HBA-JLV, LJP H.B. 1118 77(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 1118
By: Goodman
Juvenile Justice & Family Issues
8/7/2001
Enrolled



BACKGROUND AND PURPOSE 

Juvenile justice practitioners and officials who contributed to the
development of the juvenile justice reforms of previous legislative
sessions met over the course of several months prior to the 77th
legislative session to identify problem areas relating to the adjudication
and disposition of juvenile conduct and the administration of the juvenile
justice system.  There were two primary workgroups with approximately 25
members each representing judges, attorneys, probation officials, various
state agencies and universities that had an interest in the juvenile
justice system. House Bill 1118 sets forth provisions and modifications to
the juvenile justice system based on the recommendations of the workgroups. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Juvenile Probation Commission
and the Texas Youth Commission in SECTION 40 (Section 58.209, Family Code)
and the Texas Juvenile Probation Commission in SECTION 59 (Section 141.061,
Human Resources Code) of this bill. 

ANALYSIS

House Bill 1118 amends the Family, Education, Government, Human Resources,
and Penal codes and the Code of Criminal Procedure relating to the
adjudication and disposition of juvenile conduct and the administration of
the juvenile justice system. 

Records and Files

House Bill 1118 provides for automatic restriction of access to records for
certain juvenile offenders.  The bill provides that sex offender
registration records and criminal combination or criminal street gang
records be exempt from automatic restriction of access to records (Secs.
58.202 and 58.203, Family Code). 

On certification of records, the bill authorizes the Department of Public
Safety (DPS) to permit access to an individual's case information in the
system only by a criminal justice agency for a criminal justice purpose or
for research purposes by the Texas Youth Commission (TYC), the Texas
Juvenile Probation Commission (TJPC), or the Criminal Justice Policy
Council.  The bill prohibits DPS from disclosing the existence of the
certification of records or any information from the records in response to
an inquiry from certain agencies or persons.  On certification of records,
the juvenile court is required to order that only certain records are
authorized to be accessed.  When the agency maintaining the record receives
the court order, the agency is authorized to allow access only as provided
by the previous provision and to state that the records do not exist (Secs.
58.204 and 58.207, Family Code). 

On certification of records, DPS is required to request that the Federal
Bureau of Investigation place the information in its files on restricted
status, with access only by a criminal justice agency or if such an action
is not feasible, delete all information in its database concerning the case
(Sec. 58.205, Family Code).   

The person who is the subject of the records is not required to state in
any proceeding, except as otherwise  authorized by law in a criminal
proceeding in which the person is testifying as a defendant, or in any
employment or license application that the person has been a respondent in
or a juvenile proceeding and the bill prohibits the person from being
punished for perjury for denying the existence of records or participating
in the proceeding (Sec. 58.206, Family Code).  The bill requires the
appointment of counsel for youth from indigent families at the time of the
initial detention hearing or immediately thereafter when the youth is
detained and within five working days following the filing of a petition in
the case when the youth is  not detained.  The bill requires such
appointment of counsel within five working days of the filing of a motion
or petition to modify disposition to commit a youth to TYC or to place a
youth in a secure correctional facility. The bill requires the attorney in
all cases, once appointed, to continue to represent the youth until the
case is terminated, the family retains counsel, or new counsel is appointed
(Sec. 51.101, Family Code). 

The bill requires the appropriate juvenile official, on final discharge of
a child or on the last official action in a case,  to inform a child or the
child's appropriate guardian or parent of issues related to the access of
the child's juvenile record.  The bill requires a probation officer or an
official at the Texas Youth Commission (TYC) to explain to a child that
under certain conditions the access to the child's records are
automatically restricted or are accessible only to certain agencies,
institutions, or persons.  The bill also requires TYC and Texas Juvenile
Probation Commission (TJPC) to adopt rules to implement these provisions
and facilitates the  effective explanation of the access to a juvenile's
record (Secs. 58.208 and 58.209, Family Code). 

The bill sets forth provisions relating to the expunction of certain
conviction records of children and sets forth procedures for the court in
an expungement hearing (Art. 45.0216, Code of Criminal Procedure).  Under
stipulated circumstances, certain persons are authorized to destroy the
physical records and files of a juvenile case (Sec. 58.0071, Family Code). 

The bill authorizes TJPC, juvenile boards, and juvenile probation
departments to access criminal history record information for the purpose
of performing criminal history checks on job applicants and on persons who
seek or currently hold TJPC certification (Secs. 411.137 and 411.138,
Government Code). 

The bill repeals certain provisions relating to sanction levels of a
juvenile's conduct.  A juvenile court is not required to report as a
deviation a disposition that deviates from the specified guidelines (Sec.
59.003, Family Code).   

The bill sets forth the duties of the juvenile board and modifies the
provisions relating to reports by the Criminal Justice Policy Council
(Secs. 59.011 and 59.012, Family Code). 

Local Juvenile Justice Information System

The bill authorizes juvenile justice agencies in a county or region of this
state to jointly create and maintain a local juvenile justice information
system (system) to aid in processing the cases of children, to facilitate
the delivery of services to children in the juvenile justice system, and to
aid in the early identification of at-risk and delinquent children.  The
bill sets forth the components of a system and provides for the types of
information contained in a system  (Secs. 58.303 and 58.304, Family Code).
The bill requires the system for a single county to include certain partner
agencies within that county and requires the system for a multicounty
region to include those partner agencies in the region and additional
governmental partner agencies that have applied for membership in the
system and have been approved by the regional juvenile board committee
(Sec. 58.305, Family Code).  The bill sets forth the level of access to
information to which each partner agency in a system is entitled (Sec.
58.306, Family Code).  The bill sets forth provisions relating to the
confidentiality of certain information that is a part of the system (Sec.
58.307, Family Code). 

Sex Offender Registration

The bill sets forth provisions regarding a hearing to determine the need
for sex offender registration of a juvenile, the appeal of such a decision,
and excusing compliance of such a requirement (Art. 62.13, Code of Criminal
Procedure). 

 Obtaining Information from a Juvenile in Custody

The bill sets forth provisions regarding a law enforcement officer who
takes a child temporarily into custody to take the child's fingerprints or
photograph for comparison in an investigation.  The bill also  provides
procedures for the destruction of the fingerprints and the photographs and
the audit to verify the destruction. A law enforcement officer is
authorized to obtain fingerprints or photographs from a child at a juvenile
processing office or at a location that affords reasonable privacy to the
child (Secs. 58.0021 and 58.0022, Family Code). 

Court Jurisdiction and Transferring Cases between Courts

The bill provides that under certain conditions, the court retains
jurisdiction over a person, without regard to the age of the person, who is
a respondent in an adjudication proceeding, a disposition proceeding, or a
proceeding to modify disposition (Sec. 51.0412, Family Code). 

The bill authorizes certain courts, with the written consent of the city
counsel or the commissioners court, to employ case managers for juvenile
cases and authorizes, but does not require a court to waive original
jurisdiction if the court implements such a manager (Sec. 51.08, Family
Code and Art. 45.054, Code of Criminal Procedure).  The bill provides for
the transfer of certain designation powers and duties of the juvenile court
to the juvenile board and sets forth the responsibilities of the juvenile
board and juvenile probation departments (Secs. 51.02, 51.04, 51.12, 52.01,
52.025, 52.027, 52.03, 52.04, 52.041, 53.01, 54.01, 54.044, 58.002, and
58.007, Family Code); (Art. 15.27, Code of Criminal Procedure); (Secs.
152.0010, 152.0007, and152.0008, Human Resources Code). 

The bill authorizes the prosecuting attorney to refer the petition to the
grand jury of the county in which the court in which the petition is filed
presides if the petition alleges that a child has committed manslaughter or
intoxication manslaughter (Sec. 53.045, Family Code). 

The bill requires TJPC to submit, not later than August 15 of each year, to
the lieutenant governor, the speaker of the house of representatives, and
the governor, a report that contains specified statistical information
relating to children referred to a juvenile court during the preceding year
(Sec. 58.112, Family Code). 

Court Procedures

The bill provides that a jury, in a hearing on a petition of a violent or
habitual offender, must be selected in accordance with the requirements in
criminal cases (Sec. 54.03, Family Code). 

The bill modifies and sets forth provisions relating to the procedures of a
disposition hearing. The bill authorizes the court to make a disposition
for delinquent conduct that violates a penal law of the grade of
misdemeanor offense if the child has been adjudicated as having engaged in
delinquent conduct, excluding conduct that violates a lawful order of
courts that could constitute contempt of court, that is a felony offense on
at least one previous occasion and the conduct that is the basis of the
current adjudication occurred after the date of that previous adjudication.
The bill authorizes a juvenile court to approve an administrative body to
conduct yearly permanency planning hearings that may be required by federal
regulations during the placement or commitment of the child (Sec. 54.04,
Family Code). 

The bill requires the district court to require the payment of any unpaid
restitution as a condition of community supervision, if the juvenile court
places the child on probation in a determinate sentence proceeding for
violent or habitual offenders and transfers supervision on the child's 18th
birthday to a district court for placement on community supervision.  The
bill also provides that the liability of a child's parent for restitution
may not be extended by a transfer to a district court for supervision (Sec.
54.041, Family Code). The bill authorizes the juvenile court in a
disposition hearing to order restitution be made by the child and the
child's parents whether or not the case contains a plea for restitution
(Sec. 54.048, Family Code). 

 The bill adds that the reports of employees of TYC are to be considered by
the court at a hearing on the release or transfer of a juvenile who is
committed to TYC (Sec. 54.11, Family Code).  The bill sets forth provisions
for the juvenile court to authorize the detention or release on bond of
certain respondents, when an order for remand is received from the
appellate court (Sec. 51.041, Family Code). 

The bill provides that a person transferred from TYC for the offense of
capital murder is required to become eligible for parole in the statutorily
specified calender time for certain offenses (Sec. 499.0553, Government
Code).  The bill also provides that a person who was between 10 and 17
years of age when the person allegedly committed a capital felony or a
murder and the case is transferred from the juvenile court to the criminal
court, then the person may be prosecuted and convicted of the offense (Sec.
8.07, Penal Code). 

Contempt of Court

The bill authorizes the justice or municipal court to hold a child in
contempt and order the child to pay a fine not to exceed $500 or refer the
child to the appropriate juvenile court for delinquent conduct if the
justice or municipal court believes that a child has violated an order
relating to failure to attend school (Sec. 25.094 Education Code). 

The bill sets forth provisions relating to a justice or municipal court's
enforcement powers to hold a child in contempt of court for intentional or
knowing failure to obey a lawful order of disposition after adjudication of
guilt of an offense.  The bill authorizes a justice or municipal court to
retain jurisdiction of the case, order the child to be held in a place of
nonsecure custody for a single period not to exceed six hours, or order DPS
to suspend the driver's license or permit of the child or to deny the
issuance of a license or permit to the child.  The bill requires a court
that orders the suspension or denial of a child's driver's license or
permit to notify DPS on receiving proof that the child has fully complied
with the orders of the court.  The bill prohibits a justice or municipal
court from ordering a child to a term of confinement or imprisonment for
contempt of court (Sec. 54.023, Family Code). 

Mentally Ill and Retarded Juveniles

The bill sets forth provisions with regard to the standard of care and
notice of release or furlough by  a residential care facility or a mental
health service facility for a child that is referred by a court for mental
health services (Sec. 55.45, Family Code). 

The bill requires the Texas Department of Mental Health and Mental
Retardation or the appropriate community center to admit a child, who was
unfit to proceed or lacked responsibility for conduct because of mental
retardation, to a residential care facility on receipt of a court order
(Secs. 55.41 and 55.60, Family Code). 

The bill requires juvenile probation departments to use the mental health
screening instrument selected by TJPC for the initial screening of children
under the jurisdiction of probation departments who have been formally
referred to the department.  The bill requires the juvenile probation
departments to report data from the use of the screening instrument to the
commission in format and in the time prescribed by the commission. The bill
removes requirements related to functions of the assessment tool.  The bill
provides that any statement made by a child and any mental health data
obtained from the child during the administration of the mental health
screening instrument is not admissible against the child at any other
hearing.  The bill requires the person administering the mental health
screening instrument to inform the child that any statement made by the
child and any mental health data obtained from the child during the
administration of the instrument is not admissible against the child at any
other hearing (Sec. 141.042, Human Resources Code).  

Detention and Confinement Facilities

The bill provides that juvenile offenders be committed to include
facilities operated by or under contract with the juvenile board (Sec.
39.04, Penal Code).  The bill requires a report of alleged abuse or neglect
in any juvenile justice program or facility to be made to TJPC and a local
law enforcement agency for investigation  (Sec. 261.405, Family Code). 

Administration

TJPC is authorized to waive the degree accreditation requirement if an
applicant for probation officer possesses a foreign or other degree that
TJPC determines is the substantive equivalent to a bachelor's degree. The
bill requires TJPC to adopt rules defining procedures to be used to request
a waiver of the accreditation requirement of a bachelor's degree conferred
by an accredited college or university (Sec. 141.061, Human Resource Code). 

The bill also sets forth provisions regarding persons who are prohibited to
act as a juvenile probation, detention, or corrections officers and persons
who are prohibited from carrying a firearm.  TYC employees are not
prohibited from carrying a firearm (Secs. 141.065 and141.066, Human
Resources Code). 

Immunity

The bill provides that, except if an act or omission is reckless or
intentional, done wilfully, wantonly, or with gross negligence, or done
with conscious indifference or reckless disregard for the safety of others,
a member of the juvenile board is not liable for damages arising from an
act or omission committed while performing the duties as a board member
(Sec. 152.0013, Human Resources Code).  The bill provides that, except for
an act or omission of a person administering medication if the act or
omission is reckless or intentional, done wilfully, wantonly or with gross
negligence or done with conscious indifference or reckless disregard for
the safety of others, the juvenile board and any authorized employee are
not liable for damages arising from the administration of medication to a
juvenile if the medication is administered under the required provisions
(Sec. 142.005, Human Resources Code). 

Study and Prevention of Juvenile Crime and Delinquency

The bill requires the Prairie View A&M University Center for the Study and
Prevention of Juvenile Crime and Delinquency to study the relationship of
the juvenile justice system to special categories of juveniles, including
minorities, female offenders, and sex offenders.  The bill requires the
center to cooperate with the Criminal Justice Policy Council, the Texas
Juvenile Probation Commission, and the Texas Youth Commission in conducting
those studies.  The bill requires the center to report its finding and
recommendations to the lieutenant governor, the speaker of the house of
representatives, and the governor by December 1, 2002 (SECTION 70). 

Repealed Provisions

The bill repeals the provisions in the Human Resources Code that relate to
the memorandum of understanding on service contracts for dysfunctional
families (SECTION 71). 

EFFECTIVE DATE

September 1, 2001.