My child is 16 years old, are they considered a juvenile?
Yes. Under the law a “child” is a person who is ten (10) years or older and under seventeen (17) or seventeen (17) years or older and under eighteen (18), who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before turning seventeen (17). Texas Family Code S51.02 (2). A Juvenile Court typically loses its jurisdiction (i.e. authority) to handle a case when a person turns 18.
My child is under 10 years old, can he/she be prosecuted for a crime?
No. Children under the age of 10 cannot be prosecuted for committing a crime, although the Department of Family Protective Services (DFPS) may get involved. Texas Family Code §264.302.
A person reported my child to a Law Enforcement Agency, what will happen?
If your child has been reported to the police contact an attorney immediately. For certain minor offenses, the officer may be willing to issue a warning notice. If the officer has probable cause to believe a crime has been committed he may take your child into custody. Texas Family Code §52.01(a).
My child was taken by the police to a Juvenile Processing Office (JPO), what is that?
The juvenile processing office is a room at a police station or sheriff’s office used for the temporary detention of a child taken into custody. It may not be a cell or holding facility used for other types of detentions. Further, a child may not be detained in a juvenile processing office for longer than six hours. Texas Family Code §52.025 (d).
Can I speak with my child?
Yes. The parent of a child taken into custody has the RIGHT to communicate in person, privately with their child for reasonable periods of time while the child is in the juvenile processing office. Texas Family Code §61.103(a)(1).
My child was taken into custody and not released, how do I post bond?
Bond does not exist in juvenile proceedings. When a juvenile is taken into custody (if they are not released), they MUST be brought before a judge within two (2) days for a “detention hearing”. If the child is arrested on a Friday or Saturday, the detention hearing will be the following Monday. At the hearing, the State must prove one of five elements to determine whether the teen needs to be incarcerated for an additional ten (10) days under Texas Family Code §54.01(e)(1-5). The State must prove:
- the teen is likely to abscond or be removed from the jurisdiction of the court;
- suitable supervision, care, or protection for the teen is not being provided by a parent, guardian, custodian, or other person;
- the child has not parent, guardian, custodian, or other person able to return him to the court when required;
- the child may be a danger to himself/herself or may threaten the public if released; OR
- the child has been previously found delinquent (i.e. guilty) or has 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 State cannot prove any of the elements above, the child will be released. If the judge/magistrate does not release the child another hearing will take place in approximately ten (10) days to determine whether there are sufficient grounds for continued detention of the child.
The police had my child “confess”, can they do that?
- The child was first taken to a juvenile processing office “without unnecessary delay and without first taking the child to any other place”; and
- Prompt notice of the officer’s actions and a statement of the reason for taking the child into custody was given to:
- The child’s parent or custodian; and
- The office or official designated by the Juvenile Board. Texas Family Code §52.02(b).
- The child was received warnings from a judge/magistrate that:
- The child may remain silent and not make any statement at all;
- Any statement may be used in evidence against the child;
- The child has the right to have an attorney present to advise during or before any questioning;
- If the child is unable to afford an attorney, the child has the right to have an attorney appointed; and
- The child has the right to terminate the interview at any time. Texas Family Code §51.095(a)(1)(A).
- The judge/magistrate ensures the child is voluntarily waiving, or giving up, these rights before and during the making of the statement.
If any of the above were violated in the police obtaining a confession, the confession is unlawful and inadmissible. Additional requirements must be met and if identified your attorney can suppress the confession.
What do the terms used in juvenile proceedings mean?
Juvenile law is a hybrid of criminal and family law principles. As such, many terms used in juvenile proceedings you may be unfamiliar with. The table below is to assist you in understanding juvenile courtroom jargon.
|CRIMINAL LAW TERM
|JUVENILE LAW TERM
|Taken into Custody
|Engaged in Delinquent Conduct
|Did Not Engage in Delinquent Conduct
|Lack of Responsibility
|Fitness to Proceed
|Released or Detained
|Directive to Apprehend
|“stip” – Stipulation or Judicial Confession from plea papers.
The prosecutor wants to certify my child, what does that mean?
Certification is where the case is transferred from Juvenile Court to Criminal Court. In other words the State wants to prosecute the juvenile as an adult. If your child is under fourteen (14), they cannot be certified. If your child is charged with an offense other than Capital Murder, a 1st Degree Felony, or an aggravated controlled substance felony, they must be at least fifteen (15) years of age to be certified.
What is the Certification process? Is it automatic?
No. The certification process begins with the state filing a Motion to Waive Jurisdiction with the trial court. The court will then set a hearing solely to determine the issue of certification. In order for the juvenile to be certified as an adult the court must find probable cause exists the alleged act was committed AND whether necessary factors exists to make certification appropriate. The factors include: sophistication and maturity of the child; previous criminal history of the child; likelihood of rehabilitation of the child; nature of the offense; etc. If the court grants the state’s motion the juvenile is transferred to adult court. If the court denies the state’s motion the juvenile remains in juvenile court.
What is deferred prosecution?
Deferred prosecution is an alternative to adjudication, reserved for good lawyering and less serious offenses. If the child abides by certain conditions, no juvenile record will be created.
What is an adjudication hearing?
When the State files a petition seeking adjudication, and adjudication hearing must be held to determine whether or not a child has engaged in delinquent conduct or conduct indicating a need for supervision. Texas Family Cod 54.03 (a). Simply put, did the child commit the alleged act? The adjudication hearing may be (1) a plea of true pursuant to a plea bargain with the prosecutor; (2) a plea of true with open sentencing (i.e. the judge determines punishment); or (3) a plea of “not true” followed by a court or jury trial. If the court finds the child did not engage in delinquent conduct or conduct indicating a need for supervision beyond a reasonable doubt, the court MUST dismiss the case. If the court finds the child did engage in delinquent conduct or conduct indicating a need for supervision then a date will be set for a disposition hearing.
What is a disposition hearing?
The disposition hearing is the second phase of the juvenile proceedings after the court has found the child engaged in the conduct alleged in the petition. The two questions at the disposition hearing are: (1) is disposition necessary and (2) what should be done with the child. If the court feels the child is not in need of rehabilitation or the protection of the public is not at issue, the child must be dismissed and a final judgment will be made without disposition (i.e. punishment). In other words, unlike in adult criminal court, punishment is not always necessary in juvenile court.
What about a Jury Trial?
At the disposition hearing, there is no right to a jury trial. The right to a jury trial exists only where the child is in jeopardy of a determinate sentence.
What is a determinate sentence?
When a juvenile is charged with any one of seventeen categories of serious offenses in the Tex. Fam. Code, the state can present the alleged charges to a grand jury for approval for determinate sentencing. Determinate sentencing involves increased penalties and punishment for certain offenses. For example, a 1st degree felony will carry a maximum of 40 years in the Texas Juvenile Justice Department (TJJD); a 2nd Degree felony will carry a max of 20 years; and a 3rd Degree felony will carry a max of 10 years. Additionally, a determinate sentence allows the juvenile to later be transferred to the Texas Department of Criminal Justice (TDCJ), unless the child shows good behavior during his or her stay at TJJD.
Is there an age requirement for a determinate sentence?
No. Unlike minimum age requirements to certify a juvenile as an adult, a ten-year old child is eligible for determinate sentencing if they have been charged with an offense that fits into the required determinate sentence category.
My child received a determinate sentence and has since been release. Can we seal his records?
Unfortunately no. Unlike regular juvenile proceedings where the child’s record can be sealed, if your child was adjudicated and received a determinate sentence they are forever prohibited from sealing, or expunging their record.
What is the Social History or Probation Report?
This is a pre-disposition report prepared by the juvenile probation department detailing the child’s history, family, character, mental and physical health, etc. The report will also include disposition and rehabilitation recommendations.
Do I need to appear in court with my child?
Yes. Your child should be accompanied by a parent or guardian, unless exempted by the court.
How does my child answer the question if he/she has ever been arrested?
The answer to that question is no. Taking a child into custody is not considered an arrest. If asked, a child may truthfully state that he or she has never been arrested.
Are my child’s records sealed?
In part. In Texas the public has limited access to juvenile records. Only certain individuals and agencies are permitted to view them. To ensure maximum confidentiality, if eligible, you can have the record officially sealed. Sealed records are treated as though they never existed.
I’d like to have my (or my child’s) juvenile record sealed, how does it work?
In Texas your juvenile record may be sealed in one of two ways. Certain records are automatically restricted from view by everyone but criminal justice agencies (i.e. prosecutors). For records not automatically restricted, the Court must be petitioned to order sealing of the records.
What type of offenses qualify as an automatic restriction?
Your case may automatically be qualified if you are at least seventeen years old; you were not classified as violent or habitual offender; and your juvenile case was not transferred to adult court (i.e. certified). If a serious offense is later committed your record will be removed from restricted access.
What about asking the court to seal the case?
For misdemeanor offenses, the court MUST seal your record if: at least two years have passed since the end of your case; you have not been convicted of any other offenses; and no charges are pending against you.
For felony offenses, the court MAY agree to seal your record if: you are at least nineteen (19) years old; your case was not transferred to adult criminal court; your record has not been used in a the punishment phase of a criminal proceeding; and you have not been convicted of another felony since the age of seventeen (17). Remember also, if a determinate sentence was involved those records can not be sealed.