1-1 AN ACT
1-2 relating to the mandatory detention of a juvenile for allegedly
1-3 engaging in certain conduct.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 53.02, Family Code, is amended by
1-6 amending Subsection (b) and adding Subsection (f) to read as
1-7 follows:
1-8 (b) A child taken into custody may be detained prior to
1-9 hearing on the petition only if:
1-10 (1) the child [he] is likely to abscond or be removed
1-11 from the jurisdiction of the court;
1-12 (2) suitable supervision, care, or protection for the
1-13 child [him] is not being provided by a parent, guardian, custodian,
1-14 or other person;
1-15 (3) the child [he] has no parent, guardian, custodian,
1-16 or other person able to return the child [him] to the court when
1-17 required;
1-18 (4) the child [he] may be dangerous to himself or
1-19 herself or the child [he] may threaten the safety of the public if
1-20 released; [or]
1-21 (5) the child [he] has previously been found to be a
1-22 delinquent child or has previously been convicted of a penal
1-23 offense punishable by a term in jail or prison and is likely to
1-24 commit an offense if released; or
2-1 (6) the child's detention is required under Subsection
2-2 (f).
2-3 (f) A child who is alleged to have engaged in delinquent
2-4 conduct and to have used, possessed, or exhibited a firearm, as
2-5 defined by Section 46.01, Penal Code, in the commission of the
2-6 offense shall be detained until the child is released at the
2-7 direction of the judge of the juvenile court, a substitute judge
2-8 authorized by Section 51.04(f), or a referee appointed under
2-9 Section 51.04(g), including an oral direction by telephone, or
2-10 until a detention hearing is held as required by Section 54.01.
2-11 SECTION 2. Sections 51.04(f) and (g), Family Code, are
2-12 amended to read as follows:
2-13 (f) If the judge of the juvenile court or any alternate
2-14 judge named under Subsection (b) or (c) [of this section] is not in
2-15 the county or is otherwise unavailable, any magistrate may make a
2-16 determination under Section 53.02(f) or may conduct the detention
2-17 hearing provided for in Section 54.01 [of this code].
2-18 (g) The juvenile board, or if there is no juvenile board,
2-19 the juvenile court, may appoint a referee to make determinations
2-20 under Section 53.02(f) or to conduct hearings under this title [and
2-21 in accordance with Section 54.10 of this code]. The referee shall
2-22 be an attorney licensed to practice law in this state and shall
2-23 comply with Section 54.10. Payment of any referee services shall
2-24 be provided from county funds.
2-25 SECTION 3. Section 51.12, Family Code, as amended by
2-26 Chapters 772 and 1374, Acts of the 75th Legislature, Regular
2-27 Session, 1997, is amended and reenacted to read as follows:
3-1 Sec. 51.12. PLACE AND CONDITIONS OF DETENTION. (a) Except
3-2 as provided by Subsection (h), a child may be detained only in a:
3-3 (1) juvenile processing office in compliance with
3-4 Section 52.025;
3-5 (2) place of nonsecure custody in compliance with
3-6 Section 52.027;
3-7 (3) certified juvenile detention facility that
3-8 complies with the requirements of Subsection (f); [or]
3-9 (4) secure detention facility as provided by
3-10 Subsection (j); or
3-11 (5) county jail or other facility as provided by
3-12 Subsection (l) [(i)].
3-13 (b) The proper authorities in each county shall provide a
3-14 suitable place of detention for children who are parties to
3-15 proceedings under this title, but the juvenile court shall control
3-16 the conditions and terms of detention and detention supervision and
3-17 shall permit visitation with the child at all reasonable times.
3-18 (c) In each county, each judge of the juvenile court and the
3-19 members of the juvenile board shall personally inspect the juvenile
3-20 pre-adjudication secure detention facilities and any public or
3-21 private juvenile secure correctional facilities used for
3-22 post-adjudication confinement that are located in the county and
3-23 operated under authority of the juvenile board at least annually
3-24 and shall certify in writing to the authorities responsible for
3-25 operating and giving financial support to the facilities and to the
3-26 Texas Juvenile Probation Commission that they are suitable or
3-27 unsuitable for the detention of children in accordance with:
4-1 (1) the requirements of Subsections (a), (f), and (g);
4-2 and
4-3 (2) minimum professional standards for the detention
4-4 of children in pre-adjudication or post-adjudication secure
4-5 confinement promulgated by the Texas Juvenile Probation Commission
4-6 or, at the election of the juvenile board, the current standards
4-7 promulgated by the American Correctional Association.
4-8 (d) Except as provided by Subsections (j) and (l)
4-9 [Subsection (i)], a child may not be placed in a facility that has
4-10 not been certified under Subsection (c) as suitable for the
4-11 detention of children and registered under Subsection (i) [of this
4-12 section]. Except as provided by Subsections (j) and (l)
4-13 [Subsection (i)], a child detained in a facility that has not been
4-14 certified under Subsection (c) as suitable for the detention of
4-15 children or that has not been registered under Subsection (i) [of
4-16 this section] shall be entitled to immediate release from custody
4-17 in that facility.
4-18 (e) If there is no certified place of detention in the
4-19 county in which the petition is filed, the designated place of
4-20 detention may be in another county.
4-21 (f) A child detained in a building that contains a jail,
4-22 lockup, or other place of secure confinement, including an alcohol
4-23 or other drug treatment facility, shall be separated by sight and
4-24 sound from adults detained in the same building. Children and
4-25 adults are separated by sight and sound only if they are unable to
4-26 see each other and conversation between them is not possible. The
4-27 separation must extend to all areas of the facility, including
5-1 sally ports and passageways, and those areas used for admission,
5-2 counseling, sleeping, toileting, showering, dining, recreational,
5-3 educational, or vocational activities, and health care. The
5-4 separation may be accomplished through architectural design.
5-5 (g) Except for a child detained in a juvenile processing
5-6 office, a place of nonsecure custody, [or] a secure detention
5-7 facility as provided by Subsection (j), or a facility as provided
5-8 by Subsection (l) [(i)], a child detained in a building that
5-9 contains a jail or lockup may not have any contact with:
5-10 (1) part-time or full-time security staff, including
5-11 management, who have contact with adults detained in the same
5-12 building; or
5-13 (2) direct-care staff who have contact with adults
5-14 detained in the same building.
5-15 (h) This section does not apply to a person:
5-16 (1) after transfer to criminal court for prosecution
5-17 under Section 54.02; or
5-18 (2) who is at least 18 years of age and who has been
5-19 taken into custody after having:
5-20 (A) escaped from a juvenile facility; or
5-21 (B) violated a condition of probation or of
5-22 release under supervision of the Texas Youth Commission.
5-23 (i) Except for a facility operated or certified by the Texas
5-24 Youth Commission or a facility as provided by Subsection (l), a
5-25 governmental unit or private entity that operates or contracts for
5-26 the operation of a juvenile pre-adjudication secure detention
5-27 facility or a juvenile post-adjudication secure correctional
6-1 facility in this state shall:
6-2 (1) register the facility annually with the Texas
6-3 Juvenile Probation Commission; and
6-4 (2) adhere to all applicable minimum standards for the
6-5 facility.
6-6 (j) [(i)] After being taken into custody, a child may be
6-7 detained in a secure detention facility until the child is released
6-8 under Section 53.01, 53.012, or 53.02 or until a detention hearing
6-9 is held under Section 54.01(a), regardless of whether the facility
6-10 has been certified under Subsection (c), if:
6-11 (1) a certified juvenile detention facility is not
6-12 available in the county in which the child is taken into custody;
6-13 (2) the detention facility complies with:
6-14 (A) the short-term detention standards adopted
6-15 by the Texas Juvenile Probation Commission; and
6-16 (B) the requirements of Subsection (f); and
6-17 (3) the detention facility has been designated by the
6-18 county juvenile board for the county in which the facility is
6-19 located.
6-20 (k) [(j)] If a child who is detained under Subsection (j) or
6-21 (l) [(i)] is not released from detention at the conclusion of the
6-22 detention hearing for a reason stated in Section 54.01(e), the
6-23 child may be detained after the hearing only in a certified
6-24 juvenile detention facility.
6-25 (l) A child who is taken into custody and required to be
6-26 detained under Section 53.02(f) may be detained in a county jail or
6-27 other facility until the child is released under Section 53.02(f)
7-1 or until a detention hearing is held as required by Section
7-2 54.01(p), regardless of whether the facility complies with the
7-3 requirements of this section, if:
7-4 (1) a certified juvenile detention facility or a
7-5 secure detention facility described by Subsection (j) is not
7-6 available in the county in which the child is taken into custody or
7-7 in an adjacent county;
7-8 (2) the facility has been designated by the county
7-9 juvenile board for the county in which the facility is located;
7-10 (3) the child is separated by sight and sound from
7-11 adults detained in the same facility through architectural design
7-12 or time-phasing;
7-13 (4) the child does not have any contact with
7-14 management or direct-care staff that has contact with adults
7-15 detained in the same facility on the same work shift;
7-16 (5) the county in which the child is taken into
7-17 custody is not located in a metropolitan statistical area as
7-18 designated by the United States Bureau of the Census; and
7-19 (6) each judge of the juvenile court and the members
7-20 of the juvenile board of the county in which the child is taken
7-21 into custody have personally inspected the facility at least
7-22 annually and have certified in writing to the Texas Juvenile
7-23 Probation Commission that the facility complies with the
7-24 requirements of Subdivisions (3) and (4).
7-25 SECTION 4. Section 54.01, Family Code, is amended by
7-26 amending Subsection (a) and adding Subsection (p) to read as
7-27 follows:
8-1 (a) Except as provided by Subsection (p), if [If] the child
8-2 is not released under Section 53.02 [of this code], a detention
8-3 hearing without a jury shall be held promptly, but not later than
8-4 the second working day after the child [he] is taken into custody;
8-5 provided, however, that when a child is detained on a Friday or
8-6 Saturday, then such detention hearing shall be held on the first
8-7 working day after the child is taken into custody.
8-8 (p) If a child is detained in a county jail or other
8-9 facility as provided by Section 51.12(l) and the child is not
8-10 released under Section 53.02(f), a detention hearing without a jury
8-11 shall be held promptly, but not later than the 24th hour, excluding
8-12 weekends and holidays, after the time the child is taken into
8-13 custody.
8-14 SECTION 5. Section 54.10, Family Code, is amended to read as
8-15 follows:
8-16 Sec. 54.10. HEARINGS BEFORE REFEREE. (a) Except as
8-17 provided by Subsection (e) [(c) of this section], the hearing
8-18 provided in Sections 54.01, 54.03, 54.04, and 54.05 [of this code]
8-19 and the hearing provided in Article IV, Article V, and Article VI
8-20 of the Uniform Interstate Compact on Juveniles (Chapter 25 [of this
8-21 code]) may be held by a referee appointed in accordance with
8-22 Section 51.04(g) [of this code] provided:
8-23 (1) the parties have been informed by the referee that
8-24 they are entitled to have the hearing before the juvenile court
8-25 judge or in the case of a detention hearing provided for in Section
8-26 54.01 [of this code], a substitute judge as authorized by Section
8-27 51.04(f) [of this code]; or
9-1 (2) the child and the attorney for the child have in
9-2 accordance with the requirements of Section 51.09 [of this code]
9-3 waived the right to have the hearing before the juvenile court
9-4 judge or substitute judge.
9-5 (b) The determination under Section 53.02(f) whether to
9-6 release a child may be made by a referee appointed in accordance
9-7 with Section 51.04(g) if:
9-8 (1) the child has been informed by the referee that
9-9 the child is entitled to have the determination made by the
9-10 juvenile court judge or a substitute judge authorized by Section
9-11 51.04(f); or
9-12 (2) the child and the attorney for the child have in
9-13 accordance with Section 51.09 waived the right to have the
9-14 determination made by the juvenile court judge or a substitute
9-15 judge.
9-16 (c) If a child objects to a referee making the determination
9-17 under Section 53.02(f), the juvenile court judge or a substitute
9-18 judge authorized by Section 51.04(f) shall make the determination.
9-19 (d) At the conclusion of the hearing or immediately after
9-20 making the determination, the referee shall transmit written
9-21 findings and recommendations to the juvenile court judge. The
9-22 juvenile court judge shall adopt, modify, or reject the referee's
9-23 recommendations not later than the next working day after the day
9-24 that the judge receives the recommendations. Failure to act within
9-25 that time results in release of the child by operation of law and a
9-26 recommendation that the child be released operates to secure the
9-27 child's [his] immediate release subject to the power of the
10-1 juvenile court judge to modify or reject that recommendation.
10-2 (e) [(c)] The hearings provided by Sections 54.03, 54.04,
10-3 and 54.05 [of this code] may not be held before a referee if the
10-4 grand jury has approved of the petition and the child is subject to
10-5 a determinate sentence.
10-6 SECTION 6. (a) The change in law made by this Act applies
10-7 only to conduct that occurs on or after the effective date of this
10-8 Act. Conduct violating a penal law of the state occurs on or after
10-9 the effective date of this Act if every element of the violation
10-10 occurs on or after that date.
10-11 (b) Conduct that occurs before the effective date of this
10-12 Act is covered by the law in effect at the time the conduct
10-13 occurred, and the former law is continued in effect for that
10-14 purpose.
10-15 SECTION 7. This Act takes effect September 1, 1999.
10-16 SECTION 8. The importance of this legislation and the
10-17 crowded condition of the calendars in both houses create an
10-18 emergency and an imperative public necessity that the
10-19 constitutional rule requiring bills to be read on three several
10-20 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1269 was passed by the House on March
25, 1999, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 1269 on May 10, 1999, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1269 was passed by the Senate, with
amendments, on May 7, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor