CJ C.S.H.B. 1550 75(R) BILL ANALYSIS JUVENILE JUSTICE & FAMILY ISSUES H.B. 1550 By Goodman 3-6-97 Committee Report (Substituted) BACKGROUND Extensive changes were made in the juvenile justice system as a result of legislation enacted by the legislature during the 74th Regular Session. During the interim following the session, the House Committee on Juvenile Justice and Family Issues was assigned a number of charges by Speaker Laney. One of the charges was to review the changes in the juvenile justice laws made by the 74th Legislature and make recommendations addressing new juvenile justice problems; reports from the juvenile justice agencies and the Criminal Justice Policy Council concerning implementation of Progressive Sanctions Guidelines; and errors, omissions, and conflicts in current law. The Committee's Interim Report to the 75th Texas Legislature, submitted in December, 1996, included these recommendations. Also during the interim other juvenile justice practitioners and officials who contributed to the development of the juvenile justice reforms during the last legislative session made recommendations addressing additional problem areas and areas needing clarification. PURPOSE H.B. 1550 makes a number of clarifying and technical amendments to the Juvenile Justice Code (Title 3, Texas Family Code) that have been discovered since the major reforms of the last legislative session. It changes the classification of two offenses (Arson and DWI); streamlines statutory warning requirements; authorizes the Texas Youth Commission to accept offenders with mental illness and requires it to discharge offenders with mental disorders under certain circumstances; amends Progressive Sanctions Guidelines in several respects; and makes several amendments related to the maintenance and release of information in youth records. RULEMAKING AUTHORITY H.B. 1550 (SECTION 31) expands the rulemaking authority of the Texas Juvenile Probation Commission to include the adoption of reasonable rules that provide procedures for the implementation of a progressive sanctions program under Chapter 59, Family Code. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 51.03(a) and (b), Family Code, to authorize a finding of delinquent conduct for the first offense of driving while intoxicated or under the influence and to correct a reference to the Education Code. SECTION 2. Amends Section 51.031, Family Code, to: A. clarify that an adjudication used in finding habitual felony conduct is not final if the case is on appeal and is final if the juvenile was put on probation or committed to the Texas Youth Commission for the offense; and B. clarify that each of the prior adjudications used in finding habitual felony conduct must be final and must be based on conduct that occurred on or after January 1, 1996. SECTION 3. Amends Chapter 51, Family Code, to add Section 51.0411 to clarify that the juvenile court retains jurisdiction to conduct release/transfer hearings on youth after age 18 who have received a determinate sentence. SECTION 4. Amends Chapter 51, Family Code, by amending Section 51.09 and adding Section 51.095 to: A. require that the statutory warnings for admissibility of written statements include only the Miranda warnings and delete the requirement for detailed information related to certification and determinate sentencing; and B. authorize oral statements to be admitted into evidence if they are recorded on audio or video tape and if the statutory warnings and the youth's waiver of his rights appear on the tape. It would authorize a peace officer or a magistrate to give the statutory warnings in this circumstance. It would require the youth's attorney to be given a copy of the recording at least 20 days before a juvenile court proceeding. It would require that the recording be preserved until all proceedings are final. SECTION 5. Amends Section 51.13(d), Family Code, to clarify that only felony adjudications that lead to commitment or sentence to commitment to the Texas Youth Commission that are based on conduct occurring on or after January 1, 1996 may be used to enhance penalties in a subsequent criminal proceeding. SECTION 6. Amends Section 53.013, Family Code, to clarify that the court or probation department must report deviations from the guidelines even if the juvenile board does not adopt the progressive sanctions program. SECTION 7. Amends Section 53.045(a), Family Code, to add the offense of "Arson" (Section 28.02, Penal Code), if bodily injury or death results, to the list of offenses eligible for determinate sentencing. SECTION 8. Amends Section 54.01(e), Family Code, to conform the pre-hearing detention criteria with the criteria used at the detention hearing by substituting for the felony offense requirement in the detention hearing criteria the provision regarding youth who "may threaten the safety of the public." SECTION 9. Amends Section 54.04(d), Family Code, to repeal the court's authority to place a youth on probation in an intermediate sanction program operated or contracted by the Texas Youth Commission. SECTION 10. Amends Section 54.10(b), Family Code, to require the juvenile court judge to adopt, modify or reject a referee's recommendations not later than the next working day after the day the judge receives the recommendations and to delete the requirement that these actions be taken within 24 hours. SECTION 11. Amends Section 55.03(a), Family Code, to delete the requirement that the juvenile court initiate proceedings to order commitment of a child to a residential care facility for persons with mental retardation when test results of mental retardation are at a certain level. SECTION 12. Amends Section 58.001, Family Code, to: A. authorize retention of information relating to a youth in a first offender program for a period of 90 days following completion of the program and before destruction of the records; B. authorize a law enforcement agency to retain a copy of a youth's record after 90 days following completion of a first offender program for the sole purpose of determining the youth's eligibility for a subsequent first offender program; C. authorize alteration of documents that contain both juvenile and adult information in order to delete the juvenile information that is required to be destroyed and preserve the adult information; and D. provide that deletion of computer entries constitutes destruction of the information entered. SECTION 13. Amends Section 58.007, Family Code, to: A. prohibit public disclosure of law enforcement records pertaining to a youth; B. authorize law enforcement records and files to be sent to the Department of Public Safety's juvenile justice information system under Chapter 58, Subchapter B, Family Code; and C. authorize the juvenile court's release and certification of felony and jailable misdemeanor adjudication records to prosecuting attorneys for purposes of offering the records into evidence in the punishment phase of criminal proceedings. SECTION 14. Amends Section 59.003, Family Code, to: A. include the offense of capital felony at Sanction Level Six (commitment to the Texas Youth Commission) of the Progressive Sanctions Guidelines; B. provide for assignment of a sanction level that is one level higher than the previously assigned sanction level, unless the sanction level is six, when the youth is adjudicated for delinquent conduct occurring on two separate occasions that violates a penal law classified lower than the previous offense; C. delete the provision that provides for assignment of a higher sanction level when a parent notifies the court of a violation of a parental rule. It would delete the provision that such notice by the parent constitutes a "good faith effort to prevent the child from engaging in delinquent conduct or conduct indicating a need for supervision;" D. clarify that a child at Sanction Level Six may not be assigned Sanction Level Seven unless the offense is one that is eligible for determinate sentencing and the petition has been approved by the grand jury; E. clarify that the court or probation department must report deviations from the guidelines even if the juvenile board does not adopt the progressive sanctions program; F. clarify that a hearing to modify disposition is required to extend a period of probation and would delete the provision related to extension of probation through written request by the probation department to the juvenile court; G. clarify that a hearing to modify disposition is required to revoke probation and commit a child to the Texas Youth Commission; and H. clarify that a court's decision to transfer a child to the criminal court for criminal prosecution need not be reported to the juvenile board as a deviation from the Progressive Sanctions Guidelines. SECTION 15. Amends Section 59.004(a), Family Code, to clarify that, at Sanction Level One of the Progressive Sanctions Guidelines, a child and parent or guardian are required to participate in a program for at risk youth only if it is available to them. SECTION 16. Amends Section 59.005(a), Family Code, to: A. clarify that, at Sanction Level Two, a prosecuting attorney is included among those who are authorized to defer prosecution. It would substitute the term "deferred prosecution" for the term "informal" probation; and B. clarify that, at Sanction Level Two, a child and parent or guardian are required to participate in a program for at risk youth only if it is available to them. SECTION 17. Amends Section 59.006(a), Family Code, to: A. call for the period of probation at Sanction Level Three to be for a period more than 6 months and not more than 12 months; and B. provide for nonsecure residential placement at Sanction Level Three for a period not more than 6 months. SECTION 18. Amends Section 59.007(a), Family Code, to: A. call for the period of intensive probation at Sanction Level Four to be not more than 12 months; and B. provide for nonsecure residential placement at Sanction Level Four for a period not more than 6 months. SECTION 19. Amends Section 59.008(a), Family Code, to: A. call for the maximum period of residential placement at Sanction Level Five to increase from 9 months to 12 months; and B. provide for either secure or nonsecure residential programs at Sanction Level Five. SECTION 20. Amends Section 59.009(a), Family Code, to clarify that a commitment to the Texas Youth Commission at Sanction Level Six is permissive rather than mandatory. SECTION 21. Amends Section 59.010(a), Family Code, to: A. clarify that a sentence to commitment to the Texas Youth Commission at Sanction Level Seven is permissive rather than mandatory; and B. make the court's decision to certify and transfer a child to the criminal court a Sanction Level Seven disposition. SECTION 22. Amends Section 264.302(e), Family Code, to clarify that the Department of Protective and Regulatory Services is required to provide services to at risk youth and their families only when a contract to provide the service is available in the county of their residence. SECTION 23. Amends Section 3(a), Article 37.07, Code of Criminal Procedure, to provide that felony and jailable misdemeanor adjudications in the juvenile court that are used in the punishment phase of subsequent criminal proceedings must be based on conduct that occurred on or after January 1, 1996. SECTION 24. Amends Section 61.073, Human Resources Code, to authorize the release to criminal justice agencies of Texas Youth Commission information pertaining to a youth's involvement in criminal combinations and to include a reference to the new subsection added in SECTION 29. SECTION 25. Amends Section 61.077, Human Resources Code, to: A. require the Texas Youth Commission to accept youth with mental illness; and B. require the Texas Youth Commission to discharge youth with mental illness and mental retardation after they have completed the minimum length of stay for the offense for which they are committed if the youth are unable to participate in agency rehabilitation programs and have not been sentenced to commitment under the violent and habitual offender law. SECTION 26. Amends Section 61.0771, Human Resources Code, to: A. authorize the Texas Youth Commission to administer psychoactive medication to a youth who refuses to take the medication voluntarily when there is a risk of danger to the youth or others due to the youth's mental disorder and refusal to take the medication; B. require that the decision to administer a psychoactive medication be made by a physician in emergencies and by two physicians, one of whom must be a psychiatrist, in the absence of an emergency; and C. define "psychoactive medication" in the same manner it is defined in the Health and Safety Code. SECTION 27. Amends Subchapter E, Chapter 61, Human Resources Code, by adding Section 61.0772 to: A. require the Texas Youth Commission to establish a system to identify youth with mental illness and mental retardation; and B. require the commission to initiate court proceedings to obtain appropriate mental health services (a sworn application by a commission psychiatrist for court-ordered mental health services or a reference for a determination of mental retardation and interdisciplinary team recommendation to a facility approved or operated by the Texas Department of Mental Health and Mental Retardation) for the youth who are unable to participate in agency rehabilitation programs due to their mental disorder at least 30 days prior to their discharge. SECTION 28. Amends Subchapter E, Chapter 61, Human Resources Code, by adding Section 61.0773 to: A. require the commission to refer a sentenced youth to the juvenile court for consideration of the youth's transfer to the institutional division of the Texas Department of Criminal Justice if the youth is unable to participate in agency rehabilitation programs due to the youth's mental illness or mental retardation and if the youth meets the other requirements for transfer (the youth is 16 years of age or older; the youth has not completed the sentence; and the youth's conduct in the institution or on parole indicates the welfare of the community requires the transfer); B. require that the youth's parole be revoked before a referral to the court under this section if the youth is on parole; and C. require the commission to cooperate with the court in any proceeding for the transfer of the youth. SECTION 29. Amends Section 61.093, Human Resources Code, by adding Subsection (c) to authorize the Texas Youth Commission to release information to the public related to an escaped youth's identity and, if necessary to protect the welfare of the community, any other information that indicates whether the youth should be considered dangerous or that might expedite the youth's apprehension. SECTION 30. Amends Section 61.101, Human Resources Code, to delete provisions relating to the establishment of youth boot camp programs operated or contracted by the Texas Youth Commission for youth placed there on probation as an intermediate sanction under Section 54.04(d)(1)(C), Family Code. SECTION 31. Amends Section 141.042(a), Human Resources Code, to require the Texas Juvenile Probation Commission to adopt rules that provide procedures for the implementation of a progressive sanctions program under Chapter 59, Family Code. SECTION 32. Amends Section 574.001, Health and Safety Code, by amending subsection (b) and adding Subsection (f) to authorize an application for court-ordered mental health services for a youth in the custody of the Texas Youth Commission to be filed in the county in which the youth was committed to the commission. SECTION 33. Amends Section 593.041, Health and Safety Code, to authorize an application for placement of a TYC youth with mental retardation in a residential care facility of the Department of Mental Health and Mental Retardation to be filed in the county in which the youth was committed to the commission. SECTION 34. Amends Section 51.02(15), Family Code, to conform references to the changes made in SECTION 1. SECTION 35. Amends Section 52.025(b), Family Code, to conform references to the changes made in SECTION 4. SECTION 36. Repeals the following provisions: A. Section 58.004, Family Code, relating to compilation of information pertaining to a criminal combination, that expired as a matter of law with the enactment of Chapter 61, Code of Criminal Procedure; B. Section 61.0386, Human Resources Code, relating to the authority of the Texas Youth Commission to operate or contract for intermediate sanction facilities to serve youth placed in the facilities as a condition of probation under Section 54.04(d)(1)(C), Family Code; C. Sections 61.102 and 61.103, Human Resources Code, relating to the authority of the Texas Youth Commission to contract for the construction and operation of youth boot camp programs to serve youth placed in the programs as a condition of probation under Section 54.04(d)(1)(C), Family Code; and D. Section 105(e), Chapter 262, Acts of the 74th Legislature, Regular Session, 1995, relating to the enactment of Section 58.004, Family Code, as provided in that Act, effective on the date of a final court judgment invalidating Chapter 61, Code of Criminal Procedure. SECTION 37. Requires the Texas Juvenile Probation Commission to adopt rules for the implementation of a progressive sanctions program as required in SECTION 31 not later than January 1, 1998. SECTION 38. Applicability clause. SECTION 39. Effective date is September 1, 1997 except for the following sections that would take effect immediately and apply to persons in the custody of the Texas Youth Commission or committed to the custody of the Texas Youth Commission on or after the effective date of the section: A. Section 51.0411, Family Code, related to the juvenile court's jurisdiction to conduct release/transfer hearings on youth after age 18 who have received a determinate sentence; B. Sections 574.001 and 593.041, Health and Safety Code, related to the authority to file applications for mental health services for youth in the custody of the Texas Youth Commission in the county that committed the youth to the commission; C. Sections 61.077, 61.0771, 61.0772 and 61.093, Human Resources Code, related to the requirement that the Texas Youth Commission accept youth with mental illness and discharge youth with mental disorders under certain circumstances; to the requirement that application for mental health services be made 30 days prior to discharge under certain circumstances; to the administration of psychoactive medication; and to the release of information regarding TYC escapees. SECTION 40. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE CHANGES IN SECTIONS OF THE ORIGINAL: 1. Technical drafting changes in Section 14. 2. Deletes a subsection added in Section 14 that permitted reasons for deviations from the guidelines pertaining to certification and transfer to criminal court not to be reported to the juvenile board. 3. Deletes a clause added in Section 17 that provided for placement on probation at level 3 in a nonsecure residential facility for not more than 6 months. 4. Deletes a clause added in Section 18 that provided for placement on intensive probation at level 4 in a nonsecure residential facility for not more than 6 months. 5. Deletes a clause added in Section 19 and amends Sec.59.008(a)(1), TFC, by deleting "highly structured residential program that emphasizes discipline, accountability, physical fitness, and productive work" and substituting "post-adjudication secure correctional facility." 6. Technical drafting change in Section 23 to make the added applicability clause apply only to a misdemeanor punishable by confinement in jail. 7. Amends a subsection added in Section 25 by deleting "participate and substituting "progress." 8. Deletes a section added in Section 26 related to the administration of psychoactive medication to youth in the Texas Youth Commission who refuse to take it voluntarily. 9. Deletes a section added in Section 28 related to the referral of a determinate sentence youth with mental illness or mental retardation to the court for a release/transfer hearing under certain circumstances. Sections added: 1. Amends Chapter 729, Transportation Code, to provide that procedures for handling juveniles accused of traffic violations in municipal or justice court apply to all juveniles under age 17 (deletes the minimum age of 14); apply the same penalties to juveniles that apply to adults (deletes $100 fine for juveniles and substitutes Class C misdemeanor $500 fine); and apply the same rule with regard to the required presence of a parent to a municipal traffic ordinance case as applies to other traffic violation cases. 2. Amends Sec.8.07(a)(2), Penal Code, to correct a reference to the Transportation Code. 3. Adds Sec.51.19, Family Code, to apply in juvenile proceedings the limitation periods established for criminal offenses in Ch. 12w , Code of Criminal Procedure, and to establish a limitation period of two years for other conduct alleged in juvenile proceedings that is not addressed in Ch. 12, Code of Criminal Procedure. 4. Amends Sec. 58.002, Family Code, by adding subsections (c) and (d) to clarify that law enforcement officials may take fingerprints and photographs of juveniles not in custody with their consent and that the fingerprints may be taken as authorized on a driver's license or personal identification card. 5. Amends Sec 58. 003, Family Code, by adding subsection (m) to clarify that juvenile records maintained under the Texas Sexual Offender Registration Program may not be sealed so long as the juvenile has a continuing duty to register, under the law. 6. Amends Sec. 58.104(f), Family Code, to clarify that the obligation of the Department of Public Safety to notify the court of juvenile records that are eligible for sealing extends only to those records that are indicated eligible for sealing according to its own records and to include notification of a felony record when the subject of the record becomes age 21. 7. Amends Sec.54.03, Family Code, to add subsections (i) and (j) to require that an objection or motion be presented to the court stating the grounds for the objection in order to preserve for appellate or collateral review the failure of the court to give a child the pre-adjudication statutory admonishments and to require the court to inform the child that the court is not required to accept an agreed disposition and, in cases where it does not accept such an agreement, to provide the child the opportunity to withdraw the plea or stipulation of evidence and not have any document, testimony or other evidence presented pursuant to the agreement (including any statement the child may have given in a pre-disposition report) considered against the child in a subsequent hearing. 8. Amends Sec.56.01(b), Family Code, to clarify that a notice of appeal filed within thirty days of the disposition of the case perfects the appeal for both the disposition and the adjudication of the case. CJ CSHB 1550 75(R)