By Jennifer Hebert
Assistant District Attorney in Brazos County
Anna is 13 years old. When she was 11, her cousin, then 16, sexually assaulted her. As often happens, she was terrified and didn’t tell anyone. Now two years later, she finds out that her cousin also abused her sister, so Anna outcries to her mom. Her cousin is now 18 and no longer subject to the “traditional” juvenile justice system. Can we still prosecute him?
Alice was sexually assaulted by a stranger and outcried immediately. She had a SANE (Sexual Assault Nurse Examiner) exam, and DNA was sent to the lab for testing. The results came back a year and a half later and identified her assailant. That suspect is now 18 years old, but he was 16 at the time of the assault. Can we prosecute him? How does our scenario change if Alice was able to identify her assailant when the attack occurred but law enforcement nonetheless waited until they had DNA to present the case?
The juvenile justice system primarily seeks to rehabilitate youthful offenders so they can be productive members of society as adults. But what happens when a child commits an offense and law enforcement either doesn’t know about the crime or doesn’t solve the case until after the child’s 18th birthday? What if law enforcement is aware of the case but doesn’t yet believe they can prove it beyond a reasonable doubt? These cases are extremely nuanced and fact-specific, and as juvenile violent crime rates have increased, these types of cases have increased in volume. This article aims to help juvenile prosecutors navigate these difficult cases.
What to watch for
In Texas, jurisdiction over juvenile offenses generally ends once the offender turns 18. However, in certain circumstances, we can continue to prosecute and even initiate prosecution for a juvenile offender after the age of 18 through transfer to adult court (commonly known as certification). However, what seems like a somewhat simple process is far from it. Every case must be evaluated on an individualized basis, and even small changes to factual scenarios can affect a prosecutor’s ability to proceed with the case.
While every case is different, there are several common pitfalls to avoid when evaluating juvenile cases for transfer to adult court after the age of 18:
1) do not delay. Timing and due diligence matter;
2) be careful not to confuse the elements for transfer before the age of 18 and after 18; and
3) follow all statutory procedures and requirements.
Timing and diligence matter
Texas Family Code §54.02(j) governs certification proceedings for cases in which the suspect is now 18 or older. Under subsection (j), a court may either certify the case or dismiss it. There are no other options available. To proceed with certification after a child turns 18, the court must find by a preponderance of the evidence that:
• for a reason beyond the control of the State it was not practicable to proceed in juvenile court before the person’s 18th birthday (Family Code §54.02(j) subsection 4(A)), or
• after due diligence of the State it was not practicable to proceed in juvenile court before the person’s 18th birthday because:
— the State did not have probable cause to proceed in juvenile court and new evidence has been found since the person’s 18th birthday;
— the person could not be found; or
— a previous transfer order was reversed by an appellate court or set aside by a district court (Family Code §54.02(j) subsection 4(B)). [1]
When evaluating these factors, it is important to understand who the “State” is. Just like under Brady and the Michael Morton Act, the State, for purposes of certification, includes both law enforcement and prosecutors.[2] For this reason, if you are prosecuting juvenile cases, you must make sure the law enforcement agencies you work with are paying close attention to the ages of the suspects they are investigating and that they work quickly and efficiently when a suspect is approaching age 18. If they (or you) aren’t paying attention, it can quickly impede our ability to prosecute a case.
As we look at the factors for certification, some seem straightforward. But what is “a reason beyond the control of the State?” What does “practicable to proceed” really mean? And what constitutes “due diligence?” None of these terms are defined in the statute, and until recently, no Texas court had clearly defined them either.
To make matters even more complicated, until recently most courts tended to conflate §54.02(j) subsections 4(A) and 4(B) rather than evaluating them as separate and distinct provisions. However, the Texas Supreme Court has now provided much needed guidance with regard to the separate and distinct nature of subsections 4(A) and 4(B) and the “practicable to proceed” standard.[3]
In In re J.J.T., the Court determined that “practicable” means “reasonably capable of being accomplished; feasible in a particular situation.”[4] The Court then further explained that a juvenile court can give credence to valid reasons “beyond the control of the State” that made it “infeasible for the State to proceed before the juvenile turned 18.”[5]
In the same case, the Court also clarified that subsections 4(A) and 4(B) of Family Code §54.02(j) are separate and distinct avenues for certification. Nevertheless, both sections involve an analysis of the State’s actions specifically regarding whether the State was at fault for the delay in bringing the case and proceeding to adjudication prior to the suspect’s 18th birthday. Sometimes this analysis is clear. For example, if a sexual assault victim outcries and reports the assault after the suspect’s 18th birthday, there is no question that the State could not have proceeded with the case before the suspect turned 18. Nor could the State have had probable cause prior to his 18th birthday.[6]
This analysis gets much more complicated, however, when the State starts an investigation prior to the suspect’s 18th birthday. Before the decision in In re J.J.T., Texas courts almost always focused on when the State acquired probable cause, even if the State sought certification under subsection 4(A)’s “not practicable to proceed” standard.[7] In fact, the appellate court in In re J.J.T. (and other Texas appellate courts) had specifically found that a probable cause determination was dispositive of the “practicable to proceed” standard. In other words, once the State had probable cause, it had to proceed or would otherwise be barred from certification.
The Supreme Court, however, made it clear in In re J.J.T., that having probable cause alone does not preclude a certification if there were other factors that made it “not practicable” to proceed prior to the suspect’s 18th birthday.[8] In making this determination, the Supreme Court noted that while the prior statutory scheme for certification included only the lack of probable cause as a good cause to proceed after the age of 18, the newer scheme (enacted first in 1995) expanded the good cause standard to also include a “focus on the practicality of proceeding.”
The Court then further noted that the two standards in §54.02(j) are to be applied under different circumstances:
Under the two alternatives, the path to transfer diverges based on the development of probable cause. If probable cause develops after the respondent’s 18th birthday, then under subsection (B)(i), the State must show that it acted with diligence and that it was not practicable to proceed until it discovered new evidence. If probable cause develops before the respondent’s 18th birthday, however, then subsection (A) governs, and the State must show that a reason beyond the State’s control made it not practicable to proceed with prosecuting the minor before the minor turned 18.[9]
The Court further noted, however, that the State is not precluded from asking to proceed under both subsections and may want to do so in case there is a dispute about when the State acquired probable cause.[10]
The Supreme Court also provided much-needed guidance regarding how courts should analyze certification arguments as to the State’s actions when it comes to investigative measures. Prior to In re J.J.T., Texas courts (including the appellate court in In re J.J.T.) had routinely found that essentially, the State could not wait to complete an investigation before filing the case if the suspect was approaching age 18, no matter how important the rest of the investigation might have been.[11] Such holdings could severely impact investigative strategies and result in poor investigative quality, thereby damaging the State’s chances to prove the case beyond a reasonable doubt. The Supreme Court in In re J.J.T., however, found that “the State has considerable discretion in the manner and means of conducting its investigation, and the juvenile court is charged with examining whether the exercise of this discretion devolved into unreasonable delay.”[12]
As prosecutors, we ask our local law enforcement agencies to fully investigate every case so that we can determine from the beginning whether we can prove the case beyond a reasonable doubt. We want to ensure that if we are indicting a defendant, we aren’t overcharging or filing a case we cannot prove at trial. But in an over-18 juvenile certification case, we did not have this luxury prior to In re J.J.T. This decision significantly broadens the State’s ability to fully investigate prior to asking a court to certify a case, thereby better protecting the rights of suspects. It also prevents the need to prematurely file a case, arrest a defendant, and then later dismiss the case if further investigation demonstrates that the State would be unable to prove the case beyond a reasonable doubt.
A word of caution
While the Supreme Court has given us a much more workable standard, the holding in In re J.J.T. is somewhat contrary to comments made by the Texas Court of Criminal Appeals in Moore v. State.[13] In that case, the Court specifically noted that investigative preferences do not establish “reasons beyond the State’s control” for purposes of Family Code §54.02(j)(4)(A).[14] How these two cases are reconciled is yet to be determined, but in fairness, the facts of Moore with regard to when the State proceeded with the case involved more considerable delays by the investigators than those involved in In re J.T.T.
We do have a few examples of what can be a reason beyond the control of the State that makes it “not practicable to proceed”:
• In re B.C.B.:[15] Finding it was not practicable for the State to proceed prior to the suspect’s 18th birthday where the victim outcried shortly before the suspect turned 18 and the suspect was arrested the day before his 18th birthday after less than two months of investigation;
• In re D.L.C.:[16] Where the suspect was 16 at the time of the offense, 17 when the petition for transfer was filed, and 18 at the time of the transfer hearing, the court found that transfer was appropriate because “for a reason beyond the control of the State, it was not practicable to proceed” because the suspect was arrested on new charges (in another county) prior to his 18th birthday and failed to inform the State of the new charges; and
• In re B.C.:[17] Finding that the case was delayed due to reasons beyond the control of the State where the defendant requested a jury trial and was admitted to a mental health hospital, delaying trial. It was then further delayed due to pandemic restrictions that prohibited jury trials for a period of time.
Additionally, while the Family Code does not define “due diligence,” Texas courts have interpreted the term in other contexts to require that a party do more than “sit on its rights or duties.”[18] In other words, the party must attempt to move ahead or be able to reasonably explain delays.[19] These courts have further found that “due diligence” does not require the State “to do everything perceivable and conceivable to avoid delay.”[20]
While we do not have a clear definition of due diligence, we do have examples of certain actions and inactions of the State that lack due diligence. For example, where a suspect was known to live out of state at a particular address and the State failed to serve him with the petition and arrest him prior to his 18th birthday, the court found that the State failed to act with due diligence.[21] Additionally, a court found a lack of due diligence when the suspect was arrested on a directive to apprehend but was erroneously processed as an adult, and neither juvenile probation nor the prosecutor were notified of the arrest. The suspect returned to his residence out of state and the prosecution decided to allow him to finish the school year before proceeding with the case.[22]
The moral of the story is to be vigilant. Communicate with local law enforcement agencies to ensure they understand the complexities of juvenile prosecution. Watch birth dates carefully and make sure you can explain any delays in filing and seeking certification. A failure to do so can mean the premature end of your case.
Before 18 vs. after 18
Another common mistake in certification is applying the incorrect legal standard under §54.02. There are two types of certifications, one for children under the age of 18 (pursuant to 54.02(a)) and another for persons over 18 (pursuant to 54.02(j)).[23] Different requirements apply in each situation. At times, a case may start as an under-18 certification, but due to delays (whether because of court scheduling, defense continuances, or other factors), the case may proceed past the suspect’s 18th birthday. In such cases, prosecutors must file an amended transfer petition and make sure the court is evaluating the case based on the §54.02(j) factors, not the 54.02(a) factors. If the court decides based on the wrong factors, the case is ripe for reversal on appeal.[24]
Technical statutory requirements
Certification has technical requirements that must be followed. Missing a step can result in reversal on appeal.
First, if a case is filed prior to a child’s 18th birthday and the State cannot conclude it before he turns 18, make sure you file a certification petition before the child’s 18th birthday. Failure to do so can—and generally will—result in dismissal of the case.[25]
Once filed, the certification petition must state whether prosecutors are seeking certification under subsection (a) or (j). The summons must also specifically state that the hearing is for the purpose of considering discretionary transfer to criminal court.[26]
The certification petition must also be served on the suspect. Failure to do so renders the court without jurisdiction to consider the case.[27] Note that while service on any other party to the proceeding can be waived, Family Code §53.06 specifically mandates that a juvenile suspect cannot waive service, presumably because a juvenile lacks legal authority to act on his own.
Additionally, after the certification hearing, the court must issue an order including specific findings relating to the transfer.[28] Specifically, if the court decides to waive its jurisdiction it must “state specifically its reasons for waiver and certify its action, including the written order and findings of the court.”[29] Further, the order must contain the court’s reasons for waiving its jurisdiction, the specific statutory basis for the certification, and the findings of fact that support the decision.[30] Again, failure to do so can result in reversal of the case.[31]
Conclusion
While certification is nuanced, it is not impossible to achieve. As prosecutors, we want a full investigation before proceeding, but this is not always possible with juvenile suspects. If you are facing a situation where a suspect is quickly approaching his 18th birthday, take pause and remember that certification is only the first step. You likely do not need a complete investigation for certification (despite how much we might want one). Rather, certification requires only a probable cause standard. It may not be ideal, but you can continue to investigate after the case is certified. Be cautious, and if needed, proceed to certification to avoid the due diligence and practicable to proceed complication.
[1] In addition, the court must also find that the suspect is 18 years old or older and was at least 10 (for murder and capital murder), 14 (for an aggravated controlled substance felony or first-degree felony), or 15 (all other felonies) at the time of the offense; no adjudication has been made; no adjudication hearing has been conducted; and there is probable cause to believe that the suspect committed the offense. Tex. Fam. Code §54.02(j).
[2] Moore v. State, 532 S.W.3d 400, 404 (Tex. Crim. App. 2017).
[3] See In re J.J.T., No. 23-1028, 2025 Tex. LEXIS 208 (Tex. March 28, 2025). As a prosecutor, you may be wondering why the Texas Supreme Court is weighing in on a criminal issue. While juvenile law is a mix of criminal and civil law, juvenile cases are civil for purposes of appeals. However, once a juvenile case is transferred to adult court, the case becomes criminal in nature. As a result, depending on when the case is appealed, a juvenile case may be appealed to the Supreme Court or the Court of Criminal Appeals. In the context of certification, if a certification is appealed prior to the case proceeding in adult criminal court, the appeal goes to the Supreme Court. If, however, the case is appealed after a conviction in the adult criminal court, the case is appealed to the Court of Criminal Appeals.
[4] Id. at *12.
[5] Id. at *13.
[6] See e.g., In re R.S., No. 11-19-00011-CV, 2019 Tex. App. 5166 (Tex. App.—Eastland June 20, 2019, no pet.); In re B.W.K., 11-20-00238-CV, 2021 Tex.App. 2860 (Tex. App.—Eastland April 15, 2021, pet. denied); In re D.A.C., 04-24-00220-CV, 2024 Tex.App. 8553 (Tex.App.—San Antonio 2024, no pet.).
[7] In re J.J.T., 698 S.W.3d 320 (Tex.App.—Houston [1st Dist.] 2023, overruled); In re A.M., 577 S.W.3d 653 (Tex.App.—Houston [1st Dist.] 2019, pet. denied).
[8] 2025 Tex. LEXIS 208, at *12.
[9] In re J.J.T., 2025 Tex. LEXIS 208, at *11 (emphasis in original).
[10] Id.
[11] In re J.J.T., 698 S.W.3d 320 (Tex.App.—Houston [1st Dist.] 2023, overruled); In re A.M., 577 S.W.3d 653 (Tex.App.—Houston [1st Dist.] 2019, pet. denied).
[12] In re J.J.T., 2025 Tex. LEXIS 208, at *14.
[13] 532 S.W.3d 400, 403-05 (Tex. Crim. App. 2017).
[14] Id.; see also In re A.M., 577 S.W.3d at 670 (choosing not to move forward despite having probable cause to proceed in juvenile court based on a preference for more evidence or a reluctance to re-interview juveniles does not qualify as reasons beyond the State’s control).
[15] No. 05-16-00207-CV, 2016 Tex. App. LEXIS 6043 (Tex App.—Dallas June 7, 2016 pet. denied).
[16] No. 06-16-00058-VC; 2017 Tex. App. LEXIS 2349 (Tex. App.—Texarkana, March 21, 2017 no pet.) (mem. op.).
[17] No. 02-21-00444-CV, 2022 Tex. App. LEXIS 3031 (Tex. App.—Fort Worth May 5, 2022, no pet. hist.).
[18] In re N.M.P., 969 S.W.2d 95, 100 (Tex.App.—Amarillo 1998, no writ).
[19] Id. at 101; In re B.R.H., 426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
[20] In re N.M.P., 969 S.W.2d 95, 100 (Tex. App.—Amarillo 1998, no pet.).
[21] Powell v. State, No. 05-07-01078, 2009 Tex. App. LEXIS 2517 (Tex. App.—Dallas April 1, 2009, pet ref’d) (mem. op.).
[22] In re A.M.H., No. 12-19-00284, 2020 Tex. LEXIS 3714 (Tex. App.—Tyler April 30, 2020, no pet.) (mem. op.).
[23] Note the difference in language in the statute: While §54.02(a) refers to waiving jurisdiction over a “child,” §54.02(j) refers to waiver of jurisdiction over a “person.”
[24] See In re A.M., 577 S.W.3d 653 (Tex.App.—Houston [1st Dist.] 2019, pet. denied); In re D.L.C., No. 06-16-00058-VC; 2017 Tex. App. LEXIS 2349, at *9 (Tex. App.—Texarkana, March 21, 2017, no pet.) (mem. op.).
[25] See In re J.E.R.-P., No. 04-22-00168-CV, 2023 Tex. App. LEXIS 1651, at *6 (Tex. App.—San Antonio Mar. 15, 2023, no pet. hist.)(“For a juvenile court to retain exclusive, original jurisdiction, §51.0412 requires the State file the transfer petition prior to the juvenile’s 18th birthday, the transfer proceedings remain incomplete prior to the juvenile’s 18th birthday, and the juvenile court finds the prosecuting attorney exercised due diligence in attempting to complete the proceedings before the juvenile turned 18”).
[26] Tex. Fam. Code §54.02(b) and (k).
[27] In re D.W.M., 562 S.W.2d 851 (Tex. 1978) (citing to Tex. Fam. Code §53.06).
[28] Tex. Fam. Code §54.02(h).
[29] Tex. Fam. Code §54.02(h); Moon v. State, 451 S.W.3d 28, 49 (Tex. Crim. App. 2014).
[30] In re J.R.C., 522 S.W.2d 579, 584 (Tex. App.— Texarkana 1975, writ ref’d n.r.e.) (“the reasons motivating the juvenile court’s waiver of jurisdiction must expressly appear”).
[31] See In re J.J.T., No. 23-1028, 2025 Tex. LEXIS 208 (March 28, 2025).