bill bans pepper spray on kids in juvenile facilities

The text as introduced · 3,103 words

89R19681 CJD-D

By: Thompson
H.B. No. 31

A BILL TO BE ENTITLED

AN ACT

relating to procedures related to juvenile justice proceedings and

to the treatment of children detained in or committed to a juvenile

facility.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 51.02, Family Code, is amended by adding

Subdivision (7-a) to read as follows:

(7-a) "Mitigating evidence" means evidence presented at

a proceeding under this title that:

(A) is used to assess the growth and maturity of a

child; and

(B) takes into consideration:

(i) the diminished culpability of

juveniles, as compared to that of adults;

(ii) the hallmark features of youth; and

(iii) the greater capacity of juveniles for

change, as compared to that of adults.

SECTION 2. Chapter 51, Family Code, is amended by adding

Sections 51.22, 51.23, and 51.24 to read as follows:

Sec. 51.22. USE OF CHEMICAL DISPENSING DEVICE IN JUVENILE

FACILITY PROHIBITED. (a) In this section:

(1) "Chemical dispensing device" means a device that

is designed, made, or adapted for the purpose of dispensing a

substance capable of causing an adverse psychological or

physiological effect on a human being. The term includes pepper

spray, capsicum spray, OC gas, and oleoresin capsicum.

(2) "Juvenile facility" has the meaning assigned by

Section 39.04, Penal Code.

(b) An employee, contractor, volunteer, intern, or service

provider working in a juvenile facility may not use a chemical

dispensing device against a child in the facility.

Sec. 51.23. ANNUAL USE OF FORCE AUDIT. (a) In this

section:

(1) "Chemical dispensing device" has the meaning

assigned by Section 51.22.

(2) "Department" means the Texas Juvenile Justice

Department.

(3) "Juvenile facility" has the meaning assigned by

Section 39.04, Penal Code.

(b) The department shall annually conduct an audit of use

of force incidents to identify patterns, deficiencies, or instances

of noncompliance with de-escalation protocols and the prohibition

on chemical dispensing devices in juvenile facilities.

(c) The administrator of a juvenile facility operated by or

under contract with a juvenile board or other local governmental

unit shall annually report to the department data regarding use of

force incidents in the facility. An administrator shall make the

report required by this subsection in a form and by a date

prescribed by the department.

(d) Not later than August 31 of each year, the department

shall deliver a report to the legislature regarding the findings of

the audit conducted under Subsection (b).

(e) The department shall timely post on the department's

Internet website the audit findings and aggregate data collected

during the audit.

Sec. 51.24. SOLITARY CONFINEMENT; REPORT. (a) In this

section:

(1) "Department" means the Texas Juvenile Justice

Department.

(2) "Juvenile facility" has the meaning assigned by

Section 39.04, Penal Code.

(3) "Solitary confinement" means, with respect to a

child in a juvenile facility, the involuntary separation of the

child from other children placed in the facility in an area or room

from which the child is prevented from leaving. The term does not

include the involuntary separation of the child for a medical

purpose.

(b) A juvenile facility may not place a child in solitary

confinement unless:

(1) the child poses an immediate risk of physical harm

to the child's self or another;

(2) placement in solitary confinement does not violate

principles of trauma-informed care and does not interfere with

de-escalation strategies;

(3) all other less restrictive methods of addressing

the immediate risk of physical harm have been exhausted; and

(4) the child is placed in solitary confinement for a

period that does not exceed the shortest period permitted for

placement of a child in solitary confinement by a state or federal

law, including an administrative rule.

(c) The administrator or superintendent of a juvenile

facility shall:

(1) create a report documenting each instance a child

in the facility is placed in solitary confinement and include in the

report:

(A) the reason for the placement;

(B) the duration of the placement; and

(C) any intervention attempted before the child

was placed in solitary confinement; and

(2) annually submit the report under Subdivision (1)

to the department.

(d) The department shall monitor and enforce compliance

with the requirements of this section by regularly auditing and

reviewing juvenile facility practices related to placing children

in solitary confinement.

SECTION 3. Section 54.02, Family Code, is amended by

amending Subsections (a), (d), (f), (h), (l), and (n) and adding

Subsections (d-1) and (d-2) to read as follows:

(a) The juvenile court may waive its exclusive original

jurisdiction and transfer a child to the appropriate district court

or criminal district court for criminal proceedings if:

(1) the child is alleged to have violated a penal law

of the grade of felony;

(2) the child was:

(A) 14 years of age or older at the time the child

[ he ] is alleged to have committed the offense, if the offense is a

capital felony[ , an aggravated controlled substance felony, or a

felony of the first degree, ] and no adjudication hearing has been

conducted concerning that offense; or

(B) 15 years of age or older at the time the child

is alleged to have committed the offense, if :

(i) the offense is a violation of Section

19.02 or 22.011, Penal Code, or the petition for the offense alleges

that the child engaged in conduct that constitutes habitual felony

conduct as described by Section 51.031 of this code; [ of the second

or third degree or a state jail felony, ] and

(ii) no adjudication hearing has been

conducted concerning the [ that ] offense; and

(3) after a full investigation and a hearing, the

juvenile court determines that there is probable cause to believe

that the child before the court committed the offense or engaged in

the conduct constituting habitual felony conduct alleged , as

applicable, and that because of the seriousness of the offense or

conduct alleged or the background of the child the welfare of the

community requires criminal proceedings.

(d) Prior to the hearing, the juvenile court shall admonish

the child in open court and in the presence of the child's attorney

regarding:

(1) the court's consideration of waiving its

jurisdiction over the child and transferring the child to criminal

court for criminal proceedings; and

(2) the child's right to participate or to decline to

participate in any diagnostic study, social evaluation, or

investigation ordered by the juvenile court under Subsection (d-1).

(d-1) After the admonishment under Subsection (d), the

juvenile court shall order [ and obtain ] a complete diagnostic

study, social evaluation, and full investigation of the child, the

child's [ his ] circumstances, and the circumstances of the alleged

offense and shall set the date of the transfer hearing . If the

child declines to participate in a study, evaluation, or

investigation, the child's attorney shall state the refusal to the

court in open court or in writing not later than the fifth business

day after the date the court ordered the study, evaluation, or

investigation.

(d-2) In a hearing under this section, a presumption exists

that it is in the best interest of the child and of justice that the

juvenile court retain jurisdiction over the child. The burden is on

the state to overcome this presumption.

(f) In making the determination required by Subsection (a)

of this section, the court shall consider, among other matters:

(1) whether the alleged offense was against person or

property, with greater weight in favor of transfer given to

offenses against the person;

(2) the sophistication and maturity of the child;

(3) the record and previous history of the child;

[ and ]

(4) the prospects of adequate protection of the public

and the likelihood of the rehabilitation of the child by use of

procedures, services, and facilities currently available to the

juvenile court ;

(5) the substantive requirements for waiving

jurisdiction;

(6) relevant information ascertained in the full

investigation of the child; and

(7) the benefits or harm of retaining the child in the

juvenile justice system .

(h) If the juvenile court waives jurisdiction, it shall

state specifically in the order its reasons for waiver . The

statement of reasons must set forth a rational basis for the waiver

of jurisdiction, with sufficient specificity to permit meaningful

review, and must include case-specific findings of fact that do not

rely solely on the nature or seriousness of the offense. The court

shall [ and ] certify its action, including the written order and

findings of the court, and shall transfer the person to the

appropriate court for criminal proceedings and cause the results of

the diagnostic study of the person ordered under Subsection (d-1)

[ (d) ], including psychological information, to be transferred to

the appropriate criminal prosecutor. On transfer of the person for

criminal proceedings, the person shall be dealt with as an adult and

in accordance with the Code of Criminal Procedure, except that if

detention in a certified juvenile detention facility is authorized

under Section 152.0015, Human Resources Code, the juvenile court

may order the person to be detained in the facility pending trial or

until the criminal court enters an order under Article 4.19, Code of

Criminal Procedure. A transfer of custody made under this

subsection is an arrest.

(l) The juvenile court shall conduct a hearing without a

jury to consider waiver of jurisdiction under Subsection (j).

Except as otherwise provided by this subsection, a waiver of

jurisdiction under Subsection (j) may be made without the necessity

of conducting the diagnostic study [ or complying with the

requirements of discretionary transfer proceedings ] under

Subsection (d-1) [ (d) ]. If requested by the attorney for the person

at least 10 days before the transfer hearing, the court shall order

that the person be examined pursuant to Section 51.20(a) and that

the results of the examination be provided to the attorney for the

person and the attorney for the state at least five days before the

transfer hearing.

(n) A mandatory transfer under Subsection (m) may be made

without conducting the study required in discretionary transfer

proceedings by Subsection (d-1) [ (d) ]. The requirements of

Subsection (b) that the summons state that the purpose of the

hearing is to consider discretionary transfer to criminal court

does not apply to a transfer proceeding under Subsection (m). In a

proceeding under Subsection (m), it is sufficient that the summons

provide fair notice that the purpose of the hearing is to consider

mandatory transfer to criminal court.

SECTION 4. Section 54.04, Family Code, is amended by

amending Subsection (d) and adding Subsection (s) 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; 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;

(2) if the court or jury found at the conclusion of the

adjudication hearing that the child engaged in delinquent conduct

that constitutes serious felony conduct [ violates a penal law of

this state or the United States of the grade of felony ], the court

or jury made a special commitment finding under Section 54.04013,

and 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 under Section 54.04013[ , or a post-adjudication secure

correctional facility under Section 54.04011(c)(1), as

applicable, ] 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) ] 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;

(5) the court may place the child in a suitable

nonsecure correctional facility that is registered and meets the

applicable standards for the facility as provided by Section

51.126; or

(6) if applicable, the court or jury may make a

disposition under Subsection (m) [ or Section 54.04011(c)(2)(A) ].

(s) In this section, "serious felony conduct" means

conduct:

(1) that constitutes an offense under any of the

following provisions of the Penal Code:

(A) Section 19.02 (murder);

(B) Section 19.03 (capital murder);

(C) Section 20.03 (kidnapping);

(D) Section 20.04 (aggravated kidnapping);

(E) Section 20A.03 (continuous trafficking of

persons);

(F) Section 21.02 (continuous sexual abuse of

young child or disabled individual);

(G) Section 21.11 (indecency with a child);

(H) Section 22.011 (sexual assault);

(I) Section 22.02 (aggravated assault);

(J) Section 22.021 (aggravated sexual assault);

(K) Section 22.04 (injury to a child, elderly

individual, or disabled individual); or

(L) Section 29.03 (aggravated robbery);

(2) for which it is shown that a deadly weapon, as

defined by Section 1.07, Penal Code, was used or exhibited during

the commission of the conduct or during immediate flight from the

commission of the conduct; or

(3) that constitutes habitual felony conduct as

described by Section 51.031.

SECTION 5. Section 54.04013, Family Code, is amended to

read as follows:

Sec. 54.04013. SPECIAL COMMITMENT TO TEXAS JUVENILE JUSTICE

DEPARTMENT. (a) Notwithstanding any other provision of this code,

after a disposition hearing held in accordance with Section 54.04

or a hearing to modify a disposition held in accordance with Section

54.05 , the juvenile court may commit a child who is found to have

engaged in delinquent conduct that constitutes serious felony

conduct, as defined by Section 54.04, [ a felony offense ] to the

Texas Juvenile Justice Department without a determinate sentence if

the court makes a special commitment finding that the child has

behavioral health or other special needs that cannot be met with the

resources available in the community. The court should consider

the findings of a validated risk and needs assessment and the

findings of any other appropriate professional assessment

available to the court.

(b) In making a special commitment finding under Subsection

(a), the court may consider mitigating evidence of the child's

circumstances.

SECTION 6. Sections 54.05(f) and (j), Family Code, are

amended to read as follows:

(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, ] 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 and makes a special commitment finding under Section

54.04013 . 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, ] 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 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.

SECTION 7. Not later than 180 days after the effective date

of this Act, the Texas Juvenile Justice Board shall adopt rules

necessary to implement Sections 51.22, 51.23, and 51.24, Family

Code, as added by this Act.

SECTION 8. Sections 54.02 and 54.04, Family Code, as

amended 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 governed by the law in effect when the

conduct occurred, and the former law is continued in effect for that

purpose. For purposes of this section, conduct occurs before the

effective date of this Act if any element of the conduct occurs

before the effective date.

SECTION 9. Sections 54.04013 and 54.05, Family Code, as

amended by this Act, apply only to a hearing that occurs on or after

the effective date of this Act. A hearing that occurs before the

effective date of this Act is governed by the law in effect at the

time the hearing occurred, and the former law is continued in effect

for that purpose.

SECTION 10. This Act takes effect September 1, 2025.