Delinquent Conduct: Conduct Indicating
a Need for Supervision:
Texas Family Code Section 51.03
(a) Delinquent conduct is defined
as:
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;
conduct that violates a lawful order of a municipal court or justice
court under circumstances that would constitute contempt of that
court;
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:
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.
(b) A child taken into custody may
be detained prior to hearing on the petition only if:
the child is likely to abscond or
be removed from the court’s jurisdiction;
suitable supervision, care, or protection for the child is not
being provided by a parent, guardian, custodian, or other person;
the child has no parent, guardian, custodian, or other person
able to return the child to the court when required;
the child may be dangerous to himself or herself or the child
may threaten the safety of the public if released;
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
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.
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.
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:
the waiver is made by the child and
the attorney for the child;
the child and the attorney waiving the right are informed of and
understand the right and the possible consequences of waiving
it;
the waiver is voluntary; and
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.
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:
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,
the second previous final adjudication is for conduct that occurred
after the date the first previous adjudication became final; and,
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.
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:
deferred prosecution would be in
the best interest of the public and child;
the child and her parent, guardian, or custodian consent with
knowledge that consent is not obligatory; and
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.
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.
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