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.