By Goodman, Allen, Reyna of Bexar

By Goodman, Allen, Reyna of Bexar,

Jones of Bexar, et al.

H.B. No. 1118

A BILL TO BE ENTITLED

AN ACT

relating to the adjudication and disposition of juvenile conduct and the administration of the juvenile justice system.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION1. Section 51.02(12), Family Code, is amended to read as follows:

(12)"Referral to juvenile court" means the referral of a child or a child's case to the office or official, including an intake officer or probation officer, designated by the juvenile board [court] to process children within the juvenile justice system.

SECTION2. Section 51.03(a), Family Code, is amended to read as follows:

(a)Delinquent conduct is:

(1)conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail;

(2)[conduct that violates a reasonable and lawful order of a juvenile court entered under Section 54.04 or 54.05 of this code, except an order prohibiting the following conduct:

[(A)a violation of the penal laws of this state of the grade of misdemeanor that is punishable by fine only or a violation of the penal ordinances of any political subdivision of this state;

[(B)the unexcused voluntary absence of a child from school; or

[(C)the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return;

[(3)]conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of that court;

(3)[(4)]conduct that violates Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code; or

(4)[(5)]conduct that violates Section 106.041, Alcoholic Beverage Code, relating to driving under the influence of alcohol by a minor (third or subsequent offense).

SECTION3. Section 51.04(g), Family Code, is amended to read as follows:

(g)The juvenile board[, or if there is no juvenile board, the juvenile court,] may appoint a referee to make determinations under Section 53.02(f) or to conduct hearings under this title. The referee shall be an attorney licensed to practice law in this state and shall comply with Section 54.10. Payment of any referee services shall be provided from county funds.

SECTION4. Section 51.041, Family Code, is amended to read as follows:

Sec.51.041.JURISDICTION AFTER APPEAL. (a) The court retains jurisdiction over a person, without regard to the age of the person, for conduct engaged in by the person before becoming 17 years of age if, as a result of an appeal by the person under Chapter 56 or under Article 44.47, Code of Criminal Procedure, of an order of the court, the order is reversed or modified and the case remanded to the court by the appellate court.

(b)If the respondent is at least 18 years of age when the order of remand from the appellate court is received by the juvenile court, the juvenile court shall proceed as provided by Sections 54.02(o)(r) for the detention of a person at least 18 years of age in discretionary transfer proceedings. Pending retrial of the adjudication or transfer proceeding, the juvenile court may:

(1)order the respondent released from custody;

(2)order the respondent detained in a juvenile detention facility; or

(3)set bond and order the respondent detained in a county adult facility if bond is not made.

SECTION5. Chapter 51, Family Code, is amended by adding Section 51.0412 to read as follows:

Sec.51.0412.JURISDICTION OVER INCOMPLETE PROCEEDINGS. The court retains jurisdiction over a person, without regard to the age of the person, who is a respondent in an adjudication proceeding, a disposition proceeding, or a proceeding to modify disposition if:

(1)the petition or motion to modify was filed while the respondent was younger than 18 years of age;

(2)the proceeding is not complete before the respondent becomes 18 years of age; and

(3)the court enters a finding in the proceeding that the prosecuting attorney exercised due diligence in an attempt to complete the proceeding before the respondent became 18 years of age.

SECTION6. Section 51.08, Family Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows:

(b)A court in which there is pending a complaint against a child alleging a violation of a misdemeanor offense punishable by fine only other than a traffic offense or public intoxication or a violation of a penal ordinance of a political subdivision other than a traffic offense:

(1)except as provided by Subsection (d), shall waive its original jurisdiction and refer a child to juvenile court if the child has previously been convicted of:

(A)two or more misdemeanors punishable by fine only other than a traffic offense or public intoxication;

(B)two or more violations of a penal ordinance of a political subdivision other than a traffic offense; or

(C)one or more of each of the types of misdemeanors described in Paragraph (A) or (B) of this subdivision; and

(2)may waive its original jurisdiction and refer a child to juvenile court if the child:

(A)has not previously been convicted of a misdemeanor punishable by fine only other than a traffic offense or public intoxication or a violation of a penal ordinance of a political subdivision other than a traffic offense; or

(B)has previously been convicted of fewer than two misdemeanors punishable by fine only other than a traffic offense or public intoxication or two violations of a penal ordinance of a political subdivision other than a traffic offense.

(d)A court that has implemented a juvenile case manager program under Article 45.054, Code of Criminal Procedure, may, but is not required to, waive its original jurisdiction under Subsection (b)(1).

SECTION7. Section 51.095(a), Family Code, is amended to read as follows:

(a)Notwithstanding Section 51.09, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:

(1)the statement is made in writing under a circumstance described by Subsection (d) and:

(A)the statement shows that the child has at some time before the making of the statement received from a magistrate a warning that:

(i)the child may remain silent and not make any statement at all and that any statement that the child makes may be used in evidence against the child;

(ii)the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning;

(iii)if the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state; and

(iv)the child has the right to terminate the interview at any time;

(B)and:

(i)the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present, except that a magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child; and

(ii)the magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily, and if a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met;

(C)the child knowingly, intelligently, and voluntarily waives these rights before and during the making of the statement and signs the statement in the presence of a magistrate; and

(D)the magistrate certifies that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights;

(2)the statement is made orally and the child makes a statement of facts or circumstances that are found to be true and tend[, which conduct tends] to establish the child's guilt, such as the finding of secreted or stolen property, or the instrument with which the child states the offense was committed;

(3)the statement was res gestae of the delinquent conduct or the conduct indicating a need for supervision or of the arrest;

(4)the statement is made:

(A)in open court at the child's adjudication hearing;

(B)before a grand jury considering a petition, under Section 53.045, that the child engaged in delinquent conduct; or

(C)at a preliminary hearing concerning the child held in compliance with this code, other than at a detention hearing under Section 54.01; or

(5)the statement is made orally under a circumstance described by Subsection (d) and the statement is recorded by an electronic recording device, including a device that records images, and:

(A)before making the statement, the child is given the warning described by Subdivision (1)(A) by a magistrate, the warning is a part of the recording, and the child knowingly, intelligently, and voluntarily waives each right stated in the warning;

(B)the recording device is capable of making an accurate recording, the operator of the device is competent to use the device, the recording is accurate, and the recording has not been altered;

(C)each voice on the recording is identified; and

(D)not later than the 20th day before the date of the proceeding, the attorney representing the child is given a complete and accurate copy of each recording of the child made under this subdivision.

SECTION8. Section 51.10(e), Family Code, is amended to read as follows:

(e)The court may enforce orders under Subsection (d) [(c) of this section] by proceedings under Section 54.07 [of this code] or by appointing counsel and ordering the parent or other person responsible for support of the child to pay a reasonable attorney's fee set by the court. The order may be enforced under Section 54.07 [of this code].

SECTION9. Chapter 51, Family Code, is amended by adding Section 51.101 to read as follows:

Sec.51.101.APPOINTMENT OF ATTORNEY AND CONTINUATION OF REPRESENTATION. (a) If an attorney is appointed at the initial detention hearing and the child is detained, the attorney shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney's representation.

(b)If there is an initial detention hearing without an attorney and the child is detained, the attorney appointed under Section 51.10(c) shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney's representation.

(c)The juvenile court shall determine, on the filing of a petition, whether the child's family is indigent if:

(1)the child is released by intake;

(2)the child is released at the initial detention hearing; or

(3)the case was referred to the court without the child in custody.

(d)A juvenile court that makes a finding of indigence under Subsection (c) shall appoint an attorney to represent the child on or before the fifth working day after the date the petition for adjudication or discretionary transfer hearing was served on the child. An attorney appointed under this subsection shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court.

(e)The juvenile court shall determine whether the child's family is indigent if a motion or petition is filed under Section 54.05 seeking to modify disposition by committing the child to the Texas Youth Commission or placing the child in a secure correctional facility. A court that makes a finding of indigence shall appoint an attorney to represent the child on or before the fifth working day after the date the petition or motion has been filed. An attorney appointed under this subsection shall continue to represent the child until the court rules on the motion or petition, the family retains an attorney, or a new attorney is appointed.

SECTION10. Sections 51.12(b), (c), and (l), Family Code, are amended to read as follows:

(b)The proper authorities in each county shall provide a suitable place of detention for children who are parties to proceedings under this title, but the juvenile board [court] shall control the conditions and terms of detention and detention supervision and shall permit visitation with the child at all reasonable times.

(c)In each county, each judge of the juvenile court and a majority of the members of the juvenile board shall personally inspect the juvenile preadjudication secure detention facilities and any public or private juvenile secure correctional facilities used for postadjudication confinement that are located in the county and operated under authority of the juvenile board at least annually and shall certify in writing to the authorities responsible for operating and giving financial support to the facilities and to the Texas Juvenile Probation Commission that they are suitable or unsuitable for the detention of children in accordance with:

(1)the requirements of Subsections (a), (f), and (g); and

(2)minimum professional standards for the detention of children in preadjudication or postadjudication secure confinement promulgated by the Texas Juvenile Probation Commission or, at the election of the juvenile board, the current standards promulgated by the American Correctional Association.

(l)A child who is taken into custody and required to be detained under Section 53.02(f) may be detained in a county jail or other facility until the child is released under Section 53.02(f) or until a detention hearing is held as required by Section 54.01(p), regardless of whether the facility complies with the requirements of this section, if:

(1)a certified juvenile detention facility or a secure detention facility described by Subsection (j) is not available in the county in which the child is taken into custody or in an adjacent county;

(2)the facility has been designated by the county juvenile board for the county in which the facility is located;

(3)the child is separated by sight and sound from adults detained in the same facility through architectural design or timephasing;

(4)the child does not have any contact with management or directcare staff that has contact with adults detained in the same facility on the same work shift;

(5)the county in which the child is taken into custody is not located in a metropolitan statistical area as designated by the United States Bureau of the Census; and

(6)each judge of the juvenile court and a majority of the members of the juvenile board of the county in which the child is taken into custody have personally inspected the facility at least annually and have certified in writing to the Texas Juvenile Probation Commission that the facility complies with the requirements of Subdivisions (3) and (4).

SECTION11. Sections 52.01(c) and (d), Family Code, are amended to read as follows:

(c)A lawenforcement officer authorized to take a child into custody under Subdivisions (2) and (3) of Subsection (a) of this section may issue a warning notice to the child in lieu of taking the child [him] into custody if:

(1)guidelines for warning disposition have been issued by the lawenforcement agency in which the officer works;

(2)the guidelines have been approved by the juvenile court of the county in which the disposition is made;

(3)the disposition is authorized by the guidelines;

(4)the warning notice identifies the child and describes the child's [his] alleged conduct;

(5)a copy of the warning notice is sent to the child's parent, guardian, or custodian as soon as practicable after disposition; and

(6)a copy of the warning notice is filed with the lawenforcement agency and the office or official designated by the juvenile board [court].

(d)A warning notice filed with the office or official designated by the juvenile board [court] may be used as the basis of further action if necessary.

SECTION12. Sections 52.02(a) and (b), Family Code, are amended to read as follows:

(a)Except as provided by Subsection (c), a person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025, shall do one of the following:

(1)release the child to a parent, guardian, custodian of the child, or other responsible adult upon that person's promise to bring the child before the juvenile court as requested by the court;

(2)bring the child before the office or official designated by the juvenile board [court] if there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision;

(3)bring the child to a detention facility designated by the juvenile board [court];

(4)bring the child to a secure detention facility as provided by Section 51.12(j);

(5)bring the child to a medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment; or

(6)dispose of the case under Section 52.03.

(b)A person taking a child into custody shall promptly give notice of the person's [his] action and a statement of the reason for taking the child into custody, to:

(1)the child's parent, guardian, or custodian; and

(2)the office or official designated by the juvenile board [court].

SECTION13. Section 52.025(a), Family Code, is amended to read as follows:

(a)The juvenile board [court] may designate an office or a room, which may be located in a police facility or sheriff's offices, as the juvenile processing office for the temporary detention of a child taken into custody under Section 52.01 [of this code]. The office may not be a cell or holding facility used for detentions other than detentions under this section. The juvenile board [court] by written order may prescribe the conditions of the designation and limit the activities that may occur in the office during the temporary detention.

SECTION14. Sections 52.027(f) and (i), Family Code, are amended to read as follows:

(f)A child taken into custody for an offense that a justice or municipal court has jurisdiction of under Article 4.11 or 4.14, Code of Criminal Procedure, other than public intoxication, may be presented or detained in a detention facility designated by the juvenile board [court] under Section 52.02(a)(3) only if:

(1)the child's nontraffic case is transferred to the juvenile court by a municipal court or justice court under Section 51.08(b); or

(2)the child is referred to the juvenile court by a municipal court or justice court for contempt of court under Subsection (h).