1-1 By: Goodman, Naishtat, Cuellar, et al. H.B. No. 1550
1-2 (Senate Sponsor - Harris)
1-3 (In the Senate - Received from the House April 18, 1997;
1-4 April 22, 1997, read first time and referred to Committee on
1-5 Jurisprudence; April 30, 1997, reported favorably, as amended, by
1-6 the following vote: Yeas 6, Nays 0; April 30, 1997, sent to
1-7 printer.)
1-8 COMMITTEE AMENDMENT NO. 1 By: Cain
1-9 Amend H.B. 1550 by deleting SECTION 47 and adding a new SECTION 47
1-10 to read as follows:
1-11 SECTION 47, Subtitle C, Title 7, Local Government Code, is
1-12 amended by adding Chapter 244 to read as follows:
1-13 CHAPTER 244. CORRECTIONAL OR REHABILITATION FACILITY LOCATION
1-14 Sec. 244.001. DEFINITIONS. In this chapter:
1-15 (1) "Correctional or rehabilitation facility" means a
1-16 probation or parole office or a facility that:
1-17 (A) is operated by an agency of the state, a
1-18 political subdivision of the state, or a private vendor operating
1-19 under a contract with an agency of the state or a political
1-20 subdivision of the state; and
1-21 (B) houses persons convicted of misdemeanors or
1-22 felonies or children found to have engaged in delinquent conduct,
1-23 whether the persons are housed in the facility:
1-24 (i) while serving a sentence of
1-25 confinement following conviction of an offense;
1-26 (ii) as a condition of probation, parole,
1-27 or mandatory supervision; or
1-28 (iii) pursuant to a court order for
1-29 out-of-home placement under Title III, Family Code.
1-30 (2) "Private residence" means a dwelling and includes
1-31 a single family home, duplex, multifamily unit, lodging or boarding
1-32 house, mobile home, resident or nursing home for the aged, and
1-33 foster home.
1-34 (3) "Residential zoning area" means an area designated
1-35 as a residential zoning district by a governing ordinance or code
1-36 or an area in which the principal permitted land use is for private
1-37 residences.
1-38 Sec. 244.002. PROXIMITY OF CORRECTIONAL OR REHABILITATION
1-39 FACILITY. (a) An agency of the state, a political subdivision of
1-40 the state, or a private vendor operating under a contract with an
1-41 agency or political subdivision of the state must give each
1-42 commissioners court specified under Section 244.003(a)(1) and the
1-43 governing body of each municipality specified under Section
1-44 244.003(a)(2) at least 60 days' notice prior to the commencement of
1-45 construction or operation of a correctional or rehabilitaiton
1-46 facility within one-half mile of a residential zoning area, a
1-47 private residence, a primary or secondary school, property
1-48 designated as a public park or public recreation area by the state
1-49 or a political subdivision of the state, or a church, synagogue, or
1-50 other house of worship.
1-51 (b) An agency of the state, a political subdivision of the
1-52 state, or a private vendor operating under a contract with an
1-53 agency or political subdivision of the state may operate a
1-54 correctional or rehabilitation facility within one-half mile of a
1-55 residential zoning area, a private residence, a primary or
1-56 secondary school, property designated as a public park or public
1-57 recreation area by the state or a political subdivision of the
1-58 state or a church, synagogue, or other house of worship unless
1-59 local consent is denied under Section 244.003.
1-60 (c) For the purposes of this chapter, distance is measured
1-61 along the shortest straight line between the nearest property line
1-62 of the correctional or rehabilitation facility and the nearest
1-63 property line of the residential zoning area, residence, school,
1-64 park, recreation area, or house of worship, as appropriate.
2-1 (d) The governing body of a church, synagogue, or other
2-2 house of worship may waive the distance requirements of Subsection
2-3 (b) between a correctional or rehabilitation facility and the house
2-4 of worship by filing an acknowledged written statement of the
2-5 waiver in the deed records of the county in which the facility is
2-6 located.
2-7 Sec. 244.003. LOCAL CONSENT. (a) Local consent to the
2-8 operation of a correctional or rehabilitation facility at a
2-9 particular location is denied if within 60 days after the date
2-10 notice was received by the commissioners court or governing body of
2-11 a municipality:
2-12 (1) the commissioners court of any county with an
2-13 unincorporated area that includes all or part of the land within
2-14 one-half mile of the correctional or rehabilitation facility
2-15 location determines by resolution after a public hearing that it is
2-16 not in the best interest of the county to allow the operation of a
2-17 correctional or rehabilitation facility at that location; or
2-18 (2) the governing body of any municipality that
2-19 includes within its boundaries all or part of the land within
2-20 one-half mile of the correctional or rehabilitation facility
2-21 location determines by resolution after a public hearing that it is
2-22 not in the best interest of the municipality to allow the operation
2-23 of a correctional or rehabilitation facility at that location.
2-24 (b) A commissioners court or governing body of a
2-25 municipality may rescind a resolution adopted under Subsection
2-26 (a)(1) or (2).
2-27 Sec. 244.004. EXEMPTIONS. This chapter does not apply to
2-28 the operation of a correctional or rehabilitation facility at a
2-29 particular location if:
2-30 (1) on September 1, 1997, the correctional or
2-31 rehabilitation facility was in operation, under construction, under
2-32 contract for operation or construction, or planned for construction
2-33 at that location on land owned or leased by an agency or political
2-34 subdivision of the state and designated for use as a correctional
2-35 or rehabilitation facility; or
2-36 (2) the correctional or rehabilitation facility was in
2-37 operation or under construction before the establishment of a
2-38 residential zoning area.
2-39 COMMITTEE AMENDMENT NO. 2 By: Harris
2-40 Amend H.B. 1550 as follows:
2-41 On page 13, line 52, insert the phrase on probation after the
2-42 child.
2-43 COMMITTEE AMENDMENT NO. 3 By: Harris
2-44 Amend H.B. 1550 as follows:
2-45 On page 6, line 19, strike the phrase "or a peace officer"
2-46 A BILL TO BE ENTITLED
2-47 AN ACT
2-48 relating to the juvenile justice system.
2-49 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
2-50 SECTION 1. Sections 51.03(a) and (b), Family Code, are
2-51 amended to read as follows:
2-52 (a) Delinquent conduct is:
2-53 (1) conduct, other than a traffic offense, that
2-54 violates a penal law of this state or of the United States
2-55 punishable by imprisonment or by confinement in jail;
2-56 (2) conduct that violates a reasonable and lawful
2-57 order of a juvenile court entered under Section 54.04 or 54.05 of
2-58 this code, except an order prohibiting the following conduct:
2-59 (A) a violation of the penal laws of this state
2-60 of the grade of misdemeanor that is punishable by fine only or a
2-61 violation of the penal ordinances of any political subdivision of
2-62 this state;
2-63 (B) the unexcused voluntary absence of a child
2-64 from school; or
2-65 (C) the voluntary absence of a child from his
2-66 home without the consent of his parent or guardian for a
2-67 substantial length of time or without intent to return; or
2-68 (3) conduct that violates a lawful order of a
2-69 municipal court or justice court under circumstances that would
3-1 constitute contempt of that court[; or]
3-2 [(4) conduct that violates the laws of this state
3-3 prohibiting driving while intoxicated or under the influence of
3-4 intoxicating liquor (third or subsequent offense) or driving while
3-5 under the influence of any narcotic drug or of any other drug to
3-6 the degree that renders the child incapable of safely driving a
3-7 vehicle (third or subsequent offense)].
3-8 (b) Conduct indicating a need for supervision is:
3-9 (1) subject to Subsection (f) of this section,
3-10 conduct, other than a traffic offense, that violates:
3-11 (A) the penal laws of this state of the grade of
3-12 misdemeanor that are punishable by fine only; or
3-13 (B) the penal ordinances of any political
3-14 subdivision of this state;
3-15 (2) the unexcused voluntary absence of a child on 10
3-16 or more days or parts of days within a six-month period or three or
3-17 more days or parts of days within a four-week period from school
3-18 without the consent of his parents;
3-19 (3) the voluntary absence of a child from his home
3-20 without the consent of his parent or guardian for a substantial
3-21 length of time or without intent to return;
3-22 (4) [conduct which violates the laws of this state
3-23 prohibiting driving while intoxicated or under the influence of
3-24 intoxicating liquor (first or second offense) or driving while
3-25 under the influence of any narcotic drug or of any other drug to a
3-26 degree which renders him incapable of safely driving a vehicle
3-27 (first or second offense);]
3-28 [(5)] conduct prohibited by city ordinance or by state
3-29 law involving the inhalation of the fumes or vapors of paint and
3-30 other protective coatings or glue and other adhesives and the
3-31 volatile chemicals itemized in Section 484.002, Health and Safety
3-32 Code;
3-33 (5) [(6)] an act that violates a school district's
3-34 previously communicated written standards of student conduct for
3-35 which the child has been expelled under Section 37.007 [21.3011],
3-36 Education Code; or
3-37 (6) [(7)] conduct that violates a reasonable and
3-38 lawful order of a court entered under Section 264.305.
3-39 SECTION 2. Section 51.031, Family Code, is amended to read
3-40 as follows:
3-41 Sec. 51.031. HABITUAL FELONY CONDUCT. (a) Habitual felony
3-42 conduct is conduct violating a penal law of the grade of felony,
3-43 other than a state jail felony, if:
3-44 (1) the child who engaged in the conduct has at least
3-45 two previous final adjudications as having engaged in delinquent
3-46 conduct violating a penal law of the grade of felony; [and]
3-47 (2) the second previous final adjudication is for
3-48 conduct that occurred after the date the first previous
3-49 adjudication became final; and
3-50 (3) all appeals relating to the previous adjudications
3-51 considered under Subdivisions (1) and (2) have been exhausted.
3-52 (b) For purposes of this section, an adjudication is final
3-53 if the child is placed on probation or committed to the Texas Youth
3-54 Commission.
3-55 (c) An adjudication based on conduct that occurred before
3-56 January 1, 1996, may not be considered in a disposition made under
3-57 this section.
3-58 SECTION 3. Chapter 51, Family Code, is amended by adding
3-59 Section 51.0411 to read as follows:
3-60 Sec. 51.0411. JURISDICTION FOR TRANSFER OR RELEASE HEARING.
3-61 The court retains jurisdiction over a person, without regard to the
3-62 age of the person, who is referred to the court under Section 54.11
3-63 for transfer to the Texas Department of Criminal Justice or release
3-64 under supervision.
3-65 SECTION 4. Chapter 51, Family Code, is amended by amending
3-66 Section 51.09 and by adding Section 51.095 to read as follows:
3-67 Sec. 51.09. Waiver of Rights. [(a)] Unless a contrary
3-68 intent clearly appears elsewhere in this title, any right granted
3-69 to a child by this title or by the constitution or laws of this
4-1 state or the United States may be waived in proceedings under this
4-2 title if:
4-3 (1) the waiver is made by the child and the attorney
4-4 for the child;
4-5 (2) the child and the attorney waiving the right are
4-6 informed of and understand the right and the possible consequences
4-7 of waiving it;
4-8 (3) the waiver is voluntary; and
4-9 (4) the waiver is made in writing or in court
4-10 proceedings that are recorded.
4-11 Sec. 51.095. ADMISSIBILITY OF A STATEMENT OF A CHILD.
4-12 (a) [(b)] Notwithstanding Section 51.09 [any of the provisions of
4-13 Subsection (a) of this section], the statement of a child is
4-14 admissible in evidence in any future proceeding concerning the
4-15 matter about which the statement was given if:
4-16 (1) the statement is made in writing when the child is
4-17 in a detention facility or other place of confinement or in the
4-18 custody of an officer[, the statement is made in writing] and:
4-19 (A) the statement shows that the child has at
4-20 some time before [prior to] the making of the statement [thereof]
4-21 received from a magistrate a warning that:
4-22 (i) [(A)] the child may remain silent and
4-23 not make any statement at all and that any statement that the child
4-24 makes may be used in evidence against the child;
4-25 (ii) [(B)] the child has the right to have
4-26 an attorney present to advise the child either prior to any
4-27 questioning or during the questioning;
4-28 (iii) [(C)] if the child is unable to
4-29 employ an attorney, the child has the right to have an attorney
4-30 appointed to counsel with the child before [prior to] or during
4-31 any interviews with peace officers or attorneys representing the
4-32 state; and
4-33 (iv) [(D)] the child has the right to
4-34 terminate the interview at any time;
4-35 [(E) if the child is 14 years of age or older at
4-36 the time of the violation of a penal law of the grade of capital
4-37 felony, aggravated controlled substance felony, or felony of the
4-38 first degree, or is 15 years of age or older at the time of the
4-39 violation of a penal law of the grade of felony of the second or
4-40 third degree or a state jail felony, the juvenile court may waive
4-41 its jurisdiction and the child may be tried as an adult, except
4-42 that if the child has previously been transferred to a district
4-43 court or criminal district court for criminal proceedings and has
4-44 violated a penal law of the grade of felony, the juvenile court is
4-45 required to waive its jurisdiction and the child can be tried as an
4-46 adult;]
4-47 [(F) the child may be sentenced to commitment in
4-48 the Texas Youth Commission with a possible transfer to the
4-49 institutional division or the pardons and paroles division of the
4-50 Texas Department of Criminal Justice for a maximum term of 40 years
4-51 for a capital felony, felony of the first degree, or aggravated
4-52 controlled substance felony, 20 years for a felony of the second
4-53 degree, or 10 years for a felony of the third degree if the child
4-54 is found to have engaged in habitual felony conduct by violating a
4-55 penal law of the grade of felony, other than a state jail felony,
4-56 if the child has at least two previous adjudications as having
4-57 engaged in delinquent conduct violating a penal law of the grade of
4-58 felony and the second previous adjudication is for conduct that
4-59 occurred after the date the first previous adjudication became
4-60 final, alleged in a petition approved by a grand jury, or if the
4-61 child is found to have engaged in delinquent conduct, alleged in a
4-62 petition approved by a grand jury, that included:]
4-63 [(i) murder;]
4-64 [(ii) capital murder;]
4-65 [(iii) aggravated kidnapping;]
4-66 [(iv) sexual assault or aggravated sexual
4-67 assault;]
4-68 [(v) aggravated robbery;]
4-69 [(vi) aggravated assault;]
5-1 [(vii) injury to a child, elderly
5-2 individual, or disabled individual that is punishable as a felony,
5-3 other than a state jail felony, under Section 22.04, Penal Code;]
5-4 [(viii) deadly conduct defined by Section
5-5 22.05(b), Penal Code (discharging firearm at persons or certain
5-6 objects);]
5-7 [(ix) an offense that is a felony of the
5-8 first degree or an aggravated controlled substance felony under
5-9 Subchapter D, Chapter 481, Health and Safety Code (certain offenses
5-10 involving controlled substances);]
5-11 [(x) criminal solicitation;]
5-12 [(xi) indecency with a child that is
5-13 punishable under Section 21.11(a)(1), Penal Code;]
5-14 [(xii) criminal solicitation of a minor
5-15 (Section 15.031, Penal Code); or]
5-16 [(xiii) criminal attempt to commit any of
5-17 the offenses listed in Section 3g(a)(1), Article 42.12, Code of
5-18 Criminal Procedure, which include murder, capital murder, indecency
5-19 with a child, aggravated kidnapping, aggravated sexual assault, and
5-20 aggravated robbery; and]
5-21 (B) and:
5-22 (i) [(G)] the statement must be signed in
5-23 the presence of a magistrate by the child with no law enforcement
5-24 officer or prosecuting attorney present, except that a magistrate
5-25 may require a bailiff or a law enforcement officer if a bailiff is
5-26 not available to be present if the magistrate determines that the
5-27 presence of the bailiff or law enforcement officer is necessary for
5-28 the personal safety of the magistrate or other court personnel,
5-29 provided that the bailiff or law enforcement officer may not carry
5-30 a weapon in the presence of the child; and
5-31 (ii) the [. The] magistrate must be fully
5-32 convinced that the child understands the nature and contents of the
5-33 statement and that the child is signing the same voluntarily, and
5-34 if [. If such] a statement is taken, the magistrate must [shall]
5-35 sign a written statement verifying the foregoing requisites have
5-36 been met; [.]
5-37 (C) the [The] child [must] knowingly,
5-38 intelligently, and voluntarily waives [waive] these rights before
5-39 [prior to] and during the making of the statement and signs [sign]
5-40 the statement in the presence of a magistrate; and
5-41 (D) the magistrate certifies [who must certify]
5-42 that the magistrate [he] has examined the child independent of any
5-43 law enforcement officer or prosecuting attorney, except as required
5-44 to ensure the personal safety of the magistrate or other court
5-45 personnel, and has determined that the child understands the nature
5-46 and contents of the statement and has knowingly, intelligently, and
5-47 voluntarily waived these rights; [.]
5-48 (2) the statement is [it be] made orally and the child
5-49 makes a statement of facts or circumstances that are found to be
5-50 true, which conduct tends to establish his guilt, such as the
5-51 finding of secreted or stolen property, or the instrument with
5-52 which he states the offense was committed; [.]
5-53 (3) the statement was res gestae of the delinquent
5-54 conduct or the conduct indicating a need for supervision or of the
5-55 arrest; [.]
5-56 [(c) A warning under Subsection (b)(1)(E) or (b)(1)(F) is
5-57 required only when applicable to the facts of the case. A failure
5-58 to warn a child under Subsection (b)(1)(E) does not render a
5-59 statement made by the child inadmissible unless the child is
5-60 transferred to a district court under Section 54.02. A failure to
5-61 warn a child under Subsection (b)(1)(F) does not render a statement
5-62 made by the child inadmissible unless the state proceeds against
5-63 the child on a petition approved by a grand jury under Section
5-64 53.045.]
5-65 (4) the statement is made [(d) This section does not
5-66 preclude the admission of a statement made by the child if:]
5-67 [(1) the child makes the statement]:
5-68 (A) in open court at the child's adjudication
5-69 hearing;
6-1 (B) before a grand jury considering a petition,
6-2 under Section 53.045 [of this code], that the child engaged in
6-3 delinquent conduct; or
6-4 (C) at a preliminary hearing concerning the
6-5 child held in compliance with this code, other than at a detention
6-6 hearing under Section 54.01 [of this code]; or
6-7 (5) the statement is made orally when the child is in
6-8 a detention facility or other place of confinement or in the
6-9 custody of an officer and the statement is recorded by an
6-10 electronic recording device, including a device that records
6-11 images, and:
6-12 (A) before making the statement, the child is
6-13 given the warning described by Subdivision (1)(A) by a magistrate
6-14 or a peace officer, the warning is a part of the recording, and
6-15 this child knowingly, intelligently, and voluntarily waives each
6-16 right stated in the warning;
6-17 (B) the recording device is capable of making an
6-18 accurate recording, the operator of the device is competent to use
6-19 the device, the recording is accurate, and the recording has not
6-20 been altered;
6-21 (C) each voice on the recording is identified;
6-22 and
6-23 (D) not later than the 20th day before the date
6-24 of the proceeding, the attorney representing the child is given a
6-25 complete and accurate copy of each recording of the child made
6-26 under this subdivision.
6-27 (b) This section and Section 51.09 do not preclude the
6-28 admission of a statement made by the child if:
6-29 (1) [(2)] the statement does not stem from custodial
6-30 interrogation; or
6-31 (2) [(3)] without regard to whether the statement
6-32 stems from custodial interrogation, the statement is voluntary and
6-33 has a bearing on the credibility of the child as a witness.
6-34 (c) An electronic recording of a child's statement made
6-35 under Subsection (a)(5) shall be preserved until all juvenile or
6-36 criminal matters relating to any conduct referred to in the
6-37 statement are final, including the exhaustion of all appeals, or
6-38 barred from prosecution.
6-39 SECTION 5. Section 51.13(d), Family Code, is amended to read
6-40 as follows:
6-41 (d) An adjudication under Section 54.03 that a child engaged
6-42 in conduct that occurred on or after January 1, 1996, and that
6-43 constitutes a felony offense resulting in commitment to the Texas
6-44 Youth Commission under Section 54.04(d)(2), (d)(3), or (m) or
6-45 54.05(f) is a final felony conviction only for the purposes of
6-46 Sections 12.42(a)-(c) and (e), Penal Code.
6-47 SECTION 6. Chapter 51, Family Code, is amended by adding
6-48 Section 51.19 to read as follows:
6-49 Sec. 51.19. LIMITATION PERIODS. (a) The limitation periods
6-50 and the procedures for applying the limitation periods under
6-51 Chapter 12, Code of Criminal Procedure, and other statutory law
6-52 apply to proceedings under this title.
6-53 (b) For purposes of computing a limitation period, a
6-54 petition filed in juvenile court for a transfer or an adjudication
6-55 hearing is equivalent to an indictment or information and is
6-56 treated as presented when the petition is filed in the proper
6-57 court.
6-58 (c) The limitation period is two years for an offense or
6-59 conduct that is not given a specific limitation period under
6-60 Chapter 12, Code of Criminal Procedure, or other statutory law.
6-61 SECTION 7. Section 53.013, Family Code, is amended to read
6-62 as follows:
6-63 Sec. 53.013. PROGRESSIVE SANCTIONS PROGRAM. (a) Each
6-64 juvenile board may adopt a progressive sanctions program using the
6-65 guidelines for progressive sanctions in Chapter 59.
6-66 (b) A juvenile court or probation department that deviates
6-67 from the guidelines under Section 59.003 shall state in writing the
6-68 reasons for the deviation and submit the statement to the juvenile
6-69 board regardless of whether the juvenile board has adopted a
7-1 progressive sanctions program.
7-2 SECTION 8. Section 53.045(a), Family Code, is amended to
7-3 read as follows:
7-4 (a) Except as provided by Subsection (e) [of this section],
7-5 the prosecuting attorney may refer the petition to the grand jury
7-6 of the county in which the court in which the petition is filed
7-7 presides if the petition alleges that the child engaged in
7-8 delinquent conduct that constitutes habitual felony conduct as
7-9 described by Section 51.031 or that included the violation of any
7-10 of the following provisions:
7-11 (1) Section 19.02, Penal Code (murder);
7-12 (2) Section 19.03, Penal Code (capital murder);
7-13 (3) Section 20.04, Penal Code (aggravated kidnapping);
7-14 (4) Section 22.011, Penal Code (sexual assault) or
7-15 Section 22.021, Penal Code (aggravated sexual assault);
7-16 (5) Section 22.02, Penal Code (aggravated assault);
7-17 (6) Section 29.03, Penal Code (aggravated robbery);
7-18 (7) Section 22.04, Penal Code (injury to a child,
7-19 elderly individual, or disabled individual), if the offense is
7-20 punishable as a felony, other than a state jail felony;
7-21 (8) Section 22.05(b), Penal Code (felony deadly
7-22 conduct involving discharging a firearm);
7-23 (9) Subchapter D, Chapter 481, Health and Safety Code,
7-24 if the conduct constitutes a felony of the first degree or an
7-25 aggravated controlled substance felony (certain offenses involving
7-26 controlled substances);
7-27 (10) Section 15.03, Penal Code (criminal
7-28 solicitation);
7-29 (11) Section 21.11(a)(1), Penal Code (indecency with a
7-30 child);
7-31 (12) Section 15.031, Penal Code (criminal solicitation
7-32 of a minor); [or]
7-33 (13) Section 15.01, Penal Code (criminal attempt), if
7-34 the offense attempted was an offense under Section 19.02, Penal
7-35 Code (murder) or Section 19.03, Penal Code (capital murder), or an
7-36 offense listed by Section 3g(a)(1), Article 42.12, Code of Criminal
7-37 Procedure; or
7-38 (14) Section 28.02, Penal Code (arson), if bodily
7-39 injury or death is suffered by any person by reason of the
7-40 commission of the conduct.
7-41 SECTION 9. Section 54.01(e), Family Code, is amended to read
7-42 as follows:
7-43 (e) At the conclusion of the hearing, the court shall order
7-44 the child released from detention unless it finds that:
7-45 (1) he is likely to abscond or be removed from the
7-46 jurisdiction of the court;
7-47 (2) suitable supervision, care, or protection for him
7-48 is not being provided by a parent, guardian, custodian, or other
7-49 person;
7-50 (3) he has no parent, guardian, custodian, or other
7-51 person able to return him to the court when required;
7-52 (4) he [is accused of committing a felony offense and]
7-53 may be dangerous to himself or may threaten the safety of the
7-54 public [others] if released; or
7-55 (5) he has previously been found to be a delinquent
7-56 child or has previously been convicted of a penal offense
7-57 punishable by a term in jail or prison and is likely to commit an
7-58 offense if released.
7-59 SECTION 10. Section 54.03, Family Code, is amended by adding
7-60 Subsections (i) and (j) to read as follows:
7-61 (i) In order to preserve for appellate or collateral review
7-62 the failure of the court to provide the child the explanation
7-63 required by Subsection (b), the attorney for the child must comply
7-64 with Rule 52(a), Texas Rules of Appellate Procedure, before
7-65 testimony begins or, if the adjudication is uncontested, before the
7-66 child pleads to the petition or agrees to a stipulation of
7-67 evidence.
7-68 (j) When the state and the child agree to the disposition of
7-69 the case, in whole or in part, the prosecuting attorney shall
8-1 inform the court of the agreement between the state and the child.
8-2 The court shall inform the child that the court is not required to
8-3 accept the agreement. The court may delay a decision on whether to
8-4 accept the agreement until after reviewing a report filed under
8-5 Section 54.04(b). If the court decides not to accept the
8-6 agreement, the court shall inform the child of the court's decision
8-7 and give the child an opportunity to withdraw the plea or
8-8 stipulation of evidence. If the court rejects the agreement, no
8-9 document, testimony, or other evidence placed before the court that
8-10 relates to the rejected agreement may be considered by the court in
8-11 a subsequent hearing in the case. A statement made by the child
8-12 before the court's rejection of the agreement to a person writing a
8-13 report to be filed under Section 54.04(b) may not be admitted into
8-14 evidence in a subsequent hearing in the case. If the court accepts
8-15 the agreement, the court shall make a disposition in accordance
8-16 with the terms of the agreement between the state and the child.
8-17 SECTION 11. Section 54.04(d), Family Code, is amended to
8-18 read as follows:
8-19 (d) If the court or jury makes the finding specified in
8-20 Subsection (c) [of this section] allowing the court to make a
8-21 disposition in the case:
8-22 (1) the court or jury may, in addition to any order
8-23 required or authorized under Section 54.041 or 54.042 [of this
8-24 code], place the child on probation on such reasonable and lawful
8-25 terms as the court may determine:
8-26 (A) in his own home or in the custody of a
8-27 relative or other fit person; or
8-28 (B) subject to the finding under Subsection (c)
8-29 [of this section] on the placement of the child outside the child's
8-30 home, in:
8-31 (i) a suitable foster home; or
8-32 (ii) a suitable public or private
8-33 institution or agency, except the Texas Youth Commission; [or]
8-34 [(C) after an adjudication that the child
8-35 engaged in delinquent conduct and subject to the finding under
8-36 Subsection (c) on the placement of the child outside the child's
8-37 home, in an intermediate sanction facility operated under Chapter
8-38 61, Human Resources Code;]
8-39 (2) if the court or jury found at the conclusion of
8-40 the adjudication hearing that the child engaged in delinquent
8-41 conduct and if the petition was not approved by the grand jury
8-42 under Section 53.045 [of this code], the court may commit the child
8-43 to the Texas Youth Commission without a determinate sentence;
8-44 (3) if the court or jury found at the conclusion of
8-45 the adjudication hearing that the child engaged in delinquent
8-46 conduct that included a violation of a penal law listed in Section
8-47 53.045(a) [of this code] and if the petition was approved by the
8-48 grand jury under Section 53.045 [of this code], the court or jury
8-49 may sentence the child to commitment in the Texas Youth Commission
8-50 with a possible transfer to the institutional division or the
8-51 pardons and paroles division of the Texas Department of Criminal
8-52 Justice for a term of:
8-53 (A) not more than 40 years if the conduct
8-54 constitutes:
8-55 (i) a capital felony;
8-56 (ii) a felony of the first degree; or
8-57 (iii) an aggravated controlled substance
8-58 felony;
8-59 (B) not more than 20 years if the conduct
8-60 constitutes a felony of the second degree; or
8-61 (C) not more than 10 years if the conduct
8-62 constitutes a felony of the third degree;
8-63 (4) the court may assign the child an appropriate
8-64 sanction level and sanctions as provided by the assignment
8-65 guidelines in Section 59.003; or
8-66 (5) if applicable, the court or jury may make a
8-67 disposition under Subsection (m) [of this section].
8-68 SECTION 12. Section 54.08, Family Code, is amended to read
8-69 as follows:
9-1 Sec. 54.08. PUBLIC ACCESS TO COURT HEARINGS. (a) Except as
9-2 provided by this section [Subsection (b)], the court shall open
9-3 hearings under this title to the public unless the court, for good
9-4 cause shown, determines that the public should be excluded.
9-5 (b) The court may not prohibit a person who is a victim of
9-6 the conduct of a child, or the person's family, from personally
9-7 attending a hearing under this title relating to the conduct by the
9-8 child unless the victim or member of the victim's family is to
9-9 testify in the hearing or any subsequent hearing relating to the
9-10 conduct and the court determines that the victim's or family
9-11 member's testimony would be materially affected if the victim or
9-12 member of the victim's family hears other testimony at trial.
9-13 (c) If a child is under the age of 14 at the time of the
9-14 hearing, the court shall close the hearing to the public unless the
9-15 court finds that the interests of the child or the interests of the
9-16 public would be better served by opening the hearing to the public.
9-17 (d) In this section, "family" has the meaning assigned by
9-18 Section 71.01(b).
9-19 SECTION 13. Section 54.10(b), Family Code, is amended to
9-20 read as follows:
9-21 (b) At the conclusion of the hearing, the referee shall
9-22 transmit written findings and recommendations to the juvenile court
9-23 judge. The juvenile court judge shall adopt, modify, or reject the
9-24 referee's recommendations not later than the next working day after
9-25 the day that the judge receives the recommendations [within 24
9-26 hours]. Failure to act within that time [In the same case of a
9-27 detention hearing as authorized by Section 54.01 of this code, the
9-28 failure of the juvenile court to act within 24 hours] results in
9-29 release of the child by operation of law and a recommendation that
9-30 the child be released operates to secure his immediate release
9-31 subject to the power of the juvenile court judge to modify or
9-32 reject that recommendation.
9-33 SECTION 14. Section 55.03(a), Family Code, is amended to
9-34 read as follows:
9-35 (a) If a child is found or alleged to be unfit to proceed as
9-36 a result of mental retardation under Section 55.04 [of this
9-37 chapter] or is found not responsible for the child's conduct as a
9-38 result of mental retardation under Section 55.05 [of this chapter],
9-39 the court shall order a determination of mental retardation and an
9-40 interdisciplinary team recommendation of the child, as provided by
9-41 Chapter 593, Health and Safety Code, to be performed at a facility
9-42 approved or operated by the Texas Department of Mental Health and
9-43 Mental Retardation or at a community center established in
9-44 accordance with Chapter 534, Health and Safety Code. [If the court
9-45 finds that the results of such determination of mental retardation
9-46 indicate a significantly subaverage general intellectual function
9-47 of 2.5 or more standard deviations below the age-group mean for the
9-48 tests used existing concurrently with significantly related
9-49 deficits in adaptive behavior, the court shall initiate proceedings
9-50 to order commitment of the child to a residential care facility, as
9-51 that term is defined by Section 591.003, Health and Safety Code.]
9-52 SECTION 15. Section 56.01(b), Family Code, is amended to
9-53 read as follows:
9-54 (b) The requirements governing an appeal are as in civil
9-55 cases generally. When an appeal is sought by filing a notice of
9-56 appeal, security for costs of appeal, or an affidavit of inability
9-57 to pay the costs of appeal, and the filing is made in a timely
9-58 fashion after the date the disposition order is signed, the appeal
9-59 must include the juvenile court adjudication and all rulings
9-60 contributing to that adjudication. An appeal of the adjudication
9-61 may be sought notwithstanding that the adjudication order was
9-62 signed more than 30 days before the date the notice of appeal,
9-63 security for costs of appeal, or affidavit of inability to pay the
9-64 costs of appeal was filed. A motion for new trial seeking to
9-65 vacate an adjudication is timely if the motion is filed not later
9-66 than the 30th day after the date on which the disposition order is
9-67 signed.
9-68 SECTION 16. Section 58.001, Family Code, is amended by
9-69 amending Subsection (c) and adding Subsections (d)-(f) to read as
10-1 follows:
10-2 (c) A law enforcement agency may forward information,
10-3 including photographs and fingerprints, relating to a child who has
10-4 been detained or taken into custody by the agency to the Department
10-5 of Public Safety [of the State of Texas] for inclusion in the
10-6 juvenile justice information system created under Subchapter B only
10-7 if the child is referred to juvenile court on or before the 10th
10-8 day after the date the child is detained or taken into custody. If
10-9 the child is not referred to juvenile court within that time, the
10-10 law enforcement agency shall destroy all information, including
10-11 photographs and fingerprints, relating to the child unless the
10-12 child is placed in a first offender program under Section 52.031 or
10-13 on informal disposition under Section 52.03. The law enforcement
10-14 agency may not forward any information to the Department of Public
10-15 Safety [of the State of Texas] relating to the child while the
10-16 child is in a first offender program under Section 52.031, or
10-17 during the 90 days following successful completion of the program
10-18 or while the child is on informal disposition under Section 52.03.
10-19 Except as provided by Subsection (f), after the date the child
10-20 completes an informal disposition under Section 52.03 or after the
10-21 90th day after [On successful completion by] the date the child
10-22 successfully completes [of] a first offender program under Section
10-23 52.031 [or informal disposition under Section 52.03], the law
10-24 enforcement agency shall destroy all information, including
10-25 photographs and fingerprints, relating to the child.
10-26 (d) If information relating to a child is contained in a
10-27 document that also contains information relating to an adult and a
10-28 law enforcement agency is required to destroy all information
10-29 relating to the child under this section, the agency shall alter
10-30 the document so that the information relating to the child is
10-31 destroyed and the information relating to the adult is preserved.
10-32 (e) The deletion of a computer entry constitutes destruction
10-33 of the information contained in the entry.
10-34 (f) A law enforcement agency may maintain information
10-35 relating to a child after the 90th day after the date the child
10-36 successfully completes a first offender program under Section
10-37 52.031 only to determine the child's eligibility to participate in
10-38 a first offender program.
10-39 SECTION 17. Section 58.002, Family Code, is amended by
10-40 adding Subsections (c) and (d) to read as follows:
10-41 (c) This section does not prohibit the photographing or
10-42 fingerprinting of a child who is not in custody if the child
10-43 consents to the photographing or fingerprinting.
10-44 (d) This section does not apply to fingerprints that are
10-45 required or authorized to be submitted or obtained for an
10-46 application for a driver's license or personal identification card.
10-47 SECTION 18. Section 58.003, Family Code, is amended by
10-48 adding Subsection (m) to read as follows:
10-49 (m) A record created or maintained under Article 6252-13c.1,
10-50 Revised Statutes, may not be sealed under this section if the
10-51 person who is the subject of the record has a continuing obligation
10-52 to register under that article.
10-53 SECTION 19. Section 58.007(a), Family Code, is amended to
10-54 read as follows:
10-55 (a) This section applies only to the inspection and
10-56 maintenance of a physical record or file concerning a child and
10-57 does not affect the collection, dissemination, or maintenance of
10-58 information as provided by Subchapter B. This section does not
10-59 apply to a record or file relating to a child that is required or
10-60 authorized to be maintained under the laws regulating the operation
10-61 of motor vehicles in this state or to a record or file relating to
10-62 a child that is maintained by a municipal or justice court.
10-63 SECTION 20. Section 58.007, Family Code, is amended by
10-64 amending Subsection (c) and adding Subsection (g) to read as
10-65 follows:
10-66 (c) Except as provided by Subsection (d), law enforcement
10-67 records and files concerning a child may not be disclosed to the
10-68 public and shall be:
10-69 (1) [be] kept separate from adult files and records;
11-1 and
11-2 (2) [be] maintained on a local basis only and not sent
11-3 to a central state or federal depository, except as provided by
11-4 Subchapter B.
11-5 (g) For the purpose of offering a record as evidence in the
11-6 punishment phase of a criminal proceeding, a prosecuting attorney
11-7 may obtain the record of a defendant's adjudication that is
11-8 admissible under Section 3(a), Article 37.07, Code of Criminal
11-9 Procedure, by submitting a request for the record to the juvenile
11-10 court that made the adjudication. If a court receives a request
11-11 from a prosecuting attorney under this subsection, the court shall,
11-12 if the court possesses the requested record of adjudication,
11-13 certify and provide the prosecuting attorney with a copy of the
11-14 record.
11-15 SECTION 21. Section 58.104(f), Family Code, is amended to
11-16 read as follows:
11-17 (f) Records maintained by the department in the depository
11-18 are subject to being sealed under Section 58.003. The department
11-19 shall send to the appropriate juvenile court its certification of
11-20 records that the department determines, according to the
11-21 department's records, are eligible for sealing under Section
11-22 58.003(a).
11-23 SECTION 22. Section 59.003, Family Code, is amended to read
11-24 as follows:
11-25 Sec. 59.003. SANCTION LEVEL ASSIGNMENT GUIDELINES. (a)
11-26 Subject to Subsection (e), after a child's first commission of
11-27 delinquent conduct or conduct indicating a need for supervision,
11-28 the probation department or prosecuting attorney may, or the
11-29 juvenile court may, in a disposition hearing under Section 54.04 or
11-30 a modification hearing under Section 54.05, assign a child one of
11-31 the following sanction levels according to the child's conduct:
11-32 (1) for conduct indicating a need for supervision,
11-33 other than a Class A or B misdemeanor, the sanction level is one;
11-34 (2) for a Class A or B misdemeanor, other than a
11-35 misdemeanor involving the use or possession of a firearm, or for
11-36 delinquent conduct under Section 51.03(a)(2) or (3), the sanction
11-37 level is two;
11-38 (3) for a misdemeanor involving the use or possession
11-39 of a firearm or for a state jail felony or a felony of the third
11-40 degree, the sanction level is three;
11-41 (4) for a felony of the second degree, the sanction
11-42 level is four;
11-43 (5) for a felony of the first degree, other than a
11-44 felony involving the use of a deadly weapon or causing serious
11-45 bodily injury, the sanction level is five;
11-46 (6) for a felony of the first degree involving the use
11-47 of a deadly weapon or causing serious bodily injury, [or] for an
11-48 aggravated controlled substance felony, or for a capital felony,
11-49 the sanction level is six [or, if the petition has been approved
11-50 by a grand jury under Section 53.045, seven]; or
11-51 (7) for a [capital] felony of the first degree
11-52 involving the use of a deadly weapon or causing serious bodily
11-53 injury, for an aggravated controlled substance felony, or for a
11-54 capital felony, if the petition has been approved by a grand jury
11-55 under Section 53.045, or if a petition to transfer the child to
11-56 criminal court has been filed under Section 54.02, the sanction
11-57 level is seven.
11-58 (b) Subject to Subsection (e), if the child subsequently is
11-59 found to have engaged in delinquent conduct in an adjudication
11-60 hearing under Section 54.03 or a hearing to modify a disposition
11-61 under Section 54.05 on two separate occasions and each involves a
11-62 violation of a penal law of a classification that is less than the
11-63 classification of the child's previous conduct, the juvenile court
11-64 may assign the child a sanction level that is one level higher than
11-65 the previously assigned sanction level, unless the child's
11-66 previously assigned sanction level is six. [For a child's refusal
11-67 to comply with the restrictions and standards of behavior
11-68 established by the parent or guardian and the court, a parent or
11-69 guardian may notify the court of the child's refusal to comply, and
12-1 the court may place the child at the next level of sanction.
12-2 Notification of the court by the parent or guardian of the child's
12-3 refusal satisfies the requirement of the parent to make a
12-4 reasonable good faith effort to prevent the child from engaging in
12-5 delinquent conduct or engaging in conduct indicating a need for
12-6 supervision.]
12-7 (c) Subject to Subsection (e), if the child's subsequent
12-8 commission of delinquent conduct or conduct indicating a need for
12-9 supervision involves a violation of a penal law of a classification
12-10 that is the same as or greater than the classification of the
12-11 child's previous conduct, the juvenile court may assign the child a
12-12 sanction level that is one level higher than the previously
12-13 assigned sanction level, unless:
12-14 (1) the child's previously assigned sanction level is
12-15 five and the child has not been adjudicated for delinquent conduct;
12-16 (2) the child's previously assigned sanction level is
12-17 six, unless the subsequent violation is of a provision listed under
12-18 Section 53.045(a) and the petition has been approved by a grand
12-19 jury under Section 53.045; or
12-20 (3) the child's previously assigned sanction level is
12-21 seven.
12-22 (d) Subject to Subsection (e), if the child's previously
12-23 assigned sanction level is four or five and the child's subsequent
12-24 commission of delinquent conduct is of the grade of felony, the
12-25 juvenile court may assign the child a sanction level that is one
12-26 level higher than the previously assigned sanction level.
12-27 (e) A juvenile court or probation department that deviates
12-28 from the guidelines under this section shall state in writing its
12-29 reasons for the deviation and submit the statement to the juvenile
12-30 board regardless of whether a progressive sanctions program has
12-31 been adopted by the juvenile board. Nothing in this chapter
12-32 prohibits the imposition of appropriate sanctions that are
12-33 different from those provided at any sanction level.
12-34 (f) The probation department may, in accordance with Section
12-35 54.05, request the extension of [extend] a period of probation
12-36 specified under sanction levels one through five if the
12-37 circumstances of the child warrant the extension [and the probation
12-38 department notifies the juvenile court in writing of the extension
12-39 and the period of and reason for the extension. The court may on
12-40 notice to the probation department deny the extension].
12-41 (g) Before the court assigns the child a sanction level that
12-42 involves the revocation of the child's probation and the commitment
12-43 of the child to the Texas Youth Commission, the court shall hold a
12-44 hearing to modify the disposition as required by Section 54.05.
12-45 SECTION 23. Section 59.004(a), Family Code, is amended to
12-46 read as follows:
12-47 (a) For a child at sanction level one, the juvenile court or
12-48 probation department may:
12-49 (1) require counseling for the child regarding the
12-50 child's conduct;
12-51 (2) inform the child of the progressive sanctions that
12-52 may be imposed on the child if the child continues to engage in
12-53 delinquent conduct or conduct indicating a need for supervision;
12-54 (3) inform the child's parents or guardians of the
12-55 parents' or guardians' responsibility to impose reasonable
12-56 restrictions on the child to prevent the conduct from recurring;
12-57 (4) provide information or other assistance to the
12-58 child or the child's parents or guardians in securing needed social
12-59 services;
12-60 (5) require the child or the child's parents or
12-61 guardians to participate in a program for services under Section
12-62 264.302, if a program under Section 264.302 is available to the
12-63 child or the child's parents or guardians;
12-64 (6) refer the child to a community-based citizen
12-65 intervention program approved by the juvenile court; and
12-66 (7) release the child to the child's parents or
12-67 guardians.
12-68 SECTION 24. Section 59.005(a), Family Code, is amended to
12-69 read as follows:
13-1 (a) For a child at sanction level two, the juvenile court,
13-2 the prosecuting attorney, or the probation department may, as
13-3 provided by Section 53.03:
13-4 (1) place the child on deferred prosecution or
13-5 court-ordered [or informal] probation for not less than three
13-6 months or more than six months;
13-7 (2) require the child to make restitution to the
13-8 victim of the child's conduct or perform community service
13-9 restitution appropriate to the nature and degree of harm caused and
13-10 according to the child's ability;
13-11 (3) require the child's parents or guardians to
13-12 identify restrictions the parents or guardians will impose on the
13-13 child's activities and requirements the parents or guardians will
13-14 set for the child's behavior;
13-15 (4) provide the information required under Sections
13-16 59.004(a)(2) and (4);
13-17 (5) require the child or the child's parents or
13-18 guardians to participate in a program for services under Section
13-19 264.302, if a program under Section 264.302 is available to the
13-20 child or the child's parents or guardians;
13-21 (6) refer the child to a community-based citizen
13-22 intervention program approved by the juvenile court; and
13-23 (7) if appropriate, impose additional conditions of
13-24 probation.
13-25 SECTION 25. Section 59.006(a), Family Code, is amended to
13-26 read as follows:
13-27 (a) For a child at sanction level three, the juvenile court
13-28 may:
13-29 (1) place the child on probation for more [not less]
13-30 than six months and not more than 12 months;
13-31 (2) require the child to make restitution to the
13-32 victim of the child's conduct or perform community service
13-33 restitution appropriate to the nature and degree of harm caused and
13-34 according to the child's ability;
13-35 (3) impose specific restrictions on the child's
13-36 activities and requirements for the child's behavior as conditions
13-37 of probation;
13-38 (4) require a probation officer to closely monitor the
13-39 child's activities and behavior;
13-40 (5) require the child or the child's parents or
13-41 guardians to participate in programs or services designated by the
13-42 court or probation officer; and
13-43 (6) if appropriate, impose additional conditions of
13-44 probation.
13-45 SECTION 26. Section 59.007(a), Family Code, is amended to
13-46 read as follows:
13-47 (a) For a child at sanction level four, the juvenile court
13-48 may:
13-49 (1) require the child to participate as a condition of
13-50 probation for not less than three months or more than 12 months in
13-51 a highly intensive and regimented program that emphasizes
13-52 discipline, physical fitness, social responsibility, and productive
13-53 work;
13-54 (2) after release from the program described by
13-55 Subdivision (1), continue the child on probation supervision for
13-56 not less than six months or more than 12 months;
13-57 (3) require the child to make restitution to the
13-58 victim of the child's conduct or perform community service
13-59 restitution appropriate to the nature and degree of harm caused and
13-60 according to the child's ability;
13-61 (4) impose highly structured restrictions on the
13-62 child's activities and requirements for behavior of the child as
13-63 conditions of probation;
13-64 (5) require a probation officer to closely monitor the
13-65 child;
13-66 (6) require the child or the child's parents or
13-67 guardians to participate in programs or services designed to
13-68 address their particular needs and circumstances; and
13-69 (7) if appropriate, impose additional sanctions.
14-1 SECTION 27. Section 59.008(a), Family Code, is amended to
14-2 read as follows:
14-3 (a) For a child at sanction level five, the juvenile court
14-4 may:
14-5 (1) place [require] the child [to participate as a
14-6 condition of probation] for not less than six months or more than
14-7 12 [nine] months in a post-adjudication secure correctional
14-8 facility [highly structured residential program that emphasizes
14-9 discipline, accountability, physical fitness, and productive work];
14-10 (2) after release from the program described by
14-11 Subdivision (1), continue the child on probation supervision for
14-12 not less than six months or more than 12 months;
14-13 (3) require the child to make restitution to the
14-14 victim of the child's conduct or perform community service
14-15 restitution appropriate to the nature and degree of harm caused and
14-16 according to the child's ability;
14-17 (4) impose highly structured restrictions on the
14-18 child's activities and requirements for behavior of the child as
14-19 conditions of probation;
14-20 (5) require a probation officer to closely monitor the
14-21 child;
14-22 (6) require the child or the child's parents or
14-23 guardians to participate in programs or services designed to
14-24 address their particular needs and circumstances; and
14-25 (7) if appropriate, impose additional sanctions.
14-26 SECTION 28. Section 59.009(a), Family Code, is amended to
14-27 read as follows:
14-28 (a) For a child at sanction level six, the juvenile court
14-29 may [shall] commit the child to the custody of the Texas Youth
14-30 Commission. The commission may:
14-31 (1) require the child to participate in a highly
14-32 structured residential program that emphasizes discipline,
14-33 accountability, fitness, training, and productive work for not less
14-34 than nine months or more than 24 months unless the commission
14-35 extends the period and the reason for an extension is documented;
14-36 (2) require the child to make restitution to the
14-37 victim of the child's conduct or perform community service
14-38 restitution appropriate to the nature and degree of the harm caused
14-39 and according to the child's ability, if there is a victim of the
14-40 child's conduct;
14-41 (3) require the child and the child's parents or
14-42 guardians to participate in programs and services for their
14-43 particular needs and circumstances; and
14-44 (4) if appropriate, impose additional sanctions.
14-45 SECTION 29. Section 59.010(a), Family Code, is amended to
14-46 read as follows:
14-47 (a) For a child at sanction level seven, the juvenile court
14-48 may certify and transfer the child under Section 54.02 or [shall]
14-49 sentence the child to commitment to the Texas Youth Commission
14-50 under Section 54.04(d)(3), 54.04(m), or 54.05(f). The commission
14-51 may:
14-52 (1) require the child to participate in a highly
14-53 structured residential program that emphasizes discipline,
14-54 accountability, fitness, training, and productive work for not less
14-55 than 12 months or more than 10 years unless the commission extends
14-56 the period and the reason for the extension is documented;
14-57 (2) require the child to make restitution to the
14-58 victim of the child's conduct or perform community service
14-59 restitution appropriate to the nature and degree of harm caused and
14-60 according to the child's ability, if there is a victim of the
14-61 child's conduct;
14-62 (3) require the child and the child's parents or
14-63 guardians to participate in programs and services for their
14-64 particular needs and circumstances; and
14-65 (4) impose any other appropriate sanction.
14-66 SECTION 30. Section 264.302(e), Family Code, is amended to
14-67 read as follows:
14-68 (e) The department shall provide services[, directly or by
14-69 contract,] for a child and the child's family if a contract to
15-1 provide services under this section is available in the county and
15-2 the child is referred to the department as an at-risk child by:
15-3 (1) a court under Section 264.304;
15-4 (2) a juvenile court or probation department as part
15-5 of a progressive sanctions program under Chapter 59;
15-6 (3) a law enforcement officer or agency under Section
15-7 52.03; or
15-8 (4) a justice or municipal court under Section 54.022.
15-9 SECTION 31. Section 3, Article 37.07, Code of Criminal
15-10 Procedure, is amended by amending Subsection (a) and adding
15-11 Subsection (h) to read as follows:
15-12 (a) Regardless of the plea and whether the punishment be
15-13 assessed by the judge or the jury, evidence may be offered by the
15-14 state and the defendant as to any matter the court deems relevant
15-15 to sentencing, including but not limited to the prior criminal
15-16 record of the defendant, his general reputation, his character, an
15-17 opinion regarding his character, the circumstances of the offense
15-18 for which he is being tried, and, notwithstanding Rules 404 and
15-19 405, Texas Rules of Criminal Evidence, any other evidence of an
15-20 extraneous crime or bad act that is shown beyond a reasonable doubt
15-21 by evidence to have been committed by the defendant or for which he
15-22 could be held criminally responsible, regardless of whether he has
15-23 previously been charged with or finally convicted of the crime or
15-24 act. A court may consider as a factor in mitigating punishment the
15-25 conduct of a defendant while participating in a program under
15-26 Chapter 17 [of this code] as a condition of release on bail.
15-27 Additionally, notwithstanding Rule 609(d), Texas Rules of Criminal
15-28 Evidence, and subject to Subsection (h), evidence may be offered by
15-29 the state and the defendant of an adjudication of delinquency based
15-30 on a violation by the defendant of a penal law of the grade of:
15-31 (1) a felony; or
15-32 (2) a misdemeanor punishable by confinement in jail.
15-33 (h) Evidence of an adjudication for conduct that is a
15-34 violation of a penal law of the grade of misdemeanor punishable by
15-35 confinement in jail is admissible only if the conduct upon which
15-36 the adjudication is based occurred on or after January 1, 1996.
15-37 SECTION 32. Section 61.073, Human Resources Code, is amended
15-38 to read as follows:
15-39 Sec. 61.073. RECORDS OF EXAMINATIONS AND TREATMENT. The
15-40 commission shall keep written records of all examinations and
15-41 conclusions based on them and of all orders concerning the
15-42 disposition or treatment of each child subject to its control.
15-43 Except as provided by Section 61.093(c), these [These] records are
15-44 not public and are available only according to the provisions of
15-45 Section 58.005, Family Code, and Chapter 61, Code of Criminal
15-46 Procedure.
15-47 SECTION 33. Section 61.077, Human Resources Code, is amended
15-48 to read as follows:
15-49 Sec. 61.077. CHILDREN WITH MENTAL ILLNESS OR MENTAL
15-50 RETARDATION [MENTALLY ILL OR RETARDED CHILD]. (a) [If the
15-51 commission determines that a child committed to it is mentally ill,
15-52 the commission, without delay, shall return the child to the court
15-53 of original jurisdiction for appropriate disposition or shall
15-54 request that the court in the county where the child is located
15-55 take any action required by the condition of the child.]
15-56 [(b)] The commission shall accept a child committed to the
15-57 commission who is mentally ill or mentally retarded.
15-58 (b) Unless a child is committed to the commission under a
15-59 determinate sentence under Section 54.04(d)(3), 54.04(m), or
15-60 54.05(f), Family Code, the commission shall discharge a child who
15-61 is mentally ill or mentally retarded from its custody if:
15-62 (1) the child has completed the minimum length of stay
15-63 for the child's committing offense; and
15-64 (2) the commission determines that the child is unable
15-65 to progress in the commission's rehabilitation programs because of
15-66 the child's mental illness or mental retardation.
15-67 SECTION 34. Subchapter E, Chapter 61, Human Resources Code,
15-68 is amended by adding Section 61.0772 to read as follows:
15-69 Sec. 61.0772. EXAMINATION BEFORE DISCHARGE. (a) The
16-1 commission shall establish a system that identifies children in the
16-2 commission's custody who are mentally ill or mentally retarded.
16-3 (b) Not later than the 30th day before the date a child who
16-4 is identified as mentally ill is discharged from the commission's
16-5 custody under Section 61.077(b), a commission psychiatrist shall
16-6 examine the child. The psychiatrist shall file a sworn application
16-7 for court-ordered mental health services, as provided in Subchapter
16-8 C, Chapter 574, Health and Safety Code, if the psychiatrist
16-9 determines that the child is mentally ill and the child meets at
16-10 least one of the criteria listed in Section 574.034, Health and
16-11 Safety Code.
16-12 (c) Not later than the 30th day before the date a child who
16-13 is identified as mentally retarded is discharged from the
16-14 commission's custody under Section 61.077(b), the commission shall
16-15 refer the child for a determination of mental retardation and an
16-16 interdisciplinary team recommendation of the child, as provided by
16-17 Chapter 593, Health and Safety Code, to be performed at a facility
16-18 approved or operated by the Texas Department of Mental Health and
16-19 Mental Retardation or at a community center established in
16-20 accordance with Chapter 534, Health and Safety Code.
16-21 SECTION 35. Section 61.093, Human Resources Code, is amended
16-22 by adding Subsection (c) to read as follows:
16-23 (c) Notwithstanding Section 58.005, Family Code, the
16-24 commission may disseminate to the public the following information
16-25 relating to a child who has escaped from custody:
16-26 (1) the child's name, including other names by which
16-27 the child is known;
16-28 (2) the child's physical description, including sex,
16-29 weight, height, race, ethnicity, eye color, hair color, scars,
16-30 marks, and tattoos;
16-31 (3) a photograph of the child; and
16-32 (4) if necessary to protect the welfare of the
16-33 community, any other information that reveals dangerous
16-34 propensities of the child or expedites the apprehension of the
16-35 child.
16-36 SECTION 36. Section 61.101, Human Resources Code, is amended
16-37 to read as follows:
16-38 Sec. 61.101. YOUTH BOOT CAMP PROGRAMS. (a) The commission
16-39 may establish a youth boot camp program and may employ necessary
16-40 personnel to operate the youth boot camps.
16-41 (b) [The commission, in consultation with the Texas Juvenile
16-42 Probation Commission, may develop a program of moral, academic,
16-43 vocational, physical, and correctional training and activities in
16-44 which a child placed in a youth boot camp as an intermediate
16-45 sanction under Section 54.04(d)(1)(C), Family Code, is required to
16-46 participate, including programs to educate the child as to the
16-47 conditions under which children committed to the Texas Youth
16-48 Commission and the institutional division of the Texas Department
16-49 of Criminal Justice live and follow-up programs to aid successful
16-50 community reintegration.]
16-51 [(c) The commission may refuse to accept a child in a youth
16-52 boot camp as an intermediate sanction under Section 54.04(d)(1)(C),
16-53 Family Code, and may return the child to the juvenile court in the
16-54 same manner and under the same conditions provided under Section
16-55 61.0386.]
16-56 [(d) The placement of a child in a youth boot camp as an
16-57 intermediate sanction under Section 54.04(d)(1)(C), Family Code, is
16-58 not a commitment to the commission, and the child may not be
16-59 transferred by the commission, or be a resident of, any other type
16-60 of commission facility other than a medical facility.]
16-61 [(e)] The commission, in consultation with the Texas
16-62 Juvenile Probation Commission, shall develop guidelines for a
16-63 program of physical and correctional training and military-style
16-64 discipline for children placed in youth boot camps operated by
16-65 local probation departments for violating the conditions of release
16-66 under supervision or parole under Section 61.081.
16-67 (c) [(f)] The commission shall develop a program of physical
16-68 and correctional training and military-style discipline for
16-69 children committed to the commission who are placed in youth boot
17-1 camps or other commission facilities.
17-2 (d) [(g)] The commission shall adopt rules of conduct for
17-3 children participating in the program under this section.
17-4 SECTION 37. Section 141.042(a), Human Resources Code, is
17-5 amended to read as follows:
17-6 (a) The commission shall adopt reasonable rules that
17-7 provide:
17-8 (1) minimum standards for personnel, staffing, case
17-9 loads, programs, facilities, record keeping, equipment, and other
17-10 aspects of the operation of a juvenile board that are necessary to
17-11 provide adequate and effective probation services;
17-12 (2) a code of ethics for probation officers and for
17-13 the enforcement of that code;
17-14 (3) appropriate educational, preservice and in-service
17-15 training, and certification standards for probation officers or
17-16 court-supervised community-based program personnel; [and]
17-17 (4) minimum standards for juvenile detention
17-18 facilities, public post-adjudication juvenile secure correctional
17-19 facilities that are operated under the authority of a juvenile
17-20 board, and private post-adjudication juvenile secure correctional
17-21 facilities, except those facilities exempt from certification by
17-22 Section 42.052(e); and
17-23 (5) procedures for the implementation of a progressive
17-24 sanctions program under Chapter 59, Family Code.
17-25 SECTION 38. Section 574.001, Health and Safety Code, is
17-26 amended by amending Subsection (b) and adding Subsection (f) to
17-27 read as follows:
17-28 (b) Except as provided by Subsection (f), the [The]
17-29 application must be filed with the county clerk in the county in
17-30 which the proposed patient:
17-31 (1) resides;
17-32 (2) is found; or
17-33 (3) is receiving mental health services by court order
17-34 or under Subchapter A, Chapter 573.
17-35 (f) An application in which the proposed patient is a child
17-36 in the custody of the Texas Youth Commission may be filed in the
17-37 county in which the child's commitment to the commission was
17-38 ordered.
17-39 SECTION 39. Section 593.041, Health and Safety Code, is
17-40 amended by amending Subsection (b) and adding Subsection (e) to
17-41 read as follows:
17-42 (b) Except as provided by Subsection (e), the [The]
17-43 application must be filed with the county clerk in the county in
17-44 which the proposed resident resides. If the superintendent of a
17-45 residential care facility files an application for judicial
17-46 commitment of a voluntary resident, the county in which the
17-47 facility is located is considered the resident's county of
17-48 residence.
17-49 (e) An application in which the proposed patient is a child
17-50 in the custody of the Texas Youth Commission may be filed in the
17-51 county in which the child's commitment to the commission was
17-52 ordered.
17-53 SECTION 40. Sections 729.001(a) and (c), Transportation
17-54 Code, are amended to read as follows:
17-55 (a) A person who is [at least 14 years of age but] younger
17-56 than 17 years of age commits an offense if the person operates a
17-57 motor vehicle on a public road or highway, a street or alley in a
17-58 municipality, or a public beach in violation of any traffic law of
17-59 this state, including:
17-60 (1) Chapter 502, other than Section 502.282[,
17-61 502.408(b), 502.409(c),] or 502.412;
17-62 (2) Chapter 521;
17-63 (3) Subtitle C, other than an offense under Section
17-64 550.021, 550.022, or 550.024;
17-65 (4) Chapter 601;
17-66 (5) Chapter 621;
17-67 (6) Chapter 661; and
17-68 (7) Chapter 681.
17-69 (c) An offense under this section is a Class C misdemeanor
18-1 [punishable by a fine not to exceed $100].
18-2 SECTION 41. Section 51.02(16), Family Code, is amended to
18-3 read as follows:
18-4 (16) "Traffic offense" means:
18-5 (A) a violation of a penal statute cognizable
18-6 under Chapter 729, Transportation Code, except for:
18-7 (i) conduct constituting an offense under
18-8 Section 550.021, Transportation Code;
18-9 (ii) conduct constituting an offense
18-10 punishable as a Class B misdemeanor under Section 550.022,
18-11 Transportation Code; or
18-12 (iii) conduct constituting an offense
18-13 punishable as a Class B misdemeanor under Section 550.024,
18-14 Transportation Code [302, Acts of the 55th Legislature, Regular
18-15 Session, 1957, as amended (Article 6701l-4, Vernon's Texas Civil
18-16 Statutes)]; or
18-17 (B) a violation of a motor vehicle traffic
18-18 ordinance of an incorporated city or town in this state.
18-19 SECTION 42. Section 8.07(a), Penal Code, is amended to read
18-20 as follows:
18-21 (a) A person may not be prosecuted for or convicted of any
18-22 offense that he committed when younger than 15 years of age except:
18-23 (1) perjury and aggravated perjury when it appears by
18-24 proof that he had sufficient discretion to understand the nature
18-25 and obligation of an oath;
18-26 (2) a violation of a penal statute cognizable under
18-27 Chapter 729, Transportation Code, except for:
18-28 (A) an offense under Section 550.021,
18-29 Transportation Code;
18-30 (B) an offense punishable as a Class B
18-31 misdemeanor under Section 550.022, Transportation Code; or
18-32 (C) an offense punishable as a Class B
18-33 misdemeanor under Section 550.024, Transportation Code [302, Acts
18-34 of the 55th Legislature, Regular Session, 1957 (Article 6701l-4,
18-35 Vernon's Texas Civil Statutes)];
18-36 (3) a violation of a motor vehicle traffic ordinance
18-37 of an incorporated city or town in this state;
18-38 (4) a misdemeanor punishable by fine only other than
18-39 public intoxication;
18-40 (5) a violation of a penal ordinance of a political
18-41 subdivision; or
18-42 (6) a violation of a penal statute that is, or is a
18-43 lesser included offense of, a capital felony, an aggravated
18-44 controlled substance felony, or a felony of the first degree for
18-45 which the person is transferred to the court under Section 54.02,
18-46 Family Code, for prosecution if the person committed the offense
18-47 when 14 years of age or older.
18-48 SECTION 43. Section 729.002, Transportation Code, is amended
18-49 to read as follows:
18-50 Sec. 729.002. OPERATION OF MOTOR VEHICLE BY MINOR WITHOUT
18-51 LICENSE. (a) A person who is [at least 14 years of age but]
18-52 younger than 17 years of age commits an offense if the person
18-53 operates a motor vehicle without a driver's license authorizing the
18-54 operation of a motor vehicle on a:
18-55 (1) public road or highway;
18-56 (2) street or alley in a municipality; or
18-57 (3) public beach as defined by Section 729.001.
18-58 (b) An offense under this section is a Class C misdemeanor
18-59 [punishable by a fine not to exceed $100].
18-60 SECTION 44. Section 729.003(a), Transportation Code, is
18-61 amended to read as follows:
18-62 (a) A person may not plead guilty to an offense under
18-63 Section 729.001 or 729.002 or to a violation of a motor vehicle
18-64 traffic ordinance of an incorporated city or town except in open
18-65 court before a judge. A person may not be convicted of an offense
18-66 or fined as provided by this chapter or under a municipal traffic
18-67 ordinance except in the presence of one or both parents or
18-68 guardians having legal custody of the person. The court shall
18-69 summon one or both parents or guardians to appear in court and
19-1 shall require one or both of them to be present during all
19-2 proceedings in the case. The court may waive the requirement of
19-3 the presence of parents or guardians if, after diligent effort, the
19-4 court cannot locate them or compel their presence.
19-5 SECTION 45. Section 51.02(15), Family Code, is amended to
19-6 read as follows:
19-7 (15) "Status offender" means a child who is accused,
19-8 adjudicated, or convicted for conduct that would not, under state
19-9 law, be a crime if committed by an adult, including:
19-10 (A) truancy under Section 51.03(b)(2);
19-11 (B) running away from home under Section
19-12 51.03(b)(3);
19-13 (C) a fineable only offense under Section
19-14 51.03(b)(1) transferred to the juvenile court under Section
19-15 51.08(b), but only if the conduct constituting the offense would
19-16 not have been criminal if engaged in by an adult;
19-17 (D) failure to attend school under Section
19-18 4.251, Education Code;
19-19 (E) a violation of standards of student conduct
19-20 as described by Section 51.03(b)(5) [51.03(b)(6)];
19-21 (F) a violation of a juvenile curfew ordinance
19-22 or order;
19-23 (G) a violation of a provision of the Alcoholic
19-24 Beverage Code applicable to minors only; or
19-25 (H) a violation of any other fineable only
19-26 offense under Section 8.07(a)(4) or (5), Penal Code, but only if
19-27 the conduct constituting the offense would not have been criminal
19-28 if engaged in by an adult.
19-29 SECTION 46. Section 52.025(b), Family Code, is amended to
19-30 read as follows:
19-31 (b) A child may be detained in a juvenile processing office
19-32 only for:
19-33 (1) the return of the child to the custody of a person
19-34 under Section 52.02(a)(1) [of this code];
19-35 (2) the completion of essential forms and records
19-36 required by the juvenile court or this title;
19-37 (3) the photographing and fingerprinting of the child
19-38 if otherwise authorized at the time of temporary detention by this
19-39 title;
19-40 (4) the issuance of warnings to the child as required
19-41 or permitted by this title; or
19-42 (5) the receipt of a statement by the child under
19-43 Section 51.095(a)(1), (2), (3), or (5) [Section 51.09(b) of this
19-44 code].
19-45 SECTION 47. ACTION REQUIRED BEFORE CHANGE IN USE OF OR
19-46 ESTABLISHMENT OF CERTAIN CRIMINAL DETENTION FACILITIES. (a) In
19-47 this section:
19-48 (1) "Criminal detention facility" means a place
19-49 designated by law for the confinement of a person adjudicated
19-50 delinquent for or convicted of a criminal offense. The term
19-51 includes:
19-52 (A) a confinement facility operated by the Texas
19-53 Department of Criminal Justice;
19-54 (B) a confinement facility operated under
19-55 contract with any division of the Texas Department of Criminal
19-56 Justice;
19-57 (C) a community corrections facility operated by
19-58 a community supervision and corrections department; and
19-59 (D) a confinement facility operated by or under
19-60 contract with the Texas Youth Commission.
19-61 (2) "Governmental entity" means the state, a political
19-62 subdivision or a combination of two or more subdivisions of the
19-63 state, or an agency of the state.
19-64 (b) A governmental entity or private vendor may not change
19-65 the use of a criminal detention facility operated by the entity or
19-66 vendor from a residential facility for the placement of juvenile
19-67 offenders and may not establish a criminal detention facility
19-68 unless:
19-69 (1) a public hearing is held about the proposed change
20-1 or establishment before the change is made or the facility is
20-2 established; and
20-3 (2) after the hearing is held, the change or
20-4 establishment is approved by unanimous vote of the governing body
20-5 of:
20-6 (A) the municipality in which the facility is
20-7 located; or
20-8 (B) the county in which the facility is located,
20-9 if the facility is not located within a municipality.
20-10 (c) Before the 30th day before the date of a hearing
20-11 required by Subsection (b) of this section, the governmental entity
20-12 shall:
20-13 (1) publish notice of the date, hour, place, and
20-14 subject of the hearing in three consecutive issues of a newspaper
20-15 of, or in newspapers that collectively have, general circulation in
20-16 the county in which the proposed change is to be made or the
20-17 facility is to be established; and
20-18 (2) mail a copy of the notice to each member of the
20-19 governing body of a municipality, county commissioner, state
20-20 representative, and state senator who represent the area in which
20-21 the proposed change is to be made or the facility is to be
20-22 established.
20-23 (d) In describing the subject of a public hearing for
20-24 purposes of publishing notice under this section, the notice must
20-25 specifically state the address of the facility with respect to
20-26 which the change is proposed or the address at which the facility
20-27 is to be established.
20-28 (e) If a private vendor, other than a private vendor that
20-29 operates as a nonprofit corporation, proposes to change the use of
20-30 a facility or to establish a facility that is the subject of a
20-31 public hearing under this section, the private vendor is
20-32 responsible for providing the notice and holding the public hearing
20-33 required by this section.
20-34 (f) The governmental entity or private vendor shall hold the
20-35 public hearing at a site as close as practicable to the facility
20-36 with respect to which the change is proposed or as close as
20-37 practicable to the site of the proposed facility.
20-38 SECTION 48. (a) Section 58.004, Family Code, is repealed.
20-39 (b) Sections 61.0386, 61.0771, 61.102, and 61.103, Human
20-40 Resources Code, are repealed.
20-41 (c) Section 105(e), Chapter 262, Acts of the 74th
20-42 Legislature, Regular Session, 1995, is repealed.
20-43 SECTION 49. The Texas Juvenile Probation Commission shall
20-44 adopt rules relating to the implementation of a progressive
20-45 sanctions program as required by this Act not later than January 1,
20-46 1998.
20-47 SECTION 50. The change in law made by this Act to Section
20-48 54.08, Family Code, applies only to a hearing under Title 3, Family
20-49 Code, commenced on or after the effective date of this Act. A
20-50 hearing commenced before the effective date of this Act is governed
20-51 by the law in effect on the date the hearing was commenced, and the
20-52 former law is continued in effect for that purpose.
20-53 SECTION 51. The change in law made by this Act to Section
20-54 58.007(a), Family Code, applies to law enforcement files and
20-55 records maintained by a municipal or justice court before, on, or
20-56 after September 1, 1997.
20-57 SECTION 52. (a) The change in law made by this Act applies
20-58 only to conduct that occurs on or after the effective date of this
20-59 Act. Conduct violating a penal law of the state occurs on or after
20-60 the effective date of this Act if every element of the violation
20-61 occurs on or after that date.
20-62 (b) Conduct that occurs before the effective date of this
20-63 Act is covered by the law in effect at the time the conduct
20-64 occurred, and the former law is continued in effect for that
20-65 purpose.
20-66 SECTION 53. (a) In addition to the substantive changes in
20-67 law made by this Act, this Act conforms the Transportation Code to
20-68 the changes in law made by Section 9(6), Chapter 34, Acts of the
20-69 74th Legislature, Regular Session, 1995.
21-1 (b) To the extent of any conflict, this Act prevails over
21-2 another Act of the 75th Legislature, Regular Session, 1997,
21-3 relating to nonsubstantive additions to and corrections in enacted
21-4 codes.
21-5 SECTION 54. (a) Except as provided by Subsection (b) of
21-6 this section, this Act takes effect September 1, 1997.
21-7 (b) The following sections of this Act take effect
21-8 immediately and apply to a person in the custody of the Texas Youth
21-9 Commission or committed to the custody of the Texas Youth
21-10 Commission on or after the effective date of the section:
21-11 (1) Section 51.0411, Family Code, as added by this
21-12 Act;
21-13 (2) Sections 574.001 and 593.041, Health and Safety
21-14 Code, as amended by this Act;
21-15 (3) Sections 61.077 and 61.093, Human Resources Code,
21-16 as amended by this Act; and
21-17 (4) Section 61.0772, Human Resources Code, as added by
21-18 this Act.
21-19 SECTION 55. The importance of this legislation and the
21-20 crowded condition of the calendars in both houses create an
21-21 emergency and an imperative public necessity that the
21-22 constitutional rule requiring bills to be read on three several
21-23 days in each house be suspended, and this rule is hereby suspended,
21-24 and that this Act take effect and be in force according to its
21-25 terms, and it is so enacted.
21-26 * * * * *