By: Larson H.B. No. 2266
A BILL TO BE ENTITLED
AN ACT
Relating to the enforcement and prosecution of children for certain
fine-only misdemeanors.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42.15, Code of Criminal Procedure, is
amended to include subsections (d), (d-1), and (d-2) to read as
follows:
(d) A defendant who is a child shall elect at the time of
conviction to either discharge the fine and courts costs:
(1) by performing community service pursuant to
Article 43.09(h); or
(2) by making payments pursuant to Subsection (b).
(d-1) For purposes of this article, "conviction" has the
meaning provided by Section 133.101, Local Government Code.
"Child" has the meaning assigned by Article 45.058(h).
(d-2) The election made under Subsection (d) shall be made
in writing and signed by the defendant and, if present, the
defendant's parent, guardian, or managing conservator. The
election shall be maintained as a record of the court and a copy
shall be provided to the defendant.
SECTION 2: Article 43.091, Code of Criminal Procedure, is
amended to read as follows:
Art. 43.091. WAIVER OF PAYMENT OF FINES AND COSTS FOR
INDIGENT DEFENDANTS AND CHILDREN. (a) A court may waive payment of
a fine or cost imposed on a defendant who defaults in payment if the
court determines that:
(1) the defendant is indigent, or a child at the time
of the offense; and
(2) each alternative method of discharging the fine or
cost under Article 43.09, or as otherwise authorized by this
chapter, would impose an undue hardship on the defendant.
(b) In this Article, "child" has the meaning assigned by
Article 45.058(h), Code of Criminal Procedure.
SECTION 3: Article 44.2811, Code of Criminal Procedure, is
amended to read as follows:
Art. 44.2811. RECORDS RELATING TO CHILDREN CONVICTED
ACCUSED OF FINE-ONLY MISDEMEANORS. All records and files and
information stored by electronic means or otherwise, from which a
record or file could be generated, relating to a child who is
convicted of and has satisfied the judgment for a fine-only
misdemeanor offense other than a traffic offense are confidential
and may not be disclosed to the public except as provided under
Article 45.0217.(b)
SECTION 4: Article 45.041, Code of Criminal Procedure, is
amended to read as follows:
Art. 45.041. JUDGMENT (a) The judgment and sentence, in
case of conviction in a criminal action before a justice of the
peace or municipal court judge, shall be that the defendant pays the
amount of the fine and costs to the state.
(b) Subject to Subsections (b-2) and (b-3), the justice or
judge may direct the defendant:
(1) to pay:
(A) the entire fine and costs when sentence is
pronounced;
(B) the entire fine and costs at some later date;
or
(C) a specified portion of the fine and costs at
designated intervals;
(2) if applicable, to make restitution to any victim
of the offense; and
(3) to satisfy any other sanction authorized by law.
(b-1) Restitution made under Subsection (b)(2) may not
exceed $5,000 for an offense under Section 32.41, Penal Code.
(b-2) When imposing a fine and costs, if the justice or
judge determines that the defendant is unable to immediately pay
the fine and costs, the justice or judge shall allow the defendant
to pay the fine and costs in specified portions at designated
intervals.
(b-3) A defendant who is a child shall elect at the time of
conviction to either discharge the fine and costs:
(1) by performing community service as authorized
under this chapter; or
(2) by making payments pursuant to Subsection (b).
(b-4) The election made under Subsection (b-3) shall be made
in writing and signed by the defendant and, if present, the
defendant's parent, guardian, or managing conservator. The
election shall be maintained as a record of the court and a copy
shall be provided to the defendant.
(c) The justice or judge shall credit the defendant for time
served in jail as provided by Article 42.03. The credit shall be
applied to the amount of the fine and costs at the rate provided by
Article 45.048.
(d) All judgments, sentences, and final orders of the
justice or judge shall be rendered in open court.
(e) For purposes of this article, "conviction" has the
meaning provided by Section 133.101, Local Government Code. "Child"
has the meaning assigned by Article 45.058(h).
SECTION 5: Article 45.0491, Code of Criminal Procedure, is
amended to read as follows:
Art. 45.0491. WAIVER OF PAYMENT OF FINES AND COSTS FOR
INDIGENT DEFENDANTS AND CHILDREN. (a) A municipal court,
regardless of whether the court is a court of record, or a justice
court may waive payment of a fine or costs imposed on a defendant
who defaults in payment if the court determines that:
(1) the defendant is indigent, or a child at the time
of the offense; and
(2) discharging the fine and costs under Article
45.049, or as otherwise authorized by this chapter, would impose an
undue hardship on the defendant.
(b) In this article, "child" has the meaning assigned by
Article 45.058(h).
SECTION 6: Articles 45.056 (a) and (c), Code of Criminal
Procedure, are amended to read as follows:
(a) On approval of the commissioners court, city council,
school district board of trustees, juvenile board, or other
appropriate authority, a county court, justice court, municipal
court, school district, juvenile probation department, or other
appropriate governmental entity may:
(1) employ a case manager to provide services in cases
involving juvenile offenders who are before a court consistent with
the court's statutory powers or referred to a court by a school
administrator or designee for misconduct that would otherwise be
within the court's statutory powers prior to a case being filed; or
(2) agree in accordance with Chapter 791, Government
Code, to jointly employ a case manager.
(b) A local entity may apply or more than one local entity
may jointly apply to the criminal justice division of the
governor's office for reimbursement of all or part of the costs of
employing one or more juvenile case managers from funds
appropriated to the governor's office or otherwise available for
that purpose. To be eligible for reimbursement, the entity applying
must present to the governor's office a comprehensive plan to
reduce juvenile crimes in the entity's jurisdiction that addresses
the role of the case manager in that effort.
(c) A county or justice court on approval of the
commissioners court or a municipality or municipal court on
approval of the city council may employ one or more juvenile case
managers to assist the court in administering the court's juvenile
docket, and in supervising its court orders in juvenile cases, and
to provide prevention services to juveniles considered at-risk and
intervention services to juveniles engaged in misconduct prior to
cases being filed.
SECTION 7: Article 45.0217, Code of Criminal Procedure, is
amended to read as follows:
Art. 45.0217. CONFIDENTIAL RECORDS RELATED TO THE
CONVICTION OF A CHILD.
(a) Except as provided by Article 15.27 and Subsection (b),
all records and files, including those held by law enforcement, and
information stored by electronic means or otherwise, from which a
record or file could be generated, relating to a child whose
complaint has been dismissed by a court upon deferral of final
disposition or who is convicted of and has satisfied the judgment
for a fine-only misdemeanor offense, other than a traffic offense,
are confidential and may not be disclosed to the public.
(b) Information subject to Subsection (a) may be open to
inspection only by:
(1) judges or court staff;
(2) a criminal justice agency for a criminal justice
purpose, as those terms are defined by Section 411.082, Government
Code;
(3) the Department of Public Safety;
(4) an attorney for a party to the proceeding;
(5) the child defendant; or
(6) the defendant's parent, guardian, or managing
conservator.
SECTION 8: Section 25.0915, Education Code, is amended by
adding Subsection (c) to read as follows:
(c) A court shall dismiss a complaint or referral made by a
school district under this section that is not made in compliance
with this section.
SECTION 9: Section 37.081(b), Education Code, is amended
to read as follows:
(b) In a peace officer's jurisdiction, a peace officer
commissioned under this section:
(1) has the powers, privileges, and immunities of
peace officers;
(2) may enforce all laws, including municipal
ordinances, county ordinances, and state laws; and
(3) may, in accordance with Chapter 52, Family Code,
take a juvenile into custody; and
(4) may dispose of cases in accordance with Sections
52.03 and 52.031, Family Code.
SECTION 10: Section 37.124(d) of the Education Code is
amended to read as follows:
(d) It is an exception to the application of Subsection (a)
that, at the time the person engaged in conduct prohibited under
that subsection, the person was a student in the sixth grade or a
lower grade level younger than 12 years of age.
SECTION 11: Section 37.126(c) of the Education Code is
amended to read as follows:
(c) It is an exception to the application of Subsection
(a)(1) that, at the time the person engaged in conduct prohibited
under that subdivision, the person was a student in the sixth grade
or a lower grade level younger than 12 years of age.
SECTION 12: Chapter 37, Education Code, is amended by
adding Subchapter E-1 to read as follows:
SUBCHAPTER E-1. CRIMINAL PROCEDURE
Sec. 37.127. APPLICATION. (a) This subchapter governs
criminal procedures to be utilized when a child is alleged to have
committed an offense on property under the control and jurisdiction
of a school district which is a Class C misdemeanor, excluding
traffic offenses.
(b) For purposes of this subchapter, "child" has the meaning
assigned by Article 45.058(h), Code of Criminal Procedure, who is
also a student.
Sec. 37.128. INITIATION BY COMPLAINT.
(a) Notwithstanding, Article 14.06(b), Code of Criminal
Procedure, a citation may not be issued to a child who is alleged to
have committed an offense on property under the control and
jurisdiction of a school district.
(b) In lieu of charging a child by issuing a citation, a
complaint must be filed per Article 45.018 and Article 45.019, Code
of Criminal Procedure and in accordance with the requirements of
this subchapter.
(c) A court shall dismiss a complaint alleging an offense by
a child that is not filed in compliance with this subchapter.
(d) Nothing in this subchapter prohibits a child from being
taken into custody under Section 52.01, Family Code or from issuing
a citation to a student who is not a child.
Sec. 37.129. PROGRESSIVE SANCTIONS. (a) Prior to the
filing of a complaint alleging an offense under Section 37.124,
Section 37.126, or Section 42.01, Penal Code, progressive sanctions
shall be imposed by a school district employee in a school district
that commissions peace officers under Section 37.081. Progressive
sanctions, under this subchapter shall include:
(1) a warning letter issued by the school to the child
and the child's parent or guardian or a behavior contract signed by
the student. A warning letter shall specifically state the problem
behavior and the consequences if the child continues to engage in
such behavior. If a school district employee opts to have the child
sign a behavior contract rather than issuing a warning letter, the
contract will be signed by the child, the child's parent or
guardian, and an employee of the school where the child attends. The
contract will include:
(a) a specific description of the problem behavior to
be avoided;
(b) a period of time for which the contract will be in
place, not to exceed 45 school days from the date the agreement is
signed; and
(c) the penalties for further alleged offenses
governed by this section, including additional disciplinary action
or the filing of a complaint;
(2) school-based chores or community service; and
(3) referral to counseling or community-based
services aimed at addressing the child's behavioral problems; or
(4) another sanction deemed appropriate, if
counseling or services are not available in the student's
community.
(b) A referral under (a)(3) may include participation of a
parent or guardian if necessary to address the child's behavioral
problems.
(c) After proceeding under subsection (a), a complaint may
be filed pursuant to Section 37.130.
Sec. 37.130. REQUISITIES OF A COMPLAINT. (a) A complaint
charging a child with the commission of an offense that is a Class C
misdemeanor under this subchapter shall, in addition to Article
45.019, Code of Criminal Procedure, satisfy the following
requisites:
(1) it must be sworn to by a person who has personal
knowledge of the underlying facts giving rise to probable cause to
believe that an offense has been committed, and
(2) it must be accompanied by a statement from a school
employee stating:
(A) whether the child is eligible for or receives
special education services under Subchapter A, Chapter 29, and
(B) what progressive sanctions, if required
under Section, 37.129 were imposed before the complaint was filed.
(b) Once a complaint has been filed per this subchapter, a
summons may be issued under Articles 23.04 and 45.057(e), Code of
Criminal Procedure.
Sec. 37.131. PROSECUTING ATTORNEYS. An attorney
representing the State in a court with jurisdiction may adopt rules
pertaining to the filing of a complaint under this subchapter that
the State considers necessary in order to:
(1) determine whether there is probable cause to
believe that the child committed the alleged offense;
(2) review the circumstances and allegations in the
complaint for legal sufficiency; and
(3) see that justice is done.
SECTION 13: The heading to Chapter 52, Family Code, is
amended to read as follows:
CHAPTER 52. PROCEEDINGS BEFORE AND INCLUDING REFERRAL TO JUVENILE
COURT
SECTION 14: Section 51.08 of the Family Code is amended to
add subsection (f) as follows:
(f) A court in which there is a pending complaint against a
child alleging a violation of a misdemeanor offense punishable by
fine only other than a traffic offense shall waive its original
jurisdiction and refer the child to juvenile court if the court has
previously dismissed a complaint against the child under Section
8.071 of the Penal Code.
SECTION 15: Section 52.03(a), Family Code, is amended to
read as follows:
(a) A law-enforcement officer authorized by this title to
take a child into custody may dispose of the case of a child taken
into custody or accused of a Class C misdemeanor, other than a
traffic offense, without referral to juvenile court or charging a
child in a court of competent criminal jurisdiction, if:
(1) guidelines for such disposition have been adopted
by the juvenile board of the county in which the disposition is made
as required by Section 52.032;
(2) the disposition is authorized by the guidelines;
and
(3) the officer makes a written report of the officer's
disposition to the law-enforcement agency, identifying the child
and specifying the grounds for believing that the taking into
custody or accusation of criminal conduct was authorized.
SECTION 16: Section 52.031 of the Family Code is amended to
read as follows:
Sec. 52.031. FIRST OFFENDER PROGRAM. (a) A juvenile board
may establish a first offender program under this section for the
referral and disposition of children taken into custody, or accused
prior to the filing of a criminal charge, of:
(1) conduct indicating a need for supervision; or
(2) a Class C misdemeanor, other than a traffic
offense; or
(2) (3) delinquent conduct other than conduct that
constitutes:
(A) a felony of the first, second, or third
degree, an aggravated controlled substance felony, or a capital
felony; or
(B) a state jail felony or misdemeanor involving
violence to a person or the use or possession of a firearm, illegal
knife, or club, as those terms are defined by Section 46.01, Penal
Code, or a prohibited weapon, as described by Section 46.05, Penal
Code.
(b) Each juvenile board in the county in which a first
offender program is established shall designate one or more law
enforcement officers and agencies, which may be law enforcement
agencies, to process a child under the first offender program.
(c) The disposition of a child under the first offender
program may not take place until guidelines for the disposition
have been adopted by the juvenile board of the county in which the
disposition is made as required by Section 52.032.
(d) A law enforcement officer taking a child into custody or
accusing a child of an offense described in subsection (a)(2) may
refer the child to the law enforcement officer or agency designated
under Subsection (b) for disposition under the first offender
program and not refer the child to juvenile court or a court of
competent criminal jurisdiction only if:
(1) the child has not previously been adjudicated as
having engaged in delinquent conduct;
(2) the referral complies with guidelines for
disposition under Subsection (c); and
(3) the officer reports in writing the referral to the
agency, identifying the child and specifying the grounds for taking
the child into custody or accusing a child of an offense described
in subsection (a)(2).
(e) A child referred for disposition under the first
offender program may not be detained in law enforcement custody.
(f) The parent, guardian, or other custodian of the child
must receive notice that the child has been referred for
disposition under the first offender program. The notice must:
(1) state the grounds for taking the child into
custody or accusing a child of an offense described in subsection
(a)(2);
(2) identify the law enforcement officer or agency to
which the child was referred;
(3) briefly describe the nature of the program; and
(4) state that the child's failure to complete the
program will result in the child being referred to the juvenile
court or a court of competent criminal jurisdiction.
(g) The child and the parent, guardian, or other custodian
of the child must consent to participation by the child in the first
offender program.
(h) Disposition under a first offender program may include:
(1) voluntary restitution by the child or the parent,
guardian, or other custodian of the child to the victim of the
conduct of the child;
(2) voluntary community service restitution by the
child;
(3) educational, vocational training, counseling, or
other rehabilitative services; and
(4) periodic reporting by the child to the law
enforcement officer or agency to which the child has been referred.
(i) The case of a child who successfully completes the first
offender program is closed and may not be referred to juvenile court
or a court of competent criminal jurisdiction, unless the child is
taken into custody under circumstances described by Subsection
(j)(3).
(j) The case of a child referred for disposition under the
first offender program shall be referred to juvenile court or a
court of competent criminal jurisdiction if:
(1) the child fails to complete the program;
(2) the child or the parent, guardian, or other
custodian of the child terminates the child's participation in the
program before the child completes it; or
(3) the child completes the program but is taken into
custody under Section 52.01 before the 90th day after the date the
child completes the program for conduct other than the conduct for
which the child was referred to the first offender program.
(k) A statement made by a child to a person giving advice or
supervision or participating in the first offender program may not
be used against the child in any proceeding under this title or any
criminal proceeding.
(l) The law enforcement agency must report to the juvenile
board in December of each year the following:
(1) the last known address of the child, including the
census tract;
(2) the gender and ethnicity of the child referred to
the program; and
(3) the offense committed by the child.
SECTION 17: Section 8.07 of the Penal Code is amended to add
subsections (d) and (e) as follows:
(d) Notwithstanding subsection (a), a person may not be
prosecuted or convicted of any offense described by Subsections
(a)(4)-(5) that the person committed when younger than 10 years of
age.
(e) A person who is at least 10 years of age and younger than
15 years of age is presumed incapable of committing an offense
described by Subsections (a)(4)-(5).
(1) The presumption under this Subsection may be
refuted by proof of preponderance of the evidence presented by the
prosecution to the court establishing that the child has sufficient
capacity to understand the offense and to know that the conduct was
wrong at the time it occurred.
(2) In order to refute the presumption under this
Subsection, the prosecution is not required to prove that the child
knew at the time of the offense:
(A) that the act was illegal, or
(B) the legal consequences of the offense.
SECTION 18: The Penal Code is amended to add Section 8.071
as follows:
Sec. 8.071 CHILD WITH MENTAL ILLNESS, DISABILITY, LACK OF
CAPACITY (a) Upon its own motion, or a motion by the State, the
defendant, or a person standing in parental relation, a court with
jurisdiction of an offense described by Section 8.07 (a)(4)-(5)
shall determine whether probable cause exists to believe that a
child:
(1) has a mental illness or developmental disability;
(2) lacks the capacity to understand the proceedings
in criminal court or to assist in the child's own defense and is
unfit to proceed; or
(3) lacks substantial capacity either to appreciate
the wrongfulness of the child's own conduct or to conform the
child's conduct to the requirement of the law.
(b) If the court determines that probable cause exists under
Subsection (a), after providing notice to the State, the court
shall dismiss the complaint;
(c) A dismissal of a complaint under Subsection (b) may be
appealed per Article 44.01, Code of Criminal Procedure;
(d) In this section, "child" has the meaning assigned by
Article 45.058(h), Code of Criminal Procedure.
SECTION 19: Section 42.01(f) of the Penal Code is amended as
follows:
(f) It is an exception to the application of Subsections
(a)(1), (2), (3), (5), and (6) do not apply that, at the time the
person engaged in conduct prohibited under the applicable
subdivision, he or she was a student in the sixth grade or a lower
grade level and younger than 12 years of age, and the prohibited
conduct occurred at a public school campus during regular school
hours.
SECTION 20: The changes in law made by the Act apply only to
an offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect at the time the offense was committed, and the
former law is continued in effect for that purpose. For the
purposes of this section, an offense is committed before the
effective data of this Act if any element of the offense was
committed before that date.
SECTION 21: The changes in law made by this Act apply only
to sentencing proceedings that commence on or after the effective
date of this Act. A sentencing proceeding that commences before the
effective date of this Act is governed by the law in effect at the
time the proceeding commences, and the former law is continued in
effect for that purpose.
SECTION 22: This Act takes effect September 1, 2013.