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.