By Patterson S.B. No. 233
74R168 DAK-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, as amended by
1-6 Chapters 429 and 593, Acts of the 72nd Legislature, Regular
1-7 Session, 1991, is conformed to Chapter 557, Acts of the 72nd
1-8 Legislature, Regular Session, 1991, and amended to read as follows:
1-9 (b) Notwithstanding any of the provisions of Subsection (a)
1-10 of this section, the statement of a child is admissible in evidence
1-11 in any future proceeding concerning the matter about which the
1-12 statement was given if:
1-13 (1) when the child is in a detention facility or other
1-14 place of confinement or in the custody of an officer, the statement
1-15 is made in writing and the statement shows that the child has at
1-16 some time prior to the making thereof received from a magistrate a
1-17 warning that:
1-18 (A) the child may remain silent and not make any
1-19 statement at all and that any statement that the child makes may be
1-20 used in evidence against the child;
1-21 (B) the child has the right to have an attorney
1-22 present to advise the child either prior to any questioning or
1-23 during the questioning;
1-24 (C) if the child is unable to employ an
2-1 attorney, the child has the right to have an attorney appointed to
2-2 counsel with the child prior to or during any interviews with peace
2-3 officers or attorneys representing the state;
2-4 (D) the child has the right to terminate the
2-5 interview at any time;
2-6 (E) if the child is 15 years of age or older at
2-7 the time of the violation of a penal law of the grade of felony the
2-8 juvenile court may waive its jurisdiction and the child may be
2-9 tried as an adult;
2-10 (F) the child may be sentenced to commitment in
2-11 the Texas Youth Commission with a transfer to the institutional
2-12 division of the Texas Department of Criminal Justice for a term not
2-13 to exceed 40 years if the child is found to have engaged in
2-14 delinquent conduct, alleged in a petition approved by a grand jury,
2-15 that included:
2-16 (i) murder;
2-17 (ii) capital murder;
2-18 (iii) aggravated kidnapping;
2-19 (iv) aggravated sexual assault;
2-20 (v) aggravated robbery;
2-21 (vi) aggravated assault punishable under
2-22 Section 22.02(b)(2), Penal Code <deadly assault on a law
2-23 enforcement officer, corrections officer, court participant, or
2-24 probation personnel>; <or>
2-25 (vii) <(vi)> attempted capital murder; or
2-26 (viii) a felony or aggravated felony for
2-27 the delivery of a controlled substance or controlled substance
3-1 analogue under Section 481.112, 481.113, 481.114, 481.120, 481.122,
3-2 or 481.123, Health and Safety Code; and
3-3 (G) the statement must be signed in the presence
3-4 of a magistrate by the child with no law enforcement officer or
3-5 prosecuting attorney present, except that a magistrate may require
3-6 a bailiff or a law enforcement officer if a bailiff is not
3-7 available to be present if the magistrate determines that the
3-8 presence of the bailiff or law enforcement officer is necessary for
3-9 the personal safety of the magistrate or other court personnel,
3-10 provided that the bailiff or law enforcement officer may not carry
3-11 a weapon in the presence of the child. The magistrate must be
3-12 fully convinced that the child understands the nature and contents
3-13 of the statement and that the child is signing the same
3-14 voluntarily. If such a statement is taken, the magistrate shall
3-15 sign a written statement verifying the foregoing requisites have
3-16 been met.
3-17 The child must knowingly, intelligently, and voluntarily
3-18 waive these rights prior to and during the making of the statement
3-19 and sign the statement in the presence of a magistrate who must
3-20 certify that he has examined the child independent of any law
3-21 enforcement officer or prosecuting attorney, except as required to
3-22 ensure the personal safety of the magistrate or other court
3-23 personnel, and has determined that the child understands the nature
3-24 and contents of the statement and has knowingly, intelligently, and
3-25 voluntarily waived these rights.
3-26 (2) it be made orally and the child makes a statement
3-27 of facts or circumstances that are found to be true, which conduct
4-1 tends to establish his guilt, such as the finding of secreted or
4-2 stolen property, or the instrument with which he states the offense
4-3 was committed.
4-4 (3) the statement was res gestae of the delinquent
4-5 conduct or the conduct indicating a need for supervision or of the
4-6 arrest.
4-7 SECTION 2. Section 51.09(c), Family Code, as amended by
4-8 Chapters 429 and 557, Acts of the 72nd Legislature, Regular
4-9 Session, 1991, is reenacted to read as follows:
4-10 (c) A warning under Subsection (b)(1)(E) or Subsection
4-11 (b)(1)(F) of this section is required only when applicable to the
4-12 facts of the case. A failure to warn a child under Subsection
4-13 (b)(1)(E) of this section does not render a statement made by the
4-14 child inadmissible unless the child is transferred to a criminal
4-15 district court under Section 54.02 of this code. A failure to warn
4-16 a child under Subsection (b)(1)(F) of this section does not render
4-17 a statement made by the child inadmissible unless the state
4-18 proceeds against the child on a petition approved by a grand jury
4-19 under Section 53.045 of this code.
4-20 SECTION 3. Section 53.045(a), Family Code, is amended to
4-21 read as follows:
4-22 (a) Except as provided by Subsection (e) of this section,
4-23 the prosecuting attorney may refer the petition to the grand jury
4-24 of the county in which the court in which the petition is filed
4-25 presides if the petition alleges that the child engaged in
4-26 delinquent conduct that included the violation of any of the
4-27 following <provisions of the Penal Code>:
5-1 (1) Section 19.02, Penal Code (murder);
5-2 (2) Section 19.03, Penal Code (capital murder);
5-3 (3) Section 20.04, Penal Code (aggravated kidnapping);
5-4 (4) Section 22.021, Penal Code (aggravated sexual
5-5 assault);
5-6 (5) Section 22.02(b)(2), Penal Code <22.03>
5-7 (aggravated assault against a public servant <deadly assault on a
5-8 law enforcement officer, corrections officer, or court
5-9 participant>); <or>
5-10 (6) Section 29.03, Penal Code (aggravated robbery);
5-11 (7) <(6)> Section 15.01, Penal Code (criminal
5-12 attempt), if the offense attempted was an offense under Section
5-13 19.03, Penal Code (capital murder); or
5-14 (8) Section 481.112, 481.113, 481.114, 481.120,
5-15 481.122, or 481.123, Health and Safety Code (felony or aggravated
5-16 felony for the delivery of a controlled substance or controlled
5-17 substance analogue).
5-18 SECTION 4. (a) This Act takes effect September 1, 1995, and
5-19 applies only to conduct that occurs on or after that date. Conduct
5-20 violating the penal law of this state occurs on or after the
5-21 effective date of this Act if every element of the violation occurs
5-22 on or after that date.
5-23 (b) Conduct that occurs before the effective date of this
5-24 Act is governed by the law in effect at the time the conduct
5-25 occurred, and that law is continued in effect for that purpose.
5-26 SECTION 5. The importance of this legislation and the
5-27 crowded condition of the calendars in both houses create an
6-1 emergency and an imperative public necessity that the
6-2 constitutional rule requiring bills to be read on three several
6-3 days in each house be suspended, and this rule is hereby suspended.