Bill Text: TX HB2266 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to the enforcement and prosecution of children for certain fine-only misdemeanors.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-04-16 - Left pending in committee [HB2266 Detail]
Download: Texas-2013-HB2266-Introduced.html
By: Larson | H.B. No. 2266 |
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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 |
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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 |
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Article 45.0217. |
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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 |
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(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 |
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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 |
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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 |
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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 | ||
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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) |
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person engaged in conduct prohibited under the applicable | ||
subdivision, he or she was a student |
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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. |