HBA-JLV, LJP C.S.H.B. 1118 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1118 By: Goodman Juvenile Justice & Family Issues 3/15/2001 Committee Report (Substituted) 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 this 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 have an interest in the juvenile justice system. C.S.H.B. 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 C.S.H.B. 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 C.S.H.B. 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). 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 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 (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). 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 69). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1118 modifies the original to authorize the 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 substitute sets forth provisions relating to the appointment of an attorney and the continuation of representation until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court (Sec. 51.101, Family Code). The substitute modifies the provision that a hearing is required to be held prior to placement in a postadjudication secure correctional facility for a period longer than 30 days. The original did not specify a time period (Sec. 54.05, Family Code). The substitute authorizes the Department of Public Safety (DPS) to certify to the juvenile probation department that the records relating to a person's juvenile case are subject to restriction (Sec. 58.203, Family Code). The substitute modifies the original to authorize DPS to permit access to the information in the juvenile justice information system by a criminal justice agency for a criminal justice purpose (Sec. 58.204, Family Code). The substitute also provides that upon certification of records, DPS is required to request the Federal Bureau of Investigation to place the information in its files on restricted status, with access only by a criminal justice agency or to delete, under certain provisions, all the information in its database concerning the case (Sec. 58.205, Family Code). The substitute also modifies the original to authorize the person who is the subject of a certified record to deny that the person has been a respondent in a juvenile proceeding other than when testifying as a defendant in a criminal proceeding (Sec. 58.206, Family Code). The substitute sets forth additional provisions regarding a motion to excuse compliance of a requirement of the person to register as a sex offender (Art. 62.13, Code of Criminal Procedure). The substitute modifies the original to authorize TJPC, juvenile boards, and juvenile probation departments to access criminal history record information (Secs. 411.137 and 411.138, Government Code). The substitute modifies the original to require certain courts to attain the written consent of the city council or the commissioners court in order to employ case managers for juvenile cases (Art. 45.054, Code of Criminal Procedure). The substitute modifies the original to provide additional exceptions to the immunity from liability of a juvenile board or an employee of the juvenile board, including acts or omissions of a person administering medication or while performing the duties as a board member, 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 (Secs. 142.005 and 152.0013, Human Resources Code). The substitute modifies the original to authorize 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 (Sec. 54.023, Family Code). The substitute modifies the original to set forth requirements for the juvenile probation department to use the mental health screening assessment tool for the initial screening of children under the jurisdiction of the probation department (Sec. 141.042, Human Resources Code). The substitute deletes provisions relating to the definition of "child" in order to conform the definition with provisions referring to a child as younger than 17 years of age, rather than younger than 18 years of age (Sec. 52.027, Family Code). The substitute removes all provisions relating to the local juvenile justice information system (Secs. 58.30158.307, Family Code). The substitute removes provisions specifying that a statement taken by a law enforcement agency officer, other than a designated peace officer of this state, from a child in custody outside this state, is admissible in any juvenile justice proceeding under certain conditions (Sec. 54.035, Family Code and Art. 38.221, Code of Criminal Procedure).