By Kathleen Takamine
Assistant Criminal District Attorney in Bexar County
Facing any contested hearing can be a daunting and scary task; however, they can also generally be a great opportunity to educate new prosecutors. It helps build confidence and teaches them important skills they can take with them into future hearings or trials.
One type of contested hearing that we face in juvenile law is the determinate sentence transfer hearing, and we’re going to dive deeper into that subject today. I am hopeful that you can find something to use from it in any type of hearing you are facing.
The July-August 2017 issue of The Texas Prosecutor had an article that went over the basics of juvenile determinate sentence cases.[1] It is a pretty thorough exploration of the topic and I recommend reading it for a basic understanding of this type of case, but it only touched upon transfer hearings, so I wanted to expand on that topic here.
Quick background on determinate sentences
In a nutshell, Texas Family Code §53.045[2] allows prosecutors to file particularly violent or serious cases without resorting to certifying juveniles as adults and transferring them into the adult system right away. However, juveniles will age out of the juvenile justice system once they reach a certain age. If they were placed on probation on any misdemeanor or indeterminate sentence[3] felonies, they would age out by the time they’re 18. If they were sentenced to the Texas Juvenile Justice Department (TJJD), they would age out at 19 years old on all felony cases.[4]
In determinate sentence cases, the Family Code allows the period of probation or confinement to extend beyond when juveniles would normally age out. A juvenile can face up to 40 years in TJJD for capital felonies, first-degree felonies, and aggravated controlled substance felonies.[5] For second-degree felonies, the juvenile faces up to 20 years at TJJD and 10 years for third-degree felonies.[6] Juveniles placed on probation can serve up to 10 years on probation.[7]
This would allow the juvenile to still receive rehabilitative services in the juvenile system while ensuring the safety of the community by giving them extended sentences. There is a potential, however, for determinate sentence cases to be transferred to adult community supervision, the Texas Department of Criminal Justice (TDCJ), or TDCJ parole. This is where transfer hearings come into play. How the hearings come about and how they are conducted will depend on if the juvenile was placed on probation or sentenced to TJJD.
Before discussing determinate sentence transfer hearings, it is important to note that a
transfer of a determinate sentence probation to the appropriate adult district court is not the same as certifying a juvenile as an adult and transferring the case to the appropriate district court. When you certify and transfer (or “C&T”) a juvenile to the appropriate district court, for all practical purposes, that juvenile will become an adult defendant. None of the Family Code provisions in the Juvenile Justice Code apply to a juvenile who is subsequently certified as an adult. At that time, the Code of Criminal Procedure would apply to the case.
Under a transfer of a determinate sentence, the juvenile would not be considered an adult for purposes of that criminal case. That juvenile will still be considered as having been adjudicated in engaging in delinquent conduct and the case would not be considered a final conviction of the offense. The determinate sentence probation transfer to adult community supervision would, generally, fall under Texas Code of Criminal Procedure Chapter 42A.[8] However, some of the restrictions imposed by that chapter will not apply to the transferred cases. Any restrictions that Chapter 42A places on the judge[9] or any minimum period of supervision imposed by this chapter[10] would not apply to transferred cases from juvenile court.[11]
So, what occurs at these hearing?
The transfer hearing
It starts with a request of a transfer hearing.
When juveniles are placed on determinate sentence probation that extends beyond their 19th birthday, the Family Code places the responsibility of requesting transfer hearings on prosecutors.[12] Such a request must be done before the juvenile turns 19. In Bexar County, our general practice is to file a Motion to Transfer immediately after the disposition, even if the juvenile will not be turning 19 for several years. Due to the sheer volume of juvenile cases, this makes it easier to ensure that our determinate sentence cases do not fall through the cracks. Once a request a made, the transfer hearing will then be set.
Under the Family Code, transfer hearings for juveniles placed on probation are conducted as if the court were modifying the juvenile’s probation.[13] The juvenile does not have a right to a jury during this hearing.[14]
So, what do I do when facing a transfer hearing?[15] First, I make myself familiar with the case. I contact and talk to the victim and the victim’s family to find out if they want to testify or make a statement to the court.[16] I contact the juvenile probation officer who is in charge of the juvenile’s case and get his or her recommendation.
My rule of thumb is to get a copy of the transfer order that the judge has to sign.[17] With this, I have a basic outline of what I need to present to satisfy all the requirements the court considers to transfer the case. Basically, the court must make certain findings and list the factors that it will consider in deciding whether to transfer the case. The order will ensure that the prosecutor covers all these findings and considerations. In all transfer hearings, the court has to make these findings:
• that the Order of Certification of Grand Jury approval was signed, giving the court authority to hear the determinate sentence and conduct the disposition;
• that the juvenile was adjudicated, meaning, he was found to have engaged in delinquent conduct for the offense alleged and the date alleged;
• that the juvenile was placed on determinate sentence probation for a certain number of years;
• that the juvenile is a child and was born on a particular date (basically, a child at the time of adjudication and disposition);
• that the juvenile is currently 18 years old (his age at the time of the hearing);
• that the juvenile currently lives in the county of residence (for a juvenile in TJJD custody, the order will indicate that the juvenile is in TJJD custody during the time of the hearing); and
• that the transfer hearing has been held before the juvenile’s 19th birthday.
Sometimes the judge will make these findings on the record at the start of the hearing. If not, the prosecutor should take the responsibility of getting that information on the record and request the court take judicial notice of the judgment and disposition order in the court’s file.
Once the initials findings are made, the actual hearing itself can be quite informal, depending on the judge. The prosecutors will make a recommendation and present their evidence. I have the victim or the victim’s family available to make a statement to the court if they so wish. The juvenile probation officer makes his recommendation and his reasons behind it. And then the defense will present its recommendation and bring forward witnesses. The court will weigh all the evidence and decide whether to transfer the juvenile’s case to adult probation supervision[18] or deny the transfer and terminate the probation.[19]
If the case is transferred, only the petition charging the juvenile with the offense, grand jury approval of the petition, judgment placing the juvenile on determinate sentence probation, and order transferring the case to adult court will be made a part of the district clerk’s public record.[20] All other reports, orders, plea paperwork, and evidence will remain in the juvenile case file. The (former) juvenile will be assigned a probation officer from the adult side of things, and he will be monitored by the adult probation department upon turning 19 years old. Any violation of probation will be handled under the Texas Code of Criminal Procedure.
One last point: Even though the case is transferred to adult probation supervision, the original juvenile court retains jurisdiction over the (former) juvenile.[21]
Transfer hearings involving TJJD
The transfer hearings involving juveniles who were sentenced to TJJD tend to be more formal and intense. Whereas the prosecutor is responsible for requesting a transfer hearing in determinate sentence probation cases, TJJD is responsible for cases in which the juvenile was sentenced to TJJD.[22] The request may be made any time after the juvenile turns 16 but before turning 19.
There are two types of transfer hearings that may be requested: an early transfer or a transfer upon the juvenile’s 19th birthday. In the early transfer, once a juvenile turns 16 years old, TJJD can request a transfer when they deem it necessary. If this hearing is set, the result will either be the court denying the transfer and sending the juvenile back to TJJD or the court transferring the juvenile to TDCJ. If it’s a transfer because the juvenile will be turning 19 years old, the results include transfer to TDCJ, transfer to TDCJ parole, or denying the transfer and releasing the juvenile from TJJD once he turns 19. With either request, the hearing will be conducted in the same manner.
After TJJD makes the request, the hearing must be held not later than 60 days after the request.[23] Courts have interpreted that the hearing must start by the 60th day, but it does not necessarily have to be completed within that time frame.[24] (In one case, the transfer hearing was set within the 60-day time frame but the defense attorney requested a continuance because he had been retained just before the hearing started. The court allowed the State to give an opening statement, then recessed the hearing.[25]) After the request is made, the hearing is set and the court sends notice of the setting to all parties involved.[26]
During these hearings, the court may consider reports and testimony from juvenile probation officers, professional consultants, lay witnesses, and any other witnesses deemed necessary in helping the court decide the matter.[27] All written reports and all records on which the court will rely must be transferred to defense counsel five days prior to the hearing.[28] The only result of failure to meet this deadline is resetting the hearing to allow defense counsel to examine the reports and records. These hearings tend to involve voluminous records from TJJD, which include the master file on the juvenile, a summary report with a recommendation by TJJD, and a psychological evaluation. The majority of the evidence will be based on these records. TJJD sends these records to the court, the prosecutor, and the defense counsel in an email with a link.
Upon receiving all the written reports, I first concentrate on the summary report, as it is a good place to start. The master file itself can be very voluminous, and looking at the report first allows me to focus my presentation of the evidence. Although there can be time constraints, I recommend a pretrial meeting with the TJJD representative[29] who will be testifying at the hearing. I also consider calling the juvenile’s previous probation officer to testify. One of the factors the court considers is the juvenile’s experience and character before he was committed to TJJD. The probation officer would be able to provide this information.
In the records, I am looking for any evidence the court will consider. This is where my rule of thumb comes in handy: having a copy of the transfer order that the judge must sign. According to the order, a court must consider the following:
• the experience and character of the juvenile, both before and after commitment to TJJD,
• evidence showing the respondent is of sufficient intellectual abilities and sophistication to be committed at the Institutional Division of TDCJ,
• the nature of the penal offense,
• the manner in which the offense was committed,
• the ability of the respondent to contribute to society,
• the protection of the victim and/or any member of the victim’s family,
• TJJD’s recommendations, and
• whether it is in the best interest of the juvenile and of society that he is placed in the custody of TDCJ for the remainder of his sentence.
While I look through the records, whenever I find evidence that supports my argument, I note the page. When I ask about that evidence (and it tends to be a rule violation or disciplinary hearing), I have the representative refer to that page before asking my question. Being able to refer to the page makes the hearing go smoothly and move quickly. The record tends to be huge, and prosecutors can’t assume everyone has read the entire file—there is no way the TJJD representative would have memorized the entire record.
At the hearing
When the hearing begins, if the court does not automatically do so, I ask the court to take judicial notice of all the evidence findings, the judgment entered in the underlying case, and that notice was given to all the parties listed in the Family Code[30] and their presence in the court. If notice had not been given but the party is present in court, I ask the judge to take judicial notice of their presence. The Family Code indicates that the person to be transferred and the prosecutor must have notice of the hearing. If notice had not been given to the other parties and they did not show up, it would not affect the validity of the hearing and the decisions of the court so long as it is shown on record that reasonable efforts were made to locate and notify those people.[31]
Even though this section of the code specifies notice must be given to the person being transferred and the prosecutor, the defense attorney is never excluded. Family Code §51.10 gives the juvenile the right to be represented by an attorney at every stage of the proceedings, including transfer hearings. The hearing will not proceed unless the juvenile’s attorney is present. Also, the juvenile is entitled to have a parent or guardian present. If neither is available, the court must appoint a guardian ad litem.[32] The Family Code allows the court to appoint the juvenile’s defense counsel as a guardian ad litem.[33]
Once judicial notice of all parties present has been noted in the record, I put on the probation officer. As I mentioned earlier, the court considers the experience and character of the juvenile prior to commitment. The probation officer testifies to his interactions with the juvenile and all the juvenile’s actions while on probation. The officer will also provide good information about the situation in which the juvenile was living prior to being committed; once released, the juvenile will likely be placed back into the same environment and same influences—so it’s often a good point of argument to make.
When the TJJD representative is on the stand, he will verify that the summary report, master file, and psychological evaluations all articulate the concerns of the juvenile being transferred. Once that is established, I ask the court to take judicial notice of all the reports submitted by TJJD. I will then have the representative identify the juvenile in court, and then I ask him to go into all of the juvenile’s activities after commitment, including all rule violations, hearings on the rule violations, and sanctions. It’s through this witness that I want to present other factors that the court will consider: the juvenile’s experience and character after being committed, the juvenile’s ability to contribute to society, protection of the victim and any of her family, the best interest of the community, and the best interest of the juvenile. I emphasize any disciplinary actions, lack of progress, lack of participation in any programs, and the juvenile’s overall attitude during the commitment period. It is also important to bring out whether the juvenile was made aware of what could happen if he should violate the rules or not progress in any manner.
I do want to point out that even though hearsay could reasonably be a valid objection in these hearings, in regard to the probation officer and TJJD representative testifying from the reports, courts have found them admissible during the hearing, as it is permitted by Family Code §54.11(d). This section specifically allows a court to consider the records and testimony of probation officers and post-adjudication secure correctional facility employees.[34]
Finally, if the victim or victim’s family wants to testify, I put them on the stand. If they don’t want to testify but would like to give a statement to the court, I let the court know, and they are given that opportunity.
At the end of the hearing, the court will ask for final arguments. I try to cover all the evidence that the court must consider in making a decision. I do not shy away from acknowledging any positive gains that the juvenile has made during his commitment—the point is that he has made gains while in custody of a secured institution. However, the negative setbacks generally outweigh the positive.
One final note: Once the hearing is done and the case is transferred, the (former) juvenile does have a right to appeal. That’s why I make sure the record is clean on my part—all the judicial notices are made and the evidence covers all the factors the court must consider.
Conclusion
A determinate sentence transfer hearing can be very involved. I find myself combing over hundreds of pages of records and reports. However, it really is no different than dealing with a very complicated criminal trial—just a bit less scary, in my opinion. As I stated earlier, these hearings can be used to educate and train prosecutors without the added stress of a jury trial. With this in mind, I hope that anyone reading this article can find something that would help in managing these hearings. It’s always a great pleasure to share my experience in juvenile law.
[1] www.tdcaa.com/journal/determinate-setencing-for-juveniles.
[2] This section of the Family Code lists the types of cases that can be filed as a determinate sentence.
[3] Under the juvenile justice system, a juvenile can be committed to the Texas Juvenile Justice Department (TJJD) up until the juvenile’s 19th birthday. There is no fixed term; hence, it is referred to as an indeterminate sentence. The juvenile could be released before reaching 19. It all depends on the juvenile’s progress in TJJD. See www.tdcaa.com/journal/determinate-setencing-for-juveniles.
[4] See 37 Tex. Admin. Code §380.8525 (Minimum Length of Stay/Minimum Period of Confinement).
[5] Tex. Fam. Code §54.04(q).
[6] Id. Note: There are no offenses below the third-degree level that can be filed as a determinate sentence, hence, no mention of state jail felonies.
[7] Id.
[8] Tex. Fam. Code §54.051(e).
[9] See Tex. Code Crim. Proc. Art. 42A.54, Limitations on Judge Ordered Community Supervision.
[10] See Tex. Code Crim. Proc. Art. 42A.53(d).
[11] See Tex. Fam. Code §54.051(e-1).
[12] Tex. Fam. Code §54.051(a).
[13] See Tex. Fam. Code §54.051(b). See also §54.05.
[14] Robert O. Dawson, Texas Juvenile Law, p. 579 (Texas Juvenile Probation Commission 9th ed. 2008).
[15] I will be referring to my experience in Bexar County. The Family Code applies to all jurisdictions, but it pays to know the process that your court follows in your county. Bottom line: Know your court and know your judge.
[16] In a transfer of determinate sentence probation hearing, the prosecutor’s office has to contact and inform the victim of the hearing.
[17] Courts often have the court adminstrator’s office prepare the order. For Bexar County in the past, some of the juvenile courts had the prosecutor prepare an order. It will depend on your court.
[18] They will be placed on community supervision under Tex. Code Crim. Proc. Chapter 42A. See Tex. Fam. Code §54.05(e). See also §54.051(e-1).
[19] In this case, the court has to give an actual date the juvenile’s probation ends. See Tex. Fam. Code §54.051(c), which states: “If, after a hearing, the court determines to discharge the child, the court shall specify a date on or before the child’s 19th birthday to discharge the child from the sentence of probation.”
[20] See Tex. Fam. Code §54.051(d-1).
[21] Tex. Fam. Code §51.0411.
[22] Tex. Hum. Res. Code §244.014.
[23] Tex. Fam. Code §54.11(h).
[24] See Dawson, Texas Juvenile Law, pp.577-578.
[25] Id., citing In the Matter of K.H., , No. 12-01-00342-CV, 2003 WL 744067, 2003 Tex.App. 4617, Juvenile Law Newsletter, 03-2-02 (Tex.App.LEXIS—Tyler 2003, no pet.)(not for publication).
[26] Tex. Fam. Code §54.11(b) states that “the court shall notify the following of the time and place of the hearing: 1) the person to be transferred or released under supervision; 2) the parents of the person; 3) any legal custodian of the person, including the Texas Juvenile Justice Department or a juvenile board or local juvenile probation department if the child is committed to a post-adjudication secure correctional facility; 4) the office of the prosecuting attorney that represented the state in the juvenile delinquency proceedings; 5) the victim of the offense that was included in the delinquent conduct that was a ground for the disposition, or a member of the victim’s family; and 6) any other person who has filed a written request with the court to be notified of a release hearing with respect to the person to be transferred or released under supervision.” Remember that in determinate sentence probation transfer hearings, the prosecutor has to contact the victim.
[27] Tex. Fam. Code §54.11(d). See also Dawson, Texas Juvenile Law, p. 579.
[28] Tex. Fam. Code §54.11(d).
[29] The representatives may change over the years but at the time of this article, Alanna Bennett and Tami Coy are the TJJD reps. I just wanted to give a shout out to them.
[30] See Tex. Fam. Code §54.11(b).
[31] Tex. Fam. Code §54.11(c).
[32] See Dawson, Texas Juvenile Law, p.579. Appellate courts may find harmless error if defense counsel is present or if another adult family member is present.
[33] Tex. Fam. Code §51.11(c).
[34] In the Matter of T.C.K. Jr., 877 S.W.2d 43 (Tex.App.—Beaumont 1994, no writ); See also Dawson, Texas Juvenile Law, p.579.