1-1 By: Harris S.B. No. 319
1-2 (In the Senate - Filed January 28, 1997; February 3, 1997,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 February 19, 1997, reported favorably, as amended, by the following
1-5 vote: Yeas 7, Nays 0; February 19, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Shapiro
1-7 Amend S.B. No. 319, in SECTION 1 of the bill, by adding a new
1-8 Subsection (h) to Section 51.09, Family Code, to read as follows:
1-9 (h) The warning of the magistrate given under this section
1-10 to the child may be videotaped only if the warning is made at a
1-11 facility authorized for the detention of a child under this title.
1-12 A BILL TO BE ENTITLED
1-13 AN ACT
1-14 relating to the waiver of certain rights by a child.
1-15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-16 SECTION 1. Section 51.09, Family Code, is amended to read as
1-17 follows:
1-18 Sec. 51.09. WAIVER OF RIGHTS. (a) Unless a contrary intent
1-19 clearly appears elsewhere in this title, any right granted to a
1-20 child by this title or by the constitution or laws of this state or
1-21 the United States may be waived in proceedings under this title if:
1-22 (1) the waiver is made by the child and the attorney
1-23 for the child;
1-24 (2) the child and the attorney waiving the right are
1-25 informed of and understand the right and the possible consequences
1-26 of waiving it;
1-27 (3) the waiver is voluntary; and
1-28 (4) the waiver is made in writing or in court
1-29 proceedings that are recorded.
1-30 (b) Notwithstanding any of the provisions of Subsection (a)
1-31 [of this section], the statement of a child is admissible in
1-32 evidence in any future proceeding concerning the matter about which
1-33 the statement was given if the statement is given in the manner
1-34 provided by this section.
1-35 (c) A statement by a child is admissible if:
1-36 (1) [when] the child is in a detention facility or
1-37 other place of confinement or in the custody of an officer;
1-38 (2) [,] the statement is made in writing;
1-39 (3) [and] the statement shows that the child has at
1-40 some time prior to the making thereof received from a magistrate a
1-41 warning that:
1-42 (A) the child may remain silent and not make any
1-43 statement at all and that any statement that the child makes may be
1-44 used in evidence against the child;
1-45 (B) the child has the right to have an attorney
1-46 present to advise the child either prior to any questioning or
1-47 during the questioning;
1-48 (C) if the child is unable to employ an
1-49 attorney, the child has the right to have an attorney appointed to
1-50 counsel with the child prior to or during any interviews with peace
1-51 officers or attorneys representing the state;
1-52 (D) the child has the right to terminate the
1-53 interview at any time; and
1-54 (E) under certain circumstances relating to the
1-55 age and conduct of the child:
1-56 (i) the juvenile court may not have or may
1-57 waive jurisdiction over the child and the child can be tried as an
1-58 adult; or
1-59 (ii) the child may be sentenced to
1-60 commitment in the Texas Youth Commission with a possible transfer
1-61 to the institutional division or the pardons and paroles division
1-62 of the Texas Department of Criminal Justice [if the child is 14
1-63 years of age or older at the time of the violation of a penal law
2-1 of the grade of capital felony, aggravated controlled substance
2-2 felony, or felony of the first degree, or is 15 years of age or
2-3 older at the time of the violation of a penal law of the grade of
2-4 felony of the second or third degree or a state jail felony, the
2-5 juvenile court may waive its jurisdiction and the child may be
2-6 tried as an adult, except that if the child has previously been
2-7 transferred to a district court or criminal district court for
2-8 criminal proceedings and has violated a penal law of the grade of
2-9 felony, the juvenile court is required to waive its jurisdiction
2-10 and the child can be tried as an adult;]
2-11 [(F) the child may be sentenced to commitment in
2-12 the Texas Youth Commission with a possible transfer to the
2-13 institutional division or the pardons and paroles division of the
2-14 Texas Department of Criminal Justice for a maximum term of 40 years
2-15 for a capital felony, felony of the first degree, or aggravated
2-16 controlled substance felony, 20 years for a felony of the second
2-17 degree, or 10 years for a felony of the third degree if the child
2-18 is found to have engaged in habitual felony conduct by violating a
2-19 penal law of the grade of felony, other than a state jail felony,
2-20 if the child has at least two previous adjudications as having
2-21 engaged in delinquent conduct violating a penal law of the grade of
2-22 felony and the second previous adjudication is for conduct that
2-23 occurred after the date the first previous adjudication became
2-24 final, alleged in a petition approved by a grand jury, or if the
2-25 child is found to have engaged in delinquent conduct, alleged in a
2-26 petition approved by a grand jury, that included:]
2-27 [(i) murder;]
2-28 [(ii) capital murder;]
2-29 [(iii) aggravated kidnapping;]
2-30 [(iv) sexual assault or aggravated sexual
2-31 assault;]
2-32 [(v) aggravated robbery;]
2-33 [(vi) aggravated assault;]
2-34 [(vii) injury to a child, elderly
2-35 individual, or disabled individual that is punishable as a felony,
2-36 other than a state jail felony, under Section 22.04, Penal Code;]
2-37 [(viii) deadly conduct defined by Section
2-38 22.05(b), Penal Code (discharging firearm at persons or certain
2-39 objects);]
2-40 [(ix) an offense that is a felony of the
2-41 first degree or an aggravated controlled substance felony under
2-42 Subchapter D, Chapter 481, Health and Safety Code (certain offenses
2-43 involving controlled substances);]
2-44 [(x) criminal solicitation;]
2-45 [(xi) indecency with a child that is
2-46 punishable under Section 21.11(a)(1), Penal Code;]
2-47 [(xii) criminal solicitation of a minor
2-48 (Section 15.031, Penal Code); or]
2-49 [(xiii) criminal attempt to commit any of
2-50 the offenses listed in Section 3g(a)(1), Article 42.12, Code of
2-51 Criminal Procedure, which include murder, capital murder, indecency
2-52 with a child, aggravated kidnapping, aggravated sexual assault, and
2-53 aggravated robbery]; and
2-54 (4) [(G)] the statement is [must be] signed in the
2-55 presence of a magistrate by the child with no law enforcement
2-56 officer or prosecuting attorney present, except that a magistrate
2-57 may require a bailiff or a law enforcement officer if a bailiff is
2-58 not available to be present if the magistrate determines that:
2-59 (A) the presence of the bailiff or law
2-60 enforcement officer is necessary for the personal safety of the
2-61 magistrate or other court personnel; and
2-62 (B) [, provided that] the bailiff or law
2-63 enforcement officer does [may] not carry a weapon in the presence
2-64 of the child.
2-65 (d) The magistrate may sign a statement under Subsection (c)
2-66 only if the magistrate is [must be] fully convinced that the child
2-67 understands the nature and contents of the statement and that the
2-68 child is signing the same voluntarily. If such a statement is
2-69 taken, the magistrate shall sign a written statement verifying
3-1 that:
3-2 (1) the [foregoing requisites have been met.]
3-3 [The] child has signed [must knowingly, intelligently, and
3-4 voluntarily waive these rights prior to and during the making of
3-5 the statement and sign] the statement in the presence of the [a]
3-6 magistrate;
3-7 (2) the magistrate [who must certify that he] has
3-8 examined the child independent of any law enforcement officer or
3-9 prosecuting attorney, except as required to ensure the personal
3-10 safety of the magistrate or other court personnel;[,] and
3-11 (3) the magistrate has determined that the child
3-12 understands the nature and contents of the statement and has
3-13 knowingly, intelligently, and voluntarily waived these rights
3-14 before and during the making of the statement.
3-15 (e) A statement is admissible if it is [(2) it be] made
3-16 orally and the child makes a statement of facts or circumstances
3-17 that are found to be true, which conduct tends to establish his
3-18 guilt, such as the finding of secreted or stolen property, or the
3-19 instrument with which he states the offense was committed.
3-20 (f) A statement is admissible if [(3)] the statement was
3-21 res gestae of the delinquent conduct or the conduct indicating a
3-22 need for supervision or of the arrest.
3-23 (g) [(c) A warning under Subsection (b)(1)(E) or (b)(1)(F)
3-24 is required only when applicable to the facts of the case. A
3-25 failure to warn a child under Subsection (b)(1)(E) does not render
3-26 a statement made by the child inadmissible unless the child is
3-27 transferred to a district court under Section 54.02. A failure to
3-28 warn a child under Subsection (b)(1)(F) does not render a statement
3-29 made by the child inadmissible unless the state proceeds against
3-30 the child on a petition approved by a grand jury under Section
3-31 53.045.]
3-32 [(d)] This section does not preclude the admission of a
3-33 statement made by the child if:
3-34 (1) the child makes the statement:
3-35 (A) in open court at the child's adjudication
3-36 hearing;
3-37 (B) before a grand jury considering a petition,
3-38 under Section 53.045 [of this code], that the child engaged in
3-39 delinquent conduct; or
3-40 (C) at a preliminary hearing concerning the
3-41 child held in compliance with this code, other than at a detention
3-42 hearing under Section 54.01 [of this code];
3-43 (2) the statement does not stem from custodial
3-44 interrogation; or
3-45 (3) without regard to whether the statement stems from
3-46 custodial interrogation, the statement is voluntary and has a
3-47 bearing on the credibility of the child as a witness.
3-48 SECTION 2. This Act takes effect September 1, 1997, and
3-49 applies only to the admissibility of a statement made on or after
3-50 that date, without regard to whether the child making the statement
3-51 was taken into custody before, on, or after that date. A statement
3-52 made before the effective date of this Act is governed by the law
3-53 in effect at the time the statement was given, and that law is
3-54 continued in effect for that purpose.
3-55 SECTION 3. The importance of this legislation and the
3-56 crowded condition of the calendars in both houses create an
3-57 emergency and an imperative public necessity that the
3-58 constitutional rule requiring bills to be read on three several
3-59 days in each house be suspended, and this rule is hereby suspended.
3-60 * * * * *