By: West S.B. No. 485
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the adjudication and disposition of children for
1-2 delinquent conduct that violates a penal law of this state of the
1-3 grade of felony and to the commitment of children to the Texas
1-4 Youth Commission under a determinate sentence.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subsection (b), Section 51.09, Family Code, as
1-7 amended by Chapters 429 and 593, Acts of the 72nd Legislature,
1-8 Regular Session, 1991, is conformed to Chapter 557, Acts of the
1-9 72nd Legislature, Regular Session, 1991, and amended to read as
1-10 follows:
1-11 (b) Notwithstanding any of the provisions of Subsection (a)
1-12 of this section, the statement of a child is admissible in evidence
1-13 in any future proceeding concerning the matter about which the
1-14 statement was given if:
1-15 (1) when the child is in a detention facility or other
1-16 place of confinement or in the custody of an officer, the statement
1-17 is made in writing and the statement shows that the child has at
1-18 some time prior to the making thereof received from a magistrate a
1-19 warning that:
1-20 (A) the child may remain silent and not make any
1-21 statement at all and that any statement that the child makes may be
1-22 used in evidence against the child;
1-23 (B) the child has the right to have an attorney
2-1 present to advise the child either prior to any questioning or
2-2 during the questioning;
2-3 (C) if the child is unable to employ an
2-4 attorney, the child has the right to have an attorney appointed to
2-5 counsel with the child prior to or during any interviews with peace
2-6 officers or attorneys representing the state;
2-7 (D) the child has the right to terminate the
2-8 interview at any time;
2-9 (E) if the child is 15 years of age or older at
2-10 the time of the violation of a penal law of the grade of felony the
2-11 juvenile court may waive its jurisdiction and the child may be
2-12 tried as an adult;
2-13 (F) the child may be sentenced to commitment in
2-14 the Texas Youth Commission with a transfer to the institutional
2-15 division of the Texas Department of Criminal Justice for a term not
2-16 to exceed 40 years if the child is found to have engaged in
2-17 delinquent conduct, alleged in a petition approved by a grand jury,
2-18 that included:
2-19 (i) murder;
2-20 (ii) capital murder;
2-21 (iii) aggravated kidnapping;
2-22 (iv) aggravated sexual assault;
2-23 (v) aggravated robbery <deadly assault on
2-24 a law enforcement officer, corrections officer, court participant,
2-25 or probation personnel>; <or>
3-1 (vi) aggravated assault;
3-2 (vii) manslaughter;
3-3 (viii) attempted murder; or
3-4 (ix) attempted capital murder; and
3-5 (G) the statement must be signed in the presence
3-6 of a magistrate by the child with no law enforcement officer or
3-7 prosecuting attorney present, except that a magistrate may require
3-8 a bailiff or a law enforcement officer if a bailiff is not
3-9 available to be present if the magistrate determines that the
3-10 presence of the bailiff or law enforcement officer is necessary for
3-11 the personal safety of the magistrate or other court personnel,
3-12 provided that the bailiff or law enforcement officer may not carry
3-13 a weapon in the presence of the child. The magistrate must be
3-14 fully convinced that the child understands the nature and contents
3-15 of the statement and that the child is signing the same
3-16 voluntarily. If such a statement is taken, the magistrate shall
3-17 sign a written statement verifying the foregoing requisites have
3-18 been met.
3-19 The child must knowingly, intelligently, and voluntarily
3-20 waive these rights prior to and during the making of the statement
3-21 and sign the statement in the presence of a magistrate who must
3-22 certify that he has examined the child independent of any law
3-23 enforcement officer or prosecuting attorney, except as required to
3-24 ensure the personal safety of the magistrate or other court
3-25 personnel, and has determined that the child understands the nature
4-1 and contents of the statement and has knowingly, intelligently, and
4-2 voluntarily waived these rights.
4-3 (2) it be made orally and the child makes a statement
4-4 of facts or circumstances that are found to be true, which conduct
4-5 tends to establish his guilt, such as the finding of secreted or
4-6 stolen property, or the instrument with which he states the offense
4-7 was committed.
4-8 (3) the statement was res gestae of the delinquent
4-9 conduct or the conduct indicating a need for supervision or of the
4-10 arrest.
4-11 SECTION 2. Subsection (c), Section 51.09, Family Code, as
4-12 amended by Chapters 429 and 557, Acts of the 72nd Legislature,
4-13 Regular Session, 1991, is reenacted to read as follows:
4-14 (c) A warning under Subsection (b)(1)(E) or Subsection
4-15 (b)(1)(F) of this section is required only when applicable to the
4-16 facts of the case. A failure to warn a child under
4-17 Subsection(b)(1)(E) of this section does not render a statement
4-18 made by the child inadmissible unless the child is transferred to a
4-19 criminal district court under Section 54.02 of this code. A
4-20 failure to warn a child under Subsection(b)(1)(F) of this section
4-21 does not render a statement made by the child inadmissible unless
4-22 the state proceeds against the child on a petition approved by a
4-23 grand jury under Section 53.045 of this code.
4-24 SECTION 3. Subsection (a), Section 53.045, Family Code, is
4-25 amended to read as follows:
5-1 (a) Except as provided by Subsection (e) of this section,
5-2 the prosecuting attorney may refer the petition to the grand jury
5-3 of the county in which the court in which the petition is filed
5-4 presides if the petition alleges that the child engaged in
5-5 delinquent conduct that included the violation of any of the
5-6 following provisions of the Penal Code:
5-7 (1) Section 19.02 (murder);
5-8 (2) Section 19.03 (capital murder);
5-9 (3) Section 20.04 (aggravated kidnapping);
5-10 (4) Section 22.021 (aggravated sexual assault);
5-11 (5) Section 29.03 (aggravated robbery) <22.03 (deadly
5-12 assault on a law enforcement officer, corrections officer, or court
5-13 participant)>; <or>
5-14 (6) Section 22.02 (aggravated assault);
5-15 (7) Section 19.04 (manslaughter); or
5-16 (8) Section 15.01 (criminal attempt), if the offense
5-17 attempted was under Section 19.03 (capital murder) or Section 19.02
5-18 (murder).
5-19 SECTION 4. Subsection (d), Section 54.04, Family Code, is
5-20 amended to read as follows:
5-21 (d) If the court or jury makes the finding specified in
5-22 Subsection (c) of this section allowing the court to make a
5-23 disposition in the case:
5-24 (1) the court or jury may, in addition to any order
5-25 required or authorized under Section 54.041 or 54.042 of this code,
6-1 place the child on probation on such reasonable and lawful terms as
6-2 the court may determine:
6-3 (A) in the child's <his> own home or in the
6-4 custody of a relative or other fit person; or
6-5 (B) subject to the finding under Subsection (c)
6-6 of this section on the placement of the child outside the child's
6-7 home, in:
6-8 (i) a suitable foster home; or
6-9 (ii) a suitable public or private
6-10 institution or agency, except the Texas Youth Commission;
6-11 (2) if the court or jury found at the conclusion of
6-12 the adjudication hearing that the child engaged in delinquent
6-13 conduct and if the petition was not approved by the grand jury
6-14 under Section 53.045 of this code, the court may commit the child
6-15 to the Texas Youth Commission without a determinate sentence; or
6-16 (3) if the court or jury found at the conclusion of
6-17 the adjudication hearing that the child engaged in delinquent
6-18 conduct that included a violation of a penal law listed in Section
6-19 53.045(a) of this code and if the petition was approved by the
6-20 grand jury under Section 53.045 of this code, the court or jury may
6-21 sentence the child to commitment in the Texas Youth Commission with
6-22 a transfer to the institutional division of the Texas Department of
6-23 Criminal Justice for any term of years not to exceed:
6-24 (A) 40 years if the penal law violated is a
6-25 capital felony or a felony of the first degree;
7-1 (B) 10 years if the penal law violated is a
7-2 felony of the second degree; or
7-3 (C) five years if the penal law violated is a
7-4 felony of the third degree.
7-5 SECTION 5. Section 54.11, Family Code, is amended by
7-6 amending Subsections (h) and (i) and adding Subsections (k) and (l)
7-7 to read as follows:
7-8 (h) The release hearing on a person who is the subject of a
7-9 notice of transfer must be held before 30 days before the person's
7-10 21st <18th> birthday.
7-11 (i) On conclusion of the release hearing on a person who is
7-12 the subject of a notice of transfer, the court may order:
7-13 (1) <the recommitment of the person to the Texas Youth
7-14 Commission without a determinate sentence;>
7-15 <(2)> the transfer of the person to the custody of the
7-16 institutional division of the Texas Department of Criminal Justice
7-17 for the completion of the person's determinate sentence; or
7-18 (2) <(3)> the final discharge of the person.
7-19 (k) In making a determination under this section for a
7-20 person who is the subject of a notice of transfer, the court shall
7-21 consider:
7-22 (1) the educational level of the person before and
7-23 after commitment to the Texas Youth Commission;
7-24 (2) any trade or marketable skill learned by the
7-25 person;
8-1 (3) any violent behavior exhibited by the person while
8-2 in the custody of the youth commission;
8-3 (4) any services offered by the youth commission to
8-4 the family of the person;
8-5 (5) whether the person has resolved any drug or
8-6 alcohol abuse problems identified by the court at the time of
8-7 commitment; and
8-8 (6) whether the person is capable of self-support
8-9 without resorting to criminal behavior.
8-10 (l) The Texas Youth Commission may, on or after a person's
8-11 18th birthday, apply to the original committing court to release
8-12 and finally discharge the person or transfer the person to the
8-13 institutional division of the Texas Department of Criminal Justice.
8-14 A hearing shall be conducted according to the provisions of this
8-15 section, except that after the hearing the court may:
8-16 (1) recommit the person to the Texas Youth Commission
8-17 until the person's 21st birthday with the possibility to transfer
8-18 to the institutional division of the Texas Department of Criminal
8-19 Justice at age 21;
8-20 (2) transfer the person to the custody of the
8-21 institutional division of the Texas Department of Criminal Justice
8-22 for the completion of the person's determinate sentence; or
8-23 (3) finally discharge the person.
8-24 SECTION 6. Chapter 54, Family Code, is amended by adding
8-25 Section 54.12 to read as follows:
9-1 Sec. 54.12. PLAN OF REHABILITATION. (a) A court that
9-2 commits a child to the Texas Youth Commission may direct the
9-3 juvenile probation department of the county in which the court is
9-4 located to prepare a complete list of any problems which should be
9-5 addressed in a plan of rehabilitation. The court may include the
9-6 problem list with its commitment order. For each child committed
9-7 to the Texas Youth Commission, the youth commission shall prepare a
9-8 plan of rehabilitation and shall consider the problems, if any,
9-9 identified by the local department in the preparation of its
9-10 rehabilitation plan. The Texas Youth Commission shall have the
9-11 final authority for the creation and implementation of the plan.
9-12 (b) The plan of rehabilitation may include:
9-13 (1) the degree of security for the child necessary to
9-14 protect the public during the rehabilitation process;
9-15 (2) a description of any educational deficiencies on
9-16 the part of the child and a recommendation to correct the
9-17 deficiencies so that the child will be able to read, write, and
9-18 make arithmetic computations at an age-appropriate level as
9-19 determined by appropriate psychological testing;
9-20 (3) recommendations for trade school training;
9-21 (4) recommendations for treatment in a residential
9-22 facility to correct problems detected by psychological or
9-23 psychiatric testing;
9-24 (5) recommendations for treatment for alcohol,
9-25 tobacco, or drug abuse;
10-1 (6) recommendations for treatment to correct habits of
10-2 the child that may adversely affect the rehabilitation process;
10-3 (7) recommendations for programs to rehabilitate the
10-4 child's family; and
10-5 (8) observations of the local probation officer that
10-6 may assist the Texas Youth Commission in the implementation of the
10-7 rehabilitation plan.
10-8 SECTION 7. Subchapter E, Chapter 61, Human Resources Code,
10-9 is amended by adding Section 61.0712 to read as follows:
10-10 Sec. 61.0712. CAPACITY TO HOUSE SENTENCED OFFENDERS
10-11 COMMITTED UNDER SECTION 54.04(d)(3), FAMILY CODE. Whenever
10-12 necessary, the commission shall release a sufficient number of
10-13 children who have been committed to the commission on indeterminate
10-14 sentence to create bed space required to house children committed
10-15 to the commission as sentenced offenders. Priority for early
10-16 release shall be given to those children who have been committed to
10-17 the commission on referral for conduct which is a violation of a
10-18 penal law that is a misdemeanor.
10-19 SECTION 8. (a) This Act takes effect September 1, 1995, and
10-20 applies only to conduct that occurs on or after that date. For
10-21 purposes of this section, conduct violating a penal law of this
10-22 state occurs on or after the effective date of this Act if every
10-23 element of the violation occurs on or after that date.
10-24 (b) Conduct that occurs before the effective date of this
10-25 Act is governed by the law in effect at the time the conduct
11-1 occurred, and the former law is continued in effect for that
11-2 purpose.
11-3 SECTION 9. The importance of this legislation and the
11-4 crowded condition of the calendars in both houses create an
11-5 emergency and an imperative public necessity that the
11-6 constitutional rule requiring bills to be read on three several
11-7 days in each house be suspended, and this rule is hereby suspended.