MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Juvenile Justice

By: Representative Warren

AN ACT TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 37-11-30, MISSISSIPPI CODE OF 1972, TO CLARIFY THE REPORTING REQUIREMENTS OF LAW ENFORCEMENT AGENCIES AND COURTS CONCERNING ARRESTS OF PERSONS WHO ARE STUDENTS AND THE DISPOSITION OF CRIMINAL CHARGES AGAINST THOSE STUDENTS; TO AMEND SECTIONS 37-11-29 THROUGH 37-11-35, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 37-13-92, MISSISSIPPI CODE OF 1972, TO AUTHORIZE CERTAIN CHILDREN ARRESTED FOR FELONIOUS CONDUCT TO BE REFERRED, IN THE SCHOOL SUPERINTENDENT'S DISCRETION, TO THE ALTERNATIVE SCHOOL PROGRAM; TO AMEND SECTIONS 43-21-255, 43-21-261 AND 43-21-621, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

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

SECTION 1. The following shall be codified as Section

37-11-30, Mississippi Code of 1972:

37-11-30. (1) Whenever any person who is an enrolled student in any public or private school or educational institution in this state is arrested for and lawfully charged with the commission of any crime, the officer or law enforcement department of which the arresting officer is a member shall make a report of the arrest to the superintendent, president or chancellor, as the case may be, of the school district or other educational institution in which the student is enrolled. The report shall be made within forty-eight (48) hours after the arrest of the student. If the charge upon which the student was arrested or any other charges preferred against him are dismissed or nol prossed, the law enforcement department shall make a report within one (1) week of that action to the same school official to whom the report of the arrest and charge was made. This section shall not apply to ordinary traffic violations involving a penalty of less than Fifty Dollars ($50.00) and costs.

(2) Whenever any person who is an enrolled student in any public or private school or educational institution in this state is acquitted, convicted of, or enters a plea of guilty or nolo contendere to any crime charged against him other than an ordinary traffic violation involving a penalty of less than Fifty Dollars ($50.00) and costs, the court having jurisdiction of the offense shall make a report of the acquittal, conviction or plea to the superintendent, president or chancellor, as the case may be, of the school district or other educational institution in which the student is enrolled. The report shall be made within forty-eight (48) hours after the student is acquitted, convicted or enters a plea of nolo contendere upon the charge placed against him.

SECTION 2. Section 37-11-29, Mississippi Code of 1972, is amended as follows:

37-11-29. (1) Any principal, teacher or other school employee who has knowledge of any unlawful activity which occurred on educational property or during a school related activity or which may have occurred shall report such activity to the superintendent of the school district or his designee who shall notify the appropriate law enforcement officials as required by this section. In the event of an emergency or if the superintendent or his designee is unavailable, any principal may make a report required under this subsection.

(2) When the superintendent or his designee has a reasonable belief that an act has occurred on educational property or during a school related activity involving any of the offenses set forth in subsection (5) of this section, the superintendent or his designee shall immediately report the act to the appropriate local law enforcement agency. For purposes of this subsection, "school property" shall include any public school building, bus, public school campus, grounds, recreational area or athletic field in the charge of the superintendent. The State Board of Education shall prescribe a form for making reports required under this subsection. Any superintendent or his designee who fails to make a report required by this section shall be subject to the penalties provided in Section 37-11-15.

(3) The law enforcement authority shall immediately dispatch an officer to the educational institution, and with probable cause, the officer is authorized to make an arrest if necessary as provided in Section 99-3-7.

(4) Any superintendent, principal, teacher or other school personnel participating in the making of a required report pursuant to this section or participating in any judicial proceeding resulting therefrom shall be presumed to be acting in good faith. Any person reporting in good faith shall be immune from any civil liability that might otherwise be incurred or imposed.

(5) For purposes of this section, "unlawful activity" means any of the following:

(a) Possession or use of a deadly weapon, as defined in Section 97-37-1;

(b) Possession, sale or use of any controlled substance;

(c) Aggravated assault, as defined in Section 97-3-7;

(d) Simple assault, as defined in Section 97-3-7, upon any school employee;

(e) Rape, as defined under Mississippi law;

(f) Sexual battery, as defined under Mississippi law;

(g) Murder, as defined under Mississippi law; 

(h) Kidnapping, as defined under Mississippi law; or

(i) Fondling, touching, handling, etc., a child for lustful purposes, as defined in Section 97-5-23.

SECTION 3. Section 37-11-31, Mississippi Code of 1972, is amended as follows:

37-11-31. Such report as is required pursuant to the provisions of Section 37-11-30(1), shall contain: the full name of the student; the place, date and time of arrest; a brief statement of the charge or charges upon which he was arrested, and any other charges placed against him after his arrest but before the making of the report; * * * the disposition, if any, which may have been made of the charges by the arresting officer or the law enforcement department of which he is a member; whether the student was released on bail and, if so, the amount of the bail; and the student's home address and the school or educational institution in which he was enrolled.  * * * The report * * * made by the court after the trial of the student, as required under Section 37-11-30(2), shall contain: * * * a brief statement of the charge or charges upon which the student was tried; whether the student was acquitted or convicted; if convicted, the punishment inflicted; a statement as to whether any appeal has been taken from the decision * * *; and if such person is admitted to bail either before or after trial, the amount of the bail shall be stated, together with the name of each surety upon his bail bond.

SECTION 4. Section 37-11-33, Mississippi Code of 1972, is amended as follows:

37-11-33. The * * * law enforcement department and the clerk of the * * * court making such reports as are required pursuant to the provisions of Section 37-11-30 shall receive the sum of One Dollar ($1.00) for each * * * report made. The sum shall be paid from the general fund by the town, city or county where such * * * reports are made, upon proper bill being submitted for the reports supported by certificate or affidavit that the reports have been made.

All such reports shall be preserved by each recipient thereof and a copy retained in the * * * law enforcement department or * * * office of the court clerk, as the case may be, who or which made such * * * reports.

SECTION 5. Section 37-11-35, Mississippi Code of 1972, is amended as follows:

37-11-35. If any person charged by Section 37-11-29(2) or 37-11-30 to make the reports * * * willfully fails, refuses or neglects to file any such report, he shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000.00) or * * * imprisoned not exceeding six (6) months, or both.

SECTION 6. Section 37-13-92, Mississippi Code of 1972, is amended as follows:

37-13-92. (1) Beginning with the school year 1993-1994, the school boards of all school districts shall establish, maintain and operate, in connection with the regular programs of the school district, an alternative school program for, but not limited to, the following categories of compulsory-school-age students:

(a) Any compulsory-school-age child who has been suspended for more than ten (10) days or expelled from school, except for any student expelled for possession of a weapon or other felonious conduct;

(b) Any compulsory-school-age child referred to such alternative school based upon a documented need for placement in the alternative school program by the parent, legal guardian or custodian of such child due to disciplinary problems; * * *

(c) Any compulsory-school-age child referred to such alternative school program by the dispositive order of a chancellor or youth court judge, with the consent of the superintendent of the child's school district; and

(d) In the discretion of the school superintendent, any compulsory-school-age child who has been arrested for and lawfully charged with the commission of any crime which would be considered a felony if committed by an adult, if the child's presence in the classroom, in the determination of the school superintendent, will be a disruption to the educational environment of the school.

(2) The principal or program administrator of any such alternative school program shall require verification from the appropriate guidance counselor of any such child referred to the alternative school program regarding the suitability of such child for attendance at the alternative school program. Before a student may be removed to an alternative school education program, the superintendent of the student's school district must determine that the written and distributed disciplinary policy of the local district is being followed. The policy shall include standards for:

(a) The removal of a student to an alternative education program that will include a process of educational review to develop the student's individual instruction plan and the evaluation at regular intervals of the student's educational progress; the process shall include classroom teachers and/or other appropriate professional personnel, as defined in the district policy, to ensure a continuing educational program for the removed student;

(b) The duration of alternative placement; and

(c) The notification of parents or guardians, and their appropriate inclusion in the removal and evaluation process, as defined in the district policy. Nothing in this paragraph should be defined in a manner to circumvent the principal's or the superintendent's authority to remove a student to alternative education.

(3) The local school board or the superintendent shall provide for the continuing education of a student who has been removed to an alternative school program.

(4) A school district, in its discretion, may provide a program of general educational development (GED) preparatory instruction in the alternative school program. However, any GED preparation program offered in an alternative school program must be administered in compliance with the rules and regulations established for such programs under Sections 37-35-1 through 37-35-11 and by the State Board for Community and Junior Colleges. The school district may administer the General Educational Development (GED) Testing Program under the policies and guidelines of the GED Testing Service of the American Council on Education in the alternative school program or may authorize the test to be administered through the community/junior college district in which the alternative school is situated.

(5) Any such alternative school program operated under the authority of this section shall meet all appropriate accreditation requirements of the State Department of Education.

(6) The alternative school program may be held within such school district or may be operated by two (2) or more adjacent school districts, pursuant to a contract approved by the State Board of Education. When two (2) or more school districts contract to operate an alternative school program, the school board of a district designated to be the lead district shall serve as the governing board of the alternative school program. Transportation for students attending the alternative school program shall be the responsibility of the local school district. The expense of establishing, maintaining and operating such alternative school program may be paid from funds contributed or otherwise made available to the school district for such purpose or from local district maintenance funds.

(7) The State Board of Education shall promulgate minimum guidelines for alternative school programs. The * * * guidelines shall require, at a minimum, the formulation of an individual instruction plan for each student referred to the alternative school program and, upon a determination that it is in a student's best interest for that student to receive general educational development (GED) preparatory instruction, that the local school board assign the student to a GED preparatory program established under subsection (4) of this section. The minimum guidelines for alternative school programs shall also require the following components:

(a) Clear guidelines and procedures for placement of students into alternative education programs which at a minimum shall prescribe due process procedures for disciplinary and general educational development (GED) placement;

(b) Clear and consistent goals for students and parents;

(c) Curricula addressing cultural and learning style differences;

(d) Direct supervision of all activities on a closed campus;

(e) Full-day attendance with a rigorous workload and minimal time off;

(f) Selection of program from options provided by the local school district, Division of Youth Services or the youth court, including transfer to a community-based alternative school;

(g) Continual monitoring and evaluation and formalized passage from one step or program to another;

(h) A motivated and culturally diverse staff;

(i) Counseling for parents and students;

(j) Administrative and community support for the program; and

(k) Clear procedures for annual alternative school program review and evaluation.

(8) On request of a school district, the State Department of Education shall provide the district informational material on developing an alternative school program that takes into consideration size, wealth and existing facilities in determining a program best suited to a district.

(9) Any compulsory-school-age child who becomes involved in any criminal or violent behavior shall be removed from such alternative school program and, if probable cause exists, a case shall be referred to the youth court.

  (10) The State Board of Education, in its discretion, may exempt not more than four (4) school district alternative school programs in the state from any compulsory standard of accreditation for a period of three (3) years. During this period, the State Department of Education shall conduct a study of all alternative school programs in the state, and on or before January 1, 2000, shall develop and promulgate accreditation standards for all alternative school programs, including any recommendations for necessary legislation relating to such alternative school programs.

SECTION 7. Section 43-21-255, Mississippi Code of 1972, is amended as follows:

43-21-255. (1) Except as otherwise provided by this section or Section 43-21-261, all records involving children made and retained by law enforcement officers and agencies or by the youth court prosecutor and the contents thereof shall be kept confidential and shall not be disclosed * * *.

(2) A child in the jurisdiction of the youth court and who has been taken into custody for an act which if committed by an adult would be considered a felony or offenses involving possession or use of a dangerous weapon or any firearm, may be photographed or fingerprinted or both. Any law enforcement agency taking such photographs or fingerprints shall immediately report the existence and location of the photographs and fingerprints to the youth court. Copies of fingerprints known to be those of a child shall be maintained on a local basis only. Such copies of fingerprints may be forwarded to another local, state or federal bureau of criminal identification or regional depository for identification purposes only. Such copies of fingerprints shall be returned promptly and shall not be maintained by such agencies.

(3) Any law enforcement record, including photographs and fingerprints, involving children who have been taken into custody for an act which if committed by an adult would be considered a felony and/or offenses involving possession or use of a dangerous weapon, * * * may be released to a law enforcement agency supported by public funds, youth court officials and appropriate school officials without a court order under Section 43-21-261. Law enforcement records shall be released to youth court officials and to appropriate school officials upon written request. Except as provided in subsection (4) of this section, any law enforcement agency releasing such records of children in the jurisdiction of the youth court shall immediately report the release and location of the records to the youth court. The law enforcement agencies, youth court officials and school officials receiving such records are prohibited from using the photographs and fingerprints for any purpose other than for criminal law enforcement and juvenile law enforcement. Each law enforcement officer or employee, each youth court official or employee and each school official or employee receiving the records shall submit to the sender a signed statement acknowledging his or her duty to maintain the confidentiality of the records. In no instance shall the fact that such records of children in the jurisdiction of the youth court exist be conveyed to any private individual, firm, association or corporation or to any public or quasi-public agency the duties of which do not include criminal law enforcement or juvenile law enforcement. For purposes of this subsection, the term "law enforcement record" shall not include reports required to be made to school districts and educational institutions under Section 37-11-30.

(4) When a child's driver's license is suspended for refusal to take a test provided under the Mississippi Implied Consent Law, the law enforcement agency shall report such refusal, without a court order under Section 43-21-261, to the Commissioner of Public Safety in the same manner as such suspensions are reported in cases involving adults.

(5) All records involving a child convicted as an adult or who has been twice adjudicated delinquent for a sex offense as defined by Section 45-33-1 shall be public and shall not be kept confidential.

SECTION 8. Section 43-21-261, Mississippi Code of 1972, is amended as follows:

43-21-261. (1) Except as otherwise provided by law, records involving children shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure. Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court and then only to the following persons:

(a) The judge of another youth court or member of another youth court staff;

(b) The court of the parties in a child custody or adoption cause in another court;

(c) A judge of any other court or members of another court staff;

(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;

(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;

(f) The Mississippi Employment Security Commission, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 (29 U.S.C.A. Section 923 et seq.). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed; and

(g) To any person pursuant to a finding by a judge of the youth court of compelling circumstances affecting the health or safety of a child and that such disclosure is in the best interests of the child.

Law enforcement agencies may disclose information to the public concerning the taking of a child into custody for the commission of a delinquent act without the necessity of an order from the youth court. The information released shall not identify the child or his address unless the information involves a child convicted as an adult.

(2) Any records involving children which are disclosed under an order of the youth court and the contents thereof shall be kept confidential by the person or agency to whom the record is disclosed except as provided in the order. Any further disclosure of any records involving children shall be made only under an order of the youth court as provided in this section.

(3) Upon request, the parent, guardian or custodian of the child who is the subject of a youth court cause or any attorney for such parent, guardian or custodian, shall have the right to inspect any record, report or investigation which is to be considered by the youth court at a hearing, except that the identity of the reporter shall not be released, nor the name of any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person.

(4) Upon request, the child who is the subject of a youth court cause shall have the right to have his counsel inspect and copy any record, report or investigation which is filed with the youth court.

(5) (a) The youth court prosecutor or prosecutors, the county attorney, the district attorney, the youth court defender or defenders, or any attorney representing a child shall have the right to inspect any law enforcement record involving children.

(b) The Department of Human Services shall disclose to a county prosecuting attorney or district attorney any and all records resulting from an investigation into suspected child abuse or neglect when the case has been referred by the Department of Human Services to the county prosecuting attorney or district attorney for criminal prosecution.

(c) Agency records made confidential under the provisions of this section may be disclosed to a court of competent jurisdiction.

(6) Information concerning an investigation into a report of child abuse or child neglect may be disclosed by the Department of Human Services without order of the youth court to any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, child care giver, minister, law enforcement officer, public or private school employee making that report pursuant to Section 43-21-353(1) if the reporter has a continuing professional relationship with the child and a need for such information in order to protect or treat the child.

(7) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court to any interagency child abuse task force established in any county or municipality by order of the youth court of that county or municipality.

(8) Names and addresses of juveniles twice adjudicated as delinquent for an act which would be a felony if committed by an adult or for the unlawful possession of a firearm shall not be held confidential and shall be made available to the public.

(9) Names and addresses of juveniles adjudicated as delinquent for murder, manslaughter, burglary, arson, armed robbery, aggravated assault, any sex offense as defined in Section 45-33-1, for any violation of Section 41-29-139(a)(1) or for any violation of Section 63-11-30, shall not be held confidential and shall be made available to the public.

(10) The judges of the circuit and county courts, and presentence investigators for the circuit courts, as provided in Section 47-7-9, shall have the right to inspect any youth court records of a person convicted of a crime for sentencing purposes only.

(11) The victim of an offense committed by a child who is the subject of a youth court cause shall have the right to be informed of the child's disposition by the youth court.

(12) The Classification Committee of the State Department of Corrections, as provided in Section 47-5-103, shall have the right to inspect any youth court records, excluding abuse and neglect records, of any offender in the custody of the department who as a child or minor was a juvenile offender or was the subject of a youth court cause of action, and the State Parole Board, as provided in Section 47-7-17, shall have the right to inspect such records when the offender becomes eligible for parole.

(13) The youth court shall notify the Department of Public Safety of the name, and any other identifying information such department may require, of any child who is adjudicated delinquent as a result of a violation of the Uniform Controlled Substances Law.

(14) The Administrative Office of Courts shall have the right to inspect any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose.

(15) Upon a request by a youth court, the Administrative Office of Courts shall disclose all information at its disposal concerning any previous youth court intakes alleging that a child was a delinquent child, child in need of supervision, child in need of special care, truant child, abused child or neglected child, as well as any previous youth court adjudications for the same and all dispositional information concerning a child who at the time of such request comes under the jurisdiction of the youth court making such request.

(16) In every case where an abuse or neglect allegation has been made, the confidentiality provisions of this section shall not apply to prohibit access to a child's records by any state regulatory agency, any state or local prosecutorial agency or law enforcement agency; * * * however, * * * no identifying information concerning the child in question may be released to the public by such agency except as otherwise provided herein.

(17) In every case where there is any indication or suggestion of either abuse or neglect and a child's physical condition is medically labeled as medically "serious" or "critical" or a child dies, the confidentiality provisions of this section shall not apply.

(18) Any member of a foster care review board designated by the Department of Human Services shall have the right to inspect youth court records relating to the abuse, neglect or child in need of supervision cases assigned to such member for review.

SECTION 9. Section 43-21-621, Mississippi Code of 1972, is amended as follows:

43-21-621. (1) The youth court * * *, in compliance with the laws governing education of children, may order any state-supported public school in its jurisdiction, after notice and hearing, to enroll or reenroll any compulsory-school-age child in school, and further order appropriate educational services.  * * * However, * * * the youth court shall not order the enrollment or reenrollment of a student that has been suspended or expelled by a public school pursuant to Section 37-9-71 or 37-7-301 for possession of a weapon on school grounds, for an offense involving a threat to the safety of other persons or for the commission of a violent act. For the purpose of this section "violent act" means any action which results in death or physical harm to another or an attempt to cause death or physical harm to another. The superintendent of the school district to which such child is ordered may assign, in his discretion, * * * such child to the alternative school program of such school established pursuant to Section 37-13-92. The court shall have jurisdiction to enforce school and education laws. Nothing in this section shall be construed to affect the attendance of a child in a legitimate home instruction program.

(2) The youth court may specify the following conditions of probation related to any juvenile ordered to enroll or reenroll in school: That the juvenile maintain passing grades in up to four (4) courses during each grading period and meet with the court counselor and a representative of the school to make a plan for how to maintain those passing grades.

(3) If the adjudication of delinquency was for an offense involving a threat to the safety of the juvenile or others and school attendance is a condition of probation, the youth court judge shall require the youth counselor to notify the principal of the juvenile's school * * *. Within forty-eight (48) hours or before the juvenile begins to attend school, whichever occurs first, the youth court counsellor shall notify the principal of the juvenile's school in writing of the nature of the offense and the probation requirements related to school attendance. A principal notified by a juvenile court counselor shall handle the report according to the guidelines and rules adopted by the State Board of Education.

(4) The Administrative Office of the Courts shall report to the Legislature on the number of juveniles reported to principals in accordance with this section no later than January 1, 1996.

SECTION 10. This act shall take effect and be in force from and after July 1, 1999.