1-1 By: Goodman, et al. (Senate Sponsor - Shapiro) H.B. No. 1269
1-2 (In the Senate - Received from the House March 29, 1999;
1-3 March 30, 1999, read first time and referred to Committee on
1-4 Criminal Justice; May 3, 1999, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 7, Nays 0;
1-6 May 3, 1999, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1269 By: Shapiro
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the mandatory detention of a juvenile for allegedly
1-11 engaging in certain conduct.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 53.02, Family Code, is amended by
1-14 amending Subsection (b) and adding Subsection (f) to read as
1-15 follows:
1-16 (b) A child taken into custody may be detained prior to
1-17 hearing on the petition only if:
1-18 (1) the child [he] is likely to abscond or be removed
1-19 from the jurisdiction of the court;
1-20 (2) suitable supervision, care, or protection for the
1-21 child [him] is not being provided by a parent, guardian, custodian,
1-22 or other person;
1-23 (3) the child [he] has no parent, guardian, custodian,
1-24 or other person able to return the child [him] to the court when
1-25 required;
1-26 (4) the child [he] may be dangerous to himself or
1-27 herself or the child [he] may threaten the safety of the public if
1-28 released; [or]
1-29 (5) the child [he] has previously been found to be a
1-30 delinquent child or has previously been convicted of a penal
1-31 offense punishable by a term in jail or prison and is likely to
1-32 commit an offense if released; or
1-33 (6) the child's detention is required under Subsection
1-34 (f).
1-35 (f) A child who is alleged to have engaged in delinquent
1-36 conduct and to have used, possessed, or exhibited a firearm, as
1-37 defined by Section 46.01, Penal Code, in the commission of the
1-38 offense shall be detained until the child is released at the
1-39 direction of the judge of the juvenile court, a substitute judge
1-40 authorized by Section 51.04(f), or a referee appointed under
1-41 Section 51.04(g), including an oral direction by telephone, or
1-42 until a detention hearing is held as required by Section 54.01.
1-43 SECTION 2. Sections 51.04(f) and (g), Family Code, are
1-44 amended to read as follows:
1-45 (f) If the judge of the juvenile court or any alternate
1-46 judge named under Subsection (b) or (c) [of this section] is not in
1-47 the county or is otherwise unavailable, any magistrate may make a
1-48 determination under Section 53.02(f) or may conduct the detention
1-49 hearing provided for in Section 54.01 [of this code].
1-50 (g) The juvenile board, or if there is no juvenile board,
1-51 the juvenile court, may appoint a referee to make determinations
1-52 under Section 53.02(f) or to conduct hearings under this title [and
1-53 in accordance with Section 54.10 of this code]. The referee shall
1-54 be an attorney licensed to practice law in this state and shall
1-55 comply with Section 54.10. Payment of any referee services shall
1-56 be provided from county funds.
1-57 SECTION 3. Section 51.12, Family Code, as amended by
1-58 Chapters 772 and 1374, Acts of the 75th Legislature, Regular
1-59 Session, 1997, is amended and reenacted to read as follows:
1-60 Sec. 51.12. PLACE AND CONDITIONS OF DETENTION. (a) Except
1-61 as provided by Subsection (h), a child may be detained only in a:
1-62 (1) juvenile processing office in compliance with
1-63 Section 52.025;
1-64 (2) place of nonsecure custody in compliance with
2-1 Section 52.027;
2-2 (3) certified juvenile detention facility that
2-3 complies with the requirements of Subsection (f); [or]
2-4 (4) secure detention facility as provided by
2-5 Subsection (j); or
2-6 (5) county jail or other facility as provided by
2-7 Subsection (l) [(i)].
2-8 (b) The proper authorities in each county shall provide a
2-9 suitable place of detention for children who are parties to
2-10 proceedings under this title, but the juvenile court shall control
2-11 the conditions and terms of detention and detention supervision and
2-12 shall permit visitation with the child at all reasonable times.
2-13 (c) In each county, each judge of the juvenile court and the
2-14 members of the juvenile board shall personally inspect the juvenile
2-15 pre-adjudication secure detention facilities and any public or
2-16 private juvenile secure correctional facilities used for
2-17 post-adjudication confinement that are located in the county and
2-18 operated under authority of the juvenile board at least annually
2-19 and shall certify in writing to the authorities responsible for
2-20 operating and giving financial support to the facilities and to the
2-21 Texas Juvenile Probation Commission that they are suitable or
2-22 unsuitable for the detention of children in accordance with:
2-23 (1) the requirements of Subsections (a), (f), and (g);
2-24 and
2-25 (2) minimum professional standards for the detention
2-26 of children in pre-adjudication or post-adjudication secure
2-27 confinement promulgated by the Texas Juvenile Probation Commission
2-28 or, at the election of the juvenile board, the current standards
2-29 promulgated by the American Correctional Association.
2-30 (d) Except as provided by Subsections (j) and (l)
2-31 [Subsection (i)], a child may not be placed in a facility that has
2-32 not been certified under Subsection (c) as suitable for the
2-33 detention of children and registered under Subsection (i) [of this
2-34 section]. Except as provided by Subsections (j) and (l)
2-35 [Subsection (i)], a child detained in a facility that has not been
2-36 certified under Subsection (c) as suitable for the detention of
2-37 children or that has not been registered under Subsection (i) [of
2-38 this section] shall be entitled to immediate release from custody
2-39 in that facility.
2-40 (e) If there is no certified place of detention in the
2-41 county in which the petition is filed, the designated place of
2-42 detention may be in another county.
2-43 (f) A child detained in a building that contains a jail,
2-44 lockup, or other place of secure confinement, including an alcohol
2-45 or other drug treatment facility, shall be separated by sight and
2-46 sound from adults detained in the same building. Children and
2-47 adults are separated by sight and sound only if they are unable to
2-48 see each other and conversation between them is not possible. The
2-49 separation must extend to all areas of the facility, including
2-50 sally ports and passageways, and those areas used for admission,
2-51 counseling, sleeping, toileting, showering, dining, recreational,
2-52 educational, or vocational activities, and health care. The
2-53 separation may be accomplished through architectural design.
2-54 (g) Except for a child detained in a juvenile processing
2-55 office, a place of nonsecure custody, [or] a secure detention
2-56 facility as provided by Subsection (j), or a facility as provided
2-57 by Subsection (l) [(i)], a child detained in a building that
2-58 contains a jail or lockup may not have any contact with:
2-59 (1) part-time or full-time security staff, including
2-60 management, who have contact with adults detained in the same
2-61 building; or
2-62 (2) direct-care staff who have contact with adults
2-63 detained in the same building.
2-64 (h) This section does not apply to a person:
2-65 (1) after transfer to criminal court for prosecution
2-66 under Section 54.02; or
2-67 (2) who is at least 18 years of age and who has been
2-68 taken into custody after having:
2-69 (A) escaped from a juvenile facility; or
3-1 (B) violated a condition of probation or of
3-2 release under supervision of the Texas Youth Commission.
3-3 (i) Except for a facility operated or certified by the Texas
3-4 Youth Commission or a facility as provided by Subsection (l), a
3-5 governmental unit or private entity that operates or contracts for
3-6 the operation of a juvenile pre-adjudication secure detention
3-7 facility or a juvenile post-adjudication secure correctional
3-8 facility in this state shall:
3-9 (1) register the facility annually with the Texas
3-10 Juvenile Probation Commission; and
3-11 (2) adhere to all applicable minimum standards for the
3-12 facility.
3-13 (j) [(i)] After being taken into custody, a child may be
3-14 detained in a secure detention facility until the child is released
3-15 under Section 53.01, 53.012, or 53.02 or until a detention hearing
3-16 is held under Section 54.01(a), regardless of whether the facility
3-17 has been certified under Subsection (c), if:
3-18 (1) a certified juvenile detention facility is not
3-19 available in the county in which the child is taken into custody;
3-20 (2) the detention facility complies with:
3-21 (A) the short-term detention standards adopted
3-22 by the Texas Juvenile Probation Commission; and
3-23 (B) the requirements of Subsection (f); and
3-24 (3) the detention facility has been designated by the
3-25 county juvenile board for the county in which the facility is
3-26 located.
3-27 (k) [(j)] If a child who is detained under Subsection (j) or
3-28 (l) [(i)] is not released from detention at the conclusion of the
3-29 detention hearing for a reason stated in Section 54.01(e), the
3-30 child may be detained after the hearing only in a certified
3-31 juvenile detention facility.
3-32 (l) A child who is taken into custody and required to be
3-33 detained under Section 53.02(f) may be detained in a county jail or
3-34 other facility until the child is released under Section 53.02(f)
3-35 or until a detention hearing is held as required by Section
3-36 54.01(p), regardless of whether the facility complies with the
3-37 requirements of this section, if:
3-38 (1) a certified juvenile detention facility or a
3-39 secure detention facility described by Subsection (j) is not
3-40 available in the county in which the child is taken into custody or
3-41 in an adjacent county;
3-42 (2) the facility has been designated by the county
3-43 juvenile board for the county in which the facility is located;
3-44 (3) the child is separated by sight and sound from
3-45 adults detained in the same facility through architectural design
3-46 or time-phasing;
3-47 (4) the child does not have any contact with
3-48 management or direct-care staff that has contact with adults
3-49 detained in the same facility on the same work shift;
3-50 (5) the county in which the child is taken into
3-51 custody is not located in a metropolitan statistical area as
3-52 designated by the United States Bureau of the Census; and
3-53 (6) each judge of the juvenile court and the members
3-54 of the juvenile board of the county in which the child is taken
3-55 into custody have personally inspected the facility at least
3-56 annually and have certified in writing to the Texas Juvenile
3-57 Probation Commission that the facility complies with the
3-58 requirements of Subdivisions (3) and (4).
3-59 SECTION 4. Section 54.01, Family Code, is amended by
3-60 amending Subsection (a) and adding Subsection (p) to read as
3-61 follows:
3-62 (a) Except as provided by Subsection (p), if [If] the child
3-63 is not released under Section 53.02 [of this code], a detention
3-64 hearing without a jury shall be held promptly, but not later than
3-65 the second working day after the child [he] is taken into custody;
3-66 provided, however, that when a child is detained on a Friday or
3-67 Saturday, then such detention hearing shall be held on the first
3-68 working day after the child is taken into custody.
3-69 (p) If a child is detained in a county jail or other
4-1 facility as provided by Section 51.12(l) and the child is not
4-2 released under Section 53.02(f), a detention hearing without a jury
4-3 shall be held promptly, but not later than the 24th hour, excluding
4-4 weekends and holidays, after the time the child is taken into
4-5 custody.
4-6 SECTION 5. Section 54.10, Family Code, is amended to read as
4-7 follows:
4-8 Sec. 54.10. HEARINGS BEFORE REFEREE. (a) Except as
4-9 provided by Subsection (e) [(c) of this section], the hearing
4-10 provided in Sections 54.01, 54.03, 54.04, and 54.05 [of this code]
4-11 and the hearing provided in Article IV, Article V, and Article VI
4-12 of the Uniform Interstate Compact on Juveniles (Chapter 25 [of this
4-13 code]) may be held by a referee appointed in accordance with
4-14 Section 51.04(g) [of this code] provided:
4-15 (1) the parties have been informed by the referee that
4-16 they are entitled to have the hearing before the juvenile court
4-17 judge or in the case of a detention hearing provided for in Section
4-18 54.01 [of this code], a substitute judge as authorized by Section
4-19 51.04(f) [of this code]; or
4-20 (2) the child and the attorney for the child have in
4-21 accordance with the requirements of Section 51.09 [of this code]
4-22 waived the right to have the hearing before the juvenile court
4-23 judge or substitute judge.
4-24 (b) The determination under Section 53.02(f) whether to
4-25 release a child may be made by a referee appointed in accordance
4-26 with Section 51.04(g) if:
4-27 (1) the child has been informed by the referee that
4-28 the child is entitled to have the determination made by the
4-29 juvenile court judge or a substitute judge authorized by Section
4-30 51.04(f); or
4-31 (2) the child and the attorney for the child have in
4-32 accordance with Section 51.09 waived the right to have the
4-33 determination made by the juvenile court judge or a substitute
4-34 judge.
4-35 (c) If a child objects to a referee making the determination
4-36 under Section 53.02(f), the juvenile court judge or a substitute
4-37 judge authorized by Section 51.04(f) shall make the determination.
4-38 (d) At the conclusion of the hearing or immediately after
4-39 making the determination, the referee shall transmit written
4-40 findings and recommendations to the juvenile court judge. The
4-41 juvenile court judge shall adopt, modify, or reject the referee's
4-42 recommendations not later than the next working day after the day
4-43 that the judge receives the recommendations. Failure to act within
4-44 that time results in release of the child by operation of law and a
4-45 recommendation that the child be released operates to secure the
4-46 child's [his] immediate release subject to the power of the
4-47 juvenile court judge to modify or reject that recommendation.
4-48 (e) [(c)] The hearings provided by Sections 54.03, 54.04,
4-49 and 54.05 [of this code] may not be held before a referee if the
4-50 grand jury has approved of the petition and the child is subject to
4-51 a determinate sentence.
4-52 SECTION 6. (a) The change in law made by this Act applies
4-53 only to conduct that occurs on or after the effective date of this
4-54 Act. Conduct violating a penal law of the state occurs on or after
4-55 the effective date of this Act if every element of the violation
4-56 occurs on or after that date.
4-57 (b) Conduct that occurs before the effective date of this
4-58 Act is covered by the law in effect at the time the conduct
4-59 occurred, and the former law is continued in effect for that
4-60 purpose.
4-61 SECTION 7. This Act takes effect September 1, 1999.
4-62 SECTION 8. The importance of this legislation and the
4-63 crowded condition of the calendars in both houses create an
4-64 emergency and an imperative public necessity that the
4-65 constitutional rule requiring bills to be read on three several
4-66 days in each house be suspended, and this rule is hereby suspended.
4-67 * * * * *