By: Harris S.B. No. 319
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the waiver of certain rights by a child.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 51.09, Family Code, is amended to read as
1-4 follows:
1-5 Sec. 51.09. WAIVER OF RIGHTS. (a) Unless a contrary intent
1-6 clearly appears elsewhere in this title, any right granted to a
1-7 child by this title or by the constitution or laws of this state or
1-8 the United States may be waived in proceedings under this title if:
1-9 (1) the waiver is made by the child and the attorney
1-10 for the child;
1-11 (2) the child and the attorney waiving the right are
1-12 informed of and understand the right and the possible consequences
1-13 of waiving it;
1-14 (3) the waiver is voluntary; and
1-15 (4) the waiver is made in writing or in court
1-16 proceedings that are recorded.
1-17 (b) Notwithstanding any of the provisions of Subsection (a)
1-18 [of this section], the statement of a child is admissible in
1-19 evidence in any future proceeding concerning the matter about which
1-20 the statement was given if the statement is given in the manner
1-21 provided by this section.
1-22 (c) A statement by a child is admissible if:
1-23 (1) [when] the child is in a detention facility or
2-1 other place of confinement or in the custody of an officer;
2-2 (2) [,] the statement is made in writing;
2-3 (3) [and] the statement shows that the child has at
2-4 some time prior to the making thereof received from a magistrate a
2-5 warning that:
2-6 (A) the child may remain silent and not make any
2-7 statement at all and that any statement that the child makes may be
2-8 used in evidence against the child;
2-9 (B) the child has the right to have an attorney
2-10 present to advise the child either prior to any questioning or
2-11 during the questioning;
2-12 (C) if the child is unable to employ an
2-13 attorney, the child has the right to have an attorney appointed to
2-14 counsel with the child prior to or during any interviews with peace
2-15 officers or attorneys representing the state;
2-16 (D) the child has the right to terminate the
2-17 interview at any time; and
2-18 (E) under certain circumstances relating to the
2-19 age and conduct of the child:
2-20 (i) the juvenile court may not have or may
2-21 waive jurisdiction over the child and the child can be tried as an
2-22 adult; or
2-23 (ii) the child may be sentenced to
2-24 commitment in the Texas Youth Commission with a possible transfer
2-25 to the institutional division or the pardons and paroles division
3-1 of the Texas Department of Criminal Justice [if the child is 14
3-2 years of age or older at the time of the violation of a penal law
3-3 of the grade of capital felony, aggravated controlled substance
3-4 felony, or felony of the first degree, or is 15 years of age or
3-5 older at the time of the violation of a penal law of the grade of
3-6 felony of the second or third degree or a state jail felony, the
3-7 juvenile court may waive its jurisdiction and the child may be
3-8 tried as an adult, except that if the child has previously been
3-9 transferred to a district court or criminal district court for
3-10 criminal proceedings and has violated a penal law of the grade of
3-11 felony, the juvenile court is required to waive its jurisdiction
3-12 and the child can be tried as an adult;]
3-13 [(F) the child may be sentenced to commitment in
3-14 the Texas Youth Commission with a possible transfer to the
3-15 institutional division or the pardons and paroles division of the
3-16 Texas Department of Criminal Justice for a maximum term of 40 years
3-17 for a capital felony, felony of the first degree, or aggravated
3-18 controlled substance felony, 20 years for a felony of the second
3-19 degree, or 10 years for a felony of the third degree if the child
3-20 is found to have engaged in habitual felony conduct by violating a
3-21 penal law of the grade of felony, other than a state jail felony,
3-22 if the child has at least two previous adjudications as having
3-23 engaged in delinquent conduct violating a penal law of the grade of
3-24 felony and the second previous adjudication is for conduct that
3-25 occurred after the date the first previous adjudication became
4-1 final, alleged in a petition approved by a grand jury, or if the
4-2 child is found to have engaged in delinquent conduct, alleged in a
4-3 petition approved by a grand jury, that included:]
4-4 [(i) murder;]
4-5 [(ii) capital murder;]
4-6 [(iii) aggravated kidnapping;]
4-7 [(iv) sexual assault or aggravated sexual
4-8 assault;]
4-9 [(v) aggravated robbery;]
4-10 [(vi) aggravated assault;]
4-11 [(vii) injury to a child, elderly
4-12 individual, or disabled individual that is punishable as a felony,
4-13 other than a state jail felony, under Section 22.04, Penal Code;]
4-14 [(viii) deadly conduct defined by Section
4-15 22.05(b), Penal Code (discharging firearm at persons or certain
4-16 objects);]
4-17 [(ix) an offense that is a felony of the
4-18 first degree or an aggravated controlled substance felony under
4-19 Subchapter D, Chapter 481, Health and Safety Code (certain offenses
4-20 involving controlled substances);]
4-21 [(x) criminal solicitation;]
4-22 [(xi) indecency with a child that is
4-23 punishable under Section 21.11(a)(1), Penal Code;]
4-24 [(xii) criminal solicitation of a minor
4-25 (Section 15.031, Penal Code); or]
5-1 [(xiii) criminal attempt to commit any of
5-2 the offenses listed in Section 3g(a)(1), Article 42.12, Code of
5-3 Criminal Procedure, which include murder, capital murder, indecency
5-4 with a child, aggravated kidnapping, aggravated sexual assault, and
5-5 aggravated robbery]; and
5-6 (4) [(G)] the statement is [must be] signed in the
5-7 presence of a magistrate by the child with no law enforcement
5-8 officer or prosecuting attorney present, except that a magistrate
5-9 may require a bailiff or a law enforcement officer if a bailiff is
5-10 not available to be present if the magistrate determines that:
5-11 (A) the presence of the bailiff or law
5-12 enforcement officer is necessary for the personal safety of the
5-13 magistrate or other court personnel; and
5-14 (B) [, provided that] the bailiff or law
5-15 enforcement officer does [may] not carry a weapon in the presence
5-16 of the child.
5-17 (d) The magistrate may sign a statement under Subsection (c)
5-18 only if the magistrate is [must be] fully convinced that the child
5-19 understands the nature and contents of the statement and that the
5-20 child is signing the same voluntarily. If such a statement is
5-21 taken, the magistrate shall sign a written statement verifying
5-22 that:
5-23 (1) the [foregoing requisites have been met.]
5-24 [The] child has signed [must knowingly, intelligently, and
5-25 voluntarily waive these rights prior to and during the making of
6-1 the statement and sign] the statement in the presence of the [a]
6-2 magistrate;
6-3 (2) the magistrate [who must certify that he] has
6-4 examined the child independent of any law enforcement officer or
6-5 prosecuting attorney, except as required to ensure the personal
6-6 safety of the magistrate or other court personnel;[,] and
6-7 (3) the magistrate has determined that the child
6-8 understands the nature and contents of the statement and has
6-9 knowingly, intelligently, and voluntarily waived these rights
6-10 before and during the making of the statement.
6-11 (e) A statement is admissible if it is [(2) it be] made
6-12 orally and the child makes a statement of facts or circumstances
6-13 that are found to be true, which conduct tends to establish his
6-14 guilt, such as the finding of secreted or stolen property, or the
6-15 instrument with which he states the offense was committed.
6-16 (f) A statement is admissible if [(3)] the statement was
6-17 res gestae of the delinquent conduct or the conduct indicating a
6-18 need for supervision or of the arrest.
6-19 (g) [(c) A warning under Subsection (b)(1)(E) or (b)(1)(F)
6-20 is required only when applicable to the facts of the case. A
6-21 failure to warn a child under Subsection (b)(1)(E) does not render
6-22 a statement made by the child inadmissible unless the child is
6-23 transferred to a district court under Section 54.02. A failure to
6-24 warn a child under Subsection (b)(1)(F) does not render a statement
6-25 made by the child inadmissible unless the state proceeds against
7-1 the child on a petition approved by a grand jury under Section
7-2 53.045.]
7-3 [(d)] This section does not preclude the admission of a
7-4 statement made by the child if:
7-5 (1) the child makes the statement:
7-6 (A) in open court at the child's adjudication
7-7 hearing;
7-8 (B) before a grand jury considering a petition,
7-9 under Section 53.045 [of this code], that the child engaged in
7-10 delinquent conduct; or
7-11 (C) at a preliminary hearing concerning the
7-12 child held in compliance with this code, other than at a detention
7-13 hearing under Section 54.01 [of this code];
7-14 (2) the statement does not stem from custodial
7-15 interrogation; or
7-16 (3) without regard to whether the statement stems from
7-17 custodial interrogation, the statement is voluntary and has a
7-18 bearing on the credibility of the child as a witness.
7-19 (h) The warning of the magistrate given under this section
7-20 to the child may be videotaped only if the warning is made at a
7-21 facility authorized for the detention of a child under this title.
7-22 SECTION 2. This Act takes effect September 1, 1997, and
7-23 applies only to the admissibility of a statement made on or after
7-24 that date, without regard to whether the child making the statement
7-25 was taken into custody before, on, or after that date. A statement
8-1 made before the effective date of this Act is governed by the law
8-2 in effect at the time the statement was given, and that law is
8-3 continued in effect for that purpose.
8-4 SECTION 3. The importance of this legislation and the
8-5 crowded condition of the calendars in both houses create an
8-6 emergency and an imperative public necessity that the
8-7 constitutional rule requiring bills to be read on three several
8-8 days in each house be suspended, and this rule is hereby suspended.