By: West, Hinojosa S.B. No. 393
Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution of children accused of certain Class C
misdemeanors.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (a) and (c), Article 45.056, 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,
with the consent of the juvenile and the juvenile's parents or
guardians; or
(2) agree in accordance with Chapter 791, Government
Code, to jointly employ a case manager.
(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 who:
(1) shall [to] assist the court in administering the
court's juvenile docket and in supervising its court orders in
juvenile cases; and
(2) may provide:
(A) prevention services to a child considered
at-risk of entering the juvenile justice system; and
(B) intervention services to juveniles engaged
in misconduct prior to cases being filed, excluding traffic
offenses.
SECTION 2. 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 Subsection (b).
SECTION 3. Subsection (b), Section 37.081, 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 Section
52.03 or 52.031, Family Code.
SECTION 4. Chapter 37, Education Code, is amended by adding
Subchapter E-1 to read as follows:
SUBCHAPTER E-1. CRIMINAL PROCEDURE
Sec. 37.141. DEFINITIONS. In this subchapter:
(1) "Child" has the meaning assigned by Article
45.058(h), Code of Criminal Procedure, except that the person must
also be a student.
(2) "School offense" means an offense committed by a
child enrolled in a public school that is a Class C misdemeanor
other than a traffic offense, that is committed on property under
the control and jurisdiction of a school district.
Sec. 37.142. CONFLICT OF LAW. To the extent of any
conflict, this subchapter controls over any other law applied to a
school offense alleged to have been committed by a child.
Sec. 37.143. CITATION PROHIBITED; CUSTODY OF CHILD. (a) A
peace officer may not issue a citation to a child who is alleged to
have committed a school offense.
(b) This subchapter does not prohibit a child from being
taken into custody under Section 52.01, Family Code.
Sec. 37.144. GRADUATED SANCTIONS FOR CERTAIN SCHOOL
OFFENSES. (a) A school district that commissions peace officers
under Section 37.081 shall develop a system of graduated sanctions
that must be imposed on a child before a complaint is filed under
Section 37.145 against the child for a school offense that is an
offense under Section 37.124 or 37.126 or under Section 42.01,
Penal Code. A system adopted under this section must include
multiple graduated sanctions. The system must require:
(1) a warning letter to be issued to the child and the
child's parent or guardian that specifically states the child's
alleged school offense and explains the consequences if the child
engages in additional misconduct;
(2) a behavior contract with the child that must be
signed by the child, the child's parent or guardian, and an employee
of the school and that includes a specific description of the
behavior that is required or prohibited for the child and the
penalties for additional alleged school offenses, including
additional disciplinary action or the filing of a complaint in a
criminal court;
(3) the performance of school-based community service
by the child; and
(4) the referral of the child to counseling,
community-based services, or other in-school or out-of-school
services aimed at addressing the child's behavioral problems.
(b) A referral made under Subsection (a)(4) may include
participation by the child's parent or guardian if necessary.
Sec. 37.145. COMPLAINT. If a child fails to comply with or
complete graduated sanctions under Section 37.144, the school may
file a complaint against the child with a criminal court in
accordance with Section 37.146.
Sec. 37.146. REQUISITES OF COMPLAINT. (a) A complaint
alleging the commission of a school offense must, in addition to the
requirements imposed by Article 45.019, Code of Criminal Procedure:
(1) 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) be accompanied by a statement from a school
employee stating:
(A) whether the child is eligible for or receives
special services under Subchapter A, Chapter 29; and
(B) the graduated sanctions, if required under
Section 37.144, that were imposed on the child before the complaint
was filed.
(b) After a complaint has been filed under this subchapter,
a summons may be issued under Articles 23.04 and 45.057(e), Code of
Criminal Procedure.
Sec. 37.147. 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 5. The heading to Chapter 52, Family Code, is
amended to read as follows:
CHAPTER 52. PROCEEDINGS BEFORE AND INCLUDING REFERRAL TO
[JUVENILE] COURT
SECTION 6. Subsection (a), Section 52.03, 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 7. Subsections (a), (d), (f), (i), and (j), Section
52.031, Family Code, are amended to read as follows:
(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 [for]:
(1) conduct indicating a need for supervision; [or]
(2) a Class C misdemeanor, other than a traffic
offense; or
(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.
(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 the child of an offense described
in Subsection (a)(2).
(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 the 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.
(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.
SECTION 8. The changes in law made by this 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 date of this Act if any element of the offense was
committed before that date.
SECTION 9. This Act takes effect September 1, 2013.