By: Whitmire S.B. No. 511
(In the Senate - Filed February 12, 2013; February 20, 2013,
read first time and referred to Committee on Criminal Justice;
March 18, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; March 18, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 511 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to the commitment of certain juveniles to local
post-adjudication secure correctional facilities in certain
counties and to the release under supervision of those juveniles.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (d), Section 51.13, Family Code, is
amended to read as follows:
(d) An adjudication under Section 54.03 that a child engaged
in conduct that occurred on or after January 1, 1996, and that
constitutes a felony offense resulting in commitment to the Texas
Juvenile Justice Department [Youth Commission] under Section
54.04(d)(2), (d)(3), or (m) or 54.05(f) or commitment to a
post-adjudication secure correctional facility under Section
54.04011 is a final felony conviction only for the purposes of
Sections 12.42(a), (b), and (c)(1) or Section 12.425[, and (e)],
Penal Code.
SECTION 2. Section 54.04, Family Code, is amended by
amending Subsections (d) and (q) and adding Subsection (z) to read
as follows:
(d) If the court or jury makes the finding specified in
Subsection (c) allowing the court to make a disposition in the case:
(1) the court or jury may, in addition to any order
required or authorized under Section 54.041 or 54.042, place the
child on probation on such reasonable and lawful terms as the court
may determine:
(A) in the child's own home or in the custody of a
relative or other fit person; or
(B) subject to the finding under Subsection (c)
on the placement of the child outside the child's home, in:
(i) a suitable foster home;
(ii) a suitable public or private
residential treatment facility licensed by a state governmental
entity or exempted from licensure by state law, except a facility
operated by the Texas Juvenile Justice Department [Youth
Commission]; or
(iii) a suitable public or private
post-adjudication secure correctional facility that meets the
requirements of Section 51.125, except a facility operated by the
Texas Juvenile Justice Department [Youth Commission];
(2) if the court or jury found at the conclusion of the
adjudication hearing that the child engaged in delinquent conduct
that violates a penal law of this state or the United States of the
grade of felony and if the petition was not approved by the grand
jury under Section 53.045, the court may commit the child to the
Texas Juvenile Justice Department or a post-adjudication secure
correctional facility under Section 54.04011(c)(1) [Youth
Commission] without a determinate sentence;
(3) if the court or jury found at the conclusion of the
adjudication hearing that the child engaged in delinquent conduct
that included a violation of a penal law listed in Section 53.045(a)
and if the petition was approved by the grand jury under Section
53.045, the court or jury may sentence the child to commitment in
the Texas Juvenile Justice Department or a post-adjudication secure
correctional facility under Section 54.04011(c)(2) [Youth
Commission] with a possible transfer to the Texas Department of
Criminal Justice for a term of:
(A) not more than 40 years if the conduct
constitutes:
(i) a capital felony;
(ii) a felony of the first degree; or
(iii) an aggravated controlled substance
felony;
(B) not more than 20 years if the conduct
constitutes a felony of the second degree; or
(C) not more than 10 years if the conduct
constitutes a felony of the third degree;
(4) the court may assign the child an appropriate
sanction level and sanctions as provided by the assignment
guidelines in Section 59.003; or
(5) if applicable, the court or jury may make a
disposition under Subsection (m) or Section 54.04011(c)(2)(A).
(q) If a court or jury sentences a child to commitment in the
Texas Juvenile Justice Department or a post-adjudication secure
correctional facility [Youth Commission] under Subsection (d)(3)
for a term of not more than 10 years, the court or jury may place the
child on probation under Subsection (d)(1) as an alternative to
making the disposition under Subsection (d)(3). The court shall
prescribe the period of probation ordered under this subsection for
a term of not more than 10 years. The court may, before the sentence
of probation expires, extend the probationary period under Section
54.05, except that the sentence of probation and any extension may
not exceed 10 years. The court may, before the child's 19th
birthday, discharge the child from the sentence of probation. If a
sentence of probation ordered under this subsection and any
extension of probation ordered under Section 54.05 will continue
after the child's 19th birthday, the court shall discharge the
child from the sentence of probation on the child's 19th birthday
unless the court transfers the child to an appropriate district
court under Section 54.051.
(z) Nothing in this section may be construed to prohibit a
juvenile court or jury to which Section 54.04011 applies from
committing a child to a post-adjudication secure correctional
facility in accordance with that section after a disposition
hearing held in accordance with this section.
SECTION 3. Chapter 54, Family Code, is amended by adding
Section 54.04011 to read as follows:
Sec. 54.04011. COMMITMENT TO POST-ADJUDICATION SECURE
CORRECTIONAL FACILITY. (a) This section applies only to a county
that has a population of at least 335,000.
(b) In this section, "post-adjudication secure correctional
facility" means a facility operated by or under contract with a
juvenile board or local juvenile probation department under Section
152.0016, Human Resources Code.
(c) After a disposition hearing held in accordance with
Section 54.04, the juvenile court of a county to which this section
applies may commit a child who is found to have engaged in
delinquent conduct that constitutes a felony to a post-adjudication
secure correctional facility:
(1) without a determinate sentence, if:
(A) the child is found to have engaged in conduct
that violates a penal law of the grade of felony and the petition
was not approved by the grand jury under Section 53.045;
(B) the child is found to have engaged in conduct
that violates a penal law of the grade of felony and the petition
was approved by the grand jury under Section 53.045 but the court or
jury does not make the finding described by Section 54.04(m)(2); or
(C) the disposition is modified under Section
54.05(f); or
(2) with a determinate sentence, if:
(A) the child is found to have engaged in conduct
that included a violation of a penal law listed in Section 53.045 or
that is considered habitual felony conduct as described by Section
51.031, the petition was approved by the grand jury under Section
53.045, and, if applicable, the court or jury makes the finding
described by Section 54.04(m)(2); or
(B) the disposition is modified under Section
54.05(f).
(d) Nothing in this section may be construed to prohibit:
(1) a juvenile court or jury from making a disposition
under Section 54.04, including:
(A) placing a child on probation on such
reasonable and lawful terms as the court may determine, including
placement in a public or private post-adjudication secure
correctional facility under Section 54.04(d)(1)(B)(iii); or
(B) placing a child adjudicated under Section
54.04(d)(3) or (m) on probation for a term of not more than 10
years, as provided in Section 54.04(q); or
(2) the attorney representing the state from filing a
motion concerning a child who has been placed on probation under
Section 54.04(q) or the juvenile court from holding a hearing under
Section 54.051(a).
(e) The provisions of 37 T.A.C. Section 343.610 do not apply
to this section.
SECTION 4. Subsections (b), (f), (j), and (m), Section
54.05, Family Code, are amended to read as follows:
(b) Except for a commitment to the Texas Juvenile Justice
Department or to a post-adjudication secure correctional facility
under Section 54.04011, [Youth Commission or] a disposition under
Section 54.0402, or a placement on determinate sentence probation
under Section 54.04(q), all dispositions automatically terminate
when the child reaches the child's 18th birthday.
(f) Except as provided by Subsection (j), a disposition
based on a finding that the child engaged in delinquent conduct that
violates a penal law of this state or the United States of the grade
of felony may be modified so as to commit the child to the Texas
Juvenile Justice Department or, if applicable, a post-adjudication
secure correctional facility operated under Section 152.0016,
Human Resources Code, [Youth Commission] if the court after a
hearing to modify disposition finds by a preponderance of the
evidence that the child violated a reasonable and lawful order of
the court. A disposition based on a finding that the child engaged
in habitual felony conduct as described by Section 51.031 or in
delinquent conduct that included a violation of a penal law listed
in Section 53.045(a) may be modified to commit the child to the
Texas Juvenile Justice Department or, if applicable, a
post-adjudication secure correctional facility operated under
Section 152.0016, Human Resources Code, [Youth Commission] with a
possible transfer to the Texas Department of Criminal Justice for a
definite term prescribed by, as applicable, Section 54.04(d)(3) or
Section 152.0016(g), Human Resources Code, if the original petition
was approved by the grand jury under Section 53.045 and if after a
hearing to modify the disposition the court finds that the child
violated a reasonable and lawful order of the court.
(j) If, after conducting a hearing to modify disposition
without a jury, the court finds by a preponderance of the evidence
that a child violated a reasonable and lawful condition of
probation ordered under Section 54.04(q), the court may modify the
disposition to commit the child to the Texas Juvenile Justice
Department [Youth Commission] under Section 54.04(d)(3) or, if
applicable, a post-adjudication secure correctional facility
operated under Section 152.0016, Human Resources Code, for a term
that does not exceed the original sentence assessed by the court or
jury.
(m) If the court places the child on probation outside the
child's home or commits the child to the Texas Juvenile Justice
Department or to a post-adjudication secure correctional facility
operated under Section 152.0016, Human Resources Code [Youth
Commission], the court:
(1) shall include in the court's order a determination
that:
(A) it is in the child's best interests to be
placed outside the child's home;
(B) reasonable efforts were made to prevent or
eliminate the need for the child's removal from the child's home and
to make it possible for the child to return home; and
(C) the child, in the child's home, cannot be
provided the quality of care and level of support and supervision
that the child needs to meet the conditions of probation; and
(2) may approve an administrative body to conduct a
permanency hearing pursuant to 42 U.S.C. Section 675 if required
during the placement or commitment of the child.
SECTION 5. Subsections (a), (b), and (d), Section 54.052,
Family Code, are amended to read as follows:
(a) This section applies only to a child who is committed
to:
(1) the Texas Juvenile Justice Department [Youth
Commission] under a determinate sentence under Section 54.04(d)(3)
or (m) or Section 54.05(f); or
(2) a post-adjudication secure correctional facility
under a determinate sentence under Section 54.04011(c)(2).
(b) The judge of the court in which a child is adjudicated
shall give the child credit on the child's sentence for the time
spent by the child, in connection with the conduct for which the
child was adjudicated, in a secure detention facility before the
child's transfer to a Texas Juvenile Justice Department [Youth
Commission] facility or a post-adjudication secure correctional
facility, as applicable.
(d) The Texas Juvenile Justice Department or the juvenile
board or local juvenile probation department operating or
contracting for the operation of the post-adjudication secure
correctional facility under Section 152.0016, Human Resources
Code, as applicable, [Youth Commission] shall grant any credit
under this section in computing the child's eligibility for parole
and discharge.
SECTION 6. Subsections (a), (h), (i), (j), and (k), Section
54.11, Family Code, are amended to read as follows:
(a) On receipt of a referral under Section 244.014(a), Human
Resources Code, for the transfer to the Texas Department of
Criminal Justice of a person committed to the Texas Juvenile
Justice Department under Section 54.04(d)(3), 54.04(m), or
54.05(f), [or] on receipt of a request by the Texas Juvenile Justice
Department under Section 245.051(d), Human Resources Code, for
approval of the release under supervision of a person committed to
the Texas Juvenile Justice Department under Section 54.04(d)(3),
54.04(m), or 54.05(f), or on receipt of a referral under Section
152.0016(g), Human Resources Code, the court shall set a time and
place for a hearing on the release of the person.
(h) The hearing on a person who is referred for transfer
under Section 152.0016(j) or 244.014(a), Human Resources Code,
shall be held not later than the 60th day after the date the court
receives the referral.
(i) On conclusion of the hearing on a person who is referred
for transfer under Section 152.0016(j) or 244.014(a), Human
Resources Code, the court may, as applicable, order:
(1) the return of the person to the Texas Juvenile
Justice Department or post-adjudication secure correctional
facility; or
(2) the transfer of the person to the custody of the
Texas Department of Criminal Justice for the completion of the
person's sentence.
(j) On conclusion of the hearing on a person who is referred
for release under supervision under Section 152.0016(g) or
245.051(c), Human Resources Code, the court may, as applicable,
order the return of the person to the Texas Juvenile Justice
Department or post-adjudication secure correctional facility:
(1) with approval for the release of the person under
supervision; or
(2) without approval for the release of the person
under supervision.
(k) In making a determination under this section, the court
may consider the experiences and character of the person before and
after commitment to the Texas Juvenile Justice Department or
post-adjudication secure correctional facility [youth commission],
the nature of the penal offense that the person was found to have
committed and the manner in which the offense was committed, the
abilities of the person to contribute to society, the protection of
the victim of the offense or any member of the victim's family, the
recommendations of the Texas Juvenile Justice Department, county
juvenile board, local juvenile probation department, [youth
commission] and prosecuting attorney, the best interests of the
person, and any other factor relevant to the issue to be decided.
SECTION 7. Section 59.009, Family Code, is amended to read
as follows:
Sec. 59.009. SANCTION LEVEL SIX. (a) For a child at
sanction level six, the juvenile court may commit the child to the
custody of the Texas Juvenile Justice Department or a
post-adjudication secure correctional facility under Section
54.04011(c)(1) [Youth Commission]. The department, juvenile
board, or local juvenile probation department, as applicable,
[commission] may:
(1) require the child to participate in a highly
structured residential program that emphasizes discipline,
accountability, fitness, training, and productive work for not less
than nine months or more than 24 months unless the department,
board, or probation department [commission] extends the period and
the reason for an extension is documented;
(2) require the child to make restitution to the
victim of the child's conduct or perform community service
restitution appropriate to the nature and degree of the harm caused
and according to the child's ability, if there is a victim of the
child's conduct;
(3) require the child and the child's parents or
guardians to participate in programs and services for their
particular needs and circumstances; and
(4) if appropriate, impose additional sanctions.
(b) On release of the child under supervision, the Texas
Juvenile Justice Department [Youth Commission] parole programs or
the juvenile board or local juvenile probation department operating
parole programs under Section 152.0016(c)(2), Human Resources
Code, may:
(1) impose highly structured restrictions on the
child's activities and requirements for behavior of the child as
conditions of release under supervision;
(2) require a parole officer to closely monitor the
child for not less than six months; and
(3) if appropriate, impose any other conditions of
supervision.
(c) The Texas Juvenile Justice Department, juvenile board,
or local juvenile probation department [Youth Commission] may
discharge the child from the [commission's] custody of the
department, board, or probation department, as applicable, on the
date the provisions of this section are met or on the child's 19th
birthday, whichever is earlier.
SECTION 8. Section 59.010, Family Code, is amended to read
as follows:
Sec. 59.010. SANCTION LEVEL SEVEN. (a) For a child at
sanction level seven, the juvenile court may certify and transfer
the child under Section 54.02 or sentence the child to commitment to
the Texas Juvenile Justice Department [Youth Commission] under
Section 54.04(d)(3), 54.04(m), or 54.05(f) or to a
post-adjudication secure correctional facility under Section
54.04011(c)(2). The department, juvenile board, or local juvenile
probation department, as applicable, [commission] may:
(1) require the child to participate in a highly
structured residential program that emphasizes discipline,
accountability, fitness, training, and productive work for not less
than 12 months or more than 10 years unless the department, board,
or probation department [commission] extends the period and the
reason for the extension is documented;
(2) require the child to make restitution to the
victim of the child's conduct or perform community service
restitution appropriate to the nature and degree of harm caused and
according to the child's ability, if there is a victim of the
child's conduct;
(3) require the child and the child's parents or
guardians to participate in programs and services for their
particular needs and circumstances; and
(4) impose any other appropriate sanction.
(b) On release of the child under supervision, the Texas
Juvenile Justice Department [Youth Commission] parole programs or
the juvenile board or local juvenile probation department parole
programs under Section 152.0016(c)(2), Human Resources Code, may:
(1) impose highly structured restrictions on the
child's activities and requirements for behavior of the child as
conditions of release under supervision;
(2) require a parole officer to monitor the child
closely for not less than 12 months; and
(3) impose any other appropriate condition of
supervision.
SECTION 9. Subsection (b), Section 841.003, Health and
Safety Code, is amended to read as follows:
(b) A person is a repeat sexually violent offender for the
purposes of this chapter if the person is convicted of more than one
sexually violent offense and a sentence is imposed for at least one
of the offenses or if:
(1) the person:
(A) is convicted of a sexually violent offense,
regardless of whether the sentence for the offense was ever imposed
or whether the sentence was probated and the person was
subsequently discharged from community supervision;
(B) enters a plea of guilty or nolo contendere
for a sexually violent offense in return for a grant of deferred
adjudication;
(C) is adjudged not guilty by reason of insanity
of a sexually violent offense; or
(D) is adjudicated by a juvenile court as having
engaged in delinquent conduct constituting a sexually violent
offense and is committed to the Texas Juvenile Justice Department
[Youth Commission] under Section 54.04(d)(3) or (m), Family Code,
or to a post-adjudication secure correctional facility under
Section 54.04011(c)(2), Family Code; and
(2) after the date on which under Subdivision (1) the
person is convicted, receives a grant of deferred adjudication, is
adjudged not guilty by reason of insanity, or is adjudicated by a
juvenile court as having engaged in delinquent conduct, the person
commits a sexually violent offense for which the person:
(A) is convicted, but only if the sentence for
the offense is imposed; or
(B) is adjudged not guilty by reason of insanity.
SECTION 10. Subchapter A, Chapter 152, Human Resources
Code, is amended by adding Section 152.0016 to read as follows:
Sec. 152.0016. POST-ADJUDICATION SECURE CORRECTIONAL
FACILITIES; RELEASE UNDER SUPERVISION. (a) This section applies
only to a county that has a population of at least 335,000.
(b) In this section, "post-adjudication secure correctional
facility" means a facility operated by or under contract with a
juvenile board or local juvenile probation department in accordance
with Section 51.125, Family Code.
(c) A juvenile board or a local juvenile probation
department that serves a county to which this section applies may:
(1) operate or contract for the operation of a
post-adjudication secure correctional facility to confine children
committed to the facility under Section 54.04011, Family Code; and
(2) operate a program through which a child committed
to a post-adjudication secure correctional facility under Section
54.04011, Family Code, may be released under supervision and place
the child in the child's home or in any situation or family approved
by the juvenile board or local juvenile probation department.
(d) Before placing a child in the child's home under
Subsection (c)(2), the juvenile board or local juvenile probation
department shall evaluate the home setting to determine the level
of supervision and quality of care that is available in the home.
(e) A juvenile board or a local juvenile probation
department shall accept a person properly committed to it by a
juvenile court under Section 54.04011, Family Code, in the same
manner in which the Texas Juvenile Justice Department accepts a
person under Section 54.04(e), Family Code, even though the person
may be 17 years of age or older at the time of the commitment.
(f) A juvenile board or a local juvenile probation
department shall establish a minimum length of stay for each child
committed without a determinate sentence under Section
54.04011(c)(1), Family Code, in the same manner that the Texas
Juvenile Justice Department determines a minimum length of stay for
a child committed to the department under Section 243.002.
(g) Except as provided by Subsection (h), if a child is
committed to a post-adjudication secure correctional facility
under Section 54.04011(c)(2), Family Code, the local juvenile
probation department may not release the child under supervision
without approval by the juvenile court that entered the order of
commitment under Section 54.04011, Family Code, unless the child
has been confined not less than:
(1) 10 years for capital murder;
(2) three years for an aggravated controlled substance
felony or a felony of the first degree;
(3) two years for a felony of the second degree; and
(4) one year for a felony of the third degree.
(h) The juvenile board or local juvenile probation
department may release a child who has been committed to a
post-adjudication secure correctional facility with a determinate
sentence under Section 54.04011(c)(2), Family Code, under
supervision without approval of the juvenile court that entered the
order of commitment if not more than nine months remain before the
child's discharge as provided by Section 245.051(g).
(i) The juvenile board or local juvenile probation
department may resume the care and custody of any child released
under supervision at any time before the final discharge of the
child in accordance with the rules governing the Texas Juvenile
Justice Department regarding resumption of care.
(j) After a child committed to a post-adjudication secure
correctional facility with a determinate sentence under Section
54.04011(c)(2), Family Code, becomes 16 years of age but before the
child becomes 19 years of age, the juvenile board or local juvenile
probation department operating or contracting for the operation of
the facility may refer the child to the juvenile court that entered
the order of commitment for approval of the child's transfer to the
Texas Department of Criminal Justice for confinement if the child
has not completed the sentence and:
(1) the child's conduct, regardless of whether the
child was released under supervision through a program established
by the board or department, indicates that the welfare of the
community requires the transfer; or
(2) while the child was released under supervision:
(A) a juvenile court adjudicated the child as
having engaged in delinquent conduct constituting a felony offense;
(B) a criminal court convicted the child of a
felony offense; or
(C) the child's release under supervision was
revoked.
(k) A juvenile board or local juvenile probation department
operating or contracting for the operation of a post-adjudication
secure correctional facility under this section shall develop a
comprehensive plan for each child committed to the facility under
Section 54.04011, Family Code, regardless of whether the child is
committed with or without a determinate sentence, to reduce
recidivism and ensure the successful reentry and reintegration of
the child into the community following the child's release under
supervision or final discharge from the facility, as applicable.
SECTION 11. Subsection (f), Section 12.42, Penal Code, is
amended to read as follows:
(f) For the purposes of Subsections (a), (b), and (c)(1),
[and (e),] an adjudication by a juvenile court under Section 54.03,
Family Code, that a child engaged in delinquent conduct on or after
January 1, 1996, constituting a felony offense for which the child
is committed to the Texas Juvenile Justice Department [Youth
Commission] under Section 54.04(d)(2), (d)(3), or (m), Family Code,
or Section 54.05(f), Family Code, or to a post-adjudication secure
correctional facility under Section 54.04011, Family Code, is a
final felony conviction.
SECTION 12. The changes in law made by this Act apply only
to conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is covered
by the law in effect at the time the conduct occurred, and the
former law is continued in effect for that purpose. For the
purposes of this section, conduct occurs before the effective date
of this Act if any element of the conduct occurred before that date.
SECTION 13. This Act takes effect December 1, 2013.
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