal Code, must
15-10 be made by written motion in bar of prosecution filed with the
15-11 court to which the person is transferred.
15-12 (b) The motion must be filed and presented to the presiding
15-13 judge of the court:
15-14 (1) if the defendant enters a plea of guilty or no
15-15 contest, before the plea;
15-16 (2) if the defendant's guilt or punishment is tried or
15-17 determined by a jury, before selection of the jury begins; or
15-18 (3) if the defendant's guilt is tried by the court,
15-19 before the first witness is sworn.
15-20 (c) Unless the motion is not contested, the presiding judge
15-21 shall promptly conduct a hearing without a jury and rule on the
15-22 motion. The party making the motion has the burden of establishing
15-23 by a preponderance of the evidence those facts necessary for the
15-24 motion to prevail.
15-25 (d) A person may not contest the jurisdiction of the court
15-26 on the ground that the juvenile court has exclusive jurisdiction
15-27 if:
16-1 (1) the person does not file a motion within the time
16-2 requirements of this article; or
16-3 (2) the presiding judge finds under Subsection (c)
16-4 that a motion made under this article does not prevail.
16-5 (e) An appellate court may review a trial court's
16-6 determination under this article only after conviction in the trial
16-7 court.
16-8 (f) A court that finds that it lacks jurisdiction over a
16-9 person because exclusive jurisdiction is in the juvenile court
16-10 shall transfer the case to the juvenile court.
16-11 SECTION 13. Section 8.07(c), Penal Code, is repealed.
16-12 SECTION 14. This Act takes effect September 1, 1995.
16-13 SECTION 15. (a) Sections 1, 2, and 7 of this Act apply
16-14 only to a person who engages in delinquent conduct or conduct
16-15 indicating a need for supervision under Title 3, Family Code, on or
16-16 after the effective date of this Act. Delinquent conduct or
16-17 conduct indicating a need for supervision occurs on or after the
16-18 effective date of this Act if every element of the conduct occurs
16-19 on or after that date.
16-20 (b) A person who engages in delinquent conduct or conduct
16-21 indicating a need for supervision under Title 3, Family Code,
16-22 before the effective date of this Act is governed by the law in
16-23 effect at the time the conduct occurred, and that law is continued
16-24 in effect for that purpose.
16-25 (c) This section does not require the juvenile court to
16-26 transfer a person to a court of criminal jurisdiction because the
16-27 person has been transferred to a criminal court for an offense
17-1 committed before the effective date of this Act.
17-2 SECTION 16. Section 5 of this Act applies to the files and
17-3 records of any person, without regard to whether the person engages
17-4 in delinquent conduct or conduct indicating a need for supervision
17-5 under Title 3, Family Code, before, on, or after the effective date
17-6 of this Act.
17-7 SECTION 17. (a) Section 9 of this Act applies only to the
17-8 prosecution of an offense committed on or after the effective date
17-9 of this Act. For purposes of this section, an offense is committed
17-10 before the effective date of this Act if any element of the offense
17-11 occurs before the effective date.
17-12 (b) An offense committed before the effective date of this
17-13 Act is covered by the law in effect when the offense was committed,
17-14 and the former law is continued in effect for that purpose.
17-15 SECTION 18. The importance of this legislation and the
17-16 crowded condition of the calendars in both houses create an
17-17 emergency and an imperative public necessity that the
17-18 constitutional rule requiring bills to be read on three several
17-19 days in each house be suspended, and this rule is hereby suspended.