By Ellen Wheeler-Walter and Joshua Luke Sandoval
Assistant Criminal District Attorneys in Bexar County
The two of us were paired up late last year when Joshua was assigned to the Juvenile Division and partnered with Ellen, who had practiced primarily juvenile law during her career. Joshua was gaining confidence in procedure, hearings, and the services available to respondents—and then the pandemic hit.
We would be remiss if we didn’t take a moment to state the obvious. The procedural, technological, and statistical hurdles in the juvenile justice system pale in comparison to the devastating health and financial difficulties encountered by millions of Americans during this time. As prosecutors, we have an obligation, though, to learn from this unprecedented public health crisis, plan for the future, and find ways to improve things.
Whereas it goes without saying that the current pandemic has had deleterious effects on every area of criminal prosecution, this article will focus on the distinct struggles that juvenile justice specialists have encountered over the past year. Given the unique statutory, procedural, and policy considerations that go into prosecuting juvenile offenses, we are struck that the juvenile justice system has been hit particularly hard and in a manner that would appear foreign to those without familiarity in the area.
For purposes of this article, we will limit discussion to three main areas of impact: respondents aging out of the system, transport of respondents in custody, and docket management.
Aging out of the system
Let’s get the formalities out of the way: If you are reading this article and you’re a prosecutor, you likely have your case preparation checklist memorized like the ABCs. Have I contacted the victim? Do I have my witnesses? Have I checked for and made any necessary witness disclosures? The list goes on. For juvenile justice specialists, let’s add one more to the list: How close is my respondent to aging out of the system? That’s right, as if worrying about getting all of the witnesses together—let alone what they will say once they are on the stand—wasn’t enough to keep us on our toes, those of us who prosecute juvenile cases also have to keep in the back of our mind a respondent’s age.
In Texas, any offense committed by a youth between age 10 up to and including 16 falls under the jurisdiction of the juvenile court as delinquent conduct. The court maintains jurisdiction over that conduct until the respondent reaches 18 years of age. It is important to note that offenses committed while one is a juvenile will always remain under the jurisdiction of the juvenile court, absent situations such as determinate sentence filing and certifying a juvenile to stand trial as an adult.
Where the situation becomes a little more problematic is when one considers issues of disposition. Like the adult system, in juvenile law, there are two distinct phases to resolving a case: adjudication (akin to guilt-innocence) and disposition (akin to sentencing). These hearings are separate proceedings that can, but do not always, take place in quick succession. A finding of “true” for delinquent conduct can be entered by a judge regardless of the respondent’s age (presuming the conduct occurred while he was between the ages of 10 and 16). However, disposition presents a greater challenge.
For delinquent conduct in the juvenile system, there are three main methods of disposition:
• deferred contracts,
• probation, and
• commitment to the Texas Juvenile Justice Department (TJJD), which is an option only on felony offenses.
A deferred contract is like deferred adjudication in the adult system in that it offers a respondent the opportunity to take various offense- specific courses and even receive counseling. Upon successful completion of a deferred contract, the case is dismissed. However, unlike the adult system, if a respondent does not comport with the terms of a deferred contract, the contract will be terminated, the case may be filed, and the process starts from the beginning.
Juvenile probation departments can monitor and offer various services to respondents up until the age of 18. Respondents who are committed to TJJD for an indeterminate sentence can stay until their 19th birthdays. There are a set of offenses in which, upon certification by the grand jury, a respondent may be assessed a determinate sentence. In these situations, a hearing is required prior to the respondent reaching age 19 to determine whether he will be released to the Texas Department of Criminal Justice’s parole or institutional division. One of the final sentencing options at a juvenile prosecutor’s disposal is waiver of jurisdiction and discretionary transfer to a criminal district court.
With misdemeanor offenses, because TJJD is off the table by statute, the only disposition option is probation. As mentioned above, this is problematic because once a respondent reaches 18 years of age, the juvenile ages out of the system. This has always been true, and the COVID-19 pandemic has turned it into a consistent concern. Because of all-out delays in the beginning of the pandemic, followed by time in which courts, prosecutors, defense attorneys, and probation officers alike scrambled to adapt to virtual dockets, many respondents’ cases progressed much more slowly than usual. Unfortunately, the laws of space and time didn’t take a break while the courts did, so respondents continued to draw nearer and nearer to their 18th birthdays without resolution, potentially causing a misdemeanor case to lose jurisdiction. The practical effect of losing jurisdiction is that once a respondent reaches 18, a misdemeanor case must be dismissed.
Felony cases, even with the State’s ability to commit a respondent to TJJD, have similarly suffered potentially fatal delays. Even with the prospect of TJJD as a disposition, the pandemic has slowed down the ability to resolve cases for many of the same reasons as above. Furthermore, just because TJJD is an option doesn’t mean that it is an appropriate option. Because the purpose of the juvenile system is to rehabilitate and seek solutions in the best interest of the youth, often TJJD is reserved for more “habitual” juveniles or those who have committed violent offenses. Even for those cases where TJJD is in the best interest of the youth, it can keep respondents only until right before their 19th birthday. When a juvenile approaches his 19th birthday, there are typically three options depending upon the petition level that the respondent was adjudicated on: If the youth is still in TJJD, he can be released outright, released to TDCJ’s Parole Division, or transferred to TDCJ’s Institutional division.
These problems pertain only to those cases that can be resolved by a stipulation. As with the adult system, there are always those that can be resolved only with a trial. Given that the pandemic has put the brakes on juries—no in-person jury trials have taken place in our jurisdiction, and that seems to be the likely practice for the foreseeable future—innumerable cases that ostensibly demand to be tried are waiting and continuing the slow lurch toward respondents aging out of the system.
While the situation may seem dire, there are options to prevent a difficult situation from becoming a catastrophic one. Knowing that the dreaded possibility of aging out of the system is slowly creeping up as the days go by comes as no surprise. As such, it is imperative prosecutors are proactive in triaging cases and paying close attention to respondents’ ages. For those cases in which the threat of aging out is more than just a theoretical danger, inventive juvenile prosecutors should make prudent use of all the tools in the toolbox. First, identify cases that can be pled out. Not only does this alleviate pressures of a growing docket, but it also affords respondents the benefit of valuable probation services. Furthermore, where in-person jury trials have come to a halt, there is always the option of virtual bench trials. As both parties are becoming increasingly accustomed to various technology used on a daily basis for status conferences and pleas, it is likely that virtual bench trials will become much more commonplace.
Transporting respondents in custody
Transportation of respondents in custody, whether they’re in detention, placed with Child Protective Services, or living in a placement facility, is another area where the COVID-19 pandemic has created issues. Juveniles who are in locations other than with their parent(s) or guardian(s) in their homes are at the mercy of transportation protocols established by the facility. The pandemic-induced travel issues have created real obstacles to resolving cases and conferring between respondents and their counsel.
Part of the reason that transportation issues are so significant is because in the juvenile system, there are so many treatment and housing options available. Given that the whole purpose of the system is to keep the best interests of the youth in mind, it makes sense that there are many treatment options, but that variety has exacerbated the potential for transportation to throw a wrench in the system. Let’s look into several of the many treatment options at the disposal of juvenile prosecutors.
Respondents who are awaiting trial and have a referral (have been arrested) can be detained presuming certain criteria are met. Under Texas law there is a presumption in favor of release for a respondent held in detention unless, at a detention hearing, the court finds that:
1) there is not suitable supervision care or protection for him,
2) he has no parent, guardian, or other person to whom to release him who is able to return him to court when required,
3) he may be a danger to himself or may threaten the safety of the public,
4) he has previously been found to be delinquent in the past and is likely to commit an offense if released, or
5) the respondent is likely to abscond.
Unlike a county jail, juvenile detention centers are not appropriate to house youths after disposition. Detention centers during the pandemic suffer from a variety of complications. Consider intake of new detainees, for instance. The staff must comport with a new screening protocol to catch potentially symptomatic youth being brought into the facility. Similarly, consider movement of youth within the center: If a detainee starts showing symptoms consistent with COVID-19 or tests positive for the virus, entire sections of a facility may need to be quarantined and closed off. The practical effect of such a shutdown is that no respondents can leave that section to confer with attorneys or probation officers or even to take part in Zoom hearings (if the equipment is outside that section). All of these concerns are in addition to obvious measures, such as maintaining social distance and wearing masks.
Let’s turn our attention next to placement facilities. These are secure lockdown facilities in which respondents are placed on probation in the care and custody of the chief juvenile probation officer. These locations have many of the same concerns as detention facilities, as discussed above. An additional consideration, however, is what happens when a placement facility, due to COVID-induced capacity limitations, is unable to accept new respondents. Respondents are still being placed on probation, albeit at a slower pace, and placement in a facility is a requirement. If there is not a facility available for a youth, many times he will remain in detention pending a vacancy. It’s a less-than-ideal solution.
It is particularly difficult because for the most part, these concerns are outside the prosecutor’s control. However, that doesn’t mean that good old-fashioned collaborative problem-solving with other departments and agencies can’t improve the way things operate. For example, communication and cooperation with our non-prosecuting partners in the juvenile justice system is crucial when it comes to juveniles in detention facilities. Plea paperwork can now be routed through detention officials for respondents to sign and review with their attorneys. Juvenile probation and detention officials have also been at the front lines ensuring technology is present and reliable for respondents and defense counsel to use.
How on earth do we work to alleviate increasing detention numbers, though? Ostensibly, this is something totally outside of the control of the prosecutor, right? Well, not necessarily. Keeping on top of one’s docket and following up on cases are paramount to ensuring that the only youth remaining in detention are those who statutorily must remain in detention. If a respondent is awaiting transfer to a placement facility, it is important for prosecutors to look at the facts, think critically, and make a determination if the youth needs to remain in detention until a bed opens up at the facility. Sometimes for lower-level offenders, release from detention on a GPS monitor can be a real option.
Transporting respondents to and from TJJD custody is also an issue. As with placement facilities, respondents are still being sentenced to TJJD. What happens, however, when TJJD isn’t accepting youth and juveniles end up waiting in a detention facility until TJJD opens its doors again? In an effort to curtail COVID-19 spread within TJJD facilities, the institution imposed a variety of intake restrictions. Facilities did not receive new youth for roughly two weeks each during the months of May, June, and August. During July, movement into intake was restricted for the entire month. Our home jurisdiction of Bexar County was put on a restriction list at the end of June through the end of the summer, which meant that TJJD facilities were not accepting any respondents from our county that entire time—something that has happened to other large counties too.
Movement out of TJJD can also present major issues. In situations where a respondent was assessed a determinate sentence that runs past his 19th birthday, the court must conduct a hearing prior to the birthday. Because TJJD cannot keep a respondent past that birthday, if the hearing doesn’t start before that, the respondent must be released. As if that weren’t enough to present potential issues, the respondent’s TJJD file must also be made available to both the State and counsel for the respondent no less than five working days prior to the hearing. Pre-pandemic, the TJJD master file, security file, and other necessary reports were physically mailed to the court to be made available to both sides. But since the pandemic started, TJJD representatives have been granted greater freedom in making the same information available to all the required parties in electronic format. It is worth noting that the TJJD representatives we have worked with have been wonderful assets in sharing information and clarifying anything in a master file.
What happens when a respondent who is nearing age 19 is COVID-positive and unable to leave TJJD jurisdiction to take part in the hearings? You better believe this is a frustrating situation, but we still have options. In just such a situation, where we knew the youth would not be in our jurisdiction in time for the hearing, we began the hearing on the record, asked the court to take judicial notice of the appropriate files, and then asked for a continuance. (Of course, communicating this plan ahead of time to both the court and counsel for the respondent is key.) In this case we were able to begin the hearing prior to the respondent’s 19th birthday and then request a continuance for a few weeks later, when we knew the respondent would be in our jurisdiction so defense counsel could confer with him. Even though the hearing commenced after the youth turned 19, the hearing had begun in accordance with the statute prior his 19th birthday.
For countless prosecutors, this pandemic has destroyed any sense of docket management. While many jurisdictions eventually found remote methods to confer, plead cases, or even hold various hearings, the ability to have jury trials on a mass scale has eluded the overwhelming majority of prosecutors.
When the pandemic brought the juvenile justice system to a sudden stop, it did more than just clog dockets; it also obliterated the conventional means of even moving our cases. Both the infectious dangers of COVID-19 and the restrictions that have come along with it have hindered prosecutors from a business-as-usual approach.
Disclosure. The loss of in-person dockets, along with the absence of jurors, is probably the most obvious change that has occurred. All prosecutors have experienced it, but juvenile justice practitioners have encountered different encumbrances. Depending upon the jurisdiction, in-court conferring may have been a primary means of disclosing information that wasn’t discoverable under CCP Art. 39.16 prior to the pandemic. Juvenile cases can be replete with such information given the minor status of the respondents. CPS records, forensic interviews, and TCIC files create practical problems for sharing with counsel, a problem that isn’t always readily addressed by technological instruments such as Zoom.
Solving these problems takes a little more effort and scheduling zeal. Keep open the channels of communication with defense attorneys and try to work with them to make this information available. Sometimes this requires setting up appointments for attorneys to come by and view the information, and in our experience, keeping a flexible schedule not only ensures that we comport with our ethical and statutory requirements, but it also helps move cases. If space permits, make an area of your office available for defense counsel to view the information, whether it be in print or electronic format. Oftentimes this accomplishes the same result that viewing the information during a docket did—but without the same time restrictions of defense counsel having to bounce around the courthouse from setting to setting.
Confidentiality. Given that negotiations and preparation of plea paperwork must now be done remotely, additional difficulties have arisen. Because the concept of confidentiality is a greater concern in the juvenile system, there is a need to maintain the privacy of the respondent or other minors who may be involved.
Work with other prosecutors in your section or office to create and maintain a uniform manner of disbursing such documentation, which will ensure accountability and standards to safeguard sensitive information. Whether it’s done in print or electronically, prosecutors should ensure that the recipients of information, such as plea paperwork, acknowledge receipt and understand where the paperwork should be forwarded once appropriate signatures have been obtained. If your jurisdiction decides to use print copies, it might be prudent to have counsel sign for it once it is picked up.
Detention hearings. Under Texas law, respondents do not have the same rights to bail as adults do, but they are afforded the right to a detention hearing every 10 days. These hearings require the presence not only of the usual parties but also a juvenile probation officer and some type of guardian for the youth (whether it be a parent or guardian ad litem). Requiring additional participants often presents new difficulties. For instance, each party is present to offer unique insight at the hearing. Probation officers frequently are questioned on the progress a respondent is making while in detention or in other services. This additional knowledge isn’t divinely bestowed upon them—it is the result of numerous interviews and case studies. The various restrictions that have accompanied the pandemic have greatly inhibited the ability for such information to be gathered, but it hasn’t halted it.
For the most part, this process is still taking place, albeit at an understandably slower pace. Juvenile probation officers are often calling respondents and utilizing other means to supplement the traditional in-person meetings. We prosecutors are amazed and grateful for the dedication of these probation officers who have adapted to these dreadful circumstances. We keep in constant contact with these officers, who are valuable sources of information about youths in detention.
Specialty courts and specialized dockets. Whereas specialty courts and specialized dockets aren’t unique to the juvenile justice system, it is fair to say that the juvenile system makes more liberal use of them. As with specialty courts in the adult system, juvenile specialty courts strive to involve the accused in an effort to address underlying issues. The courts are constructed to assist not only the respondent but also his parents or guardians. In many cases the latter are an integral part of the specialty court process. While Zoom has been an effective means to meet for these dockets, many families in the specialty court dockets don’t always have readily available internet access or, due to the pandemic, have variable work hours that sometimes make participation unduly burdensome.
To circumvent some of these challenges, probation officers and case managers have been working around the clock to ensure that effective and inclusive means of communication are created and maintained so that no one is left out. In numerous specialty courts and dockets conducted via Zoom, we have seen families and respondents call in to the case manager’s phone and participate that way. Additionally, everyone is understanding regarding the economic hardships the pandemic has created on families, and if parents have scheduling issues, every effort is made to accommodate them.
Furthermore, an integral part of the specialty court process is additional services often offered by the juvenile probation office. These services consist of additional counseling, home visits, evaluations, and the like. The pandemic and social distancing protocols have greatly curtailed the ability of probation officers to offer these services in the same ways they did before, but much of the groundwork can be done telephonically or online. As prosecutors, we rely heavily on the information gathered by case managers and juvenile probation officers so as to make informed decisions. In our county, neither the information gathering nor the offering of services have stopped. Though we did see a brief pause early in the pandemic, at this point numerous agencies have adapted to offering electronic courses, evaluations, and counseling services.
Interpreters. Another challenge arises with the use of court interpreters, namely, problems with internet connectivity or technological difficulties, which can prevent a solid connection for the individual in need of interpretation (often the respondent or a guardian). Reliable communication is a must for the hearing. In the best of scenarios where these problems occur, technical difficulties can be resolved and all that is lost is time. In the worst-case scenarios, hearings must be rescheduled to ensure fairness.
Where we go from here
Regardless of how quickly the system is able to achieve any sense of pre-pandemic normalcy, it would be short-sighted to think that the lessons learned from the COVID-19 pandemic are applicable only during a catastrophic health crisis. Rather, the experience gained from this time must be applied to other situations in which the juvenile justice system’s resources and communication abilities are placed under stress.
Furthermore, we should always be looking for ways to increase efficiency, fairness, and reliability of services. Without a doubt, the pandemic took the entire system by surprise, and its long-reaching effects were outside the control of everyone involved. However, we can have more control over the manner in which we navigate future challenges if we take the time and effort to learn from this crisis and implement changes in the future.
 Due in part to the chimeric quasi-civil, quasi-criminal nature of the juvenile system, those accused of an offense are referred to respondents as opposed to defendants. Similarly, the State is, technically speaking, the petitioner.
 Tex. Fam. Code §§51.02 and 51.03.
 Tex. Fam. Code §54.04.
 Tex. Fam. Code §§53.03 and 54.04.
 Tex. Fam. Code §§51.02 and 51.03.
 Tex. Fam. Code §54.04(d)(2).
 Tex. Fam. Code §53.045.
 Tex. Fam. Code §54.11.
 Tex. Fam. Code §54.02.
 Tex. Fam. Code §§51.02 and 51.04.
 Tex. Fam. Code §51.01(c).
 The Supreme Court of Texas’s 29th Emergency Order Regarding the COVID-19 State of Disaster.
 Tex. Fam. Code §54.01(e).
 See Tex. Fam. Code §54.04(i).
 Tex. Fam. Code §54.11.
 Tex. Fam. Code §54.11(d).
 Tex. Fam. Code §54.01.
 Tex. Fam. Code §54.01(c).
 The distinction between specialty courts and specialty dockets is often one based upon from where funding is derived and varies from jurisdiction to jurisdiction.