By Horn                                         H.B. No. 2743

      75R8705 JMC-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the authority of a law enforcement officer to

 1-3     administer certain warnings to a juvenile.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 51.09, Family Code, is amended by

 1-6     amending Subsection (b) and adding Subsection (e) to read as

 1-7     follows:

 1-8           (b)  Notwithstanding any of the provisions of Subsection (a)

 1-9     [of this section], the statement of a child is admissible in

1-10     evidence in any future proceeding concerning the matter about which

1-11     the statement was given if:

1-12                 (1)  when the child is in a detention facility or other

1-13     place of confinement or in the custody of an officer, the statement

1-14     is made in writing and the statement shows that the child has at

1-15     some time prior to the making thereof received from a magistrate,

1-16     or a law enforcement officer as provided by Subsection (e), a

1-17     warning that:

1-18                       (A)  the child may remain silent and not make any

1-19     statement at all and that any statement that the child makes may be

1-20     used in evidence against the child;

1-21                       (B)  the child has the right to have an attorney

1-22     present to advise the child either prior to any questioning or

1-23     during the questioning;

1-24                       (C)  if the child is unable to employ an

 2-1     attorney, the child has the right to have an attorney appointed to

 2-2     counsel with the child prior to or during any interviews with peace

 2-3     officers or attorneys representing the state;

 2-4                       (D)  the child has the right to terminate the

 2-5     interview at any time;

 2-6                       (E)  if the child is 14 years of age or older at

 2-7     the time of the violation of a penal law of the grade of capital

 2-8     felony, aggravated controlled substance felony, or felony of the

 2-9     first degree, or is 15 years of age or older at the time of the

2-10     violation of a penal law of the grade of felony of the second or

2-11     third degree or a state jail felony, the juvenile court may waive

2-12     its jurisdiction and the child may be tried as an adult, except

2-13     that if the child has previously been transferred to a district

2-14     court or criminal district court for criminal proceedings and has

2-15     violated a penal law of the grade of felony, the juvenile court is

2-16     required to waive its jurisdiction and the child can be tried as an

2-17     adult;

2-18                       (F)  the child may be sentenced to commitment in

2-19     the Texas Youth Commission with a possible transfer to the

2-20     institutional division or the pardons and paroles division of the

2-21     Texas Department of Criminal Justice for a maximum term of 40 years

2-22     for a capital felony, felony of the first degree, or aggravated

2-23     controlled substance felony, 20 years for a felony of the second

2-24     degree, or 10 years for a felony of the third degree if the child

2-25     is found to have engaged in habitual felony conduct by violating a

2-26     penal law of the grade of felony, other than a state jail felony,

2-27     if the child has at least two previous adjudications as having

 3-1     engaged in delinquent conduct violating a penal law of the grade of

 3-2     felony and the second previous adjudication is for conduct that

 3-3     occurred after the date the first previous adjudication became

 3-4     final, alleged in a petition approved by a grand jury, or if the

 3-5     child is found to have engaged in delinquent conduct, alleged in a

 3-6     petition approved by a grand jury, that included:

 3-7                             (i)  murder;

 3-8                             (ii)  capital murder;

 3-9                             (iii)  aggravated kidnapping;

3-10                             (iv)  sexual assault or aggravated sexual

3-11     assault;

3-12                             (v)  aggravated robbery;

3-13                             (vi)  aggravated assault;

3-14                             (vii)  injury to a child, elderly

3-15     individual, or disabled individual that is punishable as a felony,

3-16     other than a state jail felony, under Section 22.04, Penal Code;

3-17                             (viii)  deadly conduct defined by Section

3-18     22.05(b), Penal Code (discharging firearm at persons or certain

3-19     objects);

3-20                             (ix)  an offense that is a felony of the

3-21     first degree or an aggravated controlled substance felony under

3-22     Subchapter D, Chapter 481, Health and Safety Code (certain offenses

3-23     involving controlled substances);

3-24                             (x)  criminal solicitation;

3-25                             (xi)  indecency with a child that is

3-26     punishable under Section 21.11(a)(1), Penal Code;

3-27                             (xii)  criminal solicitation of a minor

 4-1     (Section 15.031, Penal Code); or

 4-2                             (xiii) criminal attempt to commit any of

 4-3     the offenses listed in Section 3g(a)(1), Article 42.12, Code of

 4-4     Criminal Procedure, which include murder, capital murder, indecency

 4-5     with a child, aggravated kidnapping, aggravated sexual assault, and

 4-6     aggravated robbery; and

 4-7                       (G)  the statement must be signed in the presence

 4-8     of a magistrate by the child with no law enforcement officer or

 4-9     prosecuting attorney present, except that a magistrate may require

4-10     a bailiff or a law enforcement officer if a bailiff is not

4-11     available to be present if the magistrate determines that the

4-12     presence of the bailiff or law enforcement officer is necessary for

4-13     the personal safety of the magistrate or other court personnel,

4-14     provided that the bailiff or law enforcement officer may not carry

4-15     a weapon in the presence of the child.  The magistrate must be

4-16     fully convinced that the child understands the nature and contents

4-17     of the statement and that the child is signing the same

4-18     voluntarily.  If such a statement is taken, the magistrate shall

4-19     sign a written statement verifying the foregoing requisites have

4-20     been met.

4-21           The child must knowingly, intelligently, and voluntarily

4-22     waive these rights prior to and during the making of the statement

4-23     and sign the statement in the presence of a magistrate who must

4-24     certify that he has examined the child independent of any law

4-25     enforcement officer or prosecuting attorney, except as required to

4-26     ensure the personal safety of the magistrate or other court

4-27     personnel, and has determined that the child understands the nature

 5-1     and contents of the statement and, unless the warning under

 5-2     Subsection (b)(1) is administered by  a law enforcement officer as

 5-3     provided by Subsection (e), has  determined that the child has

 5-4     knowingly, intelligently, and voluntarily waived these rights.

 5-5                 (2)  it be made orally and the child makes a statement

 5-6     of facts or circumstances that are found to be true, which conduct

 5-7     tends to establish his guilt, such as the finding of secreted or

 5-8     stolen property, or the instrument with which he states the offense

 5-9     was committed.

5-10                 (3)  the statement was res gestae of the delinquent

5-11     conduct or the conduct indicating a need for supervision or of the

5-12     arrest.

5-13           (e)  A law enforcement officer may administer to a child the

5-14     warning required under Subdivision (b)(1) only if, after making a

5-15     reasonable attempt, the officer is unable to locate a magistrate to

5-16     administer the required warning.

5-17           SECTION 2.  This Act takes effect September 1, 1997, and

5-18     applies only to a child taken into custody for conduct that occurs

5-19     on or after the effective date of this Act.  Conduct violating a

5-20     penal law of this state occurs on or after the effective date of

5-21     this Act if every element of the violation occurs on or after that

5-22     date.  Conduct that occurs before the effective date of this Act is

5-23     covered by the law in effect at the time the conduct occurred, and

5-24     the  former law is continued in effect for that purpose.

5-25           SECTION 3.  The importance of this legislation and the

5-26     crowded condition of the calendars in both houses create an

5-27     emergency and an imperative public necessity that the

 6-1     constitutional rule requiring bills to be read on three several

 6-2     days in each house be suspended, and this rule is hereby suspended.