Editor’s note: This is the first in a series of articles on juvenile law. They are intended to be a primer for those who practice in this area, and they will run in the next four issues of this journal. The articles will cover topics including confessions, certification hearings, “post-18” filings, the determinate sentence process, specialty courts, and trends in juvenile law (among other things). So stay tuned!
Juvenile law is an area that confuses the most seasoned prosecutor. It is a realm of law that marries civil procedure and criminal law—and an area that many prosecutors seek to avoid. If you have never practiced before in a juvenile court, handling one of these enigmas can seem completely foreign. From penalty ranges to terminology, these cases differ greatly from adult criminal cases. And unless you have delved into the world of the juvenile system, one could easily be disoriented as to how to proceed.
Hans: I was first assigned to the juvenile division after prosecuting adults for 20 years. I was a total fish out of water and it took me almost a year to get a good grasp of what I was doing in the juvenile law world. In fact, I didn’t even know how to do a plea, and I had probably done thousands of them in adult courts in my career up to that point.
To understand the juvenile system, it is important to grasp its intended purpose. The Juvenile Justice Code, contained within the Family Code, states that it is not only designed for the protection of the public but also to “provide treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child’s conduct.” When looking at incidents involving criminal behavior committed by a juvenile, it is important to recognize that as prosecutors we are seeking justice, but in the juvenile system, we are also seeking to help rehabilitate the youth.
Both of us have seen juveniles return to court having had their lives completely transformed because of the intervention of the juvenile system. Having the structure of a secured facility or a probation officer’s intense supervision can redirect these kids onto the right path.
Hans: I once dealt with a juvenile who was charged with possession of cocaine and placed on probation. He was the son of a federal law enforcement agent and lived in a nice house in an upper-middle-class neighborhood. He was horribly addicted to drugs and ran away from home while on probation. His father could not find him for several weeks, and both of his parents were terribly worried for his safety. We found out later that he was committing thefts to survive and living with adult drug addicts to support his habit. He was eventually arrested, and with the juvenile drug court’s intervention, his life completely turned around. He is now a drug-free teenager.
Sarah: I recall one particular juvenile who was heavily involved in a criminal street gang, never attended school, and thought nothing of committing violent acts. He was committed to the Texas Juvenile Justice Department, where he earned his high school diploma and welding certification. He successfully completed the violent offender’s program and received positive reviews on his attitude and demeanor from the facility. In fact, he had become a positive role model for other juveniles there. Had the system not stepped in and removed him from his destructive path, he never would have made such progress and changes. In fact, it was likely he would have ended up in the adult prison system or even dead on the street.
I have often said that if you want to help make a change in the world, the biggest impact you can have is on the life of a child. Working in the field of juvenile law allows us to do just that.
Who is a juvenile?
In Texas, a person can be charged in a juvenile court for criminal offenses committed on or after his 10th birthday. These offenses can range anywhere from a class C misdemeanor up to and including capital murder. A person who is at least 10 years old and under the age of 17 can be charged as a juvenile. Once a person turns 17 in Texas, he is legally considered an adult, and any criminal charges would be handled in adult court.
(The Texas legislature has recently discussed moving the age of legal maturity from 17 to 18 years of age. One argument for increasing the age is that a 17-year-old is considered a minor for family law purposes, whereas the same individual is considered an adult under the Penal Code. If the age of legal maturity is raised to 18, it would provide consistency on how a minor is defined under various Texas statutes. Look for future discussion on this in the upcoming legislative session.)
The Texas Penal Code governs both adult and juvenile criminal offenses. The Juvenile Justice Code, contained within the Texas Family Code under Title Three, sets forth vital statutes on arrest procedures, hearings, and dispositions specific to the juvenile system. Other applicable codes to be aware of include the Human Resources Code, Health and Safety Code, Government Code, and the Rules of Civil Procedure. Additionally, the Code of Criminal Procedure applies to discovery issues that arise in a juvenile court.
Arrest and detention
There are several differences regarding the arrest of a juvenile compared to the arrest of an adult. A law enforcement officer may take a juvenile into custody if there is probable cause to believe that the juvenile violated a criminal law, engaged in delinquent conduct or conduct indicating a need for supervision, or violated a court-ordered condition of probation. Family Code §51.03(a) defines delinquent conduct as conduct other than a traffic offense that violates a state or federal penal law punishable by imprisonment or jail time. Section 51.03(b) defines conduct indicating a need for supervision includes committing fine-only misdemeanors; violating the penal ordinances of any political subdivision of the state; the child’s voluntary absence from his home without his parents’ consent; “huffing” paint fumes or vapors; violation of a school district’s written standards of student conduct; committing prostitution; and committing electronic transmission of certain visual material depicting minor.
There is no requirement that an officer obtain an arrest warrant as in the adult criminal system, where the Code of Criminal Procedure generally requires a warrant. However, an officer may decide to obtain a juvenile arrest warrant called a Directive to Apprehend, which is similar to an adult arrest warrant. A juvenile court may issue a Directive to Apprehend, which must contain the probable cause to believe that the juvenile committed the crime alleged, if an officer needs to arrest a juvenile in another state, for example. A written arrest warrant might be needed to show that jurisdiction’s law enforcement or judicial authorities that he is wanted and is alleged to have committed a crime in Texas.
When a juvenile is taken into custody, he must be delivered “without unnecessary delay” directly to a juvenile processing office and his parent or guardian must be promptly notified that he has been taken into custody and the reason he was taken into custody. Within 48 hours from when the accused was taken into custody (including weekends and holidays), a court or a magistrate must conduct a detention hearing to determine whether to release or detain the juvenile in a facility until his court appearance.
Detention decisions are at the discretion of the court or magistrate, and it’s important to note that there is no bail system in juvenile courts and in the Family Code. A detention hearing must be conducted no later than the second working day after the juvenile is taken into custody. If he is detained on a Friday or Saturday, then the detention hearing must be conducted on the first working day after detention. Reasonable notice of the hearing must be provided to the juvenile and his parent or guardian; however, if the parent or guardian can’t be located, the court must appoint a guardian ad litem for the detention hearing. The juvenile has a right to counsel at all detention hearings. The juvenile must be released from detention unless the court finds that:
1) 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;
3) he has no parent, guardian, custodian, or other person able to return him to the court when required;
4) he may be dangerous to himself or may threaten the safety of the public if released; or
5) he has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.
If the juvenile is kept in detention, a detention hearing must be held every 10 days to determine whether continued detention is warranted. If the court decides to release the juvenile, it may impose specific conditions on him relating to his release. These may be similar to bond conditions set on a defendant in adult court, although the juvenile court cannot set a bond for the juvenile’s release. Additionally, the court may impose conditions on the juvenile’s parent or guardian who is present at the detention hearing to require that adult to assist the juvenile with abiding by his conditional release. Therefore, it is not only the juvenile who may have court-ordered conditions, but the court may also set conditions on the adult responsible for that juvenile.
For example, an adult may be required to move himself and the child to another residence in a child sexual assault case to keep the juvenile away from other children in the household, or the relative who takes him in may be required to keep all children away from the juvenile. Another example is a parent who may need to get permission from the court to take the child out of the county for a trip or vacation.
Criminal allegations against a juvenile are filed as a petition in a court with designated jurisdiction over juveniles, and the Texas Family Code outlines with specificity what must be included in the petition. The filings are styled as “In The Matter of ____” and must state the age of the accused to show that the court has jurisdiction over the juvenile. The name and address, if known, of a parent or guardian must also be included in the petition. The juvenile, called the “respondent,” must be served with both the summons and the allegations in the petition filed by the State, or “petitioner.”
Service must also be made on the juvenile’s parent or guardian. It is imperative that the prosecutor verify that the respondent was officially served with the court documents prior to an adjudication or certification hearing. Courts in Texas have held that the juvenile must be personally served with a copy of the petition and summons. It is reversible error for a prosecutor to proceed on a case in which the respondent has not been personally served with the petition and summons because the court will lack jurisdiction over the juvenile. Always verify that the parent or guardian has been served with the summons and petition as well. However, the parent or guardian waives service of the summons by voluntary presence at the court proceeding.
Juvenile charges are not presented before a grand jury for indictment. However, there are deadlines in the Texas Family Code regarding the timeliness of filing a petition. For a detained juvenile, the State has only 30 days from the initial detention hearing to file a petition alleging a capital felony, an aggravated controlled substance felony, or a first-degree felony. If the petition is not filed in this time, the detained juvenile must be released from custody. For all other offenses and violations of probation, the petition must be filed by the 15th working day after the initial detention hearing. The code does allow the local juvenile board to impose an earlier filing deadline authorizing the court to release the juvenile.
Going to court
Unlike in an adult court, when a respondent appears in juvenile court, he must be accompanied by a parent or guardian. The court will appoint a guardian ad litem to protect the juvenile’s interests if a parent or guardian does not attend the hearing. As in any criminal court in Texas, if the allegations are contested, the judge or a jury will decide whether the individual committed the alleged criminal offense. However, in juvenile court, the terms “guilty” and “not guilty” are not used. If the judge or jury determines that the respondent is guilty of the offense, the finding will be that he has “engaged in delinquent conduct” and is in need of rehabilitation.
During the adjudication hearing, the court is statutorily required to explain to the juvenile and his parent or guardian the allegations, the nature and possible consequences of the proceedings, and the juvenile’s Miranda rights. If the respondent and State come to an agreement on the disposition of the case, the respondent “stipulates” to the evidence and enters a plea of “true” to the allegations rather than a plea of “guilty.”
One important difference in a juvenile court from that of an adult court is that the juvenile has the right to a jury trial but the State does not have this same right. However, a juvenile does not have the right to a jury trial on the punishment or disposition phase unless the State has filed a determinate petition. (More on that later.)
Once a judge or jury makes a finding that the juvenile has engaged in delinquent conduct and is in need of rehabilitation on any petition that is not a determinate petition, the parties move on to a disposition hearing before the judge. Prosecutors must remember that the purpose of the juvenile system is to protect the public and to rehabilitate the juvenile, which means that disposition may appear quite different from adult court. This may be the last opportunity to redirect criminal behavior before the juvenile’s conduct lands him in an adult court, where the penalty may result in a higher punishment and a permanent criminal record. Because one of the stated purposes of the juvenile system is “to remove, where appropriate, the taint of criminality from children committing certain unlawful acts,” juveniles may have their criminal records sealed. Eligibility requirements and procedures for sealing records can be found in §58.003 of the Texas Family Code.
Punishment ranges differ in juvenile court from that in adult court. With the exception of determinate petitions, there is no set minimum or maximum sentence in the juvenile system. For instance, in adult court, a person found guilty of Aggravated Robbery faces a minimum of 5–99 years or life in the Texas Department of Criminal Justice’s Institutional Division or possibly probation. A juvenile offender convicted of the same offense would face a range of punishment varying from commitment to the Texas Juvenile Justice Department until his 19th birthday or placement on probation that can last until his 18th birthday.
In some cases, the offense itself and the facts may be so egregious that a stronger punishment is warranted and desired. The law provides two alternative routes for these types of situations. Both alternatives are available only for felonies. One option is to seek a determinate sentence, which would potentially allow the juvenile’s punishment to ultimately be transferred to adult court or adult prison. The other is to ask the court to waive its jurisdiction over the juvenile and certify the juvenile as an adult.
The key difference between the two options is that a determinate petition and sentence is kept in the juvenile court system—with the possibility of a sentence being transferred to adult probation or to an adult correctional facility after the juvenile becomes an adult—whereas a juvenile who is certified to stand trial as an adult is transferred to adult court prior to any adjudication.
The advantage of pursuing a determinate sentence is that it sets a punishment range up to 40 years. Texas Family Code §53.045(a)(1)–(17) specifically delineates which felonies are eligible for a determinate sentence. For example, Murder, first-degree Possession of a Controlled Substance, Sexual Assault, and Aggravated Assault are all specifically eligible, but Burglary of a Habitation, Robbery, and Indecency with a Child by Exposure are not. Note that a juvenile is unable to seal his juvenile adjudication record if he is adjudicated on a determinate petition.
To obtain a determinate sentence, the prosecutor must present a determinate petition to a grand jury for approval to file it in the juvenile court. The grand jury must make a determination that probable cause exists and also decide whether to grant approval for a determinate petition to be filed. (The grand jury is not making an indictment decision on the case. This is the only situation in which a filed juvenile petition pending in a juvenile court can be presented to a grand jury.) Once the grand jury approves the determinate petition, it is then filed with the juvenile court and titled as an amended petition. The juvenile respondent must then be personally served with this new petition, which provides notice of the State’s intent to seek a determinate sentence.
Although not required, a prosecutor can seek advice from a grand jury in situations in which he is uncertain if charges should be filed against a juvenile. The grand jury has the same authority to investigate the case as it does in adult cases. If the grand jury decides that charges should not be filed, the prosecuting attorney cannot file a petition concerning the offense unless the same or a successor grand jury approves filing the petition. On the other hand, if the grand jury agrees that a petition should be filed for the offense, the prosecutor may file the petition under §53.04.
Certification as an adult
The other avenue available to prosecutors when handling a case involving a serious offense is to ask the juvenile court to waive jurisdiction and allow the case to be heard in adult criminal court—in other words, to seek to certify the juvenile as an adult. The key difference between a determinate sentence and certification is that a determinate sentence affects how the case is handled post-adjudication, whereas a certified case is handled pre-adjudication in adult court. The certified juvenile would face punishment in an adult facility and could face a life sentence with parole eligibility. Certified juveniles are not eligible for the death penalty or punishment of a life sentence without parole. Once a juvenile has been certified, all subsequent cases involving offenses occurring after the date he was certified, but before he becomes an adult, qualify for being automatically certified, with a few exceptions. Certification can be sought in any felony case provided the juvenile is at least 15 years old at the time he committed the offense. A special exception is made for juveniles who are 14 years old and are accused of committing a capital offense, an aggravated controlled-substance felony, or a first-degree felony.
To seek certification, the State must file a new petition with the allegations and its intent to certify the juvenile with a Motion to Waive Jurisdiction. The juvenile and parent or guardian must be served with the new petition. Once served, the juvenile will be given magistrate’s warnings from a judge prior to the certification hearing. The judge then must order a pre-hearing evaluation, consisting of a diagnostic study, social evaluation, and full investigation of the respondent, his background, and the circumstances of the alleged offense. In Harris County, the probation department completes this evaluation. The juvenile and his lawyer may waive his participation in this social evaluation and diagnostic study. If this happens, a pre-hearing evaluation would be completed with information from only the juvenile’s prior criminal record, school records, detention records, and any other records the court receives. While this does not occur frequently, it is their right not to participate.
Once the court, defense counsel, and the State have received the court-ordered evaluation of the juvenile, the court will hold a certification hearing to determine whether to grant the State’s motion. During the hearing, the court must determine whether probable cause exists for the criminal offense alleged and considers four specific factors outlined in the Family Code for the discretionary transfer:
1) whether the alleged offense was against person or property, with the greater weight in favor of transfer given to offenses against the person;
2) the respondent’s sophistication and maturity;
3) the respondent’s record and previous history; and
4) the prospects of adequate protection of the public and the likelihood of the respondent’s rehabilitation by use of the procedures, services, and facilities currently available to the juvenile court.
The court must consider these four factors when making a decision to waive jurisdiction, but it may take into account additional factors presented during the hearing.
If the court grants the waiver of jurisdiction and signs the order certifying the juvenile, the case is transferred to adult court. The juvenile may appeal the certification decision utilizing an interlocutory appeal. A juvenile’s right to appeal the certification decision immediately after the certification hearing is a fairly recent change in the law that became effective September 1, 2015.
The court may also waive its jurisdiction and transfer a juvenile court case to adult court in cases involving “post-18” filings. In these circumstances, the accused has already turned 18 years of age but he committed a felony when he was a juvenile and was never adjudicated for the crime. This procedure may be utilized if:
• the offender was 10 or older and under 17 at the time he committed a capital felony offense;
• he was 14 or older and under 17 and committed an aggregated controlled-substance felony or first-degree felony; or
• he was 15 or older and under 17 and committed any other grade of felony.
The juvenile court uses a preponderance of evidence standard to determine whether probable cause existed for the State to proceed on the allegations before the accused’s 18th birthday. The court also examines whether the State exercised due diligence in handling the case.
If the juvenile is placed on a determinate sentence probation, the State must request a hearing to transfer the probation from juvenile probation to adult probation. The juvenile and his parent or guardian must be served with notice of this hearing, and the juvenile has the right to be represented by counsel. The transfer hearing on a determinate probation case must be held prior to the juvenile’s 19th birthday. The State may want to present evidence of violations of probation and witnesses to support the transfer to adult court. The defense may present evidence that the juvenile has been rehabilitated and that a transfer is not warranted. If the judge determines that transfer is appropriate, the probation will be transferred to an adult court on the respondent’s 19th birthday.
Transfer to the adult system
If the respondent was committed to the Texas Juvenile Justice Department (TJJD) on a determinate sentence, he will be sentenced for a specific time period not to exceed 40 years. If the juvenile is unable to complete his sentence before he turns 19, representatives of TJJD will determine whether it is appropriate to request a hearing to transfer him from TJJD to an adult prison or to release him from TJJD to parole. TJJD can request a transfer hearing any time after the juvenile turns 16; however, the transfer procedure must be completed prior to his 19th birthday. An offender cannot be held at a TJJD facility past his 19th birthday.
The differences between practicing in the adult criminal system and the juvenile criminal system are more than dealing with a “defendant” versus a “respondent.” The hearings, procedural requirements, and restrictions placed on handling a juvenile offender are exclusive to this area of law. Though the criminal offenses alleged are the same in either system, the approach and purpose behind the systems vary. Whether a juvenile is given probation or the State seeks to certify him as an adult, remember that we are tasked with prosecuting in a system established with the married purposes of protecting the public and rehabilitating the youth. While this may be an unfamiliar and possibly frustrating terrain for a prosecutor with an adult-court mindset, practicing in juvenile courts can be a rewarding and fulfilling experience once you learn the language and procedures available.
1 Tex. Fam. Code §51.01. All code references from here on are to the Texas Family Code unless otherwise noted.
17 Johnson v. State, 551 S.W.2d 379 (Tex. Crim. App. 1977).
35 See §§53.04, 53.05, 53.06, and 53.07.
41 See Tex. Fam. Code §54.11 and the Tex. Human Resources Code §244.014.