ADJUDICATION, DISPOSITION, AND MODIFICATION HEARINGS 32 ND ANNUAL JUVENILE LAW CONFERENCE AUSTIN, TEXAS February 24, 2019 Terrance Windham Attrney at Law Hustn, Texas 1 FIRST THINGS FIRST JUVENILE COURT JURISDICTION 51.04 Texas Family Cde The juvenile curt has exclusive riginal jurisdictin ver all prceedings invlving a child under Title 3 f the Family Cde the Juvenile Justice Cde. Child is a persn 10 years f age r lder and under 17 years f age; r 17 years f age r lder and under 18 years f age wh is alleged r fund t have engaged in delinquent cnduct r CINS as a result f acts cmmitted befre becming 17 years f age. 2 THE ADJUDICATION HEARING Texas Family Cde 54.03 THE JUVENILE DELINQUENCY CASE State files charges by way f a Petitin Juvenile Respndent served with the Petitin and summns t curt Discvery Other Pre trial matters reslved Case ges t trial: (Adjudicatin Phase & Dispsitin Phase) Prceedings must be recrded (TFC 54.09) THE PATH OF THE CASE (State s Discretin) Ordinary delinquency case Determinate Sentence Case Only fr ffenses enumerated in TFC 53.045 Petitin must be apprved by a Grand Jury Juvenile curt must be a district curt 3
THE ADJUDICATION HEARING Texas Family Cde, 54.03 THE PARTIES IN A JUVENILE DELINQUENCY [OR CINS] CASE Respndent Parent Spuse Guardian Guardian ad Litem (If parent/guardian absent OR incapable/unwilling t act in child s best interest) THE REQUIREMENT OF PERSONAL SERVICE ON THE RESPONDENT N Waiver f Service (Respndent) Curt recrd must reflect persnal service n Respndent Jurisdictinal (N persnal service n Respndent = N curt jurisdictin) Other Parties (parent, guardian, guardian ad litem) WAIVER OKAY! Texas Family Cde, 53.06(e) 4 THE ADJUDICATION HEARING Texas Family Cde 54.03 ADJUDICATION HEARING (Like guilt/inncence phase f a criminal trial) Required prceeding: Adjudicatin Hearing cannt be waived Jury trial required, unless waived by Respndent ESSENTIALLY 3 WAYS TO GO Cntested adjudicatin befre a jury (Again, jury required unless waived) Cntested adjudicatin befre the curt (curt trial) Uncntested adjudicatin befre the curt (Plea/Stipulatin pursuant t Agreement b/t Resp & State) S, a full blwn hearing nt required Plea bargaining kay Adjudicatin Hearing may be by Plea and Stipulatin f Evidence 5 THE ADJUDICATION HEARING Texas Family Cde, 54.03 JURY COMPOSITION Jury Size Depends n Nature f Case & Charged Offense Ordinary Delinquency Case Determinate Sentence Case Als Depends n What Curt is Designated as Juvenile Curt District Curt (12 persn jury) OR (6 persn jury) Cunty Curt (6 persn jury) Peremptry Challenges TFC, 53.06(e) Felny Case (10) Misdemeanr Case (3) 6
THE ADJUDICATION HEARING Texas Family Cde, 54.03 REQUIRED JUDICIAL ADMONISHMENTS Admnishments Required in ALL CASES TFC 54.03(b) The allegatins made against the respndent (child) The nature and pssible cnsequences f the prceeding, including law regarding admissibility f recrd f a juvenile curt adjudicatin in a criminal prceeding The respndent s privilege against self incriminatin The respndent s right t trial and t cnfrntatin f witnesses The respndent s right t representatin by an attrney The respndent s right t trial by jury Texas Family Cde, 54.03(b) 7 THE ADJUDICATION HEARING Texas Family Cde, 54.03 JUDICIAL ADMONISHMENTS Wh gives the Admnishments The Juvenile Curt Judge Wh gets the Admnishments Respndent, Parent(s), Guardian, r Guardian ad Litem Timing f the Admnishments At the beginning f the Adjudicatin Hearing Actin t take re imprper Admnishment Must bject n recrd befre testimny begins t preserve errr 8 Regarding Lesser Included Offenses ADDITIONAL ADMONISHMENTS Sme Texas curts and Dawsn recmmends that the juvenile curt admnish a respndent n (at least sme) LIOs. Regarding Felny Offenses (Ordinary Delinquency Cases) Pssible cmmitment t TJJD until age 19 Pssible prbatin until age 18 THE ADJUDICATION HEARING Texas Family Cde, 54.03 Pssible placement utside hme as a cnditin f prbatin Regarding Felny Offenses (Determinate Sentence Cases) Range f punishment (Capital Offense, 1 st Degree Felny, Aggravated CS Felny, 2 nd Felny, 3 rd Degree Felny fr 40, 20, r 10 years, respectively) Pssible prbatin lasting until age 19, and pssible transfer t adult prbatin at age 19 Pssible cmmitment t TJJD until age 19, and pssible transfer t TDCJ at age 19 9
ADDITIONAL ADMONISHMENTS Regarding Felny Offenses (Determinate Sentence Cases) Admnishment regarding pssible transfer t adult prbatin at age 19 THE ADJUDICATION HEARING Texas Family Cde, 54.03 Admnishment regarding pssible placement utside hme as a cnditin f prbatin Regarding Misdemeanr Offenses Admnishment regarding pssibility f prbatin until age 18 Admnishment regarding pssibility f placement utside hme as a cnditin f prbatin 10 THE ADJUDICATION HEARING Texas Family Cde, 54.03 PLEA AGREEMENT ADMONISHMENTS That curt is nt required t accept plea bargain agreement That Respndent can withdraw plea if curt rejects agreement That if curt accepts plea respndent cannt appeal unless: Curt grants permissin t appeal; OR Appeal relates t a challenge t the denial f a written pre trial mtin Texas Family Cde, 54.034 11 THE ADJUDICATION HEARING Texas Family Cde, 54.03 REFEREES AND ASSOCIATE JUDGES Texas Family Cde 54.10(a) In Ordinary Delinquency Cases May sit as judge in either curt trials r jury trials. TFC 54.10(a) May take agreed Pleas and Stipulatins f Evidence. Must give respndent and parents all required admnishments. In Determinate Sentence Cases Cannt sit as judge in either curt trials r jury trials. May take agreed Pleas and Stipulatins f Evidence. TFC 54.10(e), (f) Must send written findings and recmmendatins regarding determinate sentence agreed pleas and stipulatins t the juvenile curt judge fr apprval r rejectin. 12
THE DISPOSITION HEARING Texas Family Cde 54.04 WHAT IS A DISPOSITION HEARING? A hearing t determine what t d with a juvenile respndent wh has been adjudicated fr a penal ffense. The equivalent f the punishment phase in a criminal trial. WHEN IS A DISPOSITION HEARING REQUIRED AND WHEN DOES IT TAKE PLACE? Required whenever an Adjudicatin Hearing has resulted in the respndent being fund t have engaged in delinquent cnduct. Must be separate and distinct frm an Adjudicatin Hearing 54.04(a) Generally heard immediately fllwing Adjudicatin Hearing, but that s within the discretin f the juvenile curt. 13 THE DISPOSITION HEARING Texas Family Cde 54.04 ORDINARY DELINQENCY CASES All misdemeanr ffenses fall int this categry Als felny ffenses (except determinate sentence cases) What Can Happen in a Dispsitin Hearing? Prbatin until 18 Pssible ut f hme placement as a cnditin f prbatin May be extended up t age 18 Minimum 2 year term fr sexual ffenses Cmmitment t TJJD, if felny ffense NO TJJD COMMITMENT FOR MISDEMEANOR OFFENSES N Dispsitin Curt wuld dismiss the respndent and enter a judgment withut any dispsitin TFC 54.04(c). 14 THE DISPOSITION HEARING Texas Family Cde 54.04 ORDINARY DELINQUENCY CASES Wh Hears Dispsitin: Judge r Jury N right t jury in dispsitin hearing, whether misdemeanr r felny. Judge decides dispsitin Respndent has same rights as in Adjudicatin Hearing. Evidence curt may cnsider Scial Histry Reprts Detentin Reprts Live testimny (fact witnesses, prfessinal curt emplyees & cnsultants Evidence admitted during the Adjudicatin Hearing Victim testimny COURT MUST PROVIDE DEFENSE COUNSEL WITH ACCESS TO ALL WRITTEN MATTERS TO BE CONSIDERED BEFORE DISPOSITION HEARING Referees and Assciate Judges May hear case if n bjectin frm any party 15
THE DISPOSITION HEARING Texas Family Cde 54.04 DETERMINATE SENTENCE CASES What Can Happen in a Dispsitin Hearing? Prbatin until age 19 Pssible ut f hme placement as a cnditin f prbatin Prbatin term can be up t 10 years Minimum 2 year term fr sexual ffense Pssible extensin f prbatin term Extensin may nt g beynd 10 years Pssible sentence f up t 10, 20, r 40 years Pssible judgment f N Dispsitin 16 THE DISPOSITION HEARING Texas Family Cde 54.04 DETERMINATE SENTENCE CASES Wh Hears Dispsitin: Judge r Jury Respndent has right t jury in dispsitin hearing. Must make electin fr jury dispsitin befre vir dire begins. If n electin made befre vir dire, then judge decides dispsitin. Evidence the curt may cnsider Scial Histry Reprts Detentin Reprts Live testimny (fact witnesses, prfessinal curt emplyees) Evidence admitted during Adjudicatin Hearing Victim testimny 17 THE DISPOSITION HEARING Texas Family Cde 54.04 DETERMINATE SENTENCE CASES Referees and Assciate Judges Cannt sit as judge in determinate sentence trial (neither curt trial NOR jury trial). May take Plea and Stipulatin f Evidence when State and Respndent agree t the dispsitin f the case, whlly r partly. Must send written findings and recmmendatins n determinate sentence agreed pleas and stipulatins t juvenile curt judge fr apprval r rejectin. TFC 54.10(e),(f) 18
THE DISPOSITION HEARING Texas Family Cde 54.04 GENERAL RULE: AN ADJUDICATION FOR ENGAGING IN DELINQUENT CONDUCT REQUIRES THAT A DISPOSITION HEARING BE HELD. Texas Family Cde 54.04(h) 19 THE DISPOSITION HEARING Texas Family Cde 54.04 DISPOSITION IS NOT AUTOMATIC! Texas Family Cde 54.04(c) N dispsitin may be made unless the [juvenile respndent] is in need f rehabilitatin r the prtectin f the public r the [juvenile respndent] requires that dispsitin be made. If the curt r jury des nt s find, the curt shall dismiss the [juvenile respndent] and enter a final judgment withut any dispsitin. N dispsitin placing the child n prbatin utside the child s hme may be made under this sectin unless the curt r jury finds that the child, in the child s hme, cannt be prvided the quality f care and level f supprt and supervisin that the child needs t meet the cnditins f prbatin. What is required fr curt r jury t make a Dispsitin finding? 20 THE DISPOSITION HEARING Texas Family Cde 54.04 THE GUIDING QUESTION WHETHER THE [JUVENILE RESPONDENT] IS IN NEED OF REHABILITATION OR THE PROTECTION OF THE PUBLIC REQUIRES THAT A DISPOSITION BE MADE? Ordinary Delinquency Case Judge Answers Determinate Sentence Case (Where the Respndent elects jury dispsitin) Jury Answers 21
THE DISPOSITION HEARING Texas Family Cde 54.04 WHAT HAPPENS IF THE COURT OR JURY GIVES A NO ANSWER TO THE GUIDING QUESTION? The judge must dismiss the juvenile respndent and enter a final judgment withut any dispsitin. Texas Family Cde, 54.04(c) (SECOND SENTENCE) 22 THE DISPOSITION HEARING Texas Family Cde 54.04 WHAT HAPPENS IF THE COURT OR JURY GIVES A YES ANSWER TO THE GUIDING QUESTION? The curt r jury can then make a dispsitin finding. There are 3 Dispsitin Optins: Dispsitin Optin 1: Place the respndent n prbatin at hme in custdy f his/her parents r guardian. Dispsitin Optin 2: Remve the respndent frm hme and place him/her n prbatin utside the hme. Dispsitin Optin 3: Cmmit the respndent t TJJD, if the adjudicatin was fr felny ffense. 23 THE DISPOSITION HEARING Texas Family Cde 54.04 DISPOSITION OPTION 1: Place the respndent n prbatin at hme in custdy f parents. ESSENTIALLY, THIS IS THE STATUTORY DEFAULT DISPOSITION. This Optin is required by the 3 rd sentence f Texas Family Cde, 54.04(c), UNLESS The curt r jury makes the remval frm hme findings set ut in that sentence, namely: that the child, in the child s hme, cannt be prvided the quality f care and level f supprt and supervisin that the child needs t meet the cnditins f prbatin. 24
THE DISPOSITION HEARING Texas Family Cde 54.04 DISPOSITION OPTION 2: Remving the respndent frm hme and placing him/her n prbatin utside the hme. IF THE COURT OR JURY MAKES THE REMOVAL FROM HOME FINDINGS IN 54.04(c), THEN THEY ARE AUTHORIZED TO ENTER DISPOSITION OPTION 2. Juvenile judge makes this determinatin in an Ordinary Delinquency Case. Jury makes this determinatin in a Determinate Sentence Case, if the Respndent elected jury dispsitin. If electin nt made prir t beginning f vir dire, then the judge decides. 25 THE DISPOSITION HEARING Texas Family Cde 54.04 DISPOSITION OPTION 3: Cmmit the respndent t TJJD, if the adjudicatin was fr a felny ffense. IF THE COURT OR JURY MAKES THE REMOVAL FROM HOME FINDINGS IN 54.04(c), THEN THEY ARE AUTHORIZED TO ENTER DISPOSITION OPTION 3. Juvenile judge makes this determinatin in an Ordinary Delinquency Case. Jury makes this determinatin in a Determinate Sentence Case, if the Respndent elected jury dispsitin. If electin nt made prir t beginning f vir dire, then the judge decides. 26 THE DISPOSITION HEARING Texas Family Cde 54.04 OTHER REQUIRED FINDINGS FOR PLACEMENT OUTSIDE HOME It s in [respndent s] best interest t be placed utside his/her hme. Reasnable effrts were made t prevent r eliminate the need fr remving [respndent] frm his/her hme and t make it pssible fr the [respndent] t return t his/her hme. The [respndent] cannt be prvided the quality f care an level f supprt and supervisin he/she needs t meet the cnditins f prbatin. These Findings must be made by THE COURT, even in determinate sentence cases where the jury decides dispsitin. Texas Family Cde 54.04(i)(1) 27
THE DISPOSITION HEARING Texas Family Cde 54.04 SPECIAL COMMITMENT FINDING (POST 9 1 17) Befre cmmitting a juvenile respndent t TJJD in an rdinary delinquency case, the juvenile curt is required t make a Special Cmmitment Finding that: Respndent has a behaviral health r ther special needs that cannt be met with the resurces available in the cmmunity. The curt must make a Statement f Reasns fr its dispsitin decisin in the dispsitin rder. Texas Family Cde 54.04(d)(2) and 54.04013 28 THE DISPOSITION HEARING Texas Family Cde 54.04 TRANSFERRING DISPOSITION TO DIFFERENT COUNTY The juvenile curt can transfer a case t the cunty f residence f the juvenile respndent fr dispsitin. Texas Family Cde 51.07 29 MODIFICATION HEARINGS Texas Family Cde, 54.05 WITH THE EXCEPTION OF A TJJD COMMITMENT, THE JUVENILE COURT MAY MODIFY A DISPOSITION ORDER UNTIL: Respndent s 18 th birthday (rdinary delinquency case). Respndent s 19 th birthday (determinate sentence case). Respndent is discharged frm prbatin prir t the 18 th r 19 th birthday. A PETITION TO MODIFY DISPOSITION IS REQUIRED Petitin may be filed by any party (r by the Curt r a Juvenile Prbatin Officer). Generally, filed by the State. 30
MODIFICATION HEARINGS Texas Family Cde, 54.05 PETITION AND NOTICE REQUIREMENTS Family Cde is vague regarding cntents f Petitin t Mdify. Des require reasnable ntice be given t the parties. BEST PRACTICE: Fllw the petitin and ntice requirement fr an adjudicatin petitin, including persnal service n respndent. A HEARING IS REQUIRED ON A PETITION TO MODIFY DISPOSITION Burden f Prf n mving party (usually, the State). Standard f Prf: Prepnderance f the Evidence. Same type f evidence in a dispsitin hearing is admissible. 31 MODIFICATION HEARINGS Texas Family Cde, 54.05 WAIVER OF HEARING & PLEA BARGAINING Generally, a respndent can waive a mdificatin hearing and reach an agreed settlement f the case with the State. EXCEPTION: The respndent cannt waive mdificatin hearing when the State is seeking: Mdificatin f prbatin cnditins t require ut f hme placement fr lnger than 30 days; OR Revcatin f a felny prbatin and cmmitment t TJJD. HEARING MAY BE BEFORE REFEREES AND ASSOCIATE JUDGES Same cnstraints regarding determinate sentence cases apply. Must be an agreed dispsitin 32 MODIFICATION HEARINGS Texas Family Cde, 54.05 EXTENDING PROBATION TERM IN ORDINARY DELINQUENCY CASE Juvenile curt may extend a perid f prbatin at any time during perid f prbatin. Curt can d this n its wn mtin, OR Curt has up until ne year past prbatin ending date t extend perid f prbatin, if the State filed petitin t revke r mdify prbatin befre prbatin expired. The State s petitin/mtin t revke r mdify prbatin must be filed befre the perid f prbatin end. If petitin/mtin t revke r mdify is nt timely filed, then the juvenile curt has lst jurisdictin ver the case. 33
MODIFICATION HEARINGS Texas Family Cde, 54.05 EXTENDING PROBATION TERM IN ORDINARY DELINQUENCY CASE N extensin f perid f prbatin can g past respndent s 18 th birthday. Remember, even thugh the State may be seeking a revcatin the curt can extend the perid f prbatin instead f revking prbatin. 34 MODIFICATION HEARINGS (Determinate Sentence Prbatin: Three Frequently Encuntered Issues) ISSUE NO. 1: WHAT HAPPENS WHEN THE PROBATION TERM EXTENDS PAST THE RESPONDENT S 19 TH BIRTHDAY? Curt shall hld a hearing t determine ne f fllwing: Whether t discharge the respndent frm prbatin, OR Whether t transfer the respndent t an adult district curt. If discharged frm prbatin, respndent s case is ver. If transferred, respndent cntinues under adult cmmunity supervisin fr remainder f prbatin term. Texas Family Cde, 54.04(q) 35 MODIFICATION HEARINGS (Determinate Sentence Prbatin: Three Frequently Encuntered Issues) ISSUE NO. 2: WHAT PROCEDURES MUST BE FOLLOWED TO REVOKE PROBATION UPON A VIOLATION OF PROBATION CONDITIONS? State must file a petitin/mtin t revke prbatin befre the respndent s prbatin term expires. If petitin/mtin nt filed befre respndent s 19 th birthday then the juvenile curt has lst jurisdictin. Curt must hld a hearing n State s petitin/mtin State must prve by prepnderance f the evidence that the respndent vilated a reasnable and lawful rder f the curt. If prbatin vilatin(s) prven, curt can cmmit respndent t TJJD fr a term nt t exceed the riginal sentence. The curt may assess a lesser term f cnfinement. Texas Family Cde, 54.05(j) 36
MODIFICATION HEARINGS (Determinate Sentence Prbatin: Three Frequently Encuntered Issues) ISSUE NO. 3: CAN THE JUVENILE COURT EXTEND THE TERM OF A DETERMINATE SENTENCE PROBATION? The juvenile curt may extend a perid f prbatin at any time befre the perid f prbatin expires. Only restrictin is that the term f prbatin plus any extensin may nt exceed 10 years. If the term f prbatin wuld cntinue past the respndent s 19 th birthday, then the curt can take the fllwing actins: Discharge the respndent frm prbatin; OR Transfer the respndent t an adult district curt; OR Revke the respndent s prbatin and cmmit him/her t TJJD. Texas Family Cde, 54.04(q) 37 OTHER DISPOSITONAL POWERS OF THE JUVENILE COURT Handgun cases Driver s license suspensin r denial Cmmunity Service Drug and alchl awareness prgrams Other rehabilitative classes Restitutin 38 THE END 39
ADJUDICATION, DISPOSITION, AND MODIFICATION HEARINGS 32 ND ANNUAL JUVENILE LAW CONFERENCE AUSTIN, TEXAS February 24, 2019 Terrance Windham Attrney at Law Hustn, Texas
Table f Cntents ACKNOWLEDGMENTS INTRODUCTION First Things First: Juvenile Curt Jurisdictin... Page 1 Delinquent Cnduct and Cnduct Indicating a Need fr Supervisin Indicating a Need fr Supervisin (CINS)... Page 1 SECTION I: THE ADJUDICATION HEARING... Page 2 What Is an Adjudicatin Hearing?... Page 2 The Adjudicatin Petitin and the Standard f Prf in Adjudicatin Hearings... Page 2 The Requirement f an Adjudicatin Hearing... Page 3 N Waiver and Stipulating the Evidence... Page 3 Respndent s Presence, Appearance f Parent r Guardian, Appintment f a Guardian ad Litem, Appintment f Cunsel, and Service f Prcess... Page 4 Prcedural and Substantive Matters in Adjudicatin Hearings... Page 4 Right t Jury Trial, Jury Size, and Peremptry Challenges... Page 5 Required Judicial Admnitins in Adjudicatin Hearings... Page 6 Admnishments Regarding Nature f the Charges and Juvenile Curt Prceedings... Page 6 Admnishments Regarding the Admissibility f a Juvenile Recrd... Page 6 Additinal Admnishments... Page 7 Ordinary Delinquency Cases... Page 7 Determinate Sentence Cases... Page 7 Plea Agreement Admnitins and the Right t Appeal... Page 7 Cnsequences f Failure t Admnish... Page 8 When Admnishments are Nt Required... Page 8 Juvenile Curt Referees and Assciate Judges in Adjudicatin Hearings... Page 9 SECTION II: THE DISPOSITION HEARING... Page 9 What Is A Dispsitin Hearing?... Page 9 What Can Happen at the Dispsitin Hearing... Page 9 Wh Hears Dispsitin: Judge r Jury?... Page 10 The Respndent s Rights at the Dispsitin Hearing... Page 10 Evidence at the Dispsitin Hearing... Page 10 What s Required t Make a Dispsitin Finding: THE GUIDING QUESTION. Page 11 Prcedure Required When THE GUIDING QUESTION Is Answered Negatively... Page 12 What Happens When THE GUIDING QUESTION Is Answered Affirmatively... Page 12 Findings Required fr Placement Outside Hme... Page 12 The Dispsitin Order: Statement f Reasns and Cnditins f Prbatin... Page 13 Transferring Dispsitin t a Different Cunty... Page 14 Terminatin f Dispsitin... Page 14 SECTION III: MODIFICATION OF DISPOSITION... Page 14 Petitin and Ntice Requirements... Page 15 Waiver f Hearing and Plea Bargaining in Mdificatin Hearings... Page 16 Evidence and Standard f Prf in Mdificatin Hearings... Page 17 Extending a Prbatin Term in an Ordinary Delinquency Case... Page 17 Transfer, Revcatin, and Extensin f Prbatin f a Determinate Sentence Case... Page 17 Other Dispsitinal Pwers f the Juvenile Curt Page 18 CONCLUSION... Page 19
ACKNOWLEDGMENTS & INTRODUCTION T the geniuses ges the credit. I wish t acknwledge the genius f Prfessr Rbert O. Dawsn fr his remarkable treatise n Texas Juvenile Law (and the amazing staff [especially Principal Cntributrs Nydia Thmas and Kaci Singer] at the Texas Juvenile Justice Department fr cntinuing his wrk with the updates f his treatise ver the years the past several years including the latest 9 th Editin published in 2018). Plain and simple, what I have dne here is an ffsht f his (and their) great wrk. When yu see the name Dawsn herein, it is a reference t this wrk f genius. Als, kuds t all the presenters n Adjudicatin, Dispsitin, and Mdificatin Hearings at previus Annual Juvenile Law Cnferences. I have studied their wrk; and they are als a part f what fllws belw. This paper is divided int three (3) Sectins that are spruted frm Chapters 11, 12, and 13 f Dawsn, my study f the Texas Family Cde, my review f many cases interpreting the Cde, my reading f many schlarly articles n varius aspects f Texas Juvenile Law, and my practice f Juvenile Law as bth a prsecutr and defense attrney. Sectin I relates t adjudicatin hearings under Family Cde, Sectin 54.03. Sectin II relates t dispsitin hearings under Family Cde, Sectin 54.04. Taken tgether, thse Sectins are the juvenile equivalent f the criminal trial. They generally set the primary curse taken when children are referred t the juvenile justice system fr alleged activities that vilate the penal laws f the State. Sectin III f the paper discusses mdificatin f dispsitin under Family Cde, Sectin 54.05. I describe that Sectin as the juvenile cunterpart t cmmunity supervisin mdificatin and/r revcatin prceedings in the adult criminal justice system. At the utset, it shuld be nted that this paper is nt abut the ther prcedural paths in the juvenile justice system, namely, supervisry cautin, deferred prsecutin, waiver f jurisdictin and transfer t criminal curt (certificatin f a child t be tried as an adult), and cmmitment prceedings fr a child (juvenile ffender) determined t be suffering frm a mental illness. Als, althugh thrughut the paper there are references t delinquent cnduct and cnduct indicating a need fr supervisin [CINS], primarily the discussin herein relates t delinquent cnduct cases in juvenile curt nt CINS in the justice and municipal curts. Fr mre infrmatin n the prcedures in CINS cases, the reader is urged t read Dawsn, (9 th Editin, 2018) Chapter 4. Terrance Windham
First Things First: Juvenile Curt Jurisdictin Under Title 3 f The Texas Family Cde (als knwn as the Juvenile Justice Cde), a child is defined as a persn wh is: (A) ten years f age r lder and under 17 years f age; r (B) seventeen years f age r lder and under eighteen years f age wh is alleged r fund t have engaged in delinquent cnduct r cnduct indicating a need fr supervisin [CINS] as a result f acts cmmitted befre becming 17 years f age. 1 All references herein t juvenile respndent r respndent are intended t cnvey the same meaning as the abve Family Cde definitin f a child. The Family Cde als prvides that the juvenile curt has exclusive riginal jurisdictin ver all prceedings invlving children. Thus, any case relating t an allegatin f delinquent cnduct [r CINS] engaged in by a persn wh is a child [juvenile respndent] within the meaning f Title 3 must begin in a juvenile curt. 2 The parties in a juvenile delinquency [r CINS] prceeding are the the state, a child wh is the subject f the prceedings r the child s parent, spuse, guardian, r guardian ad litem. 3 Delinquent Cnduct and Cnduct Indicating a Need fr Supervisin (CINS) Texas Family Cde 51.03 defines delinquent cnduct as: (1) cnduct, ther than a traffic ffense, that vilates a penal law f this state r f the United States punishable by imprisnment r by cnfinement in jail; (2) cnduct that vilates a lawful rder f a curt under circumstances that wuld cnstitute cntempt f that curt in: 1 Tex. Fam. Cde, 51.02(2). 2 Texas Family Cde, 51.04(a). 3 Tex. Fam. Cde, 51.02(10). 1 (A) a justice r municipal curt; (B) a cunty curt fr cnduct punishable nly by a fine; r (C) a truancy curt; (3) cnduct that vilates Sectin 49.04, 49.05, 49.06, 49.07, r 49.08, Penal Cde; r (4) cnduct that vilates Sectin 106.041, Alchlic Beverage Cde, relating t driving under the influence f alchl by a minr (third r subsequent ffense). Sectin 51.03 als defines cnduct indicating a need fr supervisin [CINS] as: (1) subject t Subsectin (f), cnduct, ther than a traffic ffense, that vilates: (A) the penal laws f this state f the grade f misdemeanr that are punishable by fine nly; r (B) the penal rdinances f any plitical subdivisin f this state (2) the vluntary absence f a child frm the child's hme withut the cnsent f the child's parent r guardian fr a substantial length f time r withut intent t return; (3) cnduct prhibited by city rdinance r by state law invlving the inhalatin f the fumes r vaprs f paint and ther prtective catings r glue and ther adhesives and the vlatile chemicals itemized in Sectin 485.001, Health and Safety Cde; (4) an act that vilates a schl district's previusly cmmunicated written standards f student cnduct fr which the child has been expelled under Sectin 37.007(c), Educatin Cde; (5) ntwithstanding Subsectin (a)(1), cnduct described by Sectin 43.02(a) r (b), Penal Cde; r
(6) ntwithstanding Subsectin (a)(1), cnduct that vilates Sectin 43.261, Penal Cde. Essentially, then, delinquent cnduct invlves either felny penal vilatins r Class A and Class B misdemeanr penal vilatins ffenses that are punishment by cnfinement in prisn r jail, respectively; and, CINS invlves Class C misdemeanr penal vilatins r ffenses that are punishable by fine nly. As nted abve, the primary fcus f this paper is delinquent cnduct. Fr mre infrmatin n CINS, the reader shuld see Rbert O. Dawsn, Texas Juvenile Law, 9 th Editin 2018. SECTION I THE ADJUDICATION HEARING What is an Adjudicatin Hearing? As with criminal cases, juvenile cases are split int tw phases: the adjudicatin phase and the dispsitin phase. The adjudicatin phase is referred t as an adjudicatin hearing which is essentially a trial n the merits f the penal charge(s) alleged in the State s Juvenile Delinquency [r CINS] Petitin. Again, as with criminal cases, an adjudicatin hearing may be held befre the juvenile curt (curt trial) r befre a jury (jury trial). In a curt trial (an adjudicatin hearing befre the juvenile judge whether it s a plea pursuant t a plea bargain agreement r a full-blwn evidentiary hearing with live witnesses), jepardy attaches when bth sides have annunced ready and the respndent has entered a plea t the petitin. 4 In a jury trial, jepardy attaches when the jury is empaneled and swrn. 5 If, at the cnclusin f the adjudicatin hearing, the respndent is fund t have engaged in delinquent cnduct [r CINS] (a finding f True n the charges the equivalent f a finding f guilt whether such finding is based n a plea f True pursuant t a plea bargain r whether the finding is based n the evidence presented during a full-blwn evidentiary hearing with live witnesses), then the curt r jury must next decide whether r nt a dispsitin (the equivalent f punishment) shuld be made in the case. The dispsitin phase f a juvenile case will be discussed in Sectin II belw. 4 State v. Trres, 805 S.W.2d 418 (Tex.Crim.App. 1991) 5 In re C.J.F, 183 S.W.3d 841 (Tex.App. Hustn [1 st Dist.] 2005, n pet.) There are varius prcedural paths that can be emplyed t deal with a juvenile wh is referred t juvenile curt n an allegatin f delinquent cnduct [r CINS]. The decisin regarding which path a juvenile case takes is within the discretin f the prsecuting authrity (generally the District Attrney r, in sme Texas cunties, the Cunty Attrney hereinafter referred t as State). It is that authrity wh decides whether a juvenile delinquency case will be prsecuted as an rdinary delinquency case 6 r under the determinate sentence law. 7 Hwever, the Family Cde sets up tw key cnstraints n the ability f the State t prsecute a juvenile under the determinate sentence law. First, the State must btain apprval fr such a prsecutin frm a grand jury and may nly seek such apprval fr certain enumerated ffenses. 8 Secndly, the State is prhibited frm referring a petitin that alleges that certain sex ffenses unless the juvenile respndent is mre than three years lder than his/her alleged victim. 9 The Adjudicatin Petitin and the Standard f Prf in Adjudicatin Hearings When the State seeks a finding f delinquency [r CINS] against a child (juvenile respndent), it must initiate the actin by filing a charging dcument (knwn as a petitin) in the juvenile curt [r in a justice f the peace r municipal curt]. 10 The petitin must state with reasnable particularly the time, place, and manner f the acts alleged and the penal law r standard f cnduct vilated by the acts. 11 The State can allege mre than ne ffense in its petitin and des nt have t plead the law f parties. If there is a fatal variance between what the State alleges in its delinquency [r CINS] petitin and what the State prves at the adjudicatin hearing, the juvenile curt [r the 6 Essentially, an rdinary delinquency case is a misdemeanr r felny case in which the jurisdictin f the juvenile curt ends at the age f 18; r a felny case in which the juvenile respndent can be cmmitted t the Texas Juvenile Justice Department (TJJD) until the age f 19. 7 The Texas Determinate Sentencing Law is set ut in Tex. Fam. Cde 54.045. A determinate sentence case is a felny case in which a juvenile respndent can be sentenced t TJJD fr up t 10, 20, r 40 years (depending n the degree f the felny ffense); and is eligible fr transfer frm TJJD t the Texas Department f Criminal Justice Institutinal Divisin (TDCJ-ID) at the age 19. If a juvenile respndent is assessed a determinate sentence f 10 years r less and the sentence is prbated, he/she culd remain subject t the jurisdictin f the juvenile curt until the age f 19. 8 Tex. Fam. Cde 53.045. 9 See Tex. Fam. Cde 53.045(e) 10 See Tex. Fam. Cde 53.04 fr a listing f all the things that are required t be stated in the petitin. 11 Tex. Fam. Cde 53.04(d) 2
justice r municipal curt] wuld be required t find the charges Nt True and acquit the respndent. 12 The prvisins cncerning specificity regarding the charges alleged in the petitin are cnsistent with the U.S. Supreme Curt s hlding in the landmark case f In re Gault, 13 wherein the Supreme Curt held that the U.S. Cnstitutin requires that a juvenile respndent be prvided with adequate ntice f the charges against him/her meaning, a specificatin f the facts that the State intends t prve and sufficient time in advance f an adjudicatin hearing t prepare fr a defense t the State s allegatins. Als, cnsistent with the Supreme Curts hlding in In re Winship, 14 the Texas Family Cde sets the State s burden in a juvenile delinquency [r a CINS] prsecutin at prf beynd a reasnable dubt and specifically prvides that a juvenile respndent is presumed inncent f any charges alleged against him/her in a juvenile delinquency petitin. 15 The Requirement f an Adjudicatin Hearing Regardless f whether the State prceeds with a juvenile case as an rdinary delinquency case r a determinate sentence case, absent a dismissal [referred t in the juvenile arena as a nnsuit ] f the charged ffense, an adjudicatin hearing will be a required step in the prsecutin f the case. 16 That is the mandate f Sectin 54.03(a) f the Texas Family Cde, which prvides that: A child [juvenile respndent] may be fund t have engaged in delinquent cnduct r cnduct indicating a need r supervisin nly after an adjudicatin hearing cnducted in accrdance with the prvisins f this sectin. (Emphasis Added) The nly questin t be reslved at an adjudicatin hearing is whether the juvenile 12 Id., See, als, L.G.R. v. State, 724 S.W.2d 775 (Tex. 1987), In the Matter f S.D.W., 811 S.W.2d 739 (Tex.App. Hustn [1 st Dist.] 1991, n writ). 13 383 U.S. 546, 86 S.Ct. (1967) 14 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). 15 See, Tex. Fam. 54.03(e) and (f) which prvides in part: The child shall be presumed t be inncent f the charges against the child and n finding that a child has engaged in delinquent cnduct r cnduct indicating a need fr supervisin may be returned unless the state has prved such beynd a reasnable dubt. In all jury cases the jury will be instructed that the burden is n the state t prve that a child has engaged in delinquent cnduct r is in need f supervisin beynd a reasnable dubt. 16 See, Tex. Fam. Cde 54.03. respndent engaged in the delinquent cnduct alleged in the petitin. But, what exactly, d the prvisins f 54.03(a) require in rder t have a legally sufficient adjudicatin hearing? Texas curt rulings n that questin hld that an adjudicatin hearing must be an inquiry n the recrd and n the merits f the allegatin(s) set ut in the State s petitin. These curt rulings (and the cre principles espused in the Texas Family Cde) envisin a plenary evidentiary hearing where: (1) the State (and the juvenile respndent, if he/she s wishes) can call witnesses t present testimny and ther evidence relating t the allegatins in the State s petitin; (2) the curt r jury can pass judgment n the credibility f the witnesses, evidence, and the allegatins; and (3) the curt and the parties can determine what is in the best interest f the public and the respndent. Curt decisins als suggest that any prcedure ther than a plenary hearing n the matter f adjudicatin (i.e., reslving juvenile delinquency allegatins merely by written filings and/r ther dcumentary evidence r materials by the parties r the adptin f sme srt f precipitus prcess such as a summary judgment prcedure) wuld cntravene the express prvisins f Family Cde 54.03(a), and the general purpses f the Juvenile Justice Cde (Title 3 f the Family Cde). 17 In shrt, a plenary hearing is required fr a legally sufficient adjudicatin hearing and wuld prvide the curt with a legal basis fr taking actin n the State s petitin. S, can an adjudicatin hearing be waived? N Waiver and Stipulating the Evidence Since an adjudicatin hearing is required in a juvenile delinquency prceeding, it fllws that a juvenile respndent cannt waive the hearing. 18 Hwever, recgnizing the utility f expediting cases, the Texas Legislature (with the adptin f the Family Cde) and Texas curts have determined that the requirement f an adjudicatin hearing des nt mean that there must be a full-blwn hearing with witnesses. Thus, if a juvenile 17 See, e.g., R.E.M. v. State, 569 S.W 2d 613 (Tex.Civ. App. Wac 1978, writ ref'd n. r.e.). See als, Tex. Fam. Cde 51.01, which sets ut the purpses f the Juvenile Justice Cde. See, als, Rbert O. Dawsn, Texas Juvenile Law (Chapter 13) 9 th Editin (2018) 18 See, e.g., In the Matter f N.S.D., 555 S.W. 2d 807 (Tex.Civ.App. El Pas 1977). 3
respndent des nt wish t cntest the petitined allegatins, he/she and the State can agree t a reslutin f a case by means f a plea bargain agreement, which is generally effectuated by a Plea and/r Stipulatin f Evidence. The respndent and his/her attrney (upn satisfying the requirements f Family Cde 51.09) may waive the juvenile s right t a jury trial and the right t cnfrnt and/r call witnesses (and all ther rights) and agree t the witnesses testimny that wuld supprt the allegatins in the State s petitin. When this ccurs, the plea agreement and Stipulatin f Evidence prvides the juvenile curt the evidentiary basis needed fr an adjudicatin. In effect, the Stipulatin f Evidence amunts t a judicial cnfessin that the respndent cmmitted the petitined ffense. By stipulating t the evidence, the respndent is nt waiving the adjudicatin hearing, but rather expediting it. 19 The prceeding in which an agreement between the State and the juvenile respndent is accepted by the juvenile curt (Plea) cnstitutes the Adjudicatin Hearing. Respndent s Presence, Appearance f Parent r Guardian, and Appintment f Guardian ad Litem, Appintment f Cunsel, and Service f Prcess It ges withut saying that fr the juvenile curt t cnduct an adjudicatin hearing, the juvenile respndent must be present befre the curt. The Family Cde requires that the respndent must be persnally served with a cpy f the State s petitin and a summns prviding him/her with ntice f the charges and when t appear befre the curt. 20 The imprtance f this service requirement is ntably demnstrated by curt decisins hlding that persnal service f the petitin and summns n a juvenile respndent is a prerequisite t giving the juvenile curt jurisdictin ver the case. 21 Mrever, curt decisins have held that a respndent cannt waive service; and that the curt recrd must affirmatively shw that the respndent was persnally served. 22 Family Cde 53.06 als 19 Id. See, als, In the Matter f J.L., 664 S.W.2d 119 (Tex.App. Crpus Christi 1983, n writ); 20 Tex. Fam. Cde 53.06(e). 21 In the Matter f T.T.W., 532 S.W.2d 418 (Tex.Civ.App. Texarkana 1976, n writ). 22 In the Matter f D.M.W., 562 S.W.2d 851 (Tex. Sup. 1978). requires that a juvenile respndent s parent, guardian r custdian, guardian ad litem, and any ther persn wh appears t the curt t be a prper r necessary party t the prceedings als be served with a cpy f the State s petitin and a summns t appear befre the juvenile curt. The parent, managing cnservatr, curt-appinted custdian and guardian f a juvenile respndent are als required t attend curt hearings affecting the respndent. This includes adjudicatin hearings, dispsitin hearings, and mdificatin hearings. 23 If a juvenile respndent appears befre the juvenile curt withut a parent r guardian (r if the parent r guardian appears incapable r unwilling t make decisins in the best interest f the child regarding the juvenile delinquency prceeding), then Family Cde prvides that the curt shall appint a guardian ad litem t prtect the interests f the child. The respndent s attrney (but nt a law-enfrcement fficer, prbatin fficer, r juvenile curt emplyee) may serve as his/her guardian ad litem. 24 If the respndent des nt have an attrney, the curt is required t appint an attrney t represent him/her. 25 Prcedural and Substantive Matters in Adjudicatin Hearings In an adjudicatin hearing a juvenile respndent is affrded all the cnstitutinal prtectins, and the due prcess and due curse f law prcedural rights given t adults in criminal cases. These prtectins are delineated thrughut the varius sectins f the Family Cde. Accrdingly, in an adjudicatin hearing, the respndent is affrded: (1) the right t assistance by effective cunsel; the right t the presumptin f inncence; the Fifth Amendment privilege against self-incriminatin; the right t cnfrntatin and crss-examinatin f witnesses; the right t crrbratin f an extra judicial statement; the benefit f the exclusinary rule hence, the right t suppressin f illegally seized evidence, including a cnfessin that is invluntary r that was btained in vilatin f Family Cde 51.095; the benefit f the affirmative defenses set ut in the Texas Penal Cde and the benefit f the rules regarding 23 Tex. Fam. Cde 51.115 24 Tex. Fam. Cde 51.11. 25 Tex. Fam. Cde 51.101 and 51.102. 4
accmplice testimny. 26 Additinally, the Family Cde prvides that unless it specifically states therwise the Texas Rules f Evidence applicable in criminal cases and in Chapter 37 f the Texas Cde f Criminal Prcedure apply t juvenile adjudicatin hearings, 27 with ne exceptin namely, that hearsay statements f children under 12 years r age wh are victims f assaultive and sexual ffenses are admissible. 28 These prtectins are nt nly the result f public plicy enacted by the Texas State Legislature (i.e., the Family Cde), they als emanate frm several fundatinal case decisins by the United States Supreme Curt, the Texas Supreme Curt, the Texas Curt f Criminal Appeals, and ur Texas Appellate Curts. Fr an excellent dissertatin n many f these cases and the cnstitutinal due prcess and due curse f law guarantees affrded t juvenile ffenders in Texas, the juvenile law practitiner shuld read the remarkable pinin f the Texas Curt f Criminal Appeals in Lanes v. State, 767 S.W.2d 789 (Tex.Crim.App. 1989). Right t Jury Trial, Jury Size, and Peremptry Challenges As previusly nted, in Texas, a juvenile respndent has a right t a jury trial in an adjudicatin hearing. Hwever, unlike fr adults, this right is nt guaranteed by the U.S. Cnstitutin. 29 Its surce is the Texas Cnstitutin and the Texas Family Cde, which says that in juvenile cases trial shall be t a jury unless the juvenile respndent waives his/her right t a jury. 30 In an rdinary delinquency case [and in a CINS case], hwever, the right t a jury trial applies nly t the adjudicatin hearing. There is n right t a jury at the dispsitin hearing in such cases. 31 In cntrast, the right t a jury n dispsitin des apply in a determinate sentence case. 32 It is imprtant t nte, hwever, that in a determinate sentence case, the respndent is required t make his/her decisin t have the jury determine dispsitin in writing befre jury 26 Tex. Fam. Cde Ann. 51.10(b), 54.03(e), 51.095; In re Gault, 387 U.S. 1 (1967); In the Matter f J.R.R., 696 S.W.2d 382 (Tex.Sup. 1985); In the Matter f P.A.S., 566 S.W.2d 14 (Tex. Civ. App. Amarill 1978); In the Matter f R.A.B., 525 S.W.2d 892 (Tex.Civ.App. Crpus Christi 1975, n writ); 27 Tex. Fam. Cde Ann. 51.17(c); 28 See, Tex. Fam. Cde 54.03(d) and 54.031. 29 See, McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 30 Tex. Fam. Cde 54.03(c). See, als, Texas Cnstitutin, Article 1, Sectin 15, which states [t]he right f trial by jury shall remain invilate; and Tex. Fam. Cde 54.03(b)(6). 31 Tex. Fam. Cde 54.04(a). 32 Id. selectin begins. 33 Like an adult defendant, a juvenile respndent can waive his right t a jury trial s lng as the waiver cmplies with Family Cde 51.09 meaning that the waiver must be made by bth the juvenile respndent and his/her attrney. But, unlike in criminal cases, the right t a jury trial in juvenile delinquency [and CINS] cases belngs exclusively t the juvenile respndent. The State des nt have a right t a jury trial in a juvenile delinquency prceeding. 34 The size f the jury and the number f peremptry challenges in a juvenile case depends n whether the designated juvenile curt is a cunty r district curt. 35 If it is a district curt, then the jury will cnsist f 12 persns, unless the district curt is trying a misdemeanr case in which event the jury shall cnsist f 6 persns. 36 If the designated juvenile curt is a cunty curt, then the jury will cnsist f 6 persns. 37 If the case invlves determinate sentencing, then the Family Cde requires a 12 member jury. 38 And, it shuld be nted that a cunty curt des nt have jurisdictin t hear determinate sentence case. The Family Cde specifically prvides that in a cunty where a cunty curt is designated as the juvenile curt, at least ne ther curt shall be designated as the juvenile curt. 39 A reasnable inference frm this prvisin is that the ther designated curt shuld be a curt that has jurisdictin t hear felny cases. Perhaps mre s than any ther exemplificatin f the quasi-civil/quasi-criminal nature f ur juvenile justice system is the matter f peremptry strikes in a juvenile case. Family Cde 51.17(a) states that the Texas Rules f Civil Prcedure gvern prceedings under the Juvenile Justice Cde. Therefre, pursuant t the Rules f Civil Prcedure, in an rdinary delinquency case [r in a CINS case], the State and the juvenile respndent are each entitled t 6 strikes in a case tried in a juvenile curt that is a district curt and 3 strikes in a case tried in a juvenile curt that is a cunty curt, r cunty curt at law. 40 The rules are different, hwever, fr a determinate sentence case. Family Cde 54.03(c) prvides that in a determinate 33 See, Ftnte 66, infra. 34 See, Texas Attrney General Opinin N. JC-0242 (2000). 35 Tex. Fam. Cde Ann. 51.04 and 54.03(c). 36 Id. See, als, Tex. Crim. Prc. Ann. Article 33.01(b). 37 Id. 38 Tex. Fam. Cde 54.04(c). 39 See, Tex. Fam. Cde 51.04(c). 40 Texas Rules f Civil Prcedure Rule 233 5
sentence case, a jury is selected in accrdance with the requirements f the Texas Cde f Criminal Prcedure (TCCP), which grants each party a greater number f strikes than the Rules f Civil Prcedure. TCCP, Article 35.15(c) prvides that when a district curt is trying a nn-death penalty felny case, each side gets 10 peremptry strikes. The ffenses listed in Family Cde 53.045 as eligible fr determinate sentencing are all nn-death penalty felny cases. Given the U.S. Supreme Curt s decisin in Rper v. Simmns, 41 this includes a capital murder ffense. Therefre, if the designated juvenile curt is a district curt trying a nn-death penalty felny case n a determinate petitin apprved by a grand jury [a determinate sentence case], then bth the State and the respndent are each entitled t 10 peremptry strikes. Required Judicial Admnishments in Adjudicatin Hearings The Family Cde requires that the juvenile curt judge give certain admnitins t the juvenile respndent and his/her parent, guardian, r guardian ad litem. Specifically, Family Cde, 54.03(b) states that: 41 543 U.S.551 (2005). At the beginning f the adjudicatin hearing, the juvenile curt judge shall explain t the child and his parent, guardian, r guardian ad litem: (1) the allegatins made against the child; (2) the nature and pssible cnsequences f the prceedings, including the law relating t the admissibility f the recrd f a juvenile curt adjudicatin in a criminal prceeding; (3) the child s privilege against selfincriminatin; (4) the child s right t trial and t cnfrntatin f witnesses; (5) the child s right t representatin by an attrney if he is nt already represented; and (6) the child s right t trial by jury. These six admnishments are required in every case whether it s an rdinary delinquency case r a determinate sentence case. Admnishments Regarding the Nature f the Charges and Juvenile Curt Prceedings Clearly, fundamental due prcess (and in Texas, due curse f law) requires that the juvenile curt judge explain the nature and cnsequences f the petitined allegatins and juvenile curt prceedings t the respndent. The key wrd in 54.03(b) is explain. This is straightfrward. The judge shuld nt just tell the respndent these rights. He/she shuld make sure that the respndent understands them. Regarding 54.03(b)(1) and (2), the judge shuld make sure that the respndent understands the implicatin(s) f the charges against him/her and what culd happen t the respndent upn an adjudicatin f engaging in delinquent cnduct fr cmmitting the charged ffense(s). Sme curt decisins have held (and Dawsn recmmends) that the juvenile curt shuld admnish the respndent abut lesser included ffenses. 42 Hwever, the curt is nt required t admnish n every pssible lesser included ffense. 43 Admnishments Regarding the Admissibility f a Juvenile Recrd As nted abve, the juvenile judge is required t admnish the respndent abut the admissibility f a juvenile curt adjudicatin in a subsequent criminal prceeding. Essentially, this means that the curt shuld explain t the respndent (and make sure that the respndent understands) that an adjudicatin fr a felny r a misdemeanr punishable by cnfinement in jail may be admitted against him/her in the penalty phase f a future criminal case cmmitted by the respndent after he/she reaches adulthd. Additinally, if the case invlves an allegatin f a felny ffense the judge is required t explain t the respndent that if he/she is adjudicated n the charge, and 42 See, Sectin 54.03(f) f the Family cde which states that (a) child may be adjudicated as having engaged in cnduct cnstituting a lesser included ffense as prvided by Articles 37.08 and 37.09 f the Cde f Criminal Prcedure; See als, A.E.M. v. State, 552 S.W.2d 952 (Tex.Civ.App. San Antni 1977, n writ); In the Matter f A.N., 683 S.W.2d 118 (Tex.App. San Antni 1984, writ dism d); See, als, Dawsn, Texas Juvenile Law (Chapter 11) 9 th Editin (2018). 43 In re D.L.K., 690 S.W.2d 654 (Tex.App Eastland 1985, n writ) 6
if the dispsitin resulting frm the adjudicatin is a cmmitment t the Texas Juvenile Justice Department (TJJD), the adjudicatin culd be used t enhance the range f punishment in any future criminal case cmmitted by the respndent after he/she reaches adulthd. 44 Parenthetically, althugh Family Cde, 54.03(b)(2) speaks f the admissibility f the recrd f a juvenile curt adjudicatin in a criminal prceeding, it s imprtant t nte that 51.13(b)(1) prvides that a juvenile adjudicatin r dispsitin may be used in subsequent prceedings under the Juvenile Justice Cde in which the juvenile respndent is a party. Hence, thugh nt specifically required by 54.03(b), an admnishment regarding 51.13(b)(1) may als be a wise practice. As I see it, these required explanatins g t the heart f the purpses set ut in Family Cde relating t the rehabilitatin f juvenile ffenders. 45 Hpefully, knwing that a juvenile adjudicatin r dispsitin culd be used in these ways will encurage and inspire yung ffenders t stay ut f truble in the future. Finally, regarding 54.03(b)(3 thru 6), the judge shuld als make sure that the juvenile respndent nt nly knws that he/she has these rights but als understands what they mean. Additinal Admnishments In additin t the 54.03(b) mandatry admnishments, there are ther admnishments that the juvenile curt may be required t give t a juvenile respndent. The nature f these admnishments may differ depending n whether the case is an rdinary delinquency case r a determinate sentence case and/r depending n whether the juvenile and the State have reached a plea bargain agreement in the case. These additinal admnishments cncern the fllwing: (1) Ordinary Delinquency Cases In rdinary delinquency cases, the curt must advise the respndent that the pssible dispsitins in the case include 44 See, Tex. Fam. Cde 51.13(d). See, als, Texas Rules f Evidence Rule 609(d) regarding use f prir juvenile adjudicatins fr purpses f impeachment. 45 See, Tex. Fam. Cde 51.01. prbatin at hme r in an ut-f-hme placement until his/her 18th birthday. Als, if the ffense is ne fr which cmmitment is pssible (a felny), then the judge must advise the respndent abut the pssibility f him/her being cmmitted t TJJD until age 19 in the event f an adjudicatin. (2) Determinate Sentence Cases In determinate sentence cases, the curt must advise the respndent that the pssible dispsitins include prbatin fr up t 10 years if he/she receives a sentence f 10 years r less r a sentence f up t 40 years (if the mst serius charge in the petitin is a capital, aggravated cntrlled substance, r first degree felny), up t 20 years (if the mst serius charge in the petitin is a secnd degree felny), r up t 10 years (if the mst serius charge in the petitin is a third degree felny). 46 (3) Plea Agreement Admnitins and the Right t Appeal As previusly nted, plea bargain agreements between the State and a juvenile respndent are permissible in juvenile delinquency prceedings. Generally, such agreements are effectuated by way f a Stipulatin f Evidence an agreement between the State and the respndent regarding a final reslutin f the case. Generally, the respndent will enter a plea f true (guilty) t the petitined ffense(s) as a part f his/her agreement with the State. When there is a plea agreement, then in additin t the afrementined 54.03(b) admnitins, the juvenile curt is required t advise the respndent as fllws: (1) that the curt is nt required t accept the agreement; and (2) that if the curt decides nt t accept the agreement, the respndent will be given an pprtunity t withdraw the plea r stipulatin f evidence. 47 It s imprtant t remember that if the juvenile curt rejects a plea agreement, then n dcument, testimny, r ther evidence placed befre the curt that relates t the rejected agreement may be cnsidered by the curt in a subsequent hearing in the case. 48 On the ther hand, if the curt des 46 Tex. Fam. Cde 54.03(d)(3)(A),(B), and (C) 47 Tex. Fam. Cde 54.03(j); In the Matter f M.D.G., 180 S.W.3d 747 (Tex.App.-Eastland 2005); In the Matter f E.Q., 839 S.W.2d 144 (Tex.App. Austin 1991) 48 Id. 7