THE TEXAS JUVENILE CODE, A COMPARISON
BETWEEN OLD AND NEW
BARBARA RUNGE
THE TEXAS JUVENILE CODE.
A COMPARISON BETWEEN OLD AND NEW
by Barbara Runge*
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The first juvenile court legislation was enacted in 1907. 1
This act wa s repealed in 1925 and a new set of laws pertaining to
the juvenile delinquent was enacted •.2 .·' A major development occurred
in 1943 when new legislation changed juvenile proceedings to civil
matters. 3 Although there were many amendments. no ma jor changes
were passed until 1973. when the new' Family Code -- Title 3 was
approved by the Texas Legislature.
In line with dne process considerations and the r e cognit i on
thnt a child i s a ci,izen in spite of · his minority. Texas has
a dopte d the p ro gr essive approach
of according him ma ny of the
same prote cti onfi a fforded an adult.
Yet this protection does not
f a il t o t fliw 1;.cc ount of le gi tima te distinctions that Te xas may
ma ke in appl yi ng its laws to children and adults.
The purpos e of
this article i s to compare the recently enacted juvenile code.
Se ctions 51.01 through 54.09. wi.t h the 1 971 "j uvenile ' provisions
as stated 'i n Article 2338-1. TexaS Re vise o '-' 1 vil Sta t utes.
* B.A. 1970. Texas Tech Univers itYI J.D. 1 973.
UJ<liversity.
T e x, ,
This a , tic1e was prepared as Indepe nde.:"lt
R e ~; e a rch
under the s upe rvis ion of Ma rtin A. Frey. Profes so r of l a w.
Texas Tech University.
Tech
2
Section 51.01 of the new juvenile code is similia r to
the old Article 2338-1,. §l in that both explain the purpose
of the juvenile provisions.
Section 51.01 provides I
"This title shall be cons trued to effectuate the
followin g public purposesl
(1)
to provide for the care , the protection, and the
wholesome moral, ment a l, a nd physica l developme nt
of children coming with in its provisions;
(2)
to protect the welfare of the community and to
control the commission of unlawful acts by
children;
(3)
cons istent with the protection of the public
interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to subs titute
a program of treatment, training, and rehabilitation.
(4)
to achieve the foregoin g purpos es in a family environment whenever possible, s eparating the child
from his parents only when nece ssary for h is welfare
or in the interest of public s afe ty a nd when a child
is r emoved from his family, to give him the care that
should be provided by parents; and
(5)
to provide a simple judicial procedure through
which the provisions of this title are e xe cuted and
enforced and in which the parties are assured a fair
hea ring and their constitutional and other le gal
ri ghts recognized and enforced.
Article 2 335 -~ ~ l statesl
The pur pose of this Act is to s ecure for each c hi ld under its jurisdiction such care , guida nce and cont rol,
prefe r a bly in his own home, a s will serve the ch i ld 's
welfa re a nd the bes t intere s t of the sta t e ; and whe n s uch
child is removed from his own family, to se c ure f or him
custody, care and discipline as nearly as po ~; si ble equivalent to that which should have be en give n him by his parents.
The principle is hereby recognized that child ren under the
jurisdiction of the court are wards of the state, subject
to the discipline and entitled to the protection of the
:3
state, which may intervene to safe guard them from
neglect or injury and to enforce the legal obligations due to them and from them.
The purpose of the new code seems to be broader in that it
seeks to. (1)
protect the welfare of the community, as well as
the welfare of the child and (2) provide the child with a fair
hearing in which . constitutional and legal rights will be upheld.
The previous article certainly implied that the community's
welfare was a consideration in apprehending and rehabilitating
juvenile offenders, however any statement directly concerning
this purpose was lacking.
The new requirement of a fair hearing
in which constitutional and legal rights are enforced is largely
a result of recent juvenile cases which have held that a child
is entitled to the same constitutional due process considerations
.
.
4
as adult offenders.
The 'definitiori section of the new statute is embodied in
Section 51.02, whereas the old applicable code provision was
Article 2338-1, §3.
The definition of "child" in Section 51. 02 (1 ) (a)
has been broadened to include individuals " s eve nteen years of a ge
or older and under eighteen years of a ge"who are alle ged or found
to have engaged in delinquent conduct or conduct i nd icating a need
for supervision a s a result of acts committed before be coming
seventeen years of age.
Previously, the word "chi ld" meant any
person "over the age often years and under the a ge of seventeen
years."
For all practical purposes the juvenile code is now
referable to all persons over ten years old, yet under eighteen
4
years of age. The probable reason behind the one year extension
,
is that eighteen year olds are now c'o nsidered adults and there
is no need to hold seventeen year olds to a standard separate
,
from either the adult or juvenile standards. 5
Except for sUbsections 5 and 6,; the remaining subdivisions
of Section 51. 02 are newly-created ones.
,
The current juvenile
code defines "parent" as "the mother,
, a father as to whom the
child is legitimate, or an adoptive ,parent, but does not include
a pa.rent whose parental rights have terminated."
"Guardian," in the new statutes, ·is defined as "the person
who, under court order, is the guardian of the person of the
child or the public or private a gency with whom the child has
been placed by a court."
The term "custodian" has also been included in Section 51.01.
Its precise definition is the "adult with whom the child resides."
"Prosecuting attorney" refers to the county attorney, district
attorney, or other attorney who re gularly serves in a prosecutory
capacity in a juvenile court.
The definitional provision for law-enforcement officers
refers to a peace officer as in Article 2.12, Texas Code of
Criminal Procedure.
Subsection 9 defines "traffic offense" as a violation of a
penal statute or a ;.violation'- of .a motor vehicle traffic ordinance.
The final new term is "party.·o
Under the new .provis ion,
this is defined as either the state, the child in question or his
5
parents, spouse, guardian, or guardian ad litem.
It should be noted that the recent sUbsections 5 and 6 are
in essence the same as the introductory statement in Article
Subsections ~ through (g )of the outdated code em-
2338-1, S3.
bodied the meaning of the term "delinquent child."
In short,
the term included juveniles who had violated penal laws or
ordinances of the state or political subdivisions thereof.
Also
included in the term were children who habitually violated Texas
school attendance laws, endangered the morals or health of others,
or associated with vicious and immoral persons.
The current Section 51.03
explain~
delinquent conduct and
conduct indicating a need for supervision.
These two categories
are divided and delinquent conduct seems to have a much narrower
interpretation ' than before in Article, 2338-1, 93.
Now, only
violations of (1) Texas penal laws (other than traffic violations)
and (2) reasonable and lawful orders of a juvenile court constitute "delinquent
conduct." The category, "conduct indicating
a need for supervision" embodies the f ollowing le s sor offenses.
,(1)
conduct, other than a traffic offense, that on three or 'more occasions violates either of the following:
'
(A) the penal laws of this state of the grade cif misdemeanor
that are punishable by fine only; or '
(B)' the penal ordinances of any political BubdiviBion of this
state;
'( 2) conduct which violateB the compulBory Bchool attendance laws;
,(3) 'the voluntary IIbsence of a child from his home without the
'consent of hiB parent or guardian for a Bubstantial length of
time or without intent to return; or
(4) the violation of an order of Il juvenile court entered under
Section 64.04 or 64.06 of thiB code purBuant to a determination
that the child engaged in conduct which violates the compulso,ry Bchool attendance lawB or the voluntary absence of the
' child from hia home without the con Bent of hiB parent or
guardian for a 8ubatantial length of time or without intent to
return.
,
6
New emphasis is placed on children who leave their homes
without parental consent or for sUbstantial time periods.
During the past decade, these children, often referred to as
runaways, have produced great headaches for law enforcement
officials.
The desire to run away, leaving behind family
chores and duties, in search of independence has created the
need for statutory authority which will allow state and local
police to apprehend and return the children to their residences.
Article 51. 0) gives the juvenile court and its officers jurisdiction over these children by making their conduct a violation
of state laws and one that requires legal supervision. In
connection with this problem, Section 17.01 of the revised
Family Code grants to authorized officers the power to take
possession of the juvenile in an emergency.
An authorized representative of the , State Department
of Public Welfare, a law enforcement officer, or a
juvenile probation officer may take possession of a
child to protect him from an immediate danger to his
physical safety and deliver him to any court having
jurisdiction of suits under this subtitle
The possessor is granted civil liability in Section 17.09.
A person who takes possession of a child under Section
17.01 of this code is immune from civil liability if,
at the time possession is taken, he had reasonable
cause to believe there was immediate dange r to t he
physical safety or emotional well-being of the child.
Obviously, this is a major change in the juvenile code, but
current "rul)away" problems have rendered it necessary.
It should be noted that
subsection~)
is the same as the
old code provision, Article _2))8-1, BS( d) .
(c) Nothlnll In thll title prevent. criminal proceedlnlll alralnlt. a child
. ~~~ .
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7
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The problem of jurisdiction is , dealt with in the current
Section 51.04 whereas the previous statute in point was
Section 5 of Article 2338-1.
Respectively, they state.
Sec. 51.04. Jurisdiction
, "(a) ' The juvenllo court , haa' exclusive 'orillinal Jurlldlctlon over proceedings under this title.
"
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(b). In a county having a Juvenile board, the board shall designate one
or more district, criminal district; <lomestic relations, juvenile, or county
courts or county courts at law as the juvenile court, subject to Subsection
.(d) of this section.
"
,
, (c) In a county not having a juvenile board, the judges of the district,
criminal district, domestic relations, jUvenile, and county courts and
'county' courts at la\1 shall designate one or more of their courts as tbe
juvenile ,c ourt, subject to Subsection (d) of this section.
JurlscllctloD
Sec. 6. (a) The juvenile court has exclusive original jurisdiction
in proceedings governing any delinquent child. However, in those
eases specified in Section 6 of this Act, the juvenile court may waive
jurisdiction to the appropriate district court or criminal district
court. The juvenile court is considered in session at al! times.
(b) Nothing in this Act deprives other courts of the right to determine cus tody of children either upon writs of habeas corpus or when
such cus tody is incidental to the determination of cases pending in
those courts.
(c) When the juvenile court obtains jurisdiction of a delinquent
child, its jurisdiction continues until the child is discharged by the
court or until he becomes twenty-one years of age unless committed to
the control of the agency of the state charged with the care, training,
control of, or parole of delinquent children. The court's continued jurisdiction does not prejudice or bar subsequent or, additional proceedings against the child under the provisions of this Act.
(d) Nothing in this Act prevents criminal proceedings against a
child for perjury.
One major distinction between these portions of the
juvenile code is that no longer does the juvenile court retain jurisdiction over the delinquent child until he or she
reaches
tw~nty~years
of age.
This provision has completely
been deleted from the jurisdictional section, but the new
A
code subsequently specifies that the court's continuing juris-
6
diction is terminated upon the child's eighteenth birthday. '
The second major change in these two provisions is the
new requirement in regard to the Texas court system.
For the
juvenile court to be designated as such, the judge must be an
attorney licensed to practice in the state of Texas.
The
probable intent behind this prerequisite is to insure that the
judge is learned in the law and therefore better able to determine whether due process has been met.
Section 51.05 states that juvenile courts are deemed to
session at all times.
the same.
Article 2))8-1, §5(a) in essence declares
Although the remainder of Section 51.05 is a new
statement, requiring "suitable quarters" for the juvenile court
and its officers, the idea is implicit w.d thin Article 2))8-J ~ §4.
Sec. 4. There is hereby established as follows in each county of the
State a court of record to be known ns the juvenile court, having such
jurisdictions as may be nece~sary to carry out the provisions of this
' Act.
In all counties having only one district court and ha\'ing a juvenile
board, such board shall designate the county court or the district
court to be the juvenile court for such county, and in all other coun- ·
ties having only one district court, but no juvenile board, the county
judge and the district judge of such county shall designate the county
or district court of such county as the juvenile court. In counties
having two or more district courts, or one or more district courts and
one or more criminal district courts, and having a juvenile board,
such board shall designate one of such district courts or criminal district courts, or the county coult, to be the juvenile court of such county, and in all other counties having two or more district courts, or one
or more district courts and one or more criminal district courts, the
judges of such courts and the county judge of such counties shall designate one of such district courts or criminal district courts as the juvenile court of such county; provided, however, that in the event neither of the judges of the district courts or criminal district courts is
a resident of the county, the county court may be designated as the
juvenile court of such county, All such designations may be changed
from time to time by such boards or such judges as are authorized
herein to make the same, for thE', convenience of the people and the
welfare of minors; provided that there shall be at all times a juvenile
court designated for each county. It is the intent of the Legislature
that in selecting a court to be the juvenile court of each county, such
selection be made as far as practicable so that the com·t designated as
the juvenile court will be one which is presided over by a judge who .
has a sympathetic understanding of the problems of child welfare,
and that changes in the designations of juvenile courts be made only
when the best interest..ct of t.hP nnhli" .,...,.,..., ; .. , ; ..
9
See. 51.05. Court 8C88\Ons nnd Facllltles
HThe juvenile court shall be deemed in session at all times. 'Suitable
quarters shall be provided by the commissioners court of each county for
the hearing of cases and for the use of the judge, the probation officer,
and other employees of the court.
'
Venue is the concern of the current Section 51.06, just
as it was in the past Article 2338-1, ,§7-A.
Both state that
juvenile proce,e dings will be commenced in either the county of
the child's residence or the county in which the alleged misconduct occurred.
The new provision is stronger in that it
uses the more directive verb "shall" as opposed to "may."
Section 51.06(b) is a newly added segment to the juvenile
code.
It holds that I
(b) An application for a writ of habeas corpus brought by or on behalf
of a child who has been committed to an Institution under the jurlsdic- ,
tion of the Texas Youth Council and which attacks the validity of the'
judgment of commitment shall be brought In the county In which' the
court that entered the judgment of commitment Is located. '
This ' addition to, the code is probably based on the fact that
the county which entered the judgment of commitment has the
greater and most signifcant interest in determining the
legality of the child's restraint.
Both Section 51.07 and
Article ' 2338-~ §6{~
concern transfer
of the juvenile's case to another county, if the transfer is in
the child's best interest.
Both provisions direct the trans-
ferring court to forward transcripts of records and documents
in the case to the judge of the receiving court.
See. 51.07. Transfer to Another County
,
"(a) ,When a child has been found to have engaged in delinquent con"
\Iuct or conduct indicating a need for supervision under Section 54.03 of
~his code, the juvenile court, with the consent of the child and appropriate adult given in accordance with Section 61.09 of this code, may transfer the case and transcripta of records and documenta to the juvenile
cOllrt of the county where the child resides for disposition of the case IIn-,
der Section 64.04 of this code.
'
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(b) When a child who is on probation moves'with his family f~om o!,e '
,county to another, the juvenile court may ~ranfer .the caso to the .Ju~eDlle
court in the county of the child's new resIdence If the transfer IS m th~..'
best interest of the child. In a\1 other cases of transfer, consent of the'
receiving court is required. The transferrin'g court sha\1 forward ~r'~n­
scripts of records and documents ,in the case to the judge of the recelvmg,
court.
Trllnder And ",,,lrer of Jnr18dlctioD
Sec. 6. (a) When a child under the jurisdiction of a court moves
from one county to another the court may transfer the case to the
court in the county of the child's residence if the transfer is in the
child's best interest. The transferring court shall forward transcripts
of records in the case to the judge of the ,receiving ,court, who ahall
file them in the office of his clerk.
Subsequent to the above Section 6(a), the old code dealt
with transfers to criminal district courts.
These transfers
are also embodied in the current code in Section 51.08.
Respectively, they statel
(b) If a child is charged with the violation of a penal law of the
grade of felony and was fifteen years of age or older at the time of
the commission of the aJleged offense, the juvenile court may, within
a reasonable time after the aJleged offense, waive jurisdiction by following the requirements set out in Subsections (c) through (j) of this
section, and transfer the child to the appropriate district court or
criminal district court for criminal proceedings.
Sec. 51.08. Transfer from Criminal Court
"If the defendant in a , criminal proceeding is 'a child who is charged'
with an offense other than perjury or a traffic offense, unless he has,
been transferred to criminal court under Section 54.02 of this code, tho
court exercising criminal jurisdiction shall transfer the case to the juvenile court, together with a ,copy of the accusatory pleading and other papers" documents, and transcripts, of testimony relating to the cBse, and
'hall. order
of' detention .designated
' . that
." ,the child
'. . .be ,taken .to. -the
- . place
.
..
..
. .by
the ' 'juvenile' court, or shaJl relense' him to the custody of his parent,
guardian, or custodian, to be brought before the juvenne court at a time
designated by that court. '
Notice in the
new
provision
not detained by the court.
the child must be released if
11
No longe r can a child waive his ri ghts granted in this
title or by the constit ution or l aws of this s t ate or the
United States .
Th i s i s actually the codification of Leach v.
State , in which the juvenile offender wai ved he r ri ght to have
a n attorney prese n t and her Fifth Amendment right agai nst
se lf- i ncrimination .? Th e court in Leach found t hat the child's
right, to due process had be en viola ted since she ,' was not informed of her right to counsel prior to making certain state8
ments to a probation officer during the detention period.
To prevent denials of due process, the new code has se t out
the fo l lowing s teps which mus t be adhered to before a juvenile
offender can wa ive his or her rights:
Sec. 51.09: Waiver of Rights
"Unless a contrary intent clearly appears elsewhere In this title, any
right granted to a child by this title or bY ,the constitution or laws of this :
state or the United States' may be waived In proceedings under this title
If:
(1) the waiveds made by the child ' an~
, (2) the child and the attorney waiving
and understand the right ' and the
waiving it;
(3) the waiver hi voluntary: and
,
' (4) the waiver is made ,ln writing orin
recorded.
the attorney for the child:
the right are informed of
,possible consequences of
,
court proceedings that, are ,
' ' ,
When a child has participated in de linquent conduct or
conduct indica ting a need for s upervision , he can be made
s ubject to temporary detention.
In a si tua tion in which the
probati on officer thinks it best to detain a child pending
an ad jUdicat ion hearing, he should immediately consult the
judge, whoin turn will se t a date a nd time for the detention
hearing. If possible, the hearing should be held on the next
12
working day after the child is taken into custody.
The policy
behind is that the child shoul not be detained in a manner
similar to that of an adult, since the purpose behind juvenile
laws are to rehabilitate the child, rather than to punish him.
According to the new revisions,
,3
child has the right
to representation by an attorney at "every stage of the pro"
ceedings" including the detention hearing.
This newly;"granted
right is the major difference between the new Section 51.10(a)
and (b) and the old Article 2338-1, §6(e).
See. '51.10. Right to Assistance of ,Attorney; ' Compensation ,
'A child may be represented by an attorney at every stage of pro"
'
,
ceedlngs under this title, including:
, (1) the, detention hearing required by Section 64.01 'of this code;
, (2) the hearing to consider transfer to criminal court required by
, Section 64.02 of this code;
,
,
(3) the adjudication hearing required by Section 64.03 'of this
code;
"
.
, (4) the disposition hearing required by Section 64.04 of this code;
, (6) the hearing to modify disposition required by Section 64.06 of
"
this code;
,
' .
'
,, (6) hearings required by Chapter 66 of this code;
,
,, (7) habeas corpus proceedings challenging the legality of deten·
, tion resulting from action under this title; and ,
(8) ' proceedings in a court of civil appeals or the Texas Supreme
Court reviewing proceedings under this, title. '
" ,,(b) The, child's right to representation by an attorney shall " not ' be,
,waived In:
'
,
' .. (1) ,a hearing to consider transfer to criminal court as required br '
Section 64.02 of this code;
,
(2) an adjudication hearing as required by Section 64.03 of this
code;
.
,
(3) a disposition hearing aB required by Section 64.04 of this
code;
.
(4) a hearing prior to commitment to the Texas youth Council as 8
modifiea diBpoBition In accordance with Section 64.06(f) of
this code; or
'(6) hearingB required by Chapter 66 ofthlB code.
," ~(a)
(e) The juvenile court shall appoint counsel for any child who does
not have retained counsel, and shall allow counsel at least ten days to
prepare for the hearing" The presence of counsel at the hearing may
not be avoided or waived. Appointed counsel is entitled to a fee for
each day actually spent in cotlrt in the amount and from the same
source as specified in Article 26.05 of the Code of CI"iminal Procedure, or any future amendment of that article.
13
It should be noted that the hearing referred to in the
preceding paragraph refers to the adjudication and disposition hearing.
Due to the recently granted right to an attorney at the
detention hearing, a new problem has resultedl
is the
usual notice (less than twenty-four hours) adequate time for
the parent or parents to consult an attorney, who in turn
must properly prepare a defense for the child's alleged
actions?
An extension may be granted for this purpose, but most
courts have a policy that it shall not extend past the day after
the attorney is retained or appointed.
In areas that lack a
juvenile defender or in which court appointed attorneys are not
readily available, it may be impossible to obtain an attorney
for several days and the child may face a long stay in a county
jailor lockup while counsel is being obtained.
It would seem that courts must change their policy of oneday extension so that notice will satisfy the requisities of
due process.
Basis for the new notice provision is the Texas
Supreme Court case, In He Gault, in which the court determined
that the juvenile and his parents must receive notice "sufficiently in advance of scheduled court proceedings so that reasonable
opportuni ty to prepare will be afforded." 9
Frequently in the past, individual judges permitted a
10
degree of flexi bili ty concerning this procedure • ... One solution,
applied in the past, is to hold an immediate detention hearing
without an attorney, but provide that the attorney can ask for
a review of the detention order (at any time) after he comes
into the case .11 . However, :.s ince the law is now clear on this
point, it is feasible that this ' solution will not be upheld in
the future.
Contrarily, the new code
acknowled ges that in some
instances, the child might not be represented by an attorney
at the detention hearing.
Section 51.10(c) holds.
' (c? If the child was not' represented by an attorney at tne u.,..... u ,
. hearmg required by Section 64.01 of this code and a determination was
, made to detain the child, the child shall immediately be entitled to repre •
. sentation by an attorney. The court may order the retention of an attor·
ney according to Section 61.10(d) of this code or appoint an attorneyac.
cording to Section 61.10(t) ot this code.
'
In similar fashion to Article
2JJ8-1,~
7-B(a) and (b), the
new code grants to the juvenile court, the right to order the
child's parents or other responsible parties to employ and pay
an attorney to represent the juvenile offender. Alternatively,
the court itself may appoint the child's counsel.
These matters
are viewed in Section 51.10(d) through ( g ).
, (d) The court shall order a child's parent or other person responsible
for support of the child to employ an attorney' to ' represent the child, .if: ,
(1) the child Is not represented by an attorney;
.
(2) after giving the appropriate ,arties an opportunity to be
heard, the court determines that the parent or other person reo
sponsible for support of the child is financially able to employ ,
nn attorney to represent the child; and .
(3) the child's right to representation by an attorney:
.
.
(A) has not been waived under Section 61.0ll of this code; .or
(B) may not be waived under Subsection (b) of this section.
~ (e) The court may enforce order. under Subsection (c) of this section
'by proceeding. under Section 64.07 of t his code or by appointing counsel
and ordering the Ilarent or other per.on responsible for support ot the
child to pay a reasonable attorney's fee set by the court. The order may
be enforced under Section 64.07 of this code.
' .,
. (f) The court shall appoint an attorney to represent the Interest ot a
.
child entitled to representation by an attorney, if:
: (1) the child is not represented by an attorney;
(2) the court determines that the child'. parent or other person responsible for support of the child i. financially unable to employ an attorney to' represent the child; and
(3) the child's right to representation by an attorney:
'
(A) has not been waived under Section 61.09 of this code; or
(B) may not be waived under Subsection (b) of this section • .
(g) The juvenile court may appoint nn attorney in any case in which it
np(>mA l"tmr"1'lr>nt.nt.inn n~~PAAllrV to nrotr.ct thp. intercstR of the child.
..
15
Counsel
Sec. 7-E. (a) Whenever the court determines that the child alleged to be a delinquent child is not represented by counsel and (after
giving the parents, guardian, or other person or persons responsible
for the care and support of the child a reasonable opportunity to be
heard) that the parents, guardian, or other person or persons respon- ·
sible for the care and support of the child are financially able to employ counsel, the court shall order the parent!l: guardian, or other person responsible for the care and support of the child to employ counsel to defend the child. The court shall have full power to enforce
said orders by contempt proceedings after ten (10) days notice to
such parent, guardian, or other person or persons responsible for the
care and support of the child.
(b) Whenever the court determines that the child alleged to be a
delinqucnt child is not represented by counsel and that the child, parents, guardian, and other persons responsihle for the care and support of the child are too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend the child. In making the determination, the court may require the child, parents,
guardian, and other persons responsible for the care and support of
the child to file .an affidavit, may eall witnesses and hear any relevant
testimony or other evidence• .
According to both codes, the child's attorney is entitled
to ten days for trial preparation.
Article
2338-~§7-B(c)
Section 51.10(h)
respectively state.
(h) Any attorney representing a chlld in proceedings under this title i8
entitled to 10 day" to prepare for any adjudication or transfer hearing
under this title.
.
(c) The counsel is entitled to ten (10) days to prepare for trial,
but may waive the time by written notice, signed by the counsel and
the child alleged to be a delinquent child.
and
16
Noticeably lacking from the new code is the specific fee
sc hedule to be used in determining payment for court-appointed
counsels, as in Article 2JJ8-l,§7-B(d).
(d) A counsel appointed to defend a child alleged to be a delinquent child shall be paid from the general fund of the county in which
the prosecution was instituted according to the following schedule:
(1) for each day in trial court representing the child, a fee of not
less than Twenty-five Dollars ($26) nor more than Fifty Dollars
($60);
(2) for expenses incurred for purposes of investigation and expert
testimony, not more than Two Hundred and Fifty Dollars ($250) ;
(3) for the prosecution to a final conclusion of a bona fide appeal
to the Court of Civil Appeals or Court of Criminal Appeals, a fee of
not less than One Hundred Dollars ($100) nor more than Two
Hundred and Fifty Dollars ($260).
. (e) The minimum fee will be automatically allowed unless the trial
Judge orders mo~e within five (6) days of the judgment. An attorney may not receive more than one fee for each day ill court, regardless of the number of cases in which he appears as appointed counsel
on the same day. All payments made under the provisions of this
Section may be included as costs of court.
The new code simply states that the court-appointed attorney
shall be paid from the general fund of the county in accordance
with the fee schedule in Article 26.05 of the Texas Code of
Criminal Procedure, 1965.
(i) Except as provided in Subsection (d) of this section, an attorney
appointed under this section to represent the interests of a child shall be '
paid from the general fund of the county In which the proceedings were
instituted according to the schedule in Article 26.06 of the Texas Code of
Criminal Procedure, 1966. For this purpose, a bona fide appeal to a .
court of civil appeals or proceedings on the merits in the Texas Supreme
Court are . considered the equivalent of a bona tide !'oppeal to the Texas
Court of Criminal Appeals.
.
.
17
Section 51.11 requires the appointment of a guradian ad
litem in certain situations.
Sec. 51.11. Guardian Ad Litem
"(a) If a child appenrs before the juvenile court without parent or
'"\nrdian, the court shall appoint' a guardian ad litem to protect the Interitf.ts of the child. T.I.e juvenile court need not appoint a guardian ad litem if a parent or guardian appears with the child.
(b) In any case in which it appears to the juvenile court that the
child's parent or guardian is incapable or unwilling to make decisions In
the best interest of the child with respect to proceedings under this title,'
the court may appoint a guardian ad litem to protect the interests of the
child in the proceeding.,
' .
(c) An attorney for a child may al90 be hi. guardian ad litem. A iawenforcement officer, probation officer, or other emplQyee of the juvenile '
court may not be appointed guardian ad litem.
a
.
This provision seems to directly contradict recent case law which
has upheld the necessity of a disinterested guardian ad litem
in addition to the attorney or parent.
In 1971, the Texas
Court of Civil Appeals held, in Felder v. State, that the juvenile
had an absolute right to the appointment of a guradian even
where (1) the child's parents were present at the hearing,
(2)
the child made no request for the appointment at the trial
court level, and (J)
the juvenile was adequately represented by
counsel. 12 The Court baSed .. i ts " holding- primarily on . .a ' strict ,
~pplidation , ofRule
17J, Texas Rules of Civil Procedure.
When a minor • • • may be a defendant to a suit and
has no guardian within this S tate, or where such person is a party to a suit either as plaintiff, defendant,
or intervenor and is represented by a next friend or a
guardian who appears to the court to have an interest
adverse to such minor • • • the court shall appoint a
guardian ad litem for such person •• " IJ
The rationale behind this judicial holding is that the powers
and functions of a guardian ad litem are different from those of
an attorney (who may beconsidering , the parent'.s attitude) or
18
the parent (who may feel that commitment is the only means of
punishment for the child).
The guardian ad litem should
exclusively follow the interests of
~he
child.
Considering
the juvenile code has embodied many requirements of recent
case law, it seems ironic that the Texas Legislature did not
deem necessary the codification of Felder.
Article 2))8-1, §17 of the old code is embodied in Section
51.12 of the current statute.
The ,new code states.
Sec. 51.12. Place and Conditions of Detention
. "(a) Except after transfer to criminal court for prosecution under Sec- '
tlOn 64.02 of this code, a child shall not lie detained in or committed to a '
c~mpartment .of a jail ~r lockup in which adults arrested for, charged
with, or conVicted of crime are detained or committed nor be permitted
contact with such persons.
,
'
,
(b) The proper authorities in eadi county shall provide a suitable
place of detention for children Who are parties to proceedings under this
title,
but
,court
andterma
,of . de- . '
.'
. ' the
. l'!venUe
. ., '
.
. shall control the
.conditions
...
"
,' tention and detention supervision and shall permit visitation with the
, child at all reasonable times.
,
"
(c) In each county, the juvenile board, or If there is none; the judge of
the juvenile court, shall personally inspect the ' detention facilities at
, least annually and shall certify in writing to the authorities responsible
for operating ,and giving financial support to the facilities that they are
lui,t able or unsuitable for the detention of children in accordance with:
(1) the requirements of Subsection (a) of this section:
(2) the requirements of Article 5116, Revised Civil ' Statutes of
Texas, 1925, as amended, defining "safe and suitable jails," if
the detention faciHty is a county jail: and
(3) recognized professional standards for the detention of chil-'
dren.
, <d) No child , shall be placed in a faciHty that has not been certified
under Subsection <e) of this section as suitable for the detention of chil- "
dren. A child detained in a facility that has not been certified under
Subsection (c) of this section as suitable for the detention of children
shall be entitled to immediate release from custody in that facility.
"~
The added provisions, SUbsections (c) ' and (d) concern inspection
and certification of detention facilities.
Considering the
recent uprisings in Texas regarding the su?standard conditions
of detention centers, it is not surprising to find these additional
19
provisions.
Section 51.13 holds that a juvenile delinquency adjudicaton
or disposition is not a criminal conviction and does not impose
civil disabilities on the juvenile offender.
Article 2338-1, 313(d)
and (e), the predecessor of section 51.13 maintained the same
position.
Probable le gislative intent here is to reiterate the
basis for juvenile detention. rehabilitation, not punis hment.
· .' .Sec. 51.13. Erred of Adjudication or Disposition
"(a) An order of adjudication or disposi~iori in a proceeding under this
title is not a conviction of crime, and does not impose any civil disability
ordinarily resuiting from a conviction or operate to disqualify the child
in any civil service application or appointment.
(b) The adjudication or disposition of a child or evidence adduced in a
hearing under this titie may be used only in subsequent proceedings un·
· der this title in which the child is a party or in subsequent sentencing
proceedings in criminal court against the child to the extent permitted by
the Texas Code of Criminal Procedure, 1966.
(c) A child may not be committed or transferred to a penai institution '
or other facility uAed primarily for the executlon of Renlences of persona
· convicted ilf crime, except:
(1) . for temporary detention in a jail or lockup pending juvenile
.. court hearing or disposition under conditions 'meeting the re. quirements of Section 61.12 of this code; or
(2) after transfer for prosecution in criminal court under Section
64.02 of this code.
Whether records and ' files concerning juvenile cases should
be made public has
been ~ .
controversial for years.
of names is frequently a matter of newspaper policy.
Publication
Some argue
that publication of the names of juvenile delinquents will deter
future criminal acts.
yet many sociolog ists, psycholog ists, and
juvenile probation officers feel that public humiliation only
decreases the child's ability to become a ' respectable citizen of
the community.
The following segments of the outdated code
indicate that notwithstanding .the fact that social case records
20
of the juve nile court are confide ntial by law, the petition
and details of the offense were not given le gal protection,
DcUnqucnt c111\rged with lelon7: court records; Opc."R hearln"
See. 16-A. If a child has been charged with the violation of a pi!nallaw of the grade of felony and if the child has previously been declared delinquent, officials concerned with the case shall release upon
request information as to the name and address of the child and the
alleged offense. Hearings on the case in the juvenile court shall be
open to persons having a legitimate interest in the proceeding, including representatives of the news media; and juvenile court records
shall be open to inspection by representatives of the news media.
Concerning juvenile court records in felony cases, Section 15
of the prior code state d .
Recoro.
Sec. 15. Juvenile Court records shall not be inspected by persons
other than probation officers or other officers of the Juvenile Court
unless otherwise dirt;!cted by the court but information on juvenile
cases in the grade of felony shall be made available by the court to
the agen~ies responsible for the implementation of the federal Omnibus Crime Control and Safe Streeta Act of 1968, Pub.Law 9G-S61
(June 19, 1968).
.
The new code seems to settle this controversial issue by
specifying who may inspect court records and files.
Section 51.15
declares.
Sec. 61.14. Files and Records
,
' ''(a) All file8 and 'record8 of a juvenile court, a clerk 'of court, or a ,
prosecuting attorney relating to a child who i8 a party to a proceeding
, under this title arc open to inspection only by:
(1) the judge, probation officers, and profe88ional 8taff or con·
sultants of the juvenile court;
,
(2) an attorney for a party to the proceeding ;
,(8) a public or private agency or in8titution providing 8upervi8!on
,
, of the child by arrangement of the juvenile court, or havlOr
,
cU8tody of the child under juvenile court order; or
', ,(4) with leave of juvenile court, any pther person, agency, or insti·
, tution having a legitimate interest in the proceeding or in the' ,
" work of the court.
, "(b) All files and recorda of a public or ,private agency or Inatitution
providing supervision of aCbild by' arrangement of the JUVenile court or,
21
bavlng .custody of the child under order of the juvenile court are open to ,
Inspection on Iy by:
. .
(1) the professional staff or consultants of the agency or InaUtu· ·
tion;
(2) the judge, probation officers, · and professional staff or con· ,
sultants of the juvenile court;
(3) an attorney for the child; or
.
(4) with leave of the juvenile court, any other person, agency, or
institution having a legitimate Interest in the work of the
Ilganey or Institution.
<c) Law-enforcement files and records concerning a child shall be kept
separate from files and records of arrests of adults and shall be main- ·
talned on a local basis only and not sent to a central state or federal de •.
. pository.
(d) Except for files and records r.e lating to a charge for which a child
is traMferred under Sectio·n 64,02 of this code to a criminal court tor
. prosecution, the law-enforcement files and records are not open to public
Inspection nor mny their contents be disclosed to the public, but inspec"
tlon of.the files and records is permitted by:
. (1) a juvenile court having the child before it in a'ny proceeding;
. (2) an attorney for a party to the proceeding;, and
(3) law-enforcenient officers when necessary for the discharge of
their official duties.
.
Prior to the effective date of the current code, Texas had
no law gove rning the highy disputed practices of fingerprinting
and photographing juvenile offenders.
Probably the basis for
this was the wide-spread sentiment that pUblicity re garding
the juvenile would reduce the number of delinquencies.
However
a signifi cant protion of professional workers thought this to
be untrue and felt that pUblicity only served to make rehabilitation more difficul t.14 For these reasons, many communi ties
exercised a policy of withholding court and police records from
the news media.
In the past many police departments recommended fin ge rprinting
15
and photographing of juvenile offenders as a matter of identification.
Juvenile courts frowned upon this practice because it seemed to
establish a criminal record on the child.
Whereas ·t his practice has
always been a matter of local policy, the new code enacts a law
governing this issue.
Section 51.15 providesl
~20
22
Sec. 61.15. Fingerprints and Photographs
"(a) No child may be fingerprinted in the investigation of a crime except as provided in Subsection (f) of this section . . However, if a child 16
y~ars of. age or older is referred to the juvenile court for a felony, his
fingerprints may be taken and filed by a law-enforcement officer investitho caae.
(b) No child taken Into custody may be photographed without the conaent of the juvenile court unless the child is transferred to criminal court"
for prosecution under Section 64.02 of this code.
,.
.
(c) Fingerprint and photograph files or records of children shall be
kept separate from those of adults, and fingerprints or photographs .
known to be those of a child shall be maintained on a local 'basis only and
. riot sent to a central stste or federal depository.
(d) Fingerprint and photograph files or records of children are sub- .
Ject to Inspection as provided in Subsections (a) and (d) of Section 61.14
of thia code.
'. (e) Fingerprints and ' photographs of a child shall be removed from
file. or records and destroyed if:
. " ' (1) a petition alleging that the child engaged 'in delinquent conduct or conduct indicating a need for supervision is not filed,
or the 'proceedings arc dismissed after a petition is filed, or .
. the child ia found not to have engaged in the alleged conduct;
or
(2) the person reaches 18 years of age and there is no record that
he commit.ted a criminal offense after reaching 17 years of .
a~.
.
(f) If latent fingerprints are found during the investigation of an of- ':
fense, and a law-enforcement officer has reasonable cause to believe that
they are those of a particular child, if otherwise authorized by law, he
may fingerprint the child regardless of the age or offense for purpose of
immediate comparison with the latent fingerprints . .If the comparison ' is
negative, the fingerprint card 'and other copies of the fingerprints taken
._lift,
.. shall be destroyed · immediately. If the comparison ' is positive, and the ·
child is referred to the juvenile court, the fingerprint card and other copIes of the fingerprints taken shall be delivered to the court for disposition. If the child Is not referred to the court, the fingerprint card and
; other copies of the fingerprints taken shall be destroyed immediately.
. (g) When destruction of fingerprints or photographs is required by
Subsection (e) or (f) of this section, tho agency with custody of the fingerprints or photographs shall proceed with destruction ' without judicial
order. However, if the fingerprints or photographs arc not destroyed,
the juvenile court, on its own motion or on application by the person fino .
gerprlnted or photographed, shall order the destruction as required by
. this aecUon.
23
Stale files often remain forever in the proper juvenile
offices.
Stagnant records are attributed to either pODr
housekeeping or, more likely, the possibility that the files
will be needed at a future date.
This
seemed a poor practice
,
because one act of misconduct could :keep the child's file
alive for years, long after he had paid the penalty for his
deeds.
Section 51.16 remedies this problem in certain instancesl
Sec. 51.16. Scaling of Flies and Records
"(a) On the application of a person who has been found to have en·
gaged In delinquent conduct or conduct indicating a need for supervision,
, or a person taken into custody to ,determine whether he engaged in delin·
quent conduct or conduct indicating a nced for supervision, or on the ju.
venlle court's own motion, the court, after hearing, shall order the seal·
Ing of the files and records in the case, including those specified in Sec·
tiona 61.14 and 61.16 of this code, if the court finds that:
(1) two years have elapsed since final discharge of the person, or
since the last official action in his case if there was no adjudi.
cation;
(2) since the time apecified in Subdiviaion (1) of this subsection,
he has not been convicted of a felony or a misdemeanor involv·
ing moral turpitude or found to have engaged in delinquent '
conduct or conduct indicating a need for supervision, and no
proceeding is pending seeking conviction or adjudication; and
(3) it is unlikely the person will engage in further delinquent con·
duct or conduct indicating a need for supervision or will com·
, mit a felony or a misdemeanor involving moral turpitude,
(b) The court may grant the relief authorized in Subsection (a) of this
'Iectlon at any time after final discharge of the person or after the last
official action in his case if there was no adjudication.
,', (c) , Reasonable notice of the hearing shall be given to:
(1) the peraon who made the application or who la the aubject of
the filea or records named in the motion;
.
' (2) the prosecuting attorney for the juvenile court;
(8) the authority granting the diacharge If the final dlachargc was
from an inatltutlon or from parole;
,
(4) the public or private agency or inatltutlon having custody of
files or recorda named in the application or motion; and
(6) the law·enforcement agency having custody of files or records
'.
named in the application or motion.
: (d) Coplea of the aealing order ahall be aent to ,each agency or official
, therein named.
'
, : (e) On entry of the ordor:
'(1) all law.enforeement, proaccuUng 'a ttorney, clerk of court, and
,juvenile court filea and recorda ordered aealed ahall be aent to
' the court lasulng the order;
,
'
' (2) all filea and records of a public or private agency or lriatitu.
,
tion ordered aealed ahall be aent to the court lasulng the or·
,.
der"
""
,
"
\, (8) all 'Index referericel to the fllei ' and recorda ordered ' 'aealed
,, " "ahall be deleted; ,
24
. (4) the juvenile court, clerk of court, prosecuting aUorney, public .
or private agency or institution, and law-enforcement officers
. and agcncies shall properly reply that no record exists with
. respect to such person upon inquiry in any maUer; and
(6) lhe adjudication shall be vacated and the proceeding dismissed· .
and treated for nil purposes, including the purpose of showing :'.
a prior finding of delinquency, as if it had never occurred . .
(f) Inspection of the scaled filea and recorda may be permitted there·
after by an order of the juvenile court on the petition of the person who'
I. tho 8ubjoct of tho fUGa or rocord. and qnly by thole' porsonl namod iii
the order.
.
(g) On the finnl discharge of a child or on the laat official action in '
his caoe if there Is no adjudication, the child shall be given a wriUen ex· '.
planation of his rights under thll aection and a copy of the provisions of ;.
this section.
.
The procedure section explains that the Texas Rules of
Civil Procedure are to be applied in juvenile matters unless
in conflict with the juvenile code.
In instances such as that,
the juvenile code will preva il.
Sec. 51.17. Procedurc
"Except when in conflict with a provision of thia title the Texas Rules
. of Civil Procedure govern proceedings under thia title. 'Particular reference is made to the burden or. proof to be borne by the atate in adjudicatInr a child to be delinquent or In need of. lupervision [Section 64.03(f)].
Not e very child who is observed by a law enforcement officer
to be violating a penal law or engaging in misconduct is taken
into custody.
As evidenced in Article 52.01 the child frequently
is given only a warning notice rather than being kept in custody.
Sec. 62.01. Taking Inlo Cuslody; Issuance of Warning Notice
"(a) A child may be taken inlo custody:
.' .
(1) pursuant to an order of lhe juvenile court under ' the provl;
sions of this subtitle';.
..
.
(2) pursuant to the laws of arrest;
(3) by a law-enforcement officer if there arc reasonable ground • .
to believe that the child has engaged in delinquent conduct or .
conduct indicating a need for supervision; or
(4) by a probation officer if there are reasonable grounds to be.
lieve that the child has violated a condition of probation im- '
posed by the juvenile court.
.
. (b) The taking of a child into custody ia not an arreat· except for the
purpoae of determining thO!' validity of taking him into custody or the va.
Iidity of a search under the .Iaws and constitution of this state or of the
United States.
.
. .
.
.
25
, (e) A law-enforcement officer authorized to take a child into custody
under Subdivisions (2) and (3) of Subsection (a) of this section may IslUI a warning notice to the child In lieu of taking him Into custody If:
(l)guidelincs for warning disposition have been issued by the
law-enforcement agency in wh'ich the officer workli; ,; : ':.
"
' (2) the guidelines have been approved by the juvenlle'court o'f the
'. ", ,',county In which the disposition Is made;
' .
"
"
(8) the disDosltion Is authorized by the guidelines:'
(4) the warning notice Identities the 'child and ,i'escribes hiS' al,
"
. . '
,
, " .Ieged conduct;
(6) a copy of the warning notice Is sent to the chIld s parent.
guardian. or custodian as Boon as practicable after dispositlon; and
"
'
(6) a copy of the warning notice Is flied with the law-enforcement
agency and the office or official designated by the juvenile
court.
, (d) , A warning' notice filed with the office or official designated by the
-'juvenile court may be used as the basis of further, action if necessary.
As these statutes indicate, the decision to take a child into
custody is not a simple one.
guidelines seem to be lacking.
Even with the new code, adequate
In fact the old statute, Article
2))8-1, s ll possessed a more definite structure.
It provided.
Sec. 11. Whenever any officer takes a child into custody. he may
release said child to a parent. guardian. or any other person upon receipt of a written or oral promise of said person to assume complete
responsibility for said child and to have him before the probation officer or the court at any time then. or subsequently. specified by said
officer. If not so released. such child shall be placed in the custody
of a probation officer or other person designated by the court or be
taken immediately to the probation department. the court. or to the
place of detention designated by the court. The court may make a
general order designating such places of detention which may include
private foster or boarding homes for children. or such other places of
detention which to the court seem desirable. The Count1 Commissioners Court may pay for boarding or foster home care for such children to be detained. or all children coming within the meaning of this
Act whether prior to. or after the child has been adjudged a "delinquent child",
Any peace officer or probation officer shall have the right to take
into custody any child who is found violating any law or ordinance. or
who is reasonably believed to be a fugitive from his parents or from
justice. or whose surroundings are such as to endanger his health. welfare. or morals.
2(·
The probation or police
offic e r ~ s
discretion stopped at
,
that point.
The statute then provided the followin g statement
which impl se d a mandatory requireme nt : that each officer must
followl
The child shall forthwith be brought to the Judge,
who shall order the child's relense, or his temporary detention either
in the compartment provided for the custody of juveniles, or by a
suitable person or agency as in the judgment of the court may seem
proper. If the child is ordered detained, the petition provided for
herein shall be filed immediately. In every such case the said officer
shall refer all such cases, together with information they have secured
concerning the child, to the court or the probation department, and
the ~ase shall then be proceeded with as specified in this Act, provided that no child shall be taken before a Police Court or a Justice
of Peace Court.
Thus , Texas law provided that only the judge could order
temporary detention and thi s was accomplished "forthwith" after
the child was taken into cus tody.
Notice the judge was not
required to conduct a hearing be fore s i gning a temporary detention order.
The new code seems more leni ent in that it d oes not require
the child to be "brought to th e judge " before tempora ry dete ntion
is allowe d.
More dis cretiona ry powe r i s pla c e d on t he police or
probation officer.
t ile
new statute , Art i c l e 52 .0 2 al lows I
Sec. 52.02. Release or Delivery to Court
"(a) A person taking a child into custody, without unnecessary delay
, and without first taking the child elsewhere, shall do one of the follow.
Ing:
(1) release .the child to his parent, guardian, custodian, or other
responsIble adult upon that person's promise to bring the child
before the juvenile court when requested by the court;
(2) bring the child before the office or official designated by the
juvenile court;
.
'
'
(3) bring the child to a detention facility designated by the juve.
nile court:
(4) bring the child to a medical facility if the child Is beHeved to
suffer from a serious physical , condition ' or illness that reo
quires prompt treatment; or '
.
(5) dispose of the case under Section 52.03 of ll,';·, "ode •
. (b) A person taking a child into custody shal1 promptly give notice of, .
his action and a statement of the reason for taking the child Into custody;
to: '
(1) the child's parent, guardian, or custodian; and
(2) the office or official designated by tho juvenile court.
27
This act provides the officer with alternative choices, but
unfortunately provides little by way of guidelines for the
proper exercise of this discretion.
o~
The child's parent, guardian
custodian must be notified
that the child has been placed in custody, as required by this
portion of the code.
However the usual practice is to take the
child to the police station before
practice has been brought to the
~otifying
This
attention, but has not
court~'
received critical comment from them.
the parents.
For this reason the current
code contains no prohibition a gainst holding a child at the station
house while the release or detention question is being reviewed
by the police department.
If the decis ion is made to release the
child the s teps ' below . mus t be follow e d:
See. 52.03. Disposition Without Referral to Court
(a) A law·enforcement officer authorized by this title to take a child
Into custody may dispose of the case of Ii child taken into custody with, out referral to juvenile court, if:
' (1) guidelines for such disposition have been issued by the law-enforcement agency in which the officer works';
,(2) the guidelines have been approved by the juvenile court of the
county in which the disposition is made;
(3) the disposition is authorized by the guidelines; and
(4) the officer makes a written report of his disposition to the
law-enforcement agency, identifying the child and specifying
the grounds for believing that the taking into custody was authorized.
':,(1,) No disposition authorized by this section'may involve: '
, (1) keeping the, child in law-enforcement custody;.or .
(2) requiring periodic reporting of the child to a law-enforcement
, "
officer, lnw-enforcomont agonoy, or other agenoy,
;.(c) , A disposition authorized by this section may involve:
• (1) referral of the child to an, agency other than the 'juvenile'
court; or
(2) a brief conference with the child and his parent, guardian, or
,
,custodian. '
"
(d) Statistics Indicating the number and kind of dispositions made by
, '. law-enforcement agency under the authority o'f this section shall. be reported at least annually to the office or official designated by th~ juve.
aile court, RB ordered by the court.
'. ,
28
If the circumstances warrant, the child's case will be
referred to the . juvenile court.
The procedure must be in
conformity with Section 52.0 l }1
See. 52.M. Rderrnl to Juvenile Court
"(8) The following shall accompany referral of a child or a child's ,
clae to the office or official designated by the juvenile court or be pro- .
,Jded 8S quickly as possible after referral:
.
' . (1) ail information in the possession of the person or agency mak· ·
ing the referral pertnining to the identity of the child and his
address, the name and address of the child's parent, gunrdian,
or cu.todinn, tho nnma" nnd IIddreS8a8 of any witnesses, and
the child's present whereabouts;
(2) a complete statement of the circumstances of the alleged delin·
quent conduct or conduct indicating a need for supervision;·
(3) when applicable, a complete statement of the circumstances of
. taking the child into custody; .and
"
(4) when referral is by an .officer of a law·enforcement agency; a '
complete statement of all prior contacta with the child by offl. cers of that law·enforcement agency.
.
(b) The office or official designated by the juvenile court may refer
the case to a law·enforcement agency for the purpose of conducting an In·
Yeatigation to obtain necessary Information.
Section 53.01 has ingrafted procedural requirements into
Texas juvenile law.
A showing of probable cause is now necessary
to fulfil Constitutional due process prerequisites, as established
by In re Gault.
16
The effect of t .his section is the extension
of due process elements, . notice and.'" probable cause, to juveniles.
This is actually the codification of recent juvenile cases which
indicate the trend of granting children the same ri ghts as those
l
applied to adult offenders. ?
See. 53.01. Preliminary Investigation and Determinations: Notice to ',, '
Parents
.
"(a) On referral of a child or a child's. case to the . office or official
designated by the juvenile court, the intake officer. probation officer, or
other person authorized by the court shall conduct a preliminary investi·
ntlon to determine whether: ·
(1) the person referred to juvenile court is a child within the
meaning of this title;
.
(2). there 18 probable cause to believe the child engaged in delin~
quent conduct or conduct indicating a need for supervision;
and
.
(3) further proceedings in the case are in the interest of the child
or the public.
(b) If it is determined that the person is not a child, or 'there is no
probable caURe, or further proceedings arc not warranted, the child shall
Immedilitely be released and proceedings terminated.
(c) When custodY of a child is given to the office or' official designated by the juvenile court, the Intake officer, probation officer, or other
person authorized by the court shall promptly.·give. notice of the whereabout. of the child and a .tatement of the reaaon he was taken Into cuato~
dy to the child's parent, guardian, or custodian unless the notice given
. under Section 62.02(b) of this code provided fair notice of the 'child's .
present whereabouts..
.
Section 53.02(a) requires release of the juvenile if his '
detention is not warranted.
Sec. 53.02. Release from Detention
"(a) If a child Is brought before the court or delivered to a detention
·facility designated by the court, the intake or other authorized officer of
the court Ahall immediately make an Investigation and shall release the
child unless It appears that his detention is warranted under Subsection
' (b) of this section. The release may be conditioned upon requirements
. reasonablY .neeessary to insure the child's appearance at later proceed- .
Ings, but the conditions of the release must be In writing and filed with
the office or official designated by the court and a copy furnished to the
child.
Part (b) elaborates on this issue by .stating that prior to the
hearing, the child can be detained only under certain circumstances.
. (b) A child taken Into custody may be detained prior to hearing on tho
petition only If:
.
.
(l) he is likely to abscond or be removed from the jurisdiction of
the court;
.
(2) suitable supervision, care, or protection for him is not being
provided by a parent, guardian, custodian, or other person; or
(3) he has no parent, guardian, custodian, or other person able to
return him to the court when' required.
.
'
The past release requirements were embodied in Article 2338-1,
511 which allowed release of the child to parent
or' guardian
upon receipt of a written or oral promise of the parent or guardian
assuming complete responsibility for the child.
In addition, the
)0
adult was required to pledge that he would have the child before
the probation officer or the court whenever specified by either.
Seemingly the new provision places ' a
greater burden upon
the officer or juvenile department rather
than on the parent or
,
guardian. Obviously lacking is any :requirement of an oral or
written promise on the part of the parent or guardian.
Another new provision, Section 5).02(c) requires a prompt
request for the detention hearing 1
. (c) If the child Is' not released, a request for detention hearing shall
be made and promptly presented to the court, and an informal detention
hearing as provided in Section 54.01 of this code shall be held promptly,
. but n.ot later than the next working day after he was taken Into custody.
The intake conference is an informal counseling session,
in which the child, his parents o.r guardian and a probation
officer attempt to achieve voluntary re.habili tation of the juvenile
offender.
This is
accomplishe~
before the petition is filed,
The :adjustment period is allowed only with the approval and ·
under the supervision of the court.
It should not exceed six
months, as stated in Section 5).0)1
Sec. 53.03. Intake Conference and"Adjustment
. "(a) . If the preliminary investigation required by Section 53.01 of this
;code results in a determination that further proceedings in the case are
authorized and warranted, the probation officer or other designated offi.
cer of the 'c ourt, subject to the direction of the juvenile court, may advise
the parties for a reasonable period of time not to excee? six months c~n•
.cernlng an informal adjustment and voluntary rehabihb.tion of a child
: If:
(1) advice without a court hearing would be in the interest of the
public and the child·;
(2)' the child 'and his parent, guardian, or custodian consent with
'
knowledge that consent is not obligatory; and
(3) the child and his parent, guardian, or custodian are informed
that they may terminate the adjustment process at any point
and petition the court for a court hearing in the ease.
:(b) Except as otherwise permitted by this title, the child may not be
. detained during or as a result of the adjustment process.
. (e) An · incriminating statement made by a participant to the person
giving advice and in the discussions or conferences incident thereto may
'. not be used agalnsUhe declarant in any court he.a rlng.
31
Today the court's petition is required to state more facts
and information than ever before.
Article 2338-1, §7 contained
the elements of a properly prepared petitions
Sec. 7. Any person may, and any peace officer shall, give to the
Judge, County Attorney, or to the Probation Officer of the COllllty,
information in his possession that a child is within the provisions of
this Act. Thereupon the Judge, the County Attorney or the Probation Officer shaH make or have made, preliminary inquiry to determine whether the interests of the public or of the child require that
further action be taken. If either the Judge or the County Attorney
. shall determine that formal jurisdiction should be acquired, the County Attorney shaH prepare and file in the court, or any attorney may
prepare and file in the' court, a petition alleging briefly the facts
which bring said child within the provisions of this Act, and stating:
(1) the name, age and residence of the child; the names and residences, (2) of his parents, (3) of his legal guardian, if there be one;
(4) of the person or persons having custody or control of the child;
and (5) of the nearest known relative, if no parent or guardian can
be found. If any of the facts herein required are not known by the
petitioner, the petition shaH so state. The proceedings shaH be styled
"In the matter of
, a delinquent child".
The new statute, ' Secti6n 53.04 ' is . basically the same, but
the changes are importants
"(a) If the preliminary investigation, required by Section 63.01 of this
code results in a determination that further proceedings are authorized
and warranted, a petition for an adjudication or transfer hearing of a
. child alleged to have engaged in delinquent conduct or conduct indicating
a need for supervision may be made as promptly as practicable by a pros·
eeuting attorney who has knowledge of the facts alleged or is informed
and believes that they arc true.
(b) The proceedings shall be styled" "In th.e matter " of
.
'. . ...... -. "
........
' (e) The petition may be on Inlormation and belief.
(d) The petition must state:
'
.
. ; . . (1) with reasonable particularity the time, place, and .manner of
,
the nets alleged and the penal law or standard of conduct al.'"
legedly violated by the acts';
; (2) the name, age, and residence address,if known, ' of the child,
. .
,.
,,
. who is the subject of the petition;
(3) the nnmes and residence addresses, if known, of the' parent,
guardian, or custodian of the child and of the child's ' spouse; '
if any; nnd
,
'
(4) if. the child's patent, guardian, or custodian does not reside or
cannot be found in .the state, or if their places of residence are,
unknown, the name nnd residence address of any known adult,
relative residing in the county or, if there Is , none, the name
and residence address of the known ,adult . relative, residing':
nearest to the location of the court.
, (e) An oral or written answer to the petition may be made at or before
the commencement of the hearing. ,If there le .no answer, 1\ general denl-'
, .1 of the alleged conduct Is assumed ..
)2
These provisions respectively indicatel
(1)
A child is not to be considered a delinquent child
until he is adjudicated as such. This grants to the
child the same presumption of innocence as is allowed
the accused in a criminal proceedingl
(2)
The hastily or poorly drawn petition may fail for want
of a clear report '. , stating with particularity the time,
place and manner of the alleged acts. Apparently the
old requirement of a brief statement of facts will not
longer suffice. The probabl e basis for this is adequate
notice.
()
Failure on the part of the juvenile's attorney to answer
the petition will act as a general denial rather than an
admission to the facts in the petition.
The time set for the hearing is the subject of Section 5).101
Sec. 53.05. Time Set for Hearing
,
"(a) After the petition has been filed, the juvenile court shall set a
, time for the hearing.
,
,, ' ,
(b) The time set for the hearing shal'f not be later than' 10 days after
the day the petition was filed if: '
,
,(1) the child is in detention; or
(2) the child will be taken Into custody under Section 68.06(d) : of' '
this code.
'
"
The basis of the new provision is to prevent prolonged and
unnecessary detention of the child before he has been adjudicated
a delinquent.
The adequacy of a ' summons will be decided by Section 5).06 1
Sec. 53.06. Summons
"(a) The juvenile court shall direct issuance of a summons to,;
(1) the child named in the petition;
(2) the child's parent, guardian, or custodian;
, '\
(3) the child'. guardian ad litem; and
(4) any other person who appears to the court to be a proper or
necessary party to the proceeding;
,
(b) The summons must require the persons served to appear before the
court at the time set to answer the allegations of the petition. A copy' of
the petition must accompany the summons.
(c) The court may endorse on the summons an order directing the par-,:
ent, guardian, or custodian of the child to appear personally at the hearing and directing the person having the physical custody or control of
the child to bring the child to the hearing. A person who violates an oro'
der entered under this subsection may be proceeded against under Sec- ',
, tion 64.07 of this code.
JJ
{d) It it appears from an affidavit filed or from sworn testimony be·
fore the court that immediate detention of the child is warranted under'
Section 63.02(b) of this code, the cQurt may endorse on the ·summons an ·
order that a law-enforcement officer shall serve the summons and shall
Immediately take the child into custody and bring him before the court.'.
· (e) A party~ other than the ·c hild, may waive service of summons by ·
written stipulation or by voluntary appearance at the bearing.
This provision is similar to the obsolete Article 2JJ8-l, §8, but
note the following changesa
(1)
The old statute provided that if the person so summoned was
one other than the parent or guardian, then the parent or
guardian should be notified of the pendency of the case,
and the appropriate time and place for such hearing.
Querya does the new statute presume that the custodian
will notify the parents or guardian, or does it presume
that the parent or guardian is disinterested?
(2)
The past provision required the summons to brietly recite
the substance of the petition, but no completed copy of the
petition had to be included in the summons. The probable
basis for the new article is notice.
( J)
In the past all involved parties could waive service of summons by written stipulation or voluntary appearance at the
hearing. The new code denies to the child the right to
waive service of summons. Once again notice is the probable
intent for this statute.
(4)
The law-enforcement officer can now take the child immediately
upon service of the summons if immediate detention is warranted, under Section 5J.02(b) of the code. Here the Legislature viewed the welfare and needs of the community.
Section 53.07, Service of Summons, incorporates the older
provision, Article 2338-1, §9, and elaborates on the problema
See. 53.07. Service of Summons
.
.
"(a) If a person to be served with a summons is in .t his state and cnn
be found, the summons shall be served upon him personally at least two
days before the day of the adjudication hearing. If _h e is in this state
and cannot be found, but his address is known or can with reasonable diligence be ascertained, the summons may be served on him by mailing a
copy by registered or certified mail, return receipt requested, at lcn&t five
days before the day of the hearing. If he is outside this state but he cnn
.. be found or his address is known, or his whereabouts or address can with
reasonable diJigence be ascertained, service of the summons may be made
·· either by delivering a copy to hlm personally or mailing a copy to him by
.. ·registered or certified mail, return receipt requested, at least five days
before the day of the hearing,
·
34
(b) The juvenile court has Jurisdiction of the case If after reasonable
effort a person other than the child cannot ,be ,found nor his post-office ,
address ascertained, whether he Is In or outside this state.
(c) Service of the summOlls may be made by any suitable person under'
the direction of the court. '
(d) The court may authorize payment' from the general funds of the
county of, the costs of service and of ' necessary travel expenses incurred
by pereons 'summoned or otherwise required to appear at the hearing., '
,(e) Witnesses may be subpoenaed In accordance with the Texas Code
'o f Criminal Procedure, 1966.
The followin g section authorizes a non-jury detention hearing,
preferably to be held no later than the next working day.
Sec. 54.oi. Detention Hearing
,'
,
,
' '
Uta) If the child is not rcleased under Section 58.02 'of this code, a detention hearing without a Jury sh,aIJ be held promptly, but not later than
, the next working day after he Is taken into custody.
Obvlously, the Legislature wanted to ' ins~re aspeedy determination
concerning release or detention of the child.
The courts will
probably have to decide if twenty-four hours is sufficient time
for the defense counsel to prepare his case.
The child and his parents also -have a statutory ri ght to
notice.
In addition the court must explain to the child and his
parents the Miranda wa rnin gG . l 8
follows.
The specific statutory language
(b) Reasonable notice of the detention hearing, either oral or written,
,shall be given, stating the time, place, and purpose of the hearing. No· '
tice shall be given to the child and, if they can be found, to his parent."
guardian, o'r custodian. Prior to the commencement of the hearing, the
court shall inform the parties of the child's right to counsel and to appointed counsel if they are indigent and of the child's right to remain si·
lent with respect to any allegations of delinquent conduct or conduct in- ,
dlcating a need for supervision.
Subs e ction (c) is quite similar to Article 233 8 -1, §6(d).
Compare I
(c) At the detention hearing, the court may cO,nsider written reports
from probation officers, professional court employees, or professional
, consultants In addition to the testimony of wltnesges. Prior to the deten_tlon hearing, the' court shall provide the attorney for the child with ac·
ceS9 to all written matter to be considered by the court in making the detention dccision. The court may order counsel not to reveal items to the
child or his parent, guardian, or guardian ad litem If such disclosure
would materially harm the treatment and rehabilitation of the child or
,would substantially decrease the likelihood of receiving Information from
the same or similar sources in the future.
35
(d) Prior to the hearing, the juvenile court shall order and obtain
a comple~e diagnostic study, social evaluation, and full investigation
of the ChIld, his circumstances, and the circumstances of the alleged
offense.
The basis for these provisions is to give the court insight
into the juvenile's particular problems so that it will be
better able to make a proper decision.
Subsection (d) refers to the appointment of a guardian ad
litem at the detention hearing.
This is consistent with the
current Section 51.11.
(d) A detention hearing may be held without the presence of the
child's parents If the court hns been unable to locate them. If no parent
or guardian is present, the COUl't shall appoint counselor a gUllrdian ad
litem for the child.
Normally the juvenile offender is released from
at the conclusion of the detention hearing.
custody
However there are
specific instances in which retention of the child is necessary.
Subsection (e) speaks of these timesl
(e) At the conclusion of the. hearing, the court shall order the child
leaeed from detention unless it finds that:
re~ '
(1) ho is likely to abscond or bo removed from the jurisdiction of
the court;
.
.
(2) suitable supervision, care, or protection for him is not being
provided by a parent, guardian, custodian, or other person; or ·
(8) he has no parent, guardian, custodian, or other person able to'
return him to the court when required.
.
.
The situation in Subdivision (1) is also noted in the National
~ouncil
on Crime and Delinquency publication, Standards and Guides
for the Detention of Children and Youth. 19 The pUblication
suggests that others should be detained, but the Texas Legislature
did not see fit to include those, (b) and (c), in its enactment,
(a)
Children who are almost certain to run away.
(b)
Children who are almost certain to commit an offense dangerous
to themselVes or to the community.
36
(c)
Children who must be held for another jurisdiction.
Section 54.0l(f) states.
(f) A relense mny be conditioned on requirements reasonably neces· ·
eary to Insure the child's appearance at later proceedings, but the condi.:
tions of the release must be in writing and .a copy furnished to the child,.
The above is similar to the old provision, Article 2338-1, §ll,
but it required neither a written condition of release nor a
child's copy.
(g) No statemen~ made by the child at the detention hearing shall be'
.
:
admissible agninst the child at any other hearing.
Section 54.Ol(g) is in essence the same as the old Article
2338-1, §13(e)
I
(e) The disposition of a child or any evidence given in the court
shaH not be admissible as evidence against the child in any case or
proceeding in any court other than the juvenile court, nor shaH such
disposition or evidence operate to disqualify a child in any further
civil service examination, appointment or application. However.
nothing in this subsection prevents a showing before the district court
or the grand jury that the child has been transferred for criminal
proceedings under Section 6 of this Act.
A newly-created segment, Section 54.0l(h) limits the
validity of a detention orderl
(h) A detention order extends to the conclusion of the disposition
hearing, if there is one, but in no event for more than 10 days. Further
.detention orders may be made following subsequent detention hearings.
Subsequent detention hearings may be waived in accordance with the reo
quirements of Section 61.09 of this code, but each detention order shaH.
'
.
extend for no more than 10 days.
The intent· here is to prevent the incarceration of a child for
over ten days while he awaits a disposition hearing.
This
coincides with the current Section 5l.l5(h) which allows the
defense attorney ten days in which to prepare the child's case
37
for trial.
This part indicates that in spite of any extension
for counsel's preparation, the child must be released within ten
days or a new detention order must be drafted.
Subdivision (i) states that a juvenile cannot be detained
over ten days without a detention hearing.
Overcrowded detention
facilities and the subsequent burden on tax dollars may have
created the need for this act.
The child may ask for shelter.
(I) A child in custody may be detained for as long as 10 days without '
~. 'h~arlng described in Subsection (a) of this section if:
. , (1) a written request for shelter in detention facilities pending ar-
, rangement of transportation to his place of residence in anoth·er state or country or another county of this state is voluntari- '
, ly executed by the child not- later than the next working day
.. after he was taken into custody; ' ,
'
(2) the request for shelter contains:
'
,
, ' (A)' a statement by the child that he voluntarily agrees to ',
, " submit himself to custody and detention for a period of
not longer than 10 days without a detention hearing;
(B)' an allegation by the person detaining the child that the
child has left his place of residence in another state or ,
country or another county of this state, that he is in need
of shelter, and that an effort is being made to arrange
transportation to his place of residence; and'
(C) a statement by the person detaining the child that he has
, advised the child of his right to demand a detention hearing under Subsection (a) of this section; and
, (8) tho request Is signed by the juvenile court judge to evidence
, , his knowledge of the fact that the child la being held In deten, tion,
After the child has asked for shelter, he or she may
revoke this request, as provided in Subdivision (j),
, (j) The request for shelter may be revoked by the child at any time,
and on such revocation, ' if further detention is necessary, 0:, detention
hearing shall be held not later than the next working day In accordance
with Subsections (a) through (g) of t,h is section.
'
, i
38
The request for shelter does not require the concurrence
of an adult, as stated in Subdivision (k).
(k) Notwithstanding anything in this title to the contrary, the child
may sign a re'lucst for shelter without the concurrence of an adult sped·
fied in Section &1.09 of this code.
A new concept in the Texas juvenile court eystem is introduced in Subdivision (1), which allows a referee to conduct the
detention hearing,
(I) The juvenile board or, If there is none, the juvenile court, may ap·
point a rcferee to conduct the detention hearing. , The referee shall be a.
attorney licensed to practice law in this state. Such payment or ad~i.
' tional payment as may be warranted for .referee services shall be pro·
vided from county funds. Before commencing the detention hearing, the
referee shall Inform the parties who have appeared that they are entitled
to have the hearing before the · juvenile court judge or a substitute judge
authorized by Section 51.04(f) of this code. If a party objects to the ref·
eree conducting the detention hearing, an authorized judge shall concuct
the hearing within 24 hours. At the conclusion of the hearing, the ref·
eree shall transmit written findings and recommendations to the juvenile ,
court judge or SUbstitute judge. The juvenile court judge or substitute
judge shnll adopt, modify, or reject the referee's recommendations within
24 hours. Failure to act within that time results in release of the child
by operation of law. A , recommendation that the child be released oper·
ates to secure his immediate release, subject to the power of the juvenile
court judge or substitute judge to reject or modify that recommendation.
The effect of an order detaining a child shaH be computed from the time
of the hearing before the referee. '
,
1rhis need for a referee is evidenced by over-crowded court
dockets.
Sec. 54.02. Waiver of Jurisdiction and Discretionary Transfer to
, Criminal Court
"(a) The juvenile court may w'a ive Its exclusive original jurisdiction
and transfer a child to the appropriate district court or criminal district
cout:\ for criminal proceedings if:
'
"
,
(1) the child i. alleged to have violated a penal law of the grade
of felony;
(2) the child was 15 years of age or older at the time he is al\egcd
to have committed the offenile and no adjudication hearing has
been conducted concerning that offense; and
.
'(3) after ful\ Investigation and hearing the juvenile court deter·
mines that because of the seriousness of the offense or the
background of the child the welfare of the community requires
criminal proceedings.
39
(b) The petition and notice requirements of Sections 63.04, 63.05, 53.06,
and 53.07 of this code must be satisfied, and the summons must state that
the hearing is for the purpose of considering discretionary transfer to
criminal court.
(c) The juvenile court shall conduct a hearing without a jury to con·
.sider transfer of the child for criminal proceedings.
(d) Prior to the hearing, the juvenile court shnll order nnd obtnin a
complete diagnostic study, social evaluation, and full Investigation of the
child, hl~_ clrcumstance~, and the circumsta~ce8 of· the all~ged offense.
The above provisions are in essence the same as the old statutes,
Article 2338-1, !l6(b), !l6( 'C)', !l6(g)
I
(b) If a child is charged with the violation of a penal law of the
grade of felony and was fifteen years of age or older at the time of
the commission of the alleged offense, the juvenile court may, within
a reasonable time after the alleged offense, waive jurisdiction by following the requirements set out In Subsections (c) through (j) of this
section, and transfer the child to the appropriate district court or
criminal district court for criminal proceedings.
.
(c) The juvenile court shall conauct an Infonnal hearing under
Section 13 of this Act on the issue of waiver of jurisdiction.
(g) After full investigation and hearing the juvenile court shall
retain jurisdiction of the case unless it determines that, because of
the seriousness of the olfense or the backgl'ound of the offender, the
welfare of the community requires criminal proceedings.
.
The following, Sutsection (e) is new, but it states
that the same materials considered at the detention hearing will
be viewed at the transfer hearing.
40
(e) At the transfer hearing the court may consider written re~orl8
from probation officers, professional eourt employees, or professIOnal
' consultants in addition to the testimony of witnesses. At least one day
prior to the transfer hearing, the court shan provide the attorney for t~e
child with access to all written matter to be considered by the court In
making the transfer decision. The court may order counsel not to reveal
Items to the child or his parent, gu!!~dian, or guardian ad litem If ouch
disclosure would materially harm the treatment and rehabilitation of tho
child or would Bub.tanUally decrcose the likelihood of receiving Inform.~
tion from the .ame or similar sources In the future.
subsection (f) is the same as Article 2338-1, '§6(h)(1-6) i
, (I) In making the determination required by Subsection: (a) of this ' ,
, I.etion; the court shall consider, among other matters:
(1) whether the alleged offense was against person ' ,o r property, '
with greater weight In favor of transfer given to offenses
against the person;
, ,
(2) whether the alleged oUense was committed In an aggressive
and premeditated manner;
,
(3) whether there Is evldenco on which a grand Jury mBY be ex""
, pee ted to return an indictment;
,
(4) the sophistication and maturity of the child;
(6) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of , the 'c hild by use of procedures,
services, and facilities currently available to the juvenile
court.
This section is further evidence that the juvenile attempts
to consider the child's peculiar circumstances and decide
accordingly.
(g) If the juvenile court retains jurisdiction. the child is not subject to
. criminal prosecution at any ' time for any offense alleged in the petition
or for any offense within the knowledge of the juvenile court judge as
, evidenced by anything in the record of the proceedings.
(h) If the juvenile court waives jurisdiction. it shall state specifically
in the order its reasons for waiver and certify its action, including the
wriUenorder nnd findings of the court, nnd transfer the child to the appropriate court for criminal proceedings. On transfer of the child for
criminnl proceedings. he shall he dealt with as an adult and in accordance with the Texas Code of Criminal Procedure. 1966. The transfer of
custody is an arrest: The examining trial shall be conducted by the court
to which the case was transferred. which may remand the child to the jurisdiction of the juvenile court.
..
(I) If the child's case is brought to the attention of the grand jury llDd
the grand jury docs not indict for the oUense charged in the eomplaint '
forwarded by the juvenile court, the district court or criminal district
court shall certify the grand jury's failure to indict to the juvenile court;
On receipt of the certification, the juvenile court may resume jurisdiction
of the case.
'
•
'
The above provisions are exactly the : same as Article 2338-1,
i
~§6(i), 6(j), and 6(k) respectively.
Before a decision of guilt or innocence concerning the
delinquent conduct, an adjudication he'aring must be held to determine if the child is "delinquent."
, Scc. 64.03. Adjudication Hcaring
,
'
,
'
"(a) A child may be found to have cngaged in delinquent c?nd,uct. or
conduct Indicating a need for supervision only after an adJudIcatIon"
hearing conducted in accordance with the provisions of this section.
'
Unlike the old code, the new juvenile statutes require the
juvenile court judge, at the beginning of the adjudication hearing.
to explain to the child, his parents, guardian, or guardian ad
litem the following,
(b) At the bcginning of the adjudication hearing, the juvcnile 'cl)urt
judge shall explain to the child and his parcnt, guardian, or guardian a~ ,
litem:
'
,
' . (1) the allegations madc against the child;
,
', (2) the nature and possible conscquences of the proceedings;
.(3) the child's privilege against self-incrimination;
(4) the child's right to trial and to confrontation of witnesses;
" "
(6)· the 'child's right to representation by an attorney If be II 'not','
already represented; and
,
' "
'
(6) tbe cbild'. rlgbtto trial by jUry. '
Besides the facts concerning the alleged misconduct, Subsection
(1) allegations should include the parts of the petition stating
the age, residence, parents, guardian, or custodian of the child.
This new statute conforms to the practice that has been followed
since Gault. 20
(c) Trial 8ball be by iury unles8 jury 18 waived 'In a~ccirdance: with'
Section 61,09 of tbl8 colie.
'
"
".
','
Now the child has a right to trial by jury unless waived
"in writing."
The past statute, Article
233e~l,
§13(b) placed
the burden of asking for a jury trial upon the juvenile offender.
(b) If no jury is demanded, the judge shall proceed with the hearing. No jury may be allowed in the hearing provided in Section G of
,this Act. When the proceeding is with a jury, the verdict shall state
whether the child Is a "delinquent child" within the meaning of this
Act.
42
Under segment (d). only evidence admiss :j ble under the
Texas Rules of Civil Procedure wlllbe considered by the
judge.
Except in detention and transfer hearing, social
reports of the child are not to be viewed by the judge until
"after" the adjudication decision has been made and are never
to be viewed by the jury.
(d) Only material, relevant, and competent evidence In accordance ,
jwlth the requlrementa for the trial of civil cases may be considered In
the adjudication hearing. Except In a detention or discretionary transfer
hearing, a social history report or social service file shall not be viewed
by the court before the adjudication decision and shall not be viewed by
the jury at any time.
Division (e) is based on case decisions.
"Miranda" applies
to extrajudicial confessions by requiring corroboration of them. 21
Illegally obtained or seized evidence is inadmissable.
(e) A child alleged to have engaged in delinquent conduct or conduct
Indicating a need for supervision need not be a witness against nor other-' ,
wi.e incriminate himseif. An extrajudicial statement which was obtained
without fulfilling the requirements of this title or of the constitution of
this state or the United States, may not be used in an adjudiention hearIng. A statement made by the child out of court is insufficient to support a finding of delinquent conduct or conduct indicating a ne,ed for supervision unless It Is corroborated In' whole or In part by other evidence. '
Evidence Illegally seized or obtained is Inadmissible In an adjudication
hearing.
The major import of Subdivision (f) is that the Stata's
burden of proof is "beyond a reasonable doubt"l
' (f) At the , conclusion of the adjudication hearing, the court or jury
shall find whether or not the child has engaged in delinquent conduct or
' conduct indicating a need for supervision. The finding must be based on
, competent evidence admitted at the hearing. The child shall be presumed
to be Innocent of the charges against him and no finding that a' child has
engaged In delinquent conduct or conduct Indicating a n'e ed for supervision may be returned unless the stnte has, proved such beyond a reasonable doubt. In all jury cases the jury will be instructed that the burden
Is on the state to prove that a child has engaged in delinquent conduct or
Is In need of supervision beyohd a reaaonable doubt.
Subdivision (g) prevents the possibility of double jeopardYI
(g) If the court or jury finds that the child did not engage in delin. quent conduct or conduct indicating a ,need , for supervision. the court
.hall dismiss the case with prejudice.
The new Subsection (h) presents . a possible problem I
will
this new requirement necessitate the use of Special Issues as to
specific allegations?
(h) If the finding is that the child did engage In delinquent conduct or
conduct Indicating a need for supervision. the court or jury shall state
which of the allegations in the petition were found to be established by
the evidence. The court shall also set a date and time for the disposition
hearing.
.
Another new provision, Section 54.04(a) denies any right to
a jury at this proceeding and requires the disposition hearing
to be separate, distinct and subsequent to the adjudication
hearing.
The rationale behind this is to prevent pre-judgments.
The only question before the court at this stage is whether or
not the child participated in the alleged criminal activity.
Sec_ 54.04. Disposition Hearing
' . '
"(a) The disposition hearing shall be separate, distinct, and subsequent
to the adjudication hearing.. There is no right to a jury at the disposition
, hearing.
Subsection (b) grants the court the right to consider
written reports, but the court must give the child's attorney
access to the written matter "prior" to the hearing :
(b) At the disposition hearing, the juvenile court may consider written
reports from probation officers, professional court employees, or profe.- '
sional conSUltants in addition to·the testimony of witnesses. Prior to the
disposition hearing, the court shall provide the attorney for the child
. with access to all written matter to be considered by the court in disposition. The court may o,der counsel not to reveal Items to the child or hi.
parent, guardia", or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substan'. , tlally .decrease the likelihood of receiving information from the same or
similar sources In the future.
'
44
The old code did not grant the child's attorney the opportunity
to read thes e materials prior to the hearing , as seen in Article
2338-1, § 6 (f).
(f) The juvenile court sha11 give counsel access to a11 the records
relating to the child including the report of the investigation that .
. must precede the hearing in the possession of the court, its staff, or
employees. The juvenile court may refuse to reveal the source of any
information if it finds that revelation would be injurious to the child
or would pl'ejudice the future availability of similar information. If
the COUl·t refuses to reveal the source of any information and the
child or his counsel objects to the refusal, the court sha11 preserve the
identity of the source and make it available to the district or criminal
district court if the child Is transferred for criminal proceedings.
The ability to view these materials will give the defense couns el
greater opportunity to prepare .his defense.
Subsection (c) compels the court to dismiss the child if it
find that he is not in need of rehabilitation or a danger to the
public or himself.
(c) No disposition may be made under this section unless the court
finds that the child Is In need of rehabilitation or that the protection of
the publk or the child requires that disposition be made. If the court
does not so find, It· sha\l dismiss the child and enter a final judgment
without any disposition.
Both Article 2338-1, §13(c) and section 54.04(d) grant to
the court the following alternatives •
. . (d) If the court makes the finding specified in Subsection (c) of this
.actlon, It may:
.
. .. (1) place the child on probation on such reasonable and lawful
terms as the court may determine for a period not to exceed .
one year, subject to extensions not to exceed one year each:
(A) in his own home or in the custody of a relative or other
fit person;
.
(B) in a suitable foster home; or
. (C) in a suitable public or private institution or agency, except the Texas Youth Council; or
' . . .'
..
(2) If the court or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct, the ·'
court may commit the child to the Texas Youth Council.
45
The important change is that now pro:bation cannot "exceed one
year, subject to extensions not to exceed one year each."
Subsection (e) is a change from past practice in which the
Texas Youth Council would not accept a child who had not been
committed to the Youth Council prior to his or her seventeenth
birthday.22 Even if the delinquent child was on probation and
became seventeen, the court could not after that birthday, revoke
the probation and commit the child to the Youth Council.
there was an exception to this general rule.
However
If the child was
originally committed to the Youth Council and later the commitment order was suspended, the court could later order the commitment .executed after the child reached seventeen. 2J Because of this,
suspended commitment was the normal judgment in cases involving
juvenile offenders over sixteen years of age.
This technique
assured control over the child on probation after his or her
seventeenth birthday.
(e) The Texas Youth Council shall accept a child properly committed
to It by a juvenile court even though the child maybe 17 yeara of age or'
older at the time of commitment.
.
.
Another change is embodied in Subsection (f), which requires
the court to provide the juvenile offender with a copy of the
disposition order containing the terms of probation.
provision
The
declares.
(f) The court shall state apeclfical1y In the order Ita reasons for the
di~poaition and shal1 furniah a copy of the . order to the child. If the ·
chIld la placed on probation, the terms of probation ahall be written In ;
the order.
. .
.
. . .. .
46
As evidenced by Subsection (g), the courts can no longer
send a child to the Texas Youth Council for his absence from
school or for running away from homel
(g) In no event may the court commit' a child to the Texas Youth Coun~
cil because the child engaged In conduct defined In Subdivision (2) (3) ,
,or (4) of Sec~ion 51.03(b) of this code.
'
,
•
The child must be informed of his right to appeal according
to Subsection (h).
No longer can the court rely on the competence
of the defense counsel to explain this right to the child. (Notel
appeals are also dealt with in Section 56.01 of the new code and
Section 21 of the old statutes.)
(h) At the conclusion of the dispositional hearing; the court shall in- "
form the child of his right to appeal, as required by Section 56.01 of this
code.
'
.
Section 54.05 deals with the hearing to modify the disposition.
Subsection (a) , is similar to the Article 2))8-1, 614 with one
difference being that now the juvenile court retains jurisdiction
only until the child turns eighteen.
The basis for this is the
recent emancipation of persons between eighteen and twenty years of
age. 24 Another distinction is that the child may now be discharged
"by operation of law."
See. 54.05. Henring to ModlCy Disposition
"(a) Any ~isposition, ,except a commitment to the Texas Youth Council,
may be modIfied by the juvenile court a8 provided In this section until:
(1) the child reaches his 18th birthday. or
.
(2) tho child Is earlier di8charged by the court or operation of
law.
'
47
One of the most important changes in Texas juvenile law
is stated in Subsection (b).
(b) AIr dispoeltionl automatically terminate when the
18th birthday.
~hild
reaches hie
Basis for this is the fact that eighteen years olds are no
longer minors.
A juvenile offender is not allowed a jury trial at the
hearing to modify disposition as noted in Subsection (c).
(c) There II no right to a jury at a hearing to modify disposition.
Subsection (d) is similar to the old Section 14, but once
again a notiCe requirement has been added.
These provisions
respectively state.
(d) A hearing to modify disposition shall be held on the petition of the
.child. and his parent, guardian, guardian ad litem, or attorney, or on the
. petition or the state, a probation officer, or the court itself. Reasonable
_ notice of a hearing to modify disposition shall be given to all parties.
A petition may be flied with the committing court requesting the
reopening of the case of a child who has been committed by the court
to the custody of an institution, agency or person; it the court is ot
the opinion that the best interest of the child will be served, it may at
its discretion proceed to hear and determine the question at issue.
Except as provided in Section 6 of this Act as amended by Section 2
hereof, the court may thereupon order that such 'child be restored to
the custody of its parents or guardian or be retained in the custody of
the institution, agency or person; and may direct such institution,
agency or person to make other arrangements for the child's care lind
welfare as the circumstances of the case may require; or the court
may make a further order or commitment.
48
Section 54.05(e) is consistent with the new provision
Section 54.o4(b), in that both allow defense counsel the
chance to see all written that will be wei ghe d by the courta
(e) At the hearing to modify disposition, the court may cQnsider written reports from probation officers, professional court employees, or professional conSUltants in addition to the testimony of witnesses. Prior to
. the hearing to modify disposition, the court shall provide the attorney for
.the child with access to all written matter to be considered by the court
in deciding whether to modify disposition. The court may order counsel
not to reveal items to the child .or his parent, guardian, or guardian ad li·
tern if such disclosure would materially harm the treatment and rehabili.tation of the child or would substantially decr.e ase the likelihood of reo
ceiving information from the same or similar sources in the future.
Consistent with section 54.0J(f), the State's burden of
proof is once again "beyond a reasonable doubt"a
(f) A disposition based on a finding that the child engaged in delin-'
quent conduct may be modified 80 as to commit the child to the Texas
Youth Council if the court after a hearing to modify disposition finds beyond a reasonable doubt that the child violated a reasonable and lawful
order of the court:
'
,
.
,
A new proviso, Subsection ( g ), s tates:
. . (g) A disposition based solely on a finding that the child engaged In
conduct Indicating a need for supervision may not be modified to 'commit
the child to the Texas Youth Council. A new finding in compliance with
Section 64.03 of this code must be made that the child engaged in delin· ,
quent conduct a8 defined In Section 61.03(a) of this code.
.
The effect of this is that before a child can be sent to Texas
Youth Council, the juvenile must be found to have engaged in
delinquent conduct.
A finding that the child needs supervision
is not sufficient for committal to Texas youth Council.
(h) A hearing shall be held prior to commitment to the Texas Youth
Council as a modified disposition. In other disposition modifications, the
child a/ld his parent, guardian, guardian ad litem, or attorney may waive
hearing hI accordance with Section 61.09 of this code.
49
The above provision.
Subsection ~ (h)
indicates that now
a hearing must be held before commitment to Texas Youth Council
as a modified disposition.
No waiver of a hearing is permitted.
(i) The co'urt shall specifically ~tate In th" order Ita reasons for modi·
fylng the disposition and shall furnish a copy of the order to the child.
Consistent with Section 54.04(f). Subsection (i) holds . that
the child must be given a copy of the order.
Section 54.06 contains statements on judgments for support.
This is similar to Ar.t ic1e 2338-1. IH3-A.
However, noticeably
lacking i s a ny proviso for pos ting of bond, as explained in
Article 2338 -1. §13-B.
Sec. 54.06. Judgments for Support
.
"(a) When a child has been placed on probation outside his home, the
juvenile court, after giving the parent or other person responsible for tho
child's support a reasonable opportunity to be heard, may order the par·
ent or other person to pay in a mnnner directed by the court a reasonable ·
sum for the support in whole or in part of the child.
(b) Orders for 8upport may be enforced as provided in Section 64.07 of
this code.
.
(c) Nothing in this section shall be construed 80 as to authorize sup·
,. port payments for a child committed to the Texas Youth Council.
Judgments lor support; enforcement
Sec. l3-A. It is further provided that the Juvenile Court in which
the child has been adjudged delinquent, may, after giving the parent
or other responsible person a reasonable opportunity to be heard, ad·
judge that such parent or other responsible person shall pay in the
manner directed by the court such sum as will in whole or in part sup·
port such child whether or not the child is committed to the custody of
his own parent or guardinn, or whether to any other person, agency or
institution. Th'e court shall have full power to enforce said judg.
ments for support by civil contempt proceedings after ten (10) days
notice to such parent, guardian, or other person responsible for the
care and support of the child, of his or her, or of their failure or wil·
ful refusal to carry out the terms of such an order for support. The
court shall have \>ower and authority to alter or change such judg.·
ments, or suspend the same, as the facts and circumstances and jus·
tice may require, upon notice to such parent as above provided for.
Any person interested in any such case may appear therein and
may be represented by counsel, and may demand a jurY as in other
cases. If no jurY is demanded, it shall be deemed waived. The Judge
of the court, of his own motion, may order the jurY to trY such a. ca~e.
50
Ar.sumptlon or financial rftipon81b1l1t,. for ade of dcllnque-nl,,; posl1nc bond
Sec. 13-B. (a) When any child be adjudged a delinquent child
pursuant to Section 3 and Section 13 of this Act and shall be placed
on probation in the custody or under the supervision of the child's
parents or legal guardian, pursuant to Section 13(1) or Section 13-A
of this Act, such parent or person shall assume liability in an amount
not to exceed One Thousand Dollars ($1,000) and shall thereafter be
financially liable, not to exceed said amount, to any person suffering
damages as a result of the willful or malicious acts or conduct of the
child In the same manner and to the same extent that said child would
be civilly liable under and by virtue of the laws of this State, were the
child a fully competent adult. The liability imposed by this Section
shall continue for the length of the term of the child's probation as
set by the Juvenile Court.
(b) When any child has been adjudged delinquent, pursuant to Section 3 and Section 13 of Chapter 204, Acts of the Forty-eighth Legislature, 1943, and he or she shall be placed in the custody of his or her
parents or any other relative or fit person by the Juvenile Court, (as
provided in Section 13 (1) or Section 13-A of Chapter 204 of the Forty-eighth Legislature, 1943) the parents or other relative or fit person or persons under whose supervision the child has been placed may
be required by the judge of the Juvenile Court, at his discretion to
post a cash bond. Such bond shall provide that the child will not violate the terms of his or her llrobation as prescribed by the Juvenile
Court.
Section 54.07(a)
states.
Sec. 54.07. Enforcement of Order
.. (a) Any order of the juvenile cburt may be. enforced by contempt.
The origin
for the above section is Article 2338-1, §20.
Contempt
Sec. 20. Any person who wilfully violates, neglecte or refuses to
obey or perform any order of the court may be proceeded against for
eontempt.
51
Parts (b) and (c) are restatements of segments of Article
2338-1, §13-A I
(b) The juvenile court may enforce its order for support by civil con.
tempt proceedings after 10 days' notice to the defaulting person of hi.
failure or refusal to carry out the terms of the order.
(c) On the motion of any person or agency entitled to receive pay.
ments for the benefit of a child, the juvenile court may render judgment
against a defaulting pers.on for any amount unpaid and owing after 10
days' notice to the defaulting person of his failure ·or refusal to carry out
the terms of the order. The judgment may be enforced by any means
available for the enforceme.n t of judgments for other debts.
The COUl't shall have full power to, enforce said judg·
ments for SUPPOI·t by civil contempt proceedings after ten (10) days
notice to such parent, guardian, or other person responsible for the
care and SUllPOIt of the child, of his or her, or of their failure or wil·
ful refusal to carry out the terms of such an order for support. The
court shall have llOwer and authority to alter or change such judg.
ments, or suspend the same, as the facts and circumstances and jus·
tice may require, upon notice to such parent as above provided for.
Any person interested in any such case may appear therein and
may be represented by counsel, and may demand a jury as in other
cases. If no jury is demanded, it shall be deemed waived. The Judge
of the court; of his own motion, may order the jUry to try such a .case.
.
Public access to court hearings is dealt with in Section
54.081
Sec. 54.08. Public Access to Court Hearings
"The general public may be excluded from hearings under this title • .
The court in its discretion may admit such members of the general public
8. It deem. proper.
Similarly, the outdated provision, Article 2338-1, §13-a, statedl
Hearing. ludgment
Sec. 13. (a) The judge may conduct the hearing of any case in an
Informal manner and may adjourn the hearing from time to time. In
the hearing the genel'al public may be excluded. All cases involving
children shall be heard separately from the trial of cases against
adult..
52
Whether or not newsmen will still be allowed to observe
the juvenile proceedings and inspect court records will be
discretionary with the court.
It is questionable whether the
media's presence is "proper" under the new statute.
Court records were the subject .o f the past Article 2;;8-1,
§21-a, just as they are of the curcent Section 54.09.
ly, they statel
TranfIJcrlption or reporter'. Dote.
Sec. 21-A. The attorney (representing a child adjudged to be a
delinquent child on appeal) desiring to have included in the record on
appeal a transcription of notes of the reporter shal1 have the responsibility of obtaining such transcription and furnishing same to the
clerk in duplicate in time for inclusion in the record and shal1 pay
. therefor. The court will order the reporter to make such transcription without charge to the attorney if the court finds, .after hearing.
that the child, parents, guardian, and other persons responsible for
the care and support of the child are too poor to payor give security
therefor. Upon certificate' of the court that this service has been
rendered, payment thereof shall be made from the general funds by
the county In which the offense is al1eged to have been committed.
The court reporter shall report any portion of the ,pl'oceedinga requested by either party or directed by the court.
. See. 54.09. Recording of Proceedings
"All judicial proceeding. under this chapter except detention hearings
.. ' shall be recorded by stenographic notes or by electronic, mechanical, or
other appropriate means. Upon request of any party, a detention hearing
ahall be recorded. ·
'
Respective-
From the above article, it is understandable that Texas
should be commended for its new approach
to juvenile procedures.
,
The major and most 'progressive changes followl
(1)
(2)
,Seventeen year 'o'lds are now considered juveniles.
Runaways can be detained since their conduct indicates a
need for supervision.
(J)
Juvenile court judges must be attorneys licensed to practice
in Texas.
(4)
Only under specific circumstan'c es can a child waive his
constitutional and statutory r ,ights.
(5)
The juvenile offender has a ri'ght to an attorney at every
stage of the proceedings, including the detention hearing.
(6)
Children cannot be fingerprint:ed.
(7)
Files and records pertaining 10 the child may be sealed upon
court order.
.
(8)
Detention orders are effective for ten day periods only.
(9)
Extrajudicial confessions must be corroborated.
(10) The Fifth Amendment right against self-incrimination is
applicable to juveniles.
(11) At appropriate stages, notice must be provided to the child,
his parents or guardian and the defense counsel.
(12) Custody and retention of the juvenile must be based on probable
cause.
-
The new legislation has created questions that must be dealt
wi th in the future.
However , given the current direc.tion '.by the
legislature, it seems that appropriate changes will be made as the
problems are presented to the. Texas Legislature.
FOOTNOTES
Tex. Laws 1907, ch. 65,
1.
Tex. Rev. Civ. Stat. tit. 33b,
2.
§~
§§
1-10, at 137-1-1-0, codified as
1-10 (Supp. 1908).
The eicisting. code and revised statute provisions were
repealed by Tex. Code Crim. P. at 181 (1925), recodified, (1936).
The new juvenile code appeared as Tex. Code Crim. P. arts. 108393 (1925).
Tex. Code Crim. P. arts. 1083-93 (1936), recodified.
Tex. Code Crim. P. arts. 1083-93 (1925), as amended, Tex. Laws
1927, ch. 163,
3.
~~
1-2, at 236-37.
Tex. Laws 1943, ch. 204,
Tex. Rev. Civ . Stat. art
2338-1,
§§
1 to 24-A were codified as
§§
1 to 24-A (Supp. 1943).
For a discussion of the evolution of Texas juvenile .courts, see
Frey, The Evolution of ,Juvenile Court Jurisdiction
and Procedure
,
in Texas, 1 Tex. Tech. L. Rev. 209 (1970).
4.
In re Gault, 387 U.S. -1(1967).
5.
Tex. Laws
6.
Id.
7.
428 S.W.2d 817 (Tex. Civ. App.--Houston [l4th DistJ
~973,
ch.
1968, no writ).
8.
Id.
9.
387 U.S. 1 (1967).
10.
Texas Civil Judicial Council, Manual for Texas Juvenile
Court Judges 1.01.7 (1973).
11.
Id.
12.
463 S.W.2d 272 (Tex. Civ. App.--Houston
1971, writ
ref~d
[14'th Dist:J
n.r.e.).
13.
Tex. Rev. Civ. Stat. Ann. art. 2276 (1971).
14.
Texas Civil Judicial Council, Manual for Texas Juvenile
Court Judges 1.01.7 (1973).
15.
Id.
16.
387 U.S. 1 (1967).
17.
Id., Kent v. United States" 383 U.S. 541 (1966);
463 S.W.2d 272 (Tex. Civ. App.--Houston ~4th Dist~
1971, writ
ref'd n.r.e.), 428 S.W.2d 817 (Tex. Civ. App.--Houston ~4th Dis~
1968, no writ).
18.
Miranda v. Arizona, 384 U.s. 436 (1966).
19.
National Council on Crime and Delinquency, Standards a.nd
Guidelines for the Detention of Children and Youth ~ 4, at 15
(2d ed. 1961).