By Solomons H.B. No. 678
75R1109 JMC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the waiver of certain rights by a child.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 51.09, Family Code, is amended to read as
1-5 follows:
1-6 Sec. 51.09. WAIVER OF RIGHTS. (a) Unless a contrary intent
1-7 clearly appears elsewhere in this title, any right granted to a
1-8 child by this title or by the constitution or laws of this state or
1-9 the United States may be waived in proceedings under this title if:
1-10 (1) the waiver is made by the child and the attorney
1-11 for the child;
1-12 (2) the child and the attorney waiving the right are
1-13 informed of and understand the right and the possible consequences
1-14 of waiving it;
1-15 (3) the waiver is voluntary; and
1-16 (4) the waiver is made in writing or in court
1-17 proceedings that are recorded.
1-18 (b) Notwithstanding any of the provisions of Subsection (a)
1-19 [of this section], the statement of a child is admissible in
1-20 evidence in any future proceeding concerning the matter about which
1-21 the statement was given if the statement is given in the manner
1-22 provided by this section.
1-23 (c) A statement by a child is admissible if:
1-24 (1) [when] the child is in a detention facility or
2-1 other place of confinement or in the custody of an officer;
2-2 (2) [,] the statement is made in writing;
2-3 (3) [and] the statement shows that the child has at
2-4 some time prior to the making thereof received from a magistrate a
2-5 warning that:
2-6 (A) the child may remain silent and not make any
2-7 statement at all and that any statement that the child makes may be
2-8 used in evidence against the child;
2-9 (B) the child has the right to have an attorney
2-10 present to advise the child either prior to any questioning or
2-11 during the questioning;
2-12 (C) if the child is unable to employ an
2-13 attorney, the child has the right to have an attorney appointed to
2-14 counsel with the child prior to or during any interviews with peace
2-15 officers or attorneys representing the state;
2-16 (D) the child has the right to terminate the
2-17 interview at any time; and
2-18 (E) under certain circumstances relating to the
2-19 age and conduct of the child:
2-20 (i) the juvenile court may not have or may
2-21 waive jurisdiction over the child and the child can be tried as an
2-22 adult; or
2-23 (ii) the child may be sentenced to
2-24 commitment in the Texas Youth Commission with a possible transfer
2-25 to the institutional division or the pardons and paroles division
2-26 of the Texas Department of Criminal Justice [if the child is 14
2-27 years of age or older at the time of the violation of a penal law
3-1 of the grade of capital felony, aggravated controlled substance
3-2 felony, or felony of the first degree, or is 15 years of age or
3-3 older at the time of the violation of a penal law of the grade of
3-4 felony of the second or third degree or a state jail felony, the
3-5 juvenile court may waive its jurisdiction and the child may be
3-6 tried as an adult, except that if the child has previously been
3-7 transferred to a district court or criminal district court for
3-8 criminal proceedings and has violated a penal law of the grade of
3-9 felony, the juvenile court is required to waive its jurisdiction
3-10 and the child can be tried as an adult;]
3-11 [(F) the child may be sentenced to commitment in
3-12 the Texas Youth Commission with a possible transfer to the
3-13 institutional division or the pardons and paroles division of the
3-14 Texas Department of Criminal Justice for a maximum term of 40 years
3-15 for a capital felony, felony of the first degree, or aggravated
3-16 controlled substance felony, 20 years for a felony of the second
3-17 degree, or 10 years for a felony of the third degree if the child
3-18 is found to have engaged in habitual felony conduct by violating a
3-19 penal law of the grade of felony, other than a state jail felony,
3-20 if the child has at least two previous adjudications as having
3-21 engaged in delinquent conduct violating a penal law of the grade of
3-22 felony and the second previous adjudication is for conduct that
3-23 occurred after the date the first previous adjudication became
3-24 final, alleged in a petition approved by a grand jury, or if the
3-25 child is found to have engaged in delinquent conduct, alleged in a
3-26 petition approved by a grand jury, that included:]
3-27 [(i) murder;]
4-1 [(ii) capital murder;]
4-2 [(iii) aggravated kidnapping;]
4-3 [(iv) sexual assault or aggravated sexual
4-4 assault;]
4-5 [(v) aggravated robbery;]
4-6 [(vi) aggravated assault;]
4-7 [(vii) injury to a child, elderly
4-8 individual, or disabled individual that is punishable as a felony,
4-9 other than a state jail felony, under Section 22.04, Penal Code;]
4-10 [(viii) deadly conduct defined by Section
4-11 22.05(b), Penal Code (discharging firearm at persons or certain
4-12 objects);]
4-13 [(ix) an offense that is a felony of the
4-14 first degree or an aggravated controlled substance felony under
4-15 Subchapter D, Chapter 481, Health and Safety Code (certain offenses
4-16 involving controlled substances);]
4-17 [(x) criminal solicitation;]
4-18 [(xi) indecency with a child that is
4-19 punishable under Section 21.11(a)(1), Penal Code;]
4-20 [(xii) criminal solicitation of a minor
4-21 (Section 15.031, Penal Code); or]
4-22 [(xiii) criminal attempt to commit any of
4-23 the offenses listed in Section 3g(a)(1), Article 42.12, Code of
4-24 Criminal Procedure, which include murder, capital murder, indecency
4-25 with a child, aggravated kidnapping, aggravated sexual assault, and
4-26 aggravated robbery]; and
4-27 (4) [(G)] the statement is [must be] signed in the
5-1 presence of a magistrate by the child with no law enforcement
5-2 officer or prosecuting attorney present, except that a magistrate
5-3 may require a bailiff or a law enforcement officer if a bailiff is
5-4 not available to be present if the magistrate determines that:
5-5 (A) the presence of the bailiff or law
5-6 enforcement officer is necessary for the personal safety of the
5-7 magistrate or other court personnel; and
5-8 (B) [, provided that] the bailiff or law
5-9 enforcement officer does [may] not carry a weapon in the presence
5-10 of the child.
5-11 (d) The magistrate may sign a statement under Subsection (c)
5-12 only if the magistrate is [must be] fully convinced that the child
5-13 understands the nature and contents of the statement and that the
5-14 child is signing the same voluntarily. If such a statement is
5-15 taken, the magistrate shall sign a written statement verifying
5-16 that:
5-17 (1) the [foregoing requisites have been met.]
5-18 [The] child has signed [must knowingly, intelligently, and
5-19 voluntarily waive these rights prior to and during the making of
5-20 the statement and sign] the statement in the presence of the [a]
5-21 magistrate;
5-22 (2) the magistrate [who must certify that he] has
5-23 examined the child independent of any law enforcement officer or
5-24 prosecuting attorney, except as required to ensure the personal
5-25 safety of the magistrate or other court personnel;[,] and
5-26 (3) the magistrate has determined that the child
5-27 understands the nature and contents of the statement and has
6-1 knowingly, intelligently, and voluntarily waived these rights
6-2 before and during the making of the statement.
6-3 (e) A statement is admissible if it is
6-4 [(2) it be] made orally and the child makes a
6-5 statement of facts or circumstances that are found to be true,
6-6 which conduct tends to establish his guilt, such as the finding of
6-7 secreted or stolen property, or the instrument with which he states
6-8 the offense was committed.
6-9 (f) A statement is admissible if
6-10 [(3)] the statement was res gestae of the delinquent
6-11 conduct or the conduct indicating a need for supervision or of the
6-12 arrest.
6-13 (g) [(c) A warning under Subsection (b)(1)(E) or (b)(1)(F)
6-14 is required only when applicable to the facts of the case. A
6-15 failure to warn a child under Subsection (b)(1)(E) does not render
6-16 a statement made by the child inadmissible unless the child is
6-17 transferred to a district court under Section 54.02. A failure to
6-18 warn a child under Subsection (b)(1)(F) does not render a statement
6-19 made by the child inadmissible unless the state proceeds against
6-20 the child on a petition approved by a grand jury under Section
6-21 53.045.]
6-22 [(d)] This section does not preclude the admission of a
6-23 statement made by the child if:
6-24 (1) the child makes the statement:
6-25 (A) in open court at the child's adjudication
6-26 hearing;
6-27 (B) before a grand jury considering a petition,
7-1 under Section 53.045 [of this code], that the child engaged in
7-2 delinquent conduct; or
7-3 (C) at a preliminary hearing concerning the
7-4 child held in compliance with this code, other than at a detention
7-5 hearing under Section 54.01 [of this code];
7-6 (2) the statement does not stem from custodial
7-7 interrogation; or
7-8 (3) without regard to whether the statement stems from
7-9 custodial interrogation, the statement is voluntary and has a
7-10 bearing on the credibility of the child as a witness.
7-11 SECTION 2. This Act takes effect September 1, 1997, and
7-12 applies only to the admissibility of a statement made on or after
7-13 that date, without regard to whether the child making the statement
7-14 was taken into custody before, on, or after that date. A statement
7-15 made before the effective date of this Act is governed by the law
7-16 in effect at the time the statement was given, and that law is
7-17 continued in effect for that purpose.
7-18 SECTION 3. The importance of this legislation and the
7-19 crowded condition of the calendars in both houses create an
7-20 emergency and an imperative public necessity that the
7-21 constitutional rule requiring bills to be read on three several
7-22 days in each house be suspended, and this rule is hereby suspended.