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.