Juvenile Criminal Defense in Texas

Texas juvenile law is a separate system with its own vocabulary, its own deadlines and protections an adult does not get. Parents are often told their child is "not being charged with a crime", which is technically true and practically misleading. This guide explains what actually happens and where the decisions that matter are made. It is part of our criminal defense practice. Peter M. Barrett has been licensed in Texas since 1994 and has tried more than 150 jury trials.

Who counts as a child

Under Family Code §51.02(2), a "child" is a person who is either:

• ten years of age or older and under 17; or
• 17 or older and under 18, where the conduct alleged was committed before the person turned 17.

Two consequences follow. A child under 10 is outside the system entirely. And a 17-year-old who commits an offence at 17 goes to the adult criminal courts, not to juvenile court. Texas is unusual in drawing that line at 17 rather than 18, and it catches families by surprise more than any other rule here.

Delinquent conduct and conduct indicating a need for supervision

The system divides allegations into two categories, and the difference drives everything that follows.

Delinquent conduct under §51.03(a) is conduct, other than a traffic offence, that violates a penal law of Texas or the United States punishable by imprisonment or by confinement in jail. It also covers contempt of a justice, municipal, fine-only county or truancy court, the intoxication offences in Penal Code §§49.04 to 49.08, and a third or subsequent offence of driving under the influence by a minor under Alcoholic Beverage Code §106.041.

Conduct indicating a need for supervision, usually shortened to CINS, is set out in §51.03(b). It covers fine-only misdemeanors, violations of local ordinances, running away from home for a substantial length of time or without intent to return, and inhalant abuse, among other things.

A CINS case cannot result in commitment to the Texas Juvenile Justice Department. A delinquent conduct case can. Getting an allegation treated as CINS rather than delinquent conduct is therefore one of the earliest and most valuable things to argue about. For the alcohol-related categories, see Texas underage drinking law and underage DWI in Texas.

The detention hearing, and its deadline

If a child is not released, §54.01(a) requires a detention hearing without a jury promptly, and no later than the second working day after the child is taken into custody. If the child is detained on a Friday or Saturday, the hearing must be held on the first working day after custody began.

Before the hearing starts, the court must inform the parties of the child's right to counsel, the right to appointed counsel if indigent, and the child's right to remain silent about the allegations (§54.01(b)). Unless the court finds that appointment is not feasible because of exigent circumstances, it shall appoint counsel within a reasonable time before the first detention hearing (§54.01(b-1)).

Detention hearings recur. They are not a single event, and each one is an opportunity to get a child released.

The magistrate rule: a protection adults do not have

This is the most important difference between juvenile and adult practice, and it is routinely misunderstood.

For an adult, a confession taken by police after a Miranda warning can be admissible. For a child, that is not enough. Under Family Code §51.095, a written statement is admissible only if the record shows that the child received the warnings from a magistrate, covering the right to remain silent, the right to have an attorney present before or during questioning, the right to appointed counsel, and the right to terminate the interview at any time.

The statute goes further on signing. The statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present. A magistrate may require a bailiff or officer to attend only if necessary for personal safety, and that person may not carry a weapon in the child's presence. The magistrate must be fully convinced that the child understands the nature and contents of the statement and is signing voluntarily, and must sign a written verification that those requirements were met (§51.095(a)(1)(B)).

If those steps were skipped, the statement is the first thing a defence lawyer attacks. For the adult comparison, see the right to remain silent in Texas.

The right to a lawyer, and where it cannot be waived

Section 51.10(a) gives a child the right to be represented at every stage, including the detention hearing, the transfer hearing, the adjudication hearing, the disposition hearing, modification hearings, Chapter 55 hearings on fitness to proceed, habeas corpus proceedings and appeals.

Section 51.10(b) is stronger still. The right to representation shall not be waived in:

• a hearing to consider transfer to criminal court under §54.02;
• an adjudication hearing under §54.03;
• a disposition hearing under §54.04;
• a hearing before commitment to the Texas Juvenile Justice Department as a modified disposition under §54.05(f); and
• hearings required by Chapter 55.

And if a child was not represented at the detention hearing and the court decided to detain, the child is immediately entitled to an attorney (§51.10(c)). The court must then order a parent to employ one, or appoint one.

Transfer to adult court, often called certification

This is the outcome parents fear most, and it has hard age thresholds. Under §54.02(a) the juvenile court may waive jurisdiction and transfer a child to a district or criminal district court only if the child is alleged to have violated a penal law of the grade of felony, and:

Age and grade are necessary but not sufficient. After a full investigation and a hearing, the court must also find probable cause to believe the child committed the offence, and that because of the seriousness of the offence or the background of the child the welfare of the community requires criminal proceedings (§54.02(a)(3)).

Three procedural points shape the defence of a transfer hearing:

• the hearing is held without a jury (§54.02(c));
• before it, the court must order and obtain a complete diagnostic study, social evaluation and full investigation of the child, the child's circumstances and the circumstances of the alleged offence (§54.02(d)); and
• the court must give the child's attorney and the prosecutor access to all written matter it will consider at least five days before the hearing (§54.02(e)).

That diagnostic study is the record the defence works from. It is also why engaging counsel early, before the study is prepared, changes what the court reads.

Determinate sentences and the grand jury

A second route sends serious cases toward adult-length consequences without a transfer. Under §53.045, the prosecutor may refer the petition to a grand jury if it alleges habitual felony conduct under §51.031, or conduct that included a violation of one of the listed provisions. The list includes murder, capital murder, manslaughter, aggravated kidnapping, sexual assault and aggravated sexual assault, aggravated assault, aggravated robbery, felony injury to a child other than a state jail felony, and felony deadly conduct involving discharging a firearm.

If the grand jury approves the petition, the case becomes eligible for a determinate sentence, which can extend beyond the child's eighteenth birthday. For how grand juries work generally, see grand jury indictments in Texas.

Deferred prosecution

Not every case proceeds to an adjudication. Under §53.03, a probation officer or other designated officer may advise the parties about deferred prosecution and rehabilitation for a reasonable period not exceeding six months, if deferred prosecution would be in the interest of the public and the child, and the child and the parent, guardian or custodian consent.

Three features of the section are worth knowing. Consent must be given with knowledge that it is not obligatory. The child may not be detained during or as a result of the deferred prosecution process. And incriminating statements made to the person giving the advice, during those discussions, are protected (§53.03(b), (c)).

Frequently asked questions

If your child has been taken into custody

The first 48 hours decide more than anything that follows. The detention hearing deadline is short, counsel should be in place before it, and any interview must satisfy the magistrate rule in §51.095 before a statement can be used. Say nothing to investigators about the allegation, and do not let a child be interviewed to "clear it up". For a related example of how these cases are assessed, see common motives in juvenile arson cases.

This guide is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.