83R24086 ADM-F
By: West, et al. S.B. No. 393
(Lewis, Thompson of Harris)
Substitute the following for S.B. No. 393: No.
A BILL TO BE ENTITLED
AN ACT
relating to the criminal procedures related to children who commit
certain Class C misdemeanors.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42.15, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsections (d), (e),
and (f) to read as follows:
(b) Subject to Subsections [Subsection] (c) and (d), when
imposing a fine and costs, a court may direct a defendant:
(1) to pay the entire fine and costs when sentence is
pronounced;
(2) to pay the entire fine and costs at some later
date; or
(3) to pay a specified portion of the fine and costs at
designated intervals.
(d) A judge may allow a defendant who is a child, as defined
by Article 45.058(h), to elect at the time of conviction, as defined
by Section 133.101, Local Government Code, to discharge the fine
and costs by:
(1) performing community service or receiving
tutoring under Article 45.0492, as added by Chapter 227 (H.B. 350),
Acts of the 82nd Legislature, Regular Session, 2011; or
(2) paying the fine and costs in a manner described by
Subsection (b).
(e) The election under Subsection (d) must be made in
writing, signed by the defendant, and, if present, signed by the
defendant's parent, guardian, or managing conservator. The court
shall maintain the written election as a record of the court and
provide a copy to the defendant.
(f) The requirement under Article 45.0492(a), as added by
Chapter 227 (H.B. 350), Acts of the 82nd Legislature, Regular
Session, 2011, that an offense occur in a building or on the grounds
of the primary or secondary school at which the defendant was
enrolled at the time of the offense does not apply to the
performance of community service or the receipt of tutoring to
discharge a fine or costs under Subsection (d)(1).
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 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 was, at the time the
offense was committed, a child as defined by Article 45.058(h); and
(2) each alternative method of discharging the fine or
cost under Article 43.09 or 42.15 would impose an undue hardship on
the defendant.
SECTION 3. Article 44.2811, Code of Criminal Procedure, is
amended to read as follows:
Art. 44.2811. RECORDS RELATING TO CHILDREN CONVICTED OF OR
RECEIVING DEFERRED DISPOSITION FOR FINE-ONLY MISDEMEANORS.
(a) This article applies only to a misdemeanor offense punishable
by fine only, other than a traffic offense.
(b) 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 or who has received a dismissal after deferral of
disposition for an [a fine-only misdemeanor] offense described by
Subsection (a) [other than a traffic offense] are confidential and
may not be disclosed to the public except as provided under Article
45.0217(b). [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 whose conviction for a fine-only
misdemeanor other than a traffic offense is affirmed are
confidential upon satisfaction of the judgment and may not be
disclosed to the public except as provided under Article
45.0217(b).]
SECTION 4. Article 45.0217, Code of Criminal Procedure, is
amended to read as follows:
Art. 45.0217. CONFIDENTIAL RECORDS RELATED TO THE
CONVICTION OF OR DEFERRAL OF DISPOSITION FOR A CHILD. (a) This
article applies only to a misdemeanor offense punishable by fine
only, other than a traffic offense.
(a-1) 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 who is convicted of and has satisfied the judgment for or
who has received a dismissal after deferral of disposition for an [a
fine-only misdemeanor] offense described by Subsection (a) [other
than a traffic offense] are confidential and may not be disclosed to
the public.
(b) Information subject to Subsection (a-1) [(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 5. Article 45.041, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsections (b-3),
(b-4), and (b-5) to read as follows:
(b) Subject to Subsections [Subsection] (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-3) A judge may allow a defendant who is a child, as
defined by Article 45.058(h), to elect at the time of conviction, as
defined by Section 133.101, Local Government Code, to discharge the
fine and costs by:
(1) performing community service or receiving
tutoring under Article 45.0492, as added by Chapter 227 (H.B. 350),
Acts of the 82nd Legislature, Regular Session, 2011; or
(2) paying the fine and costs in a manner described by
Subsection (b).
(b-4) The election under Subsection (b-3) must be made in
writing, signed by the defendant, and, if present, signed by the
defendant's parent, guardian, or managing conservator. The court
shall maintain the written election as a record of the court and
provide a copy to the defendant.
(b-5) The requirement under Article 45.0492(a), as added by
Chapter 227 (H.B. 350), Acts of the 82nd Legislature, Regular
Session, 2011, that an offense occur in a building or on the grounds
of the primary or secondary school at which the defendant was
enrolled at the time of the offense does not apply to the
performance of community service or the receipt of tutoring to
discharge a fine or costs under Subsection (b-3)(1).
SECTION 6. 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 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 was, at the time the
offense was committed, a child as defined by Article 45.058(h); 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.
SECTION 7. 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,
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 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 Subsection (b).
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 Section
52.03 or 52.031, Family Code.
SECTION 10. Section 37.124(d), 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 younger than 12 years of age [a
student in the sixth grade or a lower grade level].
SECTION 11. Section 37.126(c), 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 younger than 12 years of age
[a student in the sixth grade or a lower grade level].
SECTION 12. 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 and 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(a)(1), (2), (3), (4), (5), or (6), 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 13. Section 51.08, Family Code, is amended by
adding Subsection (f) to read as follows:
(f) A court shall waive original jurisdiction for a
complaint against a child alleging a violation of a misdemeanor
offense punishable by fine only, other than a traffic offense, and
refer the child to juvenile court if the court or another court has
previously dismissed a complaint against the child under Section
8.08, Penal Code.
SECTION 14. The heading to Chapter 52, Family Code, is
amended to read as follows:
CHAPTER 52. PROCEEDINGS BEFORE AND INCLUDING REFERRAL TO
[JUVENILE] COURT
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. Sections 52.031(a), (d), (f), (i), and (j),
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 a 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 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.
(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 17. Section 8.07, Penal Code, is amended by adding
Subsections (d) and (e) to read as follows:
(d) Notwithstanding Subsection (a), a person may not be
prosecuted for or convicted of an offense described by Subsection
(a)(4) or (5) that the person committed when younger than 10 years
of age.
(e) A person who is at least 10 years of age but younger than
15 years of age is presumed incapable of committing an offense
described by Subsection (a)(4) or (5), other than an offense under a
juvenile curfew ordinance or order. This presumption may be
refuted if the prosecution proves to the court by a preponderance of
the evidence that the actor had sufficient capacity to understand
that the conduct engaged in was wrong at the time the conduct was
engaged in. The prosecution is not required to prove that the actor
at the time of engaging in the conduct knew that the act was a
criminal offense or knew the legal consequences of the offense.
SECTION 18. Chapter 8, Penal Code, is amended by adding
Section 8.08 to read as follows:
Sec. 8.08. CHILD WITH MENTAL ILLNESS, DISABILITY, OR LACK
OF CAPACITY. (a) On motion by the state, the defendant, or a person
standing in parental relation to the defendant, or on the court's
own motion, a court with jurisdiction of an offense described by
Section 8.07(a)(4) or (5) shall determine whether probable cause
exists to believe that a child, including a child with a mental
illness or developmental disability:
(1) 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
(2) 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 for a
finding under Subsection (a), after providing notice to the state,
the court may dismiss the complaint.
(c) A dismissal of a complaint under Subsection (b) may be
appealed as provided by 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), Penal Code, is amended to
read as follows:
(f) Subsections (a)(1), (2), (3), (5), and (6) do not apply
to a person who, at the time the person engaged in conduct
prohibited under the applicable subdivision, was a student younger
than 12 years of age [in the sixth grade or a lower grade level], and
the prohibited conduct occurred at a public school campus during
regular school hours.
SECTION 20. Except as provided by Sections 21 and 22 of this
Act, 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 governed by the
law in effect on the date the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense occurred before that date.
SECTION 21. (a) Articles 42.15 and 45.041, Code of
Criminal Procedure, as amended by this Act, apply only to a
sentencing proceeding that commences on or after the effective date
of this Act.
(b) Articles 43.091 and 45.0491, Code of Criminal
Procedure, as amended by this Act, apply to a sentencing proceeding
that commences before, on, or after the effective date of this Act.
SECTION 22. Articles 44.2811 and 45.0217, Code of Criminal
Procedure, as amended by this Act, apply to the disclosure of a
record or file on or after the effective date of this Act regardless
of whether the offense that is the subject of the record or file was
committed before, on, or after the effective date of this Act.
SECTION 23. This Act takes effect September 1, 2013.