Wake up Corpus Christi Parents

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Office of the Attorney General
State of Texas

August 28, 1996

The Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891
Opinion No. DM-412

Re: Whether a county juvenile board is authorized to provide educational services to students who have not been adjudicated delinquent by a juvenile court and ordered to attend a juvenile justice alternative education program pursuant to Education Code, section 37.011(b), and related question (RQ-892)

Dear Mr. Driscoll:

Among the education reforms passed by the legislature last session in Senate Bill 1 (1) are several provisions requiring juvenile boards in certain counties to establish juvenile justice alternative education programs (JJAEPs), see Educ. Code §§ 37.011 - .013, (2) and to provide educational services to certain students who have been found by a juvenile court to have engaged in delinquent conduct, see id. § 37.011(b). On behalf of the Harris County Juvenile Board, you ask whether a juvenile board is authorized to provide educational services to students (3) who have not been adjudicated delinquent by a juvenile court and ordered to attend a JJAEP pursuant to Education Code, section 37.011(b). You also ask if a juvenile board is authorized to enter into a memorandum of understanding with school districts that provides for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b). We believe that the legislature intended to authorize juvenile boards to provide educational services to students who are not required to attend a JJAEP by a juvenile court order and to authorize a juvenile board to enter into an agreement with school districts to provide such services.

During the last session, in revising the Education Code, the legislature made clear its intent that school districts must "maintain a safe and disciplined environment conducive to student learning." Id. § 4.001(b). Chapter 37 of the newly revised Education Code is intended to ensure school and community safety by requiring school districts to adopt student codes of conduct, imposing certain disciplinary standards in schools, and fostering a working relationship between school districts and the juvenile justice system, particularly juvenile courts and county juvenile boards. In addition to significantly revising the Education Code in Senate Bill 1, the legislature passed numerous measures affecting the juvenile justice system, (4) including chapter 59 of the Family Code, which sets forth a "progressive sanctions" framework for use in sentencing juvenile offenders. (5) Chapter 37 of the Education Code mirrors the "progressive sanctions" framework of chapter 59 of the Family Code, providing disciplinary measures which increase in severity with the seriousness of the offense and a parallel continuum of alternative placement settings - - alternative education programs (AEPs) administered by school districts for students who have committed less serious offenses and JJAEPs administered by juvenile boards for students who have committed more serious offenses.

Section 37.001 of the Education Code requires each school district, "and jointly, as appropriate," with the juvenile board of each county in which the school district is located, to adopt a student code of conduct that must:

(1) specify the circumstances, in accordance with this subchapter, under which a student may be removed from a classroom, campus, or alternative education program;

(2) outline the responsibilities of each juvenile board concerning the establishment and operation of a juvenile justice alternative education program under Section 37.011;

(3) define the conditions on payments from the district to each juvenile board;

(4) specify conditions that authorize or require a principal or other appropriate administrator to transfer a student to an alternative education program; and

(5) outline conditions under which a student may be suspended as provided by Section 37.005 or expelled as provided by Section 37.007.

Id. § 37.001(a)(1) - (5). Section 37.008 requires each school district to provide an AEP that:

(1) is provided in a setting other than a student's regular classroom;

(2) is located on or off of a regular school campus;

(3) provides for the students who are assigned to the alternative education program to be separated from students who are not assigned to the program;

(4) focuses on English language arts, mathematics, science, history, and self-discipline;

(5) provides for students' educational and behavioral needs; and

(6) provides supervision and counseling.

Id. § 37.008(a)(1) - (6). Section 37.011 requires a juvenile board in a county with a population greater than 125,000 to develop a JJAEP. A JJAEP "must focus on English language arts, mathematics, science, history, and self-discipline," id. § 37.011(d), and must operate at least seven hours a day, 180 days per year, id. § 37.011(f). (6) Section 37.012(a) requires the school district in which a student is enrolled on the date the student is ordered to attend the JJAEP to transfer to the juvenile board in charge of the JJAEP "funds equal to the district's average per student expenditure in [AEPs]" for the portion of the year the student will attend the JJAEP.

These alternative placement settings dovetail with the progressive sanctions set forth in chapter 37. School-administered AEPs serve students who have engaged in less serious misconduct, while juvenile board-administered JJAEPs serve students who have engaged in more serious misconduct. A student may be placed in an AEP in one of several ways. (7) First, a principal may place a student in an AEP if the student has been removed from a classroom by a teacher for repeatedly interfering with the teacher's ability to communicate with the other students in the class or repeatedly interfering with the other students' ability to learn. Id. § 37.002(b), (c). Under section 37.006, a school district must transfer to an AEP a student who (i) engages in conduct punishable as a felony (8) or (ii) commits certain offenses (9) on school property or while attending a school-sponsored or school-related activity. (10) In addition, a court may order a student who has been expelled pursuant to section 37.007, see discussion infra, to attend an AEP as a condition of probation if the school district and the juvenile board have entered into a memorandum of understanding "concerning the juvenile probation department's role in supervising and providing other support services for students in alternative education programs." Id. § 37.010(c).

A school district must expel a student from school if the student commits certain weapons offenses or other serious offenses, such as aggravated assault, sexual assault, arson, murder, indecency with a child, or aggravated kidnapping, on school property or while attending a school-sponsored or school-related activity on or off school property, id. § 37.007(a), or if the student engages in conduct which contains elements of these offenses against any school district employee in retaliation for or as a result of the employee's employment with the school district, id. § 37.007(c). (11) A school district may expel a student who has been placed in an AEP for disciplinary reasons and continues to engage in serious or persistent misbehavior that violates the district's student code of conduct, id. § 37.007(b), or a student who engages in conduct that contains the elements of the offense of criminal mischief if the conduct is punishable as a felony, id. § 37.007(f). (12) Expulsion appears to include expulsion from all school district campuses and programs, including an AEP. (13) See id. § 37.008(h). (14)

Although chapter 37 provides great detail regarding the circumstances under which a student must or may be transferred to an AEP or expelled, it says relatively little about placement in a JJAEP. Section 37.011(b) provides that if a student is found to have engaged in conduct for which a student may be expelled under section 37.007, see supra, and is found by a juvenile court to have engaged in delinquent conduct, (15) the juvenile court shall require the JJAEP in the county in which the conduct occurred to provide educational services to the student, id. § 37.011(b)(1), and order the student to attend the JJAEP, id. § 37.011(b)(2).

In essence, you ask whether a juvenile board is authorized to provide educational services to students other than pursuant to a juvenile court order under section 37.011(b)(1). You suggest that under section 37.011(b) a juvenile board may be limited to providing educational services to students pursuant to a juvenile court order, contending that because "the statute mentions no other class of students who should be placed in a JJAEP . . . [t]his express listing of those who must attend the JJAEP is the equivalent of the express exclusion of all others." We disagree. We construe section 37.011(b) to delineate the circumstances under which a juvenile court must order the JJAEP in the county in which the conduct occurred to provide educational services to the student and order the student to attend the JJAEP. (16) To construe section 37.011(b) to exclude the placement of students in a JJAEP in other situations would not be consistent with other provisions of chapter 37, particularly section 37.001, the student code of conduct provision. We believe that a juvenile board's authority to provide educational services to students under other circumstances must be implied from section 37.001. As we explain below, to conclude otherwise would render two requirements for a student code of conduct superfluous. We must construe chapter 37 to avoid this result. See Gov't Code § 311.021(2) (in enacting a statute, it is presumed that the entire statute is intended to be effective).

Section 37.001 requires each school district to adopt a student code of conduct jointly, as appropriate, with each juvenile board in the county. The student code of conduct must "outline the responsibilities of each juvenile board concerning the establishment and operation of a [JJAEP]," Educ. Code § 37.001(a)(2), and "define the conditions on payments from the district to each juvenile board," id. § 37.001(a)(3). If the legislature had intended to limit juvenile boards to providing educational services to students pursuant to a juvenile court order under section 37.011(b), a juvenile board's responsibility to establish and operate a JJAEP would be fully elaborated by sections 37.011 through 37.013. The legislature would not have required a school district to outline with juvenile boards "the responsibilities of each juvenile board concerning the establishment and operation of a [JJAEP]." Id. § 37.001(a)(2). Furthermore, as noted above, section 37.012(a) requires the school district in which a student is enrolled on the date the student is ordered to attend the JJAEP to transfer funds to provide for the student's education to the juvenile board in charge of the JJAEP. A school district is unconditionally obliged to transfer these funds to the juvenile board. Had the legislature intended to limit juvenile boards to providing educational services to students pursuant to a juvenile court order under section 37.011(b), it would have been unnecessary to require a school district to define with juvenile boards "the conditions on payments from the district to each juvenile board." Id. § 37.001(a)(3). (17)

In addition, as you point out in your brief, if one were to conclude that a juvenile board is limited to providing educational services to students found to have engaged in conduct justifying expulsion and found by a juvenile court to have engaged in delinquent conduct, then students who are expelled but who have not been adjudicated delinquent will have no access to a JJAEP and thus could possibly have no access to education and other services. (18) It is unlikely that the legislature intended to make education and other services available to expelled students who have been adjudicated delinquent but deny all access to education and other services to expelled students who have not been adjudicated delinquent by a juvenile court. It is also unlikely that the legislature intended to create obstacles to placing expelled students who have not been adjudicated delinquent in supervised, educational settings. Again, we must construe chapter 37 to avoid this result. See Gov't Code § 311.021(3) (in enacting a statute, it is presumed a just and reasonable result is intended).

Furthermore, the continuum of sanctions and alternative placement settings for behavior management in chapter 37 is designed to protect the safety of schools and communities, and to prevent students who misbehave from committing more serious offenses, by providing problem students with ongoing supervision, education, and other appropriate services. Construing chapter 37 to preclude juvenile boards from enrolling students who have been expelled but not adjudicated delinquent would break this continuum. Construing chapter 37 to permit juvenile boards to enroll these students, on the other hand, is consistent with the framework of progressive sanctions and alternative placement settings established by the legislature.

You also ask if a juvenile board is authorized to enter into a memorandum of understanding with school districts that provides for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b). (19) Although section 37.001 not does expressly authorize a school district and a juvenile board to enter into a memorandum of understanding, we believe it impliedly authorizes a school district and a juvenile board to enter into a memorandum of understanding consistent with a jointly adopted student code of conduct in order to reduce obligations undertaken by the school district and juvenile board in the student code of conduct to a formal agreement and to separate those obligations from other matters which must be included in a student code of conduct. (20) For the reasons stated above, we believe that such a memorandum of understanding may provide for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b). (21)
S U M M A R Y

A county juvenile board is authorized to provide educational services at a juvenile justice alternative education program to students other than pursuant to a juvenile court order under section 37.011(b)(1). A county juvenile board is authorized to enter into a memorandum of understanding with school districts that provides for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b).

Yours very truly,
Morales signature

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes

[1] See Act of May 29, 1995, 74th Leg., R.S., ch. 260, 1995 Tex. Gen. Laws 2207.

[2] See id. § 1, at 2358-60.

[3] Your brief suggests that students would be placed in a JJAEP with parental consent. See note 21 infra. In addition, you appear to be interested in the juvenile board's authority only with respect to students who have been expelled from the school district.

[4] See, e.g., Act of May 29, 1995, 74th Leg., R.S., ch. 671, 1995 Tex. Gen. Laws 3643, 3643 (H.B. 466); Act of May 27, 1995, 74th Leg., R.S., ch. 748, 1995 Tex. Gen. Laws 3884, 3884 (H.B. 120); Act of May 27, 1995, 74th Leg., R.S., ch. 262, 1995 Tex. Gen. Laws 2517, 2517 (H.B. 327); Act of May 26, 1995, 74th Leg., R.S., ch. 626, 1995 Tex. Gen. Laws 3494, 3494 (H.B. 1687); Act of May 24, 1995, 74th Leg., R.S., ch. 617, 1995 Tex. Gen. Laws 3476, 3476 (H.B. 1375); Act of May 24, 1995, 74th Leg., R.S., ch. 598, 1995 Tex. Gen. Laws 3436, 3436 (H.B. 330); Act of May 24, 1995, 74th Leg., R.S., ch. 512, 1995 Tex. Gen. Laws 3253, 3253 (H.B. 2035); Act of May 19, 1995, 74th Leg., R.S., ch. 258, 1995 Tex. Gen. Laws 2197, 2197 (S.B. 267).

[5] See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 53, 1995 Tex. Gen. Laws 2517, 2557.

[6] A juvenile board in a county with a population of 125,000 or less may develop a JJAEP. Educ. Code § 37.011(a). Such a JJAEP is not subject to the requirements of section 37.011, subsections (c), (d), (f), or (g). Id.

[7] A student who is placed in an AEP by a school district for a length of time to extend beyond the next grading period is entitled to certain procedures. Id. § 37.009(b), (c), (d).

[8] A federal district court has held that Education Code section 37.006(a), to the extent it mandates that a student who engages in felonious conduct off-campus and away from school-related activities be placed in an AEP, violates the United States Constitution because it fails to provide for any measure of due process. See Nevares v. San Marcos Consol. Indep. Sch. Dist., No. A-96-CA-093 JN (W.D. Tex. May 16, 1996). The court rejected the school district's contention that the plaintiff had neither a property interest nor a liberty interest in his placement in the regular high school classes as opposed to the AEP.

[9] The offenses include: assault under Penal Code section 22.01(a)(1) or terroristic threat under Penal Code section 22.07; certain drug and alcohol-related offenses; offenses relating to abusable glue or aerosol paint under Health and Safety Code sections 485.031 through 485.035 or volatile chemicals under Health and Safety Code chapter 484; or public lewdness under Penal Code section 21.07 or indecent exposure under Penal Code section 21.08. Educ. Code § 37.006(a)(1) - (5). In addition, a student who engages in the offense of retaliation, Penal Code § 36.06, against a school employee must be placed in an AEP. Educ. Code §§ 37.006(b), 37.007(c). If the conduct contains the elements of certain weapons offenses or other serious offenses, such as aggravated assault, sexual assault, arson, murder, indecency with a child, or aggravated kidnapping, the student must be expelled. Id. § 37.007(a).

[10] Under section 37.001(a)(4), a student code of conduct must "specify conditions that authorize or require a principal or other appropriate administrator to transfer a student to an alternative education program." We do not address whether a school district must incorporate these statutory conditions into the student code of conduct or is authorized to add to or modify these statutory conditions.

[11] If a student engages in the offense of retaliation, see Penal Code § 36.06, against a school employee and the conduct contains the elements of certain weapons offenses or other serious offenses, such as aggravated assault, sexual assault, arson, murder, indecency with a child, or aggravated kidnapping, the student must be expelled. Educ. Code § 37.007(c). In addition, federal law requires a school district to expel a student who brings a firearm to school. See id. § 37.007(d).

[12] See Penal Code § 28.03.

[13] Section 37.007(d)(2) provides, however, that a school district may provide educational services to a student who is expelled for bringing a firearm to school pursuant to federal law, see supra note 11, at an AEP.

[14] Before a student is expelled, the school district board of trustees or the board's designee must provide the student with a due process hearing. Educ. Code § 37.009(f).

We also note that under section 37.001(a)(5), a student code of conduct must "outline conditions under which a student may be . . . expelled as provided by Section 37.007." We do not address whether a school district must incorporate the statutory conditions for expulsion into the student code of conduct or whether a school district is authorized to add to or modify these statutory conditions.

[15] Family Code, section 51.03(a) defines the term "delinquent conduct" as follows:

Delinquent conduct is:

(1) conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail;

(2) conduct that violates a reasonable and lawful order of a juvenile court entered under Section 54.04 or 54.05 of this code, except an order prohibiting the following conduct:

(A) a violation of the penal laws of this state of the grade of misdemeanor that is punishable by fine only or a violation of the penal ordinances of any political subdivision of this state;

(B) the unexcused voluntary absence of a child from school; or

(C) the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return;

(3) conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of that court; or

(4) conduct that violates the laws of this state prohibiting driving while intoxicated or under the influence of intoxicating liquor (third or subsequent offense) or driving while under the influence of any narcotic drug or of any other drug to the degree that renders the child incapable of safely driving a vehicle (third or subsequent offense).

[16] We have not been asked and do not address whether a juvenile court has the discretion to order a child to attend a JJAEP under any other circumstances.

[17] You do not ask and we do not address whether a county juvenile board may expend county funds to provide educational services to expelled students.

[18] As noted above, a court may order a student who has been expelled pursuant to section 37.007 to attend a regular classroom, a regular campus, or an AEP as a condition of probation only if the school district and the juvenile board have entered into a memorandum of understanding "concerning the juvenile probation department's role in supervising and providing other support services for students in alternative education programs." Educ. Code § 37.010(c).

[19] You specifically ask about the following types of students:

(1) Students whose serious or persistent misbehavior warrants expulsion pursuant to section 37.007(b), who have not or could not be adjudicated as delinquent;

(2) Students, who are subject to mandatory expulsion for committing offenses listed in section 37.007(a), (c), (d), or (f), who have not yet been found to have engaged in delinquent conduct by a juvenile court;

(3) Students expelled for committing offenses listed in section 37.007(a), (c), (d), or (f) "but who were found by the juvenile court to have committed a lesser offense";

(4) Students expelled for committing offenses listed in section 37.007(a), (c), (d), or (f) "for whom no petition alleging delinquency is filed by the district attorney or for whom the petition has been withdrawn."

[20] Section 37.010(c) provides that a court may order a student who has been expelled pursuant to section 37.007 to attend a regular classroom, a regular campus, or an AEP as a condition of probation only if the school district and the juvenile board have entered into a memorandum of understanding "concerning the juvenile probation department's role in supervising and providing other support services for students in alternative education programs." Section 37.010(c) appears to refer to memoranda of understanding regarding AEPs as opposed to JJAEPs.

[21] Your brief suggests that students would be placed in a JJAEP with parental consent. Therefore, we do not address whether a school district is authorized to place a student in a JJAEP without parental consent. For this reason, we also do not address whether a school district must afford a student due process before placing the student in a JJAEP without parental consent or whether a student code of conduct that does not provide due process in such circumstances would violate the United States Constitution. Cf. Nevares, supra. Section 37.009(f) provides that a school district must provide a student a due process hearing before the student may be expelled under section 37.007. Neither section 37.009(f) nor any other provision of which we are aware details the procedures which might be applicable to a school district's decision to place a student who has been expelled in a JJAEP.

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TEXAS JUVENILE LAW

In Texas, juveniles are defined as minors, older than 10 years of age and under the age of 17. Juveniles are treated differently than adult offenders and the general goal of the juvenile system is rehabilitation as opposed to punishment. However, the penalties in the juvenile system can still be severe. Some offenses, such as truancy and breaking curfew, are unique to juveniles, and would not be illegal if the accused were an adult. The juvenile justice system generally moves much more quickly than does the adult criminal justice system. Don't wait to hire a good juvenile defense lawyer to represent your child. Call Attorney David Finn at: 214-651-1121.

There are separate courts and rules that govern the juvenile process. The juvenile court system will generally make every effort to rehabilitate the child rather than simply incarcerate him. Only in extreme cases, such as serious felonies, usually involving allegations of violence or the use of a deadly weapon, will a juvenile be tried as an adult. The juvenile courts may hold a hearing to determine whether to transfer the juvenile to the adult court system. This is called a "transfer hearing." The court will base its decision to transfer on the following factors:

1. The seriousness of the offense
2. The child's criminal sophistication
3. Previous criminal record
4. Previous attempts to rehabilitate the juvenile offender
5. The court's belief that future attempts at rehabilitation will be unsuccessful

While many of the laws governing juveniles may differ from the adult system, the rights that juveniles enjoy are virtually identical to those enjoyed by adults.

1. A juvenile must be read his Miranda rights if placed under arrest.
2. A juvenile has the right to have an attorney present during interrogation.
3. A juvenile has the right to know the specific charges being brought by the State.
4. A juvenile has rights against self-incrimination.
5. A juvenile has the right to confront his accuser and examine witnesses.
6. A juvenile has the right to appeal the court's decision.
7. A juvenile does have the right to a jury trial during the adjudication phase

If a juvenile finds herself in a situation involving the police or other law enforcement, please remember the following information:

1. You do not have to submit to a search unless you have been placed under arrest.

If you are asked to give permission to search you should politely but firmly decline. If the police say they have a search warrant, ask to see it.

2. Do not resist arrest.
3. Do not volunteer information or answer questions without your attorney present.
4. Provide only your name, address, and phone number.
5. Call your parents as soon as possible.
6. Insist that your parents and an attorney be present during questioning.
7. Do not discuss your case with anyone other than your attorney.

Do not discuss your case with your friends or classmates.

Finally, do not attempt to represent yourself in court. Hire an experienced criminal defense attorney, preferably one who is board-certified in criminal law.

Texas Juvenile Justice: Overview

Taking Into Custody; Issuance of Warning Notice: Texas Family Code Section 52.01

A child may be taken into custody: pursuant to an order of the juvenile court; pursuant to the Texas laws for arrest; by a law enforcement officer if there is probable cause to believe that the child has engaged in conduct that violates the penal laws of Texas or any political subdivision or delinquent conduct or conduct indicating a need for supervision. It is the duty of the law enforcement officer who has taken a child into custody to transport the child to the appropriate detention facility if the child is not released to the parent, guardian, or custodian of the child. If the juvenile detention facility is located outside the county in which the child is taken into custody, it shall be the duty of the law enforcement officer who has taken the child into custody or, if authorized by the commissioners court of the county, the sheriff of that county, to transport the child to the appropriate juvenile detention facility unless the child is released to the parent, guardian, or custodian of the child.

Delinquent Conduct: Conduct Indicating a Need for Supervision:

Texas Family Code Section 51.03

(a) Delinquent conduct is defined as:

1. conduct, other than a traffic offense, that violates a penal law of Texas or of the United States punishable by imprisonment or by confinement in jail;
2. conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of that court;
3. conduct that constitutes: Driving While Intoxicated (DWI), Flying While Intoxicated, Boating While Intoxicated, Intoxication Assault, Intoxication Manslaughter, and Driving Under the Influence of Alcohol by a minor (DUI).

(b) Conduct indicating a need for supervision includes:

1. conduct, other than a traffic offense, that violates the penal laws of Texas of the grade of misdemeanor that are punishable by a fine only (class c-misdemeanors); the penal ordinances of any political subdivision of Texas; the absence of a child on 10 or more days or parts of days within a 6 month period in the same school year or on 3 or more days or parts of days within a 4 week period from school; the voluntary absence of a child from the child's home without the consent of the child's parents or guardian for a substantial length of time or without intent to return; conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint; or an act that violates a school district's previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Texas Education Code.

Release from Detention: Texas Family Code Section 53.02

(a) If a child is brought before the court or delivered to a detention facility, the intake or other authorized officer of the court shall immediately make an investigation and shall release the child unless it appears that his detention is warranted under subsection (b), below.

The release may be conditioned upon requirements reasonably necessary to insure the child's appearance at later proceedings, but the conditions of the release must be in writing and filed with the office or official designated by the court and a copy furnished to the child.

(b) A child taken into custody may be detained prior to hearing on the petition only if:

1. the child is likely to abscond or be removed from the court's jurisdiction;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return the child to the court when required;
4. the child may be dangerous to himself or herself or the child may threaten the safety of the public if released;
5. the child 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; or
6. the child's detention is required under subsection (f), below.

(c) If the child is not released, a request for detention hearing shall be made and promptly presented to the court, and an informal detention hearing shall be held promptly, but not later than the second working day after the child is taken into custody. If the child is taken into custody on a Friday or Saturday, then the detention hearing shall be held on the first working day after the child is taken into custody.

(d) A release of a child to an adult must be conditioned on the agreement of the adult to be subject to the jurisdiction of the juvenile court and to an order of contempt by the court if the adult, after notification, is unable to produce the child at later proceedings.

(e) If a child being released under this section is expelled from school in a county with a population greater than 125,000, the release shall be conditioned on the child's attending a juvenile justice alternative education program pending a deferred prosecution or formal court disposition of the child's case.

(f) A child who is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm in the commission of the offense shall be detained until the child is released at the direction of the judge of the juvenile court, a substitute judge, or a referee appointed, including an oral direction by telephone, or until a detention hearing is held.

Detention Hearing: Texas Family Code Section 54.01

(a) Generally speaking, a detention hearing without a jury shall be held promptly, but not later than the second working day after the child is taken into custody; provided, however, that when a child is detained on a Friday or Saturday, then such detention hearing shall be held on the first working day after the child is taken into custody.

(b) Reasonable notice of the detention hearing, either oral or written, shall be given, stating the time, place, and purpose of the hearing. Notice shall be given to the child and, if they can be found, to his parents, guardian, or custodian. Prior to the beginning of the hearing, the court shall inform the parties of the child's right to counsel and to appointed counsel if they are indigent and of the child's right to remain silent with respect to any allegations of delinquent conduct or conduct indicating a need for supervision.

(c) At the detention hearing, the court may consider written reports from probation officers, professional court employees, or by professional consultants in addition to the testimony of witnesses. Prior to the detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision. The court may order counsel not to reveal items to the child or his parents if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.

(d) A detention hearing may be held without the presence of the child's parents if the court has been unable to locate them. If no parent or guardian is present, the court shall appoint counsel or a guardian ad litem for the child.

(e) At the conclusion of the hearing the court shall order the child released from detention unless it appears that he is likely to abscond, suitable supervision is not being provided to the child, he has no parent or guardian able to return the child to court when required, he may be dangerous to himself or others, or he has previously been found to be a delinquent child or has been previously convicted of a penal offense higher than a Class C misdemeanor and is likely to commit an offense if released. If the judge concludes that the child should be detained, the detention order extends for no more than 10 working days. Further detention orders may be made following subsequent detention hearings. The initial detention hearing may not be waived, but subsequent detention hearing may be waived.

Note: No statement made by the child at the detention hearing shall be admissible against the child at any other hearing.

Preliminary Investigation & Determinations; Notice to Parents:

Texas Family Code Section 53.01

On referral of a child, the intake officer, probation officer, or other person authorized by the court shall conduct a preliminary investigation to determine whether the person referred is a child and whether there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released. The child's parents are to promptly receive notice of the whereabouts of the child and also a statement explaining why the child was taken into custody. If the child is alleged to have engaged in delinquent conduct of the grade of felony, or conduct constituting a misdemeanor offense involving violence to a person or the use or possession of a firearm, illegal knife, or club, then the case is immediately forwarded to the office of the prosecuting attorney.

Summons: Texas Family Code Section 53.06

The juvenile court shall direct issuance of a summons to the child named in the petition, the child's parents, guardian, or custodian, the child's guardian ad litem, and any other person who appears to the court to be a proper or necessary party to the proceeding. A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

Service of Summons: Texas Family Code Section 53.07

If a person to be served with a summons is in Texas and can be found, the summons shall be served upon him personally at least 2 days before the adjudication hearing. If he is in Texas but cannot be found, but his address is known or can be ascertained, the summons may be served on him by mailing a copy by registered or certified mail, return receipt requested, at least 5 days before the day of the hearing. If he is outside Texas but can be found or his address is known, service of the summons may be made either by delivering a copy to him personally or mailing a copy to him by registered mail, return receipt requested, at least 5 days before the day of the adjudication hearing.

Attendance at Hearing: Parent or Other Guardian: Texas Family Code Section 51.115

Parents or guardians of a child are required by law to attend each court hearing affecting a child held under: possible transfer to criminal district/adult court; adjudication hearing; disposition hearing; hearing to modify disposition; release or transfer hearing. If a parent or guardian receives notice of any of these proceedings and is a resident of Texas, failure to appear could result in a fine for contempt of court.

Photographs & Fingerprints of Children: Texas Family Code Sections 58.002-0021

With limited exceptions, a child may not be photographed or fingerprinted without the consent of the juvenile court unless the child is taken into custody or referred to the juvenile court for conduct that constitutes a felony or a misdemeanor punishable by confinement in jail (which means a Class A or Class B misdemeanor). However, this prohibition does not prohibit law enforcement from photographing or fingerprinting a child who is not in custody if the child's parent or guardian voluntarily consents in writing. Furthermore, this prohibition does not apply to fingerprints that are required or authorized to be submitted or obtained for an application for a driver's license or personal identification card.

Note/Exception to General Rule stated above: Law enforcement may take temporary custody of a child to take the child's fingerprints if the officer: has probable cause to believe that the child has engaged in delinquent conduct; the officer has investigated that conduct and found other fingerprints during the investigation; and the officer has probable cause to believe that the child's fingerprints will match the other fingerprints. Law enforcement may take temporary custody of a child to take the child's photograph if the officer: has probable cause to believe that the child has engaged in delinquent conduct; and the officer has probable cause to believe that the child's photograph will be of material assistance in the investigation of the conduct. However, in either instance, unless the child then placed under arrest, the child must be released from temporary custody as soon as the fingerprints or photographs are obtained.

Waiver of Rights: Texas Family Code Section 51.09

Unless a contrary intent clearly appears elsewhere in the Family Code, any right granted to a child by this Section or by the constitution or laws of Texas or the United States may be waived in proceedings under this section if:

1. the waiver is made by the child and the attorney for the child;
2. the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
3. the waiver is voluntary; and
4. the waiver is made in writing or in court proceedings that are recorded.

Polygraph Examination: Texas Family Code Section 51.151

If a child is taken into custody pursuant to an order of the juvenile court or pursuant to the laws of arrest by a law enforcement officer, a person may not administer a polygraph examination to the child without the consent of the child's attorney or the juvenile court unless the child is transferred to a criminal district court for prosecution in the adult system. Bottom line: Do not consent to a polygraph examination without consulting with your lawyer.

Physical or Mental Examination: Texas Family Code Section 51.20

(a) At any stage of the proceedings the juvenile court may order a child who is referred to the juvenile court or who is alleged by a petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision to be examined by the local mental health or mental retardation authority or another appropriate expert, including a physician, psychiatrist, or psychologist.

(b) If, after conducting an examination of a child and reviewing any other relevant information, there is reason to believe that the child has a mental illness or mental retardation, the probation department shall refer the child to the local mental health or mental retardation authority for evaluation and services, unless the prosecutor has filed a court petition against the child alleging delinquent conduct or conduct indicating a need for supervision.

Election Between Juvenile Court & Alternate Juvenile Court:

Texas Family Code Section 51.18

(a) This section applies only to a child who has a right to a trial before a juvenile court the judge of which is not an attorney licensed to practice in Texas.

(b) On any matter that may lead to an order appealable under Section 56.01 of the Family Code, a child may be tried before either the juvenile court or the alternate juvenile court.

(c) The child may elect to be tried before the alternate juvenile court only if the child files a written notice with that court not later than 10 days before the date of the trial. After the notice is filed, the child may be tried only in the alternate juvenile court. If the child does not file a notice as provided by this section, the child may be tried only in the juvenile court.

(d) If the child is tried before the juvenile court, the child is not entitled to a trial de novo before the alternate juvenile court.

Transfer/Waiver: Texas Family Code Section 54.02

The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate criminal district court to be tried as an adult if the child is alleged to have violated a penal law of the grade of felony if the child was 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree; or 15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony.

The juvenile court judge is not required to certify a child to stand trial as an adult. It's a judgment call. The juvenile court judge will investigate the matter and hold a hearing on the transfer request. The judge orders a complete diagnostic study, social evaluation, and a full investigation of the child, his circumstances, and the circumstances of the alleged offense. At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. In making her decision whether to transfer the case to the adult court, the judge considers: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against a person; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use or procedures, services, and facilities currently available to the juvenile court.

Determinate Sentencing: Texas Family Code Section 53.045

If a child is accused of a very serious criminal violation, or habitual felony conduct (see section below), the prosecutor can pursue what is called determinate sentencing. In order to pursue determinate sentencing the prosecutor files a petition with the grand jury, basically asking the grand jury to grant the prosecutor's request to pursue determinate sentencing if the child is convicted. If 9 members of the grand jury approve the petition, then determinate sentencing becomes a viable sentencing option for the judge/jury if the child is convicted of the offense. Determinate sentencing doesn't mean that the child will be tried as an adult in a criminal district court. The case remains in the juvenile court even if the grand jury grants the request for determinate sentencing. but the stakes for the child are raised dramatically if the grand jury grants the prosecutor's petition for determinate sentencing.

Eligibility: The prosecutor can pursue determinate sentencing if the child is charged with habitual felony conduct, or if the child is charged with any of the following offenses:

capital murder, murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, aggravated robbery, injury to a child, elderly, or disabled individual if punishable as a felony other than a state jail felony, felony deadly conduct involving the discharge of a firearm, aggravated controlled substance felony, criminal solicitation of a minor, indecency with a child, arson, if bodily injury or death is suffered by any person by reason of the commission of the arson, intoxication manslaughter, or attempted murder or attempted capital murder. If your child is charged with one of the offenses listed above, she is eligible for determinate sentencing even if this is her first offense.

Impact: If the grand jury grants the prosecutor's request to impose determinate sentencing, and the child is convicted of habitual felony conduct or any of the offenses listed above, then the court or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to the institutional division of the Texas Department of Criminal Justice (adult prison system) for a term of: up to 40 years if the conduct constitutes a capital felony, first-degree felony, or an aggravated controlled substance felony; up to 20 years if the conduct constitutes a second-degree felony; and up to 10 years if the conduct constitutes a third-degree felony. So instead of being sent to the Texas Youth Commission until the child turns 18, determinate sentencing would allow the child to be sentenced to up to 40 years in the adult prison system by a judge or jury.

Habitual Felony Conduct: Texas Family Code Section 51.031

(a) Habitual felony conduct is conduct violating a penal law of the grade of felony, other than a state jail felony, if:

1. the child who engaged in the conduct has at least 2 previous final adjudications as having engaged in delinquent conduct violating a penal law of the grade of felony; and,
2. the second previous final adjudication is for conduct that occurred after the date the first previous adjudication became final; and,
3. all appeals relating to the previous adjudications have been exhausted.

Review by Prosecutor: Texas Family Code Section 53.012

The prosecuting attorney shall promptly review the circumstances and allegations of a referral made to her for legal sufficiency and the desirability of prosecution and may file a petition without regard to whether probable cause was found during the court's preliminary investigation.

If the prosecutor does not file a petition requesting the adjudication of the child referred to the prosecutor, the prosecutor must terminate all proceedings, if the reason is for the lack of probable cause; or return the referral to the juvenile probation department for further proceedings.

The prosecutors have considerable discretion and control over your child's case.

Deferred Prosecution: Texas Family Code Section 53.03

(a) Subject to subsections (e) and (g) below, if the preliminary investigation results in a determination that further proceedings in the case are authorized, the probation officer or other designated officer of the court, subject to the direction of the juvenile court, may advise the parties for a reasonable period of time not to exceed 6 months concerning deferred prosecution and rehabilitation of a child if:

1. deferred prosecution would be in the best interest of the public and child;
2. the child and her parent, guardian, or custodian consent with knowledge that consent is not obligatory; and
3. the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

(b) Except as otherwise permitted, the child may not be detained during or as a result of the deferred prosecution process.

(c) An incriminating statement made by a participant to the person giving advice and in the discussion or conferences incident thereto may not be used against the declarant in any court hearing.

(d) The court may adopt a fee schedule for deferred prosecution services. The maximum fee is $15 per month.

(e) The prosecuting attorney may defer prosecution for any child. A probation officer or other designated officer of the court may defer prosecution for a child who has previously been adjudicated for conduct that constitutes a felony only if the prosecuting attorney consents in writing.

(f) The probation officer or other officer supervising a program of deferred prosecution for a child shall report to the juvenile court any violation by the child of the program.

(g) Prosecution may not be deferred for a child alleged to have engaged in conduct that constitutes: driving/flying/boating while intoxicated, intoxication assault, intoxication manslaughter, or that constitutes a third or subsequent offense of consumption of alcohol by a minor or driving under the influence of alcohol (DUI) of a minor.

First Offender Program: Texas Family Code Section 52.031

A juvenile board may establish a first offender program for the referral and disposition of children taken into custody for: (1) conduct indicating a need for supervision; or (2) delinquent conduct other than conduct that constitutes a felony of the first, second, or third degree, an aggravated controlled substance felony, or a capital felony; or a state jail felony or misdemeanor involving violence to a person or the use or possession of a firearm, illegal knife, or club, or a prohibited weapon, as described by Section 46.05, Texas Penal Code. If the child has previously been adjudicated as having engaged in delinquent conduct he may be ineligible for the First Offender Program. Also, the child's parents or guardian must receive notice that the child has been referred for disposition under the First Offender Program.

Teen Court Program: Texas Family Code Section 54.032

A juvenile court may defer adjudication proceedings during an adjudication hearing for not more than 180 days if the child:

(1) is alleged to have engaged in conduct indicating a need for supervision that violated a penal law of Texas of the grade of misdemeanor that is punishable by a fine only or a penal ordinance of a political subdivision of Texas;

(2) waives the privilege against self-incrimination and testifies under oath that the allegations are true;

(3) presents to the court an oral or written request to attend a teen court program; and

(4) has not successfully completed a teen court program for the violation of the same penal law or ordinance in the two years preceding the date that the alleged conduct occurred.

Note: The teen court program must be approved by the court.

Adjudication Hearing: Texas Family Code Section 54.03

This is what is commonly referred to as the "guilty-not guilty" phase of a trial. A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing. The child is presumed innocent unless and until the prosecution proves that the child is guilty of the charge beyond a reasonable doubt. The burden of proof is on the state. The verdict must be unanimous.

At the beginning of an adjudication hearing the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem: the allegations made against the child; the nature and possible consequences of the proceedings; the child's privilege against self-incrimination; the child's right to trial and to confront witnesses; the child's right to representation by an attorney if he is not already represented; and the child's right to a trial by jury.

Only material, relevant, and competent evidence in accordance with the Texas Rules of Criminal Evidence may be considered in an adjudication hearing. Hearsay testimony is generally not admissible. A statement made by the child out of court is insufficient to support a finding of delinquent conduct or conduct indicating a need for supervision unless it is corroborated in whole or in part by other evidence. An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision; and the corroboration is not sufficient if it merely shows the commission of the alleged conduct. Finally, evidence illegally seized or obtained is inadmissible in an adjudication hearing.

A child may be found guilty of committing a lesser-included offense of the offense charged.

If the judge or jury finds that the child did engage in delinquent conduct or conduct indicating a need for supervision, then the court or jury shall state which of the allegations in the petition were found to be established by the evidence. The court will then set a date and time for the disposition hearing.

If the judge or jury finds that the child did not engage in delinquent conduct or conduct indicating a need for supervision, the court shall dismiss the case with prejudice.

Disposition Hearing: Texas Family Code Section 54.04

This term can be confusing. What we're talking about here is the "sentencing" phase of the proceedings. The disposition hearing only comes into play if the child has been found guilty of the delinquent conduct or criminal activity alleged in the petition. If the child is found not guilty of all allegations during the adjudication hearing then there is no disposition hearing.

The disposition hearing is separate, distinct, and subsequent to the adjudication hearing. There is no right to a jury at the disposition hearing unless the child is in jeopardy of a determinate sentence as approved by the grand jury. If the child is eligible for determinate sentencing, then the child is entitled to a jury of 12 persons to determine the sentence.

At the disposition hearing, the juvenile court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. Prior to the disposition hearing, the child's lawyer is to have received all written matter to be considered in disposition. No disposition may be made unless the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made. No disposition placing the child on probation outside the child's home may be made under this section unless the court or jury finds that the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. If the judge or jury grant probation, the court will attach various conditions of the probation. Depending on the nature of the charges and the child's criminal history, if probation is not granted, the child could be sentenced to a term of confinement in the Texas Youth Commission.

Payment of Probation Fees: Texas Family Code Section 54.061

If a child is placed on probation, the juvenile court, after giving the child, parent, or other person responsible for the child's support, a reasonable opportunity to be heard, shall order the child, parent, or other person, if financially able to do so, to pay to the court a fee of not more than $15 a month during the period that the child continues on probation. If the court finds that a child, parent, or other person responsible for the child's support is financially unable to pay the probation fee, the court shall enter into the records of the child's case a statement of that finding.

Monitoring School Attendance: Texas Family Code Section 54.043

If the court places a child on probation and requires as a condition of probation that the child attend school, the probation officer shall monitor the child's school attendance and report to the court if the child is voluntarily absent from school.

Restitution: Texas Family Code Section 54.048

A juvenile court, in a disposition hearing, may order restitution to be made by the child and the child's parents. This applies regardless of whether the petition in the case contains a plea for restitution.

Admission of Unadjudicated Conduct: Section 54.045

During a disposition hearing, a child may admit having engaged in delinquent conduct or conduct indicating a need for supervision for which the child has not been adjudicated and request the court to take the admitted conduct into account in the disposition of the child's pending case. If the prosecutor agrees in writing, then the court may take the admitted conduct into account in the disposition of the child. However, a court may take into account admitted conduct over with exclusive venue lies in another county only if the court obtains the written permission of the prosecuting attorney for that county. A child may not be adjudicated by any court for having engaged in conduct taken into account under this section unless the conduct taken into account included conduct that took place in another county and the written permission of the prosecuting attorney of that county was not obtained.

Community Service: Texas Family Code Section 54.044

If the court places a child on probation, the court shall require as a condition of probation that the child work a specified number of hours at a community service project approved by the court and designated by the juvenile probation department. This requirement may be waived if the court finds that the child is physically or mentally incapable of participating in the project or that participating in the project will be a hardship on the child or his family or that the child has shown good cause that community service should not be required.

Note: The court may also order that the child's parent perform community service with the child.

Child Placed on Probation for Conduct Involving a Handgun:

Texas Family Code Section 54.0406

(a) If a court or jury places a child on probation for conduct that violates a penal law that includes as an element of the offense the possession, carrying, using, or exhibiting of a handgun, and if at the adjudication hearing the court or the jury affirmatively finds that the child personally possessed, carried, used, or exhibited a handgun, the court must require as a condition of probation that the child, not later than the 30th day after the date the court places the child on probation, notify the juvenile probation officer who is supervising the child of the manner in which the child acquired the handgun, including the date and place of any person involved in the acquisition. The juvenile probation officer is then to relay any relevant information regarding the handgun to the police. Your lawyer should be with you when this takes place.

Note: Information provided by the child to the juvenile probation officer regarding the acquisition of the handgun and any other information derived from that information may not be used as evidence against the child in any juvenile or criminal proceeding.

Rights of Appeal: Warning: Texas Family Code Section 54.034

Before the court may accept a child's plea or stipulation of evidence in a proceeding under this title, the court must inform the child that if the court accepts the plea or stipulation and the court makes a disposition in accordance with the agreement between the state and the child regarding the disposition of the case, the child may not appeal an order of the court pursuant to an adjudication hearing, a disposition hearing, or a hearing to modify disposition, unless the court gives the child permission to appeal; or the appeal is based on a matter raised by written motion filed before the proceeding in which the child entered the plea or agreed to the stipulation of evidence. An appeal from an order of a juvenile court is to the court of appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally. The requirements governing a juvenile appeal are as in civil cases generally.

Note: An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of the person, institution, or agency to whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for a personal bond pending the appeal.

Sealing Juvenile Records: Texas Family Code Section 58.003

One of the most important things that can be done for a juvenile is to get the juvenile records sealed as soon as allowed by law.

The benefits of sealing a child's juvenile records are immense. Once the records are sealed, information relating to the arrest, detention, prosecution, and conviction, are physically sealed and/or destroyed. This means that the child can start adulthood with a "clean" slate. And it also means that the child is authorized by law to say that he has never been convicted.

Section 58.003 of the Texas Family Code provides that, except for juveniles who received a determinate sentence for engaging in delinquent conduct that violated a penal law such as murder, capital murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, injury to a child/elderly/disabled person, arson, indecency with a child, etc., or engaged in habitual felony conduct, the juvenile records may be sealed if the court finds that 2 years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and if since that time the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

A court may also order the sealing of records concerning a juvenile adjudicated as having engaged in delinquent conduct that violated a penal law of the grade of felony (not including many determinate sentences) if: the person is 21 years of age or older; the person was not transferred by a juvenile court to an adult criminal court for prosecution; the records have not been used as evidence in the punishment phase of a criminal proceeding under Article 37.07, Code of Texas Criminal Procedure; and if the person has not been convicted of a penal law of the grade of felony after becoming age 17.

If a child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing (guilt/innocence) the child is found to be not guilty of each offense alleged, the court shall immediately order the sealing of all files and records relating to the case.

David Finn is board certified in criminal law by the Texas Board of Legal Specialization. Call today for a free initial consultation.


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