By Montford S.B. No. 593
74R3007 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the processing of children within the juvenile
1-3 delinquency system.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 51.09(b), Family Code, is amended to read
1-6 as follows:
1-7 (b) Notwithstanding any of the provisions of Subsection (a)
1-8 <of this section>, the statement of a child is admissible in
1-9 evidence in any future proceeding concerning the matter about which
1-10 the statement was given if:
1-11 (1) when the child is in a detention facility or other
1-12 place of confinement or in the custody of an officer, the statement
1-13 is made in writing and the statement shows that the child has at
1-14 some time prior to the making thereof received from a magistrate a
1-15 warning that:
1-16 (A) the child may remain silent and not make any
1-17 statement at all and that any statement that the child makes may be
1-18 used in evidence against the child;
1-19 (B) the child has the right to have an attorney
1-20 present to advise the child either prior to any questioning or
1-21 during the questioning;
1-22 (C) if the child is unable to employ an
1-23 attorney, the child has the right to have an attorney appointed to
1-24 counsel with the child prior to or during any interviews with peace
2-1 officers or attorneys representing the state;
2-2 (D) the child has the right to terminate the
2-3 interview at any time;
2-4 (E) if the child is 15 years of age or older at
2-5 the time of the violation of a penal law of the grade of felony the
2-6 juvenile court may waive its jurisdiction and the child may be
2-7 tried as an adult;
2-8 (F) the child may be sentenced to commitment in
2-9 the Texas Youth Commission with a transfer to the institutional
2-10 division of the Texas Department of Criminal Justice for a term not
2-11 to exceed 40 years if the child is found to have engaged in
2-12 delinquent conduct, alleged in a petition approved by a grand jury,
2-13 that included:
2-14 (i) murder;
2-15 (ii) capital murder;
2-16 (iii) aggravated kidnapping;
2-17 (iv) aggravated sexual assault;
2-18 (v) deadly assault on a law enforcement
2-19 officer, corrections officer, court participant, or probation
2-20 personnel; or
2-21 (vi) attempted capital murder; and
2-22 (G) the statement must be signed in the presence
2-23 of a magistrate by the child with no law enforcement officer or
2-24 prosecuting attorney present, except that a magistrate may require
2-25 a bailiff or a law enforcement officer if a bailiff is not
2-26 available to be present if the magistrate determines that the
2-27 presence of the bailiff or law enforcement officer is necessary for
3-1 the personal safety of the magistrate or other court personnel,
3-2 provided that the bailiff or law enforcement officer may not carry
3-3 a weapon in the presence of the child. The magistrate must be
3-4 fully convinced that the child understands the nature and contents
3-5 of the statement and that the child is signing the same
3-6 voluntarily. If such a statement is taken, the magistrate shall
3-7 sign a written statement verifying the foregoing requisites have
3-8 been met.
3-9 The child must knowingly, intelligently, and voluntarily
3-10 waive these rights prior to and during the making of the statement
3-11 and sign the statement in the presence of a magistrate who must
3-12 certify that he has examined the child independent of any law
3-13 enforcement officer or prosecuting attorney, except as required to
3-14 ensure the personal safety of the magistrate or other court
3-15 personnel, and has determined that the child understands the nature
3-16 and contents of the statement and has knowingly, intelligently, and
3-17 voluntarily waived these rights.
3-18 (2) it be made orally and the child makes a statement
3-19 of facts or circumstances that are found to be true, which conduct
3-20 tends to establish his guilt, such as the finding of secreted or
3-21 stolen property, or the instrument with which he states the offense
3-22 was committed.
3-23 (3) the statement was res gestae of the delinquent
3-24 conduct or the conduct indicating a need for supervision or of the
3-25 arrest.
3-26 (4) it be made orally and recorded by an electronic
3-27 recording device if:
4-1 (A) before the statement, the child is given the
4-2 warning provided for in Subdivision (1), the warning is recorded,
4-3 and the child knowingly, intelligently, and voluntarily waives any
4-4 rights stated in the warning;
4-5 (B) the recording device is capable of making an
4-6 accurate recording, the operator of the device is competent to use
4-7 the device, and the recording is accurate and has not been altered;
4-8 (C) all voices on the recording are identified;
4-9 and
4-10 (D) not later than the 20th day before the date
4-11 of the proceeding, the attorney representing the child is provided
4-12 with a complete and accurate copy of all recordings of the child
4-13 made under this subdivision.
4-14 SECTION 2. Section 51.09, Family Code, is amended by adding
4-15 Subsection (e) to read as follows:
4-16 (e) An electronic recording of a child's statement made
4-17 under Subsection (b)(4) must be preserved until all juvenile or
4-18 criminal matters relating to any conduct mentioned in the statement
4-19 are final, including the exhaustion of all appeals, or prosecution
4-20 of the conduct is barred.
4-21 SECTION 3. Section 51.14, Family Code, as amended by
4-22 Chapters 385, 386, and 978, Acts of the 70th Legislature, Regular
4-23 Session, 1987, is amended to read as follows:
4-24 Sec. 51.14. Files and Records. (a) Except as provided by
4-25 Subsection (e) <of this section>, or by Article 15.27, Code of
4-26 Criminal Procedure, all files and records of a juvenile court, a
4-27 clerk of court, or a prosecuting attorney relating to a child who
5-1 is a party to a proceeding under this title are open to inspection
5-2 only by:
5-3 (1) the judge, probation officers, and professional
5-4 staff or consultants of the juvenile court;
5-5 (2) an attorney for a party to the proceeding;
5-6 (3) a public or private agency or institution
5-7 providing supervision of the child by arrangement of the juvenile
5-8 court, or having custody of the child under juvenile court order;
5-9 <or>
5-10 (4) a law enforcement agency;
5-11 (5) law enforcement officers, when necessary for the
5-12 discharge of their official duties; or
5-13 (6) with leave of juvenile court, any other person,
5-14 agency, or institution having a legitimate interest in the
5-15 proceeding or in the work of the court.
5-16 (b) All files and records of a public or private agency or
5-17 institution providing supervision of a child by arrangement of the
5-18 juvenile court or having custody of the child under order of the
5-19 juvenile court are open to inspection only by:
5-20 (1) the professional staff or consultants of the
5-21 agency or institution;
5-22 (2) the judge, probation officers, and professional
5-23 staff or consultants of the juvenile court;
5-24 (3) an attorney for the child;
5-25 (4) with leave of the juvenile court, any other
5-26 person, agency, or institution having a legitimate interest in the
5-27 work of the agency or institution; <or>
6-1 (5) the Texas Department of Criminal Justice
6-2 <Corrections>, the Department of Public Safety, and the Texas
6-3 Juvenile Probation Commission, for the purpose of maintaining
6-4 statistical records of recidivism, and for diagnosis and
6-5 classification;
6-6 (6) a law enforcement agency; or
6-7 (7) law enforcement officers, when necessary for the
6-8 discharge of their official duties.
6-9 (c) Except as provided by this section <subsection>,
6-10 law-enforcement files and records concerning a child shall be kept
6-11 separate from files and records of arrests of adults and shall be
6-12 maintained on a local basis <only and not sent to a central state
6-13 or federal depository>. The law-enforcement files and records of a
6-14 person who is transferred from the Texas Youth Commission to the
6-15 institutional division of the Texas Department of Criminal Justice
6-16 <Corrections> under a determinate sentence may be transferred to a
6-17 central state or federal depository for adult records on or after
6-18 the date of transfer. <If a child has been reported as missing by
6-19 a parent, guardian, or conservator of that child, has escaped from
6-20 the custody of a juvenile detention facility, the Texas Youth
6-21 Commission, or any other agency to which the child has been
6-22 committed, or is the subject of a bench warrant or felony arrest
6-23 warrant issued by a court after the child has fled the jurisdiction
6-24 of the court, any information or records concerning that child may
6-25 be transferred to and disseminated by the Texas Crime Information
6-26 Center and the National Crime Information Center.>
6-27 (d) The Department of Public Safety shall maintain a
7-1 repository for copies of records created and maintained under this
7-2 section for a child taken into custody for engaging in delinquent
7-3 conduct that violates a penal law of this state punishable by
7-4 confinement in a state or county jail or by imprisonment in the
7-5 institutional division of the Texas Department of Criminal Justice.
7-6 The department, in consultation with local court, agency, and
7-7 law-enforcement officials, shall adopt rules specifying the form
7-8 and content of the records. Except as provided by Article 15.27,
7-9 Code of Criminal Procedure, and except for files and records
7-10 relating to a charge for which a child is transferred under Section
7-11 54.02 <of this code> to a criminal court for prosecution, the
7-12 law-enforcement files and records are not open to public inspection
7-13 nor may their contents be disclosed to the public, but inspection
7-14 of the files and records is permitted by:
7-15 (1) a juvenile court having the child before it in any
7-16 proceeding;
7-17 (2) an attorney for a party to the proceeding; <and>
7-18 (3) law-enforcement officers when necessary for the
7-19 discharge of their official duties;
7-20 (4) law-enforcement agencies;
7-21 (5) juvenile probation departments;
7-22 (6) the Department of Protective and Regulatory
7-23 Services;
7-24 (7) the Texas Juvenile Probation Commission;
7-25 (8) the attorney general;
7-26 (9) the Criminal Justice Policy Council;
7-27 (10) the Texas Youth Commission; and
8-1 (11) the Texas Department of Criminal Justice.
8-2 (e) For the purpose of offering a record as evidence in the
8-3 punishment phase of a criminal proceeding, a prosecuting attorney
8-4 may obtain the record of a defendant's adjudication that is
8-5 admissible under Section 3(a), Article 37.07, Code of Criminal
8-6 Procedure, by submitting a request for the record to the juvenile
8-7 court or to the Department of Public Safety. If the court or the
8-8 Department of Public Safety has a record to which the prosecuting
8-9 attorney is entitled under this section, the court or the
8-10 department shall certify a copy of the record and issue it to the
8-11 prosecuting attorney. Otherwise, the court or the Department of
8-12 Public Safety shall notify the prosecuting attorney that it does
8-13 not have a record to which the attorney is entitled under this
8-14 section.
8-15 (f) <(e)> This section does not apply to files and records
8-16 relating to a child that are required or authorized to be
8-17 maintained under the laws regulating the operation of motor
8-18 vehicles in this state.
8-19 (g) If a child has been reported as missing by a parent,
8-20 guardian, or conservator of that child, has escaped from the
8-21 custody of a juvenile detention facility, the Texas Youth
8-22 Commission, or any other agency to which the child has been
8-23 committed, or is the subject of a bench warrant or felony arrest
8-24 warrant issued by a court after the child has fled the jurisdiction
8-25 of the court, any information or records concerning that child may
8-26 be transferred to and disseminated by the Texas Crime Information
8-27 Center and the National Crime Information Center.
9-1 SECTION 4. Section 51.15, Family Code, as amended by
9-2 Chapters 385, 515, and 576, Acts of the 70th Legislature, Regular
9-3 Session, 1987, is amended to read as follows:
9-4 Sec. 51.15. FINGERPRINTS AND PHOTOGRAPHS. (a) A child
9-5 taken into custody for engaging in conduct in need of supervision
9-6 or delinquent conduct may be fingerprinted and photographed <No
9-7 child may be fingerprinted without the consent of the juvenile
9-8 court except as provided by this subsection or by Subsections (f)
9-9 and (i) of this section. A child's fingerprints may be taken and
9-10 filed by a law enforcement officer investigating a case if:>
9-11 <(1) the child is 15 years of age or older and is
9-12 referred to the juvenile court for any felony; or>
9-13 <(2) the child is under 15 years of age and is
9-14 referred to the juvenile court for a felony listed in Section
9-15 53.045(a) of this code.>
9-16 <(b) Except as provided in Subsections (h) and (i) of this
9-17 section, no child taken into custody may be photographed without
9-18 the consent of the juvenile court unless:>
9-19 <(1) the child is 15 years of age or older and is
9-20 referred to the juvenile court for a felony; or>
9-21 <(2) the child is under 15 years of age and is
9-22 referred to the juvenile court for a felony listed in Section
9-23 53.045(a) of this code>.
9-24 (b) <(c)> Except as provided by this section <subsection>,
9-25 fingerprint and photograph files or records of children shall be
9-26 kept separate from those of adults<, and fingerprints or
9-27 photographs known to be those of a child shall be maintained on a
10-1 local basis only and not sent to a central state or federal
10-2 depository>. The <However,> fingerprint and photograph files or
10-3 records of a person who is transferred from the Texas Youth
10-4 Commission to the institutional division of the Texas Department of
10-5 Criminal Justice <Corrections> under a determinate sentence may be
10-6 transferred to adult records on or after the date of transfer.
10-7 (c) A copy of the fingerprint and photograph file or record
10-8 shall be transferred to the state repository created under Section
10-9 51.14 for a child who has been taken into custody for engaging in
10-10 delinquent conduct that violates a penal law that is punishable by
10-11 confinement in a state or county jail or by imprisonment in the
10-12 institutional division of the Texas Department of Criminal Justice.
10-13 <If a child has been reported as missing by a parent, guardian, or
10-14 conservator of that child or a child has escaped from the custody
10-15 of a juvenile detention facility, the Texas Youth Commission, or
10-16 any other agency to which the child has been committed, the child's
10-17 fingerprints and photograph may be sent to and indexed into the
10-18 files of the Department of Public Safety and the Federal Bureau of
10-19 Investigation to aid in the location and identification of the
10-20 child.>
10-21 (d) Fingerprint and photograph files or records of children
10-22 are subject to inspection as provided in <Subsections (a) and (d)
10-23 of> Section 51.14 <of this code>.
10-24 (e) A child's fingerprints and photographs <that are not
10-25 transferred under Subsection (c) of this section> shall not be
10-26 removed from files or records and destroyed <if:>
10-27 <(1) a petition alleging that the child engaged in
11-1 delinquent conduct or conduct indicating a need for supervision is
11-2 not filed, or the proceedings are dismissed after a petition is
11-3 filed, or the child is found not to have engaged in the alleged
11-4 conduct;>
11-5 <(2) the person reaches 18 years of age, is not
11-6 subject to commitment to the Texas Youth Commission or to transfer
11-7 under a determinate sentence to the Texas Department of
11-8 Corrections, and there is no record that he committed a criminal
11-9 offense after reaching 17 years of age; or>
11-10 <(3) the person is older than 18 years, at least three
11-11 years have elapsed after the person's release from commitment, and
11-12 there is no evidence that he committed a criminal offense after the
11-13 release>.
11-14 (f) If a child has been reported as missing by a parent,
11-15 guardian, or conservator of that child or a child has escaped from
11-16 the custody of a juvenile detention facility, the Texas Youth
11-17 Commission, or any other agency to which the child has been
11-18 committed, the child's fingerprints and photograph may be sent to
11-19 and indexed into the files of the Department of Public Safety and
11-20 the Federal Bureau of Investigation to aid in the location and
11-21 identification of the child. <If latent fingerprints are found
11-22 during the investigation of an offense, and a law-enforcement
11-23 officer has reasonable cause to believe that they are those of a
11-24 particular child, if otherwise authorized by law, he may
11-25 fingerprint the child regardless of the age or offense for purpose
11-26 of immediate comparison with the latent fingerprints. If the
11-27 comparison is negative, the fingerprint card and other copies of
12-1 the fingerprints taken shall be destroyed immediately. If the
12-2 comparison is positive, and the child is referred to the juvenile
12-3 court, the fingerprint card and other copies of the fingerprints
12-4 taken shall be delivered to the court for disposition. If the
12-5 child is not referred to the court, the fingerprint card and other
12-6 copies of the fingerprints taken shall be destroyed immediately.>
12-7 <(g) When destruction of fingerprints or photographs is
12-8 required by Subsection (e), (f), or (h) of this section, the agency
12-9 with custody of the fingerprints or photographs shall proceed with
12-10 destruction without judicial order. However, if the fingerprints
12-11 or photographs are not destroyed, the juvenile court, on its own
12-12 motion or on application by the person fingerprinted or
12-13 photographed, shall order the destruction as required by this
12-14 section.>
12-15 <(h) If, during the investigation of a criminal offense, a
12-16 law enforcement officer has reason to believe that a photograph of
12-17 a child taken into custody or detained as permitted under this
12-18 title will assist in the identification of the offender and if not
12-19 otherwise prohibited by law, the officer may photograph the face of
12-20 the child. If the child is not identified as an offender, the
12-21 photograph and its negative shall be destroyed immediately. If the
12-22 child is identified through the photograph and the child is
12-23 referred to the juvenile court for the offense investigated, the
12-24 photograph and its negative shall be delivered to the juvenile
12-25 court for disposition. If the child is not referred to the
12-26 juvenile court for the offense investigated, the photograph and its
12-27 negative shall be destroyed immediately.>
13-1 <(i) A law enforcement officer may fingerprint or photograph
13-2 a child taken into custody, or detained as permitted under this
13-3 title, for delinquent conduct if the officer is unable to identify
13-4 the child after making a reasonable effort to do so.>
13-5 SECTION 5. Chapter 52, Family Code, is amended by adding
13-6 Section 52.031 to read as follows:
13-7 Sec. 52.031. FIRST OFFENDER PROGRAM. (a) A juvenile court
13-8 may establish a first offender program as provided by this section.
13-9 (b) The court shall designate a law enforcement officer and
13-10 an agency, which may be a law enforcement agency, to process a
13-11 child under the first offender program.
13-12 (c) The disposition of a child under the first offender
13-13 program may not take place until:
13-14 (1) guidelines for the disposition have been issued by
13-15 the agency designated under Subsection (b); and
13-16 (2) the juvenile court has approved the guidelines.
13-17 (d) A law enforcement officer taking a child into custody
13-18 may refer the child to the law enforcement officer or agency
13-19 designated under Subsection (b) for disposition under the first
13-20 offender program and not refer the child to juvenile court only if:
13-21 (1) the child has not previously been adjudicated as
13-22 having engaged in delinquent conduct;
13-23 (2) the referral complies with guidelines for
13-24 disposition under Subsection (c); and
13-25 (3) the officer reports in writing the referral to the
13-26 agency, identifying the child and specifying the grounds for taking
13-27 the child into custody.
14-1 (e) A child referred for disposition under the first
14-2 offender program may not be detained in law enforcement custody.
14-3 (f) The parent, guardian, or other custodian of the child
14-4 must receive notice that the child has been referred for
14-5 disposition under the first offender program. The notice must:
14-6 (1) state the grounds for taking the child into
14-7 custody;
14-8 (2) identify the law enforcement officer or agency to
14-9 which the child was referred;
14-10 (3) briefly describe the nature of the program; and
14-11 (4) state that the child's failure to complete the
14-12 program will result in the child being referred to the juvenile
14-13 court.
14-14 (g) The child and the parent, guardian, or other custodian
14-15 of the child must consent to participation by the child in the
14-16 first offender program.
14-17 (h) Disposition under a first offender program may include:
14-18 (1) voluntary restitution by the child or the parent,
14-19 guardian, or other custodian of the child to the victim of the
14-20 conduct of the child;
14-21 (2) voluntary community service restitution by the
14-22 child;
14-23 (3) educational, vocational training, counseling, or
14-24 other rehabilitative services; and
14-25 (4) periodic reporting by the child to the law
14-26 enforcement officer or agency to which the child has been referred.
14-27 (i) The case of a child who successfully completes the first
15-1 offender program is closed and may not be referred to juvenile
15-2 court, unless the child is taken into custody under circumstances
15-3 described by Subsection (j)(3).
15-4 (j) The case of a child referred for disposition under the
15-5 first offender program shall be referred to juvenile court if:
15-6 (1) the child fails to complete the program;
15-7 (2) the child or the parent, guardian, or other
15-8 custodian of the child terminates the child's participation in the
15-9 program before the child completes it; or
15-10 (3) the child completes the program but is taken into
15-11 custody under Section 52.01 before the 90th day after the date the
15-12 child completes the program for conduct other than the conduct for
15-13 which the child was referred to the first offender program.
15-14 (k) A statement made by a child to a person giving advice,
15-15 supervision, or participating in the first offender program may not
15-16 be used against the child in any proceeding under this title or any
15-17 criminal proceeding.
15-18 SECTION 6. (a) This Act takes effect September 1, 1995.
15-19 (b) This Act applies only to conduct that occurs on or after
15-20 the effective date of this Act. Conduct violating a penal law of
15-21 this state occurs on or after the effective date of this Act if any
15-22 element of the violation occurs on or after that date.
15-23 (c) Conduct that occurs before the effective date of this
15-24 Act is governed by the law in effect at the time the conduct
15-25 occurred, and that law is continued in effect for that purpose.
15-26 (d) This Act applies only to fingerprints and photographs
15-27 taken on or after the effective date of this Act. Fingerprints or
16-1 photographs taken before the effective date of this Act are
16-2 governed by the law in effect at the time the fingerprints or
16-3 photographs were taken, and that law is continued in effect for
16-4 that purpose.
16-5 SECTION 7. The importance of this legislation and the
16-6 crowded condition of the calendars in both houses create an
16-7 emergency and an imperative public necessity that the
16-8 constitutional rule requiring bills to be read on three several
16-9 days in each house be suspended, and this rule is hereby suspended.