BILL ANALYSIS
By: Dutton
Juvenile Justice & Family Issues
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Juvenile justice practitioners, juvenile court judges and university faculty members assisted in making recommendations for juvenile justice legislation. Most significant were recommendations related to the inter-county transfer of supervision of youth on probation who move away from the county where they were adjudicated. Provisions are made in this bill to ensure that these youth continue to receive meaningful supervision in their new county of residence and that court orders related to them or their parents continue to be enforced. Other provisions provide for the employment and funding of juvenile case managers for justice and municipal courts in truancy cases, and, consistent with penal laws related to adult jails and prisons, make it a felony of the third degree to provide or attempt to provide controlled substances and other contraband items to youth in secure juvenile correctional or detention facilities. These areas of concern and a number of other proposed amendments reflect the changing needs of a juvenile justice system that has increased in size, sophistication and complexity since the reforms of the 74th Legislature.
There are a number of additional substantive, clarifying, and technical amendments covering a wide range of concerns that have come to light since the last legislative session. Amendments to the Family Code, Code of Criminal Procedure and other codes are included that relate to such things as referral of youth with mental illness who are on probation to appropriate mental health authorities; making implementation of the restricted access to records provisions more efficient; clarifying criteria for access to Texas Juvenile Probation Commission (TJPC) statistical and research information; requiring notice to parents of suspected abuse and neglect reporting procedures for TJPC investigations in juvenile facilities; disposition of contraband money possessed by youth in Texas Youth Commission (TYC) facilities; authorizing TYC to release determinate sentenced youth on parole without court approval at any time during the last 9 months of the youth’s sentence; and requiring court dismissal of complaints and referrals regarding truant behavior when school districts fail to timely file them.
RULEMAKING AUTHORITY
It is the committee’s opinion that rulemaking authority is expressly granted to the Texas Youth Commission, in SECTION 39, Section 61.0432, Human Resources Code, and SECTION 42, Section 141.042(a), Human Resources Code of this bill.
ANALYSIS
SECTION 1. Amends Section 51.02(16), Family Code, to redefine “traffic offense” in the Juvenile Justice Code by excluding from its definition any offense that is punishable by imprisonment or confinement in jail.
SECTION 2. Amends Section 51.03(d), Family Code, to clarify that the affirmative defense of excused absences or involuntary absences in truancy or failure-to-attend-school proceedings is effective only when there are insufficient unexcused or voluntary absences remaining to constitute a violation of law.
SECTION 3. Amends Section 51.07, Family Code, to eliminate the requirement that a court’s transfer of disposition of a child’s case to the court in the child’s county of residence requires the child’s consent; to clarify that a county of residence to which a case is transferred for disposition has no right to refuse to accept the transfer; and to repeal a subsection that is the subject of the next few new sections related to transfer of probation supervision between counties.
SECTION 4. Amends Chapter 51, Family Code, by adding new Sections 51.071-51.075.
Section 51.071 prohibits the practice of courtesy supervision with regard to the transfer of probation supervision between counties, except as provided in Section 51.075.
Section 51.072 requires a receiving county to provide interim supervision of a child from a sending county who has moved or intends to move to the receiving county and remain there for at least 60 days, unless the child is residing in a residential placement facility arranged by the sending county or in a foster care placement arranged by the Department of Family and Protective Services.
The sending county must provide certain specific information about the child in its request for interim supervision (identifying information related to the child and the child’s caregiver in the receiving county, information related to the child’s offense, probation and special needs, and information about the reasons for the child moving to the receiving county). Certain specified documentation must follow within 5 business days (court documents, social history report, psychological and psychiatric reports, Department of Public Safety (DPS) CR 43J form, tracking number, law enforcement reports on the offense for which the child is on probation, sex offender registration information, case plans, Texas Juvenile Probation Commission (TJPC) assessment tool results, social security number, Title IV-E eligibility screening information, school and immunization records, and victim information).
The child is supervised under the sending county’s probation conditions. However, at the request of the receiving county’s juvenile probation department, the juvenile court of the receiving county may modify the original conditions (other than financial conditions or the length of the probation term) and impose new ones. The juvenile court of the receiving county may revoke probation for violation of a condition that it has modified or imposed. If the child is believed to have violated a condition imposed by the juvenile court of the sending county, the juvenile court of the receiving county may modify the conditions of probation or extend the probation term, or require the probation department of the sending county to resume direct supervision of the child.
The receiving county’s juvenile probation department is entitled to any supervision fees while providing interim supervision. The sending county must pay for any special treatment program or placement that its juvenile court has ordered, if the child’s family is unable to pay for it.
The period of interim supervision may not exceed 180 days, unless the youth is on determinate sentence probation in the sending county. Except for youth on determinate sentence probation, permanent supervision transfers automatically at the end of the 180-day period, or earlier if requested by the receiving county. For youth on determinate sentence probation, permanent supervision transfers automatically after the expiration of one third of the youth’s probation term, or earlier if ordered by the sending court. The receiving county must send progress reports concerning the child to the sending county every 90 days during the interim supervision period.
Section 51.073 requires that, at the time permanent supervision transfers, the order of transfer from the sending county’s juvenile court be filed with the clerk of the juvenile court of the receiving county, along with the petition, order of adjudication, order of disposition and conditions of probation. The child must be brought before that juvenile court, with representation by counsel, in order to impose conditions of probation. Once permanent supervision is transferred, the sending county has no further jurisdiction over the child’s case.
Section 51.074 authorizes a juvenile court to transfer interim supervision, but not permanent supervision, in deferred prosecution cases (maximum term of 180 days).
Section 51.075 authorizes collaborative supervision between counties when a child who is on probation in one county spends substantial time in an adjoining county (such as for work, school or residence). A probation officer in the adjoining county may act as an agent of the probation department of the county in which the child was placed on probation and provide collaborative supervision and periodic reports.
SECTION 29. Amends Section 106.041(f), Alcoholic Beverage Code, to not allow a minor who is at least 17 years of age to receive deferred adjudication for driving under the influence of alcohol by a minor if the minor has been previously convicted of the same offense twice before.
SECTION 30. Amends Section 106.071(f) and (i), Alcoholic Beverage Code, to not allow a minor who is at least 17 years of age to receive deferred adjudication for an alcohol-related offense if the minor has been previously convicted of an alcohol-related offense twice before.
SECTION 31. Amends Article 15.27, Code of Criminal Procedure, by adding Subsection (i) to authorize electronic notification to schools of offenses alleged to have been committed by students, instead of oral notice followed by written notice.
SECTION 32. Amends Article 24.011, Code of Criminal Procedure, by adding Subsections (c), (d), and (e) to clarify that juveniles who are in the custody of the Texas Youth Commission or another secure juvenile correctional facility may be witnesses in criminal or civil proceedings upon the issuance of a subpoena or bench warrant. Requires law enforcement or probation officers to transport the witness to and from the court. Allows a youth to be held in the county juvenile detention facility or, if the youth is 17 years of age or older, in the county jail.
SECTION 33. Amends Article 45.0215, Code of Criminal Procedure, by adding Subsection (d) to require a parent to attend justice and municipal court proceedings against the parent’s child in conformity with related law contained in Article 45.057(e).
SECTION 34. Amends Article 45.056(a) and adds Subsections (c), (d) and (e) Code of Criminal Procedure, to authorize a justice or county court, on approval of the commissioners court, or a municipal court, on approval of the city council, to employ juvenile case managers to assist the court in monitoring its orders. Authorizes the salaries to be paid from the juvenile case manager fund authorized in SECTION 35 of the bill. Provides that juvenile case managers work primarily on truancy case.
SECTION 35. Amends Subchapter A, Chapter 102, Code of Criminal Procedure, by adding Article 102.0174 to authorize a city council or commissioners court to create a juvenile case manager fund for the salaries and benefits of juvenile case managers employed by the local governmental entity under Article 45.056, Code of Criminal Procedure. Authorizes a local governmental entity to require a person convicted of a fine-only misdemeanor offense in a municipal court, county or justice court to pay a juvenile case manager fee of up to $5 as a cost of court, which the judge may waive in the case of financial hardship. Requires the respective court clerks to collect the fees and pay them to the appropriate treasurer.
SECTION 36. Amends Section 25.094(f), Education Code, to conform to the change in SECTION 2 to clarify that in failure to attend school charges, the affirmative defense of excused absences or involuntary absences applies to defeat the charges only when there are insufficient unexcused and voluntary absences remaining to constitute a violation of law.
SECTION 37. Amends Section 25.0951(a) and adds subsection (d), Education Code, to require that a court dismiss a complaint or referral regarding a student’s failure to attend school or a parent’s contributing to the child’s nonattendance when a school district fails to file the complaint or referral within two school days of the student’s last absence.
SECTION 38. Amends Sections102.061, 102.081, 102.101, and 102.121, Government Code, to require the clerks of a statutory county court, county court, justice court, and municipal court to collect as court costs any juvenile case manager fees created by units of local government under SECTION 35.
SECTION 48. Amends Section 38.11(a), (b), (c), (d), (e), (f), (i), and (j), Penal Code, to make it a felony of the third degree to:
a. provide or attempt to provide an alcoholic beverage, controlled substance (except on prescription of a physician or practitioner), dangerous drug, deadly weapon, cellular phone, cigarette, tobacco product or money (except in accordance with facility rules) to a youth in a secure juvenile correctional or detention facility;
b. take or attempt to take an alcoholic beverage, controlled substance, or dangerous drug into a secure juvenile correctional or detention facility (except for delivery to a warehouse, pharmacy, or physician and except for alcoholic beverage use by clergy in religious ceremonies);
c. take a controlled substance or dangerous drug on property owned, used, or controlled by TYC or by any secure juvenile correctional or detention facility (except for delivery to a warehouse, pharmacy, or physician); and
d. possess a controlled substance or dangerous drug on property owned, used, or controlled by TYC or by any secure juvenile correctional or detention facility(except possession of a personal prescription or possession for delivery to a warehouse, pharmacy, or physician) or possess a deadly weapon in a secure juvenile correctional or detention facility (except by peace officers);
e. provides an affirmative defense to prosecution under Subsection (d)(1) if person is in possession of a personal prescription issued by s practitioner or possession while delivery to a warehouse, pharmacy, or physician on property owned and operated by TYC or by any secure juvenile correctional or detention facility;
f. “Secure correctional facility” and “secure detention facility” have the meanings assigned by Section 51.02 of the Family Code;
i. provides an affirmative defense to prosecution if the actor is a duly authorized member of clergy, and that they take four ounces or less of an alcoholic beverage and personally consumes all of the alcoholic beverage or departs from the facility as defined by subsection (f) with a portion not consumed;
j. by possession of a cellular telephone in a secure juvenile correctional or detention facility, if the phone is possessed by a youth in placement there.
SECTION 49. Amends Subchapter O, Chapter 521, Transportation Code, by adding Section 521.3452 to move the requirements of Section 729.003, Transportation Code, to a more suitable location in the Transportation Code.
SECTION 50. Amends Section 521.201, Transportation Code to make a conforming amendment to substitute Section 521.3452 for Section 729.003, Transportation Code.
SECTION 51. Amends Section 521.294, Transportation Code, to make a conforming amendment to substitute Sec. 521.3452 for Sec. 729.003, Transportation Code.
SECTION 52. Repeals Section 106.11, Alcoholic Beverage Code, relating to the requirement that parents or legal guardians be present when a person under age 18 is convicted of an offense under the chapter, and repeals Section 729.003, Transportation Code, relating to the requirement in cases involving traffic offenses by minors that the court report to DPS when the person does not appear in court and when there is final disposition of those cases.
SECTION 53. Related to Section 51.07, Family Code, as amended, and Sections 51.071, 51.072, 51.073, 51.074, and 51.075, Family Code, as added, the legislature finds that: children and families in Texas are becoming increasingly mobile and children on probation frequently move to other counties; it is in their interests and the interests of society that the child’s probation supervision continue with as little interruption as possible; transfer of probation to another county should not impede appropriate legal consequences for a child’s violation of a condition of probation; numerous issues are raised by transfer of probation between counties that are not currently addressed by law and should be resolved; similar supervision and services should be provided to transferred children as are provided to children adjudicated in the same county; and the current informal system of courtesy supervision provides neither the assistance to the child nor the protection of the public that should be provided.
SECTION 54.
(a) Provides for the prospective application of the Act for conduct, or any element of a penal law violation, occurring on or after the effective date.
(b) Provides for the continuing effectiveness of laws that were in effect at the time of conduct occurring before the effective date.
(c) Provides for the application of the following provisions to all judicial proceedings or official actions or decisions on or after the effective date without regard to whether any prior event connected to the proceeding, action, or decision occurred before the effective date:
(1) Sections 51.21, 52.0151, 54.0408 and 58.211, Family Code, as added by this Act;
(2) Sections 51.20, 53.03, 54.01, 54.012, 54.05, 58.003, 58.104, 58.203, and 58.207, Family Code, as amended by this Act;
(3) Articles 15.27, 24.011, and 45.0215, Code of Criminal Procedure, as amended by this Act; and
(4) Sections 61.0432, Human Resources Code, as amended by this Act.
SECTION 55. This Act takes effect September 1, 2005.
EFFECTIVE DATE
September 1, 2005.
COMPARISON OF ORIGINAL TO SUBSTITUTE
C.S.H.B.1575 modifies the original H.B.1575 by amending provisions to provide that interim supervision of a child who is placed on probation under Section 54.04(q) does not expire until the child has satisfactorily completed one third of the term of probation, including one third of the term of any extension ordered under Section 54.05. Permanent supervision automatically transfers to the probation department of the receiving county after the expiration of that period and the juvenile court of the sending county may order transfer of permanent supervision before the interim supervision period expires. Additionally, C.S.H.B.1575 amends Section 51.17, Family Code, by adding a new Subsection (g) to make Articles 21.07, 26.07, 26.08, 26.09, and 26.10, Code of Criminal Procedure, apply in a juvenile proceeding. These provisions relate to names of adult defendants in a criminal case, ensuring that failure to disclose a true name cannot be used as a defense. If a qualified professional determines that a child has mental illness, the probation department shall refer the youth on probation or deferred prosecution supervision to the local mental health or mental retardation authority and notify the Texas Juvenile Probation Commission(TJPC) of such referral and authorizes juvenile courts to order physical exams of children in the system at any stage of juvenile court proceedings. C.S.H.B.1575 also deletes SECTION 10 Section 54.10(d) and provides that a court shall dismiss a complaint or referral made by a school district not made in compliance with Section 25.0951(a).
Deletes amendments to Section 25.0951(d) and deletes Section 28.03(b) of the Penal Code from the original bill. The substitute also provides that representations made by the child or counsel for the child are not admissible against the child at trial should the court reject the application for deferred prosecution. Also makes corrective changes in SECTION 49, by changing the reference to denial of renewal of a person’s driver’s license under Section “521.310" of the Transportation Code to Section “521.317" to reflect the correct statute.
Finally, C.S.H.B.1575 amends SECTION 11, to delete the amendment to Sec. 54.01(l) and in SECTION 35, the substitute authorizes a local governmental entity to require a person convicted of a fine-only misdemeanor offense in a municipal court, county or justice court to pay a juvenile case manager fee of up to $5 as a court cost, and provides for a waiver of the fee due to financial hardship.