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.