By Patterson                                            S.B. No. 62

      75R255 DD-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the waiver of juvenile court jurisdiction over certain

 1-3     children.

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

 1-5           SECTION 1.  Section 51.09(b), Family Code, is amended to read

 1-6     as follows:

 1-7           (b)  Notwithstanding any of the provisions of Subsection (a)

 1-8     of this section, the statement of a child is admissible in evidence

 1-9     in any future proceeding concerning the matter about which the

1-10     statement was given if:

1-11                 (1)  when the child is in a detention facility or other

1-12     place of confinement or in the custody of an officer, the statement

1-13     is made in writing and the statement shows that the child has at

1-14     some time prior to the making thereof received from a magistrate a

1-15     warning that:

1-16                       (A)  the child may remain silent and not make any

1-17     statement at all and that any statement that the child makes may be

1-18     used in evidence against the child;

1-19                       (B)  the child has the right to have an attorney

1-20     present to advise the child either prior to any questioning or

1-21     during the questioning;

1-22                       (C)  if the child is unable to employ an

1-23     attorney, the child has the right to have an attorney appointed to

1-24     counsel with the child prior to or during any interviews with peace

 2-1     officers or attorneys representing the state;

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

 2-3     interview at any time;

 2-4                       (E)  if the child is 14 years of age or older at

 2-5     the time of the violation of a penal law of the grade of capital

 2-6     felony, aggravated controlled substance felony, or felony of the

 2-7     first degree, or is 15 years of age or older at the time of the

 2-8     violation of a penal law of the grade of felony of the second or

 2-9     third degree or a state jail felony, the juvenile court may waive

2-10     its jurisdiction and the child may be tried as an adult, except

2-11     that the juvenile court is required to waive its jurisdiction and

2-12     the child can be tried as an adult if:

2-13                             (i)  [if] the child has previously been

2-14     transferred to a district court or criminal district court for

2-15     criminal proceedings and has violated a penal law of the grade of

2-16     felony; or

2-17                             (ii)  the child is alleged to have violated

2-18     a penal law of the grade of felony, was 14 years of age or older at

2-19     the time the child is alleged to have committed the offense, and

2-20     used or exhibited a firearm, knife, or prohibited weapon during the

2-21     commission of the offense[, the juvenile court is required to waive

2-22     its jurisdiction and the child can be tried as an adult];

2-23                       (F)  the child may be sentenced to commitment in

2-24     the Texas Youth Commission with a possible transfer to the

2-25     institutional division or the pardons and paroles division of the

2-26     Texas Department of Criminal Justice for a maximum term of 40 years

2-27     for a capital felony, felony of the first degree, or aggravated

 3-1     controlled substance felony, 20 years for a felony of the second

 3-2     degree, or 10 years for a felony of the third degree if the child

 3-3     is found to have engaged in habitual felony conduct by violating a

 3-4     penal law of the grade of felony, other than a state jail felony,

 3-5     if the child has at least two previous adjudications as having

 3-6     engaged in delinquent conduct violating a penal law of the grade of

 3-7     felony and the second previous adjudication is for conduct that

 3-8     occurred after the date the first previous adjudication became

 3-9     final, alleged in a petition approved by a grand jury, or if the

3-10     child is found to have engaged in delinquent conduct, alleged in a

3-11     petition approved by a grand jury, that included:

3-12                             (i)  murder;

3-13                             (ii)  capital murder;

3-14                             (iii)  aggravated kidnapping;

3-15                             (iv)  sexual assault or aggravated sexual

3-16     assault;

3-17                             (v)  aggravated robbery;

3-18                             (vi)  aggravated assault;

3-19                             (vii)  injury to a child, elderly

3-20     individual, or disabled individual that is punishable as a felony,

3-21     other than a state jail felony, under Section 22.04, Penal Code;

3-22                             (viii)  deadly conduct defined by Section

3-23     22.05(b), Penal Code (discharging firearm at persons or certain

3-24     objects);

3-25                             (ix)  an offense that is a felony of the

3-26     first degree or an aggravated controlled substance felony under

3-27     Subchapter D, Chapter 481, Health and Safety Code (certain offenses

 4-1     involving controlled substances);

 4-2                             (x)  criminal solicitation;

 4-3                             (xi)  indecency with a child that is

 4-4     punishable under Section 21.11(a)(1), Penal Code;

 4-5                             (xii)  criminal solicitation of a minor

 4-6     (Section 15.031, Penal Code); or

 4-7                             (xiii)  criminal attempt to commit any of

 4-8     the offenses listed in Section 3g(a)(1), Article 42.12, Code of

 4-9     Criminal Procedure, which include murder, capital murder, indecency

4-10     with a child, aggravated kidnapping, aggravated sexual assault, and

4-11     aggravated robbery; and

4-12                       (G)  the statement must be signed in the presence

4-13     of a magistrate by the child with no law enforcement officer or

4-14     prosecuting attorney present, except that a magistrate may require

4-15     a bailiff or a law enforcement officer if a bailiff is not

4-16     available to be present if the magistrate determines that the

4-17     presence of the bailiff or law enforcement officer is necessary for

4-18     the personal safety of the magistrate or other court personnel,

4-19     provided that the bailiff or law enforcement officer may not carry

4-20     a weapon in the presence of the child.  The magistrate must be

4-21     fully convinced that the child understands the nature and contents

4-22     of the statement and that the child is signing the same

4-23     voluntarily.  If such a statement is taken, the magistrate shall

4-24     sign a written statement verifying the foregoing requisites have

4-25     been met.

4-26           The child must knowingly, intelligently, and voluntarily

4-27     waive these rights prior to and during the making of the statement

 5-1     and sign the statement in the presence of a magistrate who must

 5-2     certify that he has examined the child independent of any law

 5-3     enforcement officer or prosecuting attorney, except as required to

 5-4     ensure the personal safety of the magistrate or other court

 5-5     personnel, and has determined that the child understands the nature

 5-6     and contents of the statement and has knowingly, intelligently, and

 5-7     voluntarily waived these rights.

 5-8                 (2)  it be made orally and the child makes a statement

 5-9     of facts or circumstances that are found to be true, which conduct

5-10     tends to establish his guilt, such as the finding of secreted or

5-11     stolen property, or the instrument with which he states the offense

5-12     was committed.

5-13                 (3)  the statement was res gestae of the delinquent

5-14     conduct or the conduct indicating a need for supervision or of the

5-15     arrest.

5-16           SECTION 2.  Section 54.02, Family Code, is amended by

5-17     amending Subsection (m) and adding Subsection (o) to read as

5-18     follows:

5-19           (m)  Notwithstanding any other provision of this section, the

5-20     juvenile court shall waive its exclusive original jurisdiction and

5-21     transfer a child to the appropriate district court or criminal

5-22     court for criminal proceedings if:

5-23                 (1)  the child is alleged to have violated a penal law

5-24     of the grade of felony and has previously been transferred to a

5-25     district court or criminal district court for criminal proceedings

5-26     under this section, unless:

5-27                       (A)  the child was not indicted in the matter

 6-1     transferred by the grand jury;

 6-2                       (B)  the child was found not guilty in the matter

 6-3     transferred;

 6-4                       (C)  the matter transferred was dismissed with

 6-5     prejudice; or

 6-6                       (D)  the child was convicted in the matter

 6-7     transferred, the conviction was reversed on appeal, and the appeal

 6-8     is final; or [and]

 6-9                 (2)  the child:

6-10                       (A)  is alleged to have violated a penal law of

6-11     the grade of felony;

6-12                       (B)  was 14 years of age or older at the time the

6-13     child is alleged to have committed the offense; and

6-14                       (C)  used or exhibited a firearm, knife, or

6-15     prohibited weapon during the commission of the conduct.

6-16           (o)  In this section:

6-17                 (1)  "Firearm" has the meaning assigned by Section

6-18     46.01, Penal Code;

6-19                 (2)  "Knife" has the meaning assigned by Section 46.01,

6-20     Penal Code; and

6-21                 (3)  "Prohibited weapon" means a weapon described by

6-22     Section 46.05, Penal Code.

6-23           SECTION 3.  Section 8.07(a), Penal Code, is amended to read

6-24     as follows:

6-25           (a)  A person may not be prosecuted for or convicted of any

6-26     offense that he committed when younger than 15 years of age except:

6-27                 (1)  perjury and aggravated perjury when it appears by

 7-1     proof that he had sufficient discretion to understand the nature

 7-2     and obligation of an oath;

 7-3                 (2)  a violation of a penal statute cognizable under

 7-4     Chapter 729, Transportation Code [302, Acts of the 55th

 7-5     Legislature, Regular Session, 1957 (Article 6701l-4, Vernon's Texas

 7-6     Civil Statutes)];

 7-7                 (3)  a violation of a motor vehicle traffic ordinance

 7-8     of an incorporated city or town in this state;

 7-9                 (4)  a misdemeanor punishable by fine only other than

7-10     public intoxication;

7-11                 (5)  a violation of a penal ordinance of a political

7-12     subdivision; [or]

7-13                 (6)  a violation of a penal statute that is, or is a

7-14     lesser included offense of, a capital felony, an aggravated

7-15     controlled substance felony, or a felony of the first degree for

7-16     which the person is transferred to the court under Section 54.02,

7-17     Family Code, for prosecution if the person committed the offense

7-18     when 14 years of age or older; or

7-19                 (7)  a violation of a penal statute that is a felony,

7-20     if the person:

7-21                       (A)  is alleged to have committed the offense

7-22     when the person was 14 years of age or older;

7-23                       (B)  used or exhibited a firearm, knife, or

7-24     prohibited weapon during the commission of the offense; and

7-25                       (C)  is transferred to the court under Section

7-26     54.02, Family Code.

7-27           SECTION 4.  (a)  The change in law made by this Act applies

 8-1     only to conduct that occurs on or after the effective date of this

 8-2     Act.  Conduct violating a penal law of the state occurs on or after

 8-3     the effective date of this Act if every element of the violation

 8-4     occurs on or after that date.

 8-5           (b)  Conduct that occurs before the effective date of this

 8-6     Act is covered by the law in effect at the time the conduct

 8-7     occurred, and the former law is continued in effect for that

 8-8     purpose.

 8-9           SECTION 5.  This Act takes effect September 1, 1997.

8-10           SECTION 6.  The importance of this legislation and the

8-11     crowded condition of the calendars in both houses create an

8-12     emergency and an imperative public necessity that the

8-13     constitutional rule requiring bills to be read on three several

8-14     days in each house be suspended, and this rule is hereby suspended.