Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 252003
The Honorable Florence Shapiro Opinion No. GA-0125
Chair, Education Committee
Texas State Senate Re: Whether a minor may be classified as a
P.O. Box 12068 “missing child” under article 63.001, Code of
Austin, Texas 78711 Criminal Procedure, if the minor’s legal custodian
knows the minor’s whereabouts (RQ-0057-GA)
Dear Senator Shapiro:
You request our opinion on the definition of “missing child” in Code of Criminal Procedure
article 63.001(3).’ One of your constituents reported his seventeen-year-old daughter as a missing
child. See Request Letter, supra note 1. She had left home voluntarily, and your constituent soon
determined his daughter’s location and relayed that information to the police. See id. The police
department declined to take possession of the child, stating that because her location was known, she
could no longer be reported as missing and the department had no authority to act.
The age of the child is significant because a seventeen-year-old who voluntarily leaves home
without parental consent and without intending to return may not be taken into custody under the
Juvenile Justice Code, Family Code title III. An unemancipated’ seventeen-year-old is not a “child”
within the Juvenile Justice Code. See TEX.FAM.CODE ANN. 0 5 1.02(2)(A)-(B) (Vernon 2004)
(defining “child” as a person ten years of age or older and under 17, or a person between 17 and 18
who engaged in or is alleged to have engaged in certain conduct before becoming 17). A child under
17 who is voluntarily absent from home without the consent of his or her parent or guardian “for a
substantial length of time or without intent to return” has engaged in “conduct indicating a need for
supervision,” id. 4 5 1.03(b), and may be taken into custody by a law enforcement officer. See id.
fj 52.01(a)(3). In contrast, a seventeen-year-old who engages in the same conduct may not be taken
into custody pursuant to the Juvenile Justice Code. See Tex. Att’y Gen. Op. No. JC-0229 (2000)
at 4-5.
‘Letter fromHonorable Florence Shapiro, Chair, Education Committee, Texas State Senate, to Honorable Greg
Abbott, Texas Attorney General (May 22,2003) (on file with Opinion Committee) [hereinafter Request Letter].
2An “emancipated child” has been freed of the disabilities of minority. See TEX. FAM. CODE ANN. 0 1.104
(Vernon 1998) (removal of disabilities of minority by marriage), ch. 3 1 (Vernon 2002) (petition to have disabilities of
minority removed), 5 101.003(a) (Vernon 2002) (“child” is a person under 18 who is not married or has not had
disabilities of minority removed), 5 154.001(a)(2) (Vernon 2002) (emancipation by marriage, removal of disabilities of
minority, or operation of law for purposes of child support) [hereinafter “emancipated child”].
The Honorable Florence Shapiro - Page 2 (GA-0125)
A brief addressing your request suggests that Code of Criminal Procedure chapter 63, which
provides for the investigation of missing person and missing child reports, may provide a “legal
mechanism . . . for parents in the state of Texas to secure their lawful right to possession of an
unemancipated seventeen-year-old who has voluntarily left homeY3 See TEX.CODE GRIM. PROC.
ANN. art. 63.001(l) (Vernon Supp. 2004) (“child” is a person under 18years of age); TEX.FAM.
CODEANN.8 15 1.001 (a)( 1) (Vernon Supp. 2004) (parent of a child under 18 has the right to physical
possession o f and to e stablish the residence o f t he child). A rticle 6 3.009(g) s tates that “ [o]n
determining the location of a child . . . an officer shall take possession of the child and shall deliver
or arrange for the delivery of the child to a person entitled to possession of the child.” TEX.CODE
CRIM. PROC.ANN. art. 63.009(g) (Vernon Supp. 2004); see also id. art. 2.13(c) (reiterating officer’s
duty under article 63.009(g)). Attorney General Opinion JC-0229 (2000) determined that a law
enforcement officer has an affirmative duty under article 63.009(g) to take possession of a missing
child whom he or she has located and can use reasonable force to do so. See Tex. Att’y Gen. Op.
No. JC-0229 (2000) at 3,7-g. As you indicate, Attorney General Opinion JC-0229 does not address
the duties of law enforcement officers “where a seventeen-year-old child is unemancipated and
reported missing by the legal guardian who knows the whereabouts of the child.” Request Letter,
supra note 1. Thus, you ask whether a child may still be a “missing child” when the legal guardian
knows where he or she is.
Chapter 63, Code of Criminal Procedure requires a local law enforcement agency that
receives a report of a missing person or missing child to investigate the present location of the person
or child. See TEX.CODE GRIM. PROC.ANN. art. 63.009(a) (Vernon Supp. 2004). Chapter 63 defines
a “child” as “a person under 18 years of age.” Id. art. 63.001(l). A “missing child”
means a child whose whereabouts are unknown to the child’s legal
custodian, the circumstances of whose absence indicate that:
(A) the child did not voluntarily leave the care and control of
the custodian, and the taking of the child was not authorized by law;
(B) the child voluntarily left the care and control of his legal
custodian without the custodian’s consent and without intent to
return; or
(C) the child was taken or retained in violation of the terms of
a court order for possession of or access to the child.
Id. art. 63.001(3) (emphasis added). A “missing child” is “a child whose whereabouts are unknown
to the child’s legal custodian,” subject to the circumstances of absence set out in article
63.001(3)(A)-(C).
3Brief fiomNydia D. Thomas, Senior StaffAttorney, Texas Juvenile Probation Commission, to Honorable Greg
Abbott, Texas Attorney General at 2 (July 8,2003) (on file with Opinion Committee) [hereinafter Thomas Brief].
The Honorable Florence Shapiro - Page 3 (GA-0125)
Article 63.001(4) states additional circumstances that would define a child as missing.
“Missing child” or “missing person” also includes a person of
any age who is missing and:
(A) under proven physical or mental disability
or is senile, and because of one or more of these
conditions is subject to immediate danger or is a
danger to others;
(B) is in the company of another person or is
in a situation the circumstances of which indicate that
the missing child’s or missing person’s safety is in
doubt; or
(C) is unemancipated as defined by the law of
this state.
Id. art. 63.001(4) (emphasis added).
At first glance, the definition of “missing child” in sections 3 and 4 of article 63 -001 might
appear to conflict. The section 3 definition imposes the requirement that the “whereabouts [of the
child] are unknown to the child’s legal custodian,” and, in addition, requires that one of three
additional circumstances be present: (1) the child was taken involuntarily from her legal guardian’s
custody; (2) the child voluntarily left the custody of her legal guardian without intent to return; or
(3) the child was taken from her guardian’s custody in violation of a court order. Id. art. 63.001(3).
In the situation you present, the child does not fall within the definition of “missing child” in
section 3 because her absence does not fulfill the threshold requirement, i.e., her whereabouts are
not unknown to her legal custodian. See Request Letter, supra note 1.
Section 4, on the other hand, applies to a missing person of any age. See TEX.CODECRIM.
PROC.ANN.art. 63.001(4) (Vernon Supp. 2004). Section 4(C) includes within the definition a
person who “is unemancipated as defined by the law of this state.” Id. art. 63.001(4)(C). Your
request letter indicates that the person who is the subject of this inquiry is a seventeen-year-old
unemancipated minor child. See Request Letter, supra note 1.
If section 4(C) were applied in isolation to this fact situation, section 3 would be rendered
meaningless. Whether the child’s legal custodian had knowledge of her whereabouts would be
irrelevant, because the mere fact of the child’s status as an unemancipated minor would be sufficient
to trigger the duties of law enforcement personnel under chapter 63 with regard to any missing child.
A construction should be avoided that will render any part of a statute inoperative, nugatory, or
superfluous. See City of San Antonio v. City of Boerne, 11 S.W.3d 22, 29 (Tex. 2003) (quoting
Spence v. Fenchler, 180 S.W. 597,601 (Tex. 1915)); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d
578, 580 (Tex. 2000) (citations omitted).
The Honorable Florence Shapiro - Page 4 (GA-0125)
Furthermore, we are not permitted to read section 4(C) in isolation. Rather, we must attempt
to harmonize sections 3 and 4. See TEX.GOV’TCODE ANN.0 3 11.021(2) (Vernon 1998) (entire
statute intended to be effective); City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998)
(statutes should be read to avoid conflict and superfluities if possible). Both sections 3 and 4 of
article 63.001 were adopted as part of the same bill in 1985.4 See Act of May 6, 1985,69th Leg.,
R.S., ch. 132,§ 1,1985 Tex. Gen. Laws 614,614. In order to harmonize sections 3 and 4, we read
section 3 as placing additional conditions upon the definition of “missing child” in section 4. Thus,
a missing person who is unemancipated is a missing child under article 63.001 onZy if, in addition,
the person’s “whereabouts are unknown to the child’s legal custodian,” and one of the three
conditions of section 3 also pertain. See TEX.CODEGRIM. PROC.ANN. art. 63.001 (Vernon Supp.
2004). Under the facts you describe, the child in question does not fall within the definition of
“missing child,” because her whereabouts are not unknown to her legal custodian. See Request
Letter, supra note 1.
You also ask about the duty of law enforcement personnel under chapter 63 in this fact
situation. See id. The duties of law enforcement agencies regarding a missing child are described
in article 63.009. See TEX.CODEGRIM. PROC. ANN. art. 63.009 (Vernon Supp. 2004). Because we
have determined that the child, in the circumstances you describe, is not encompassed within the
definition of “missing child,” no duty of law enforcement under article 63.009 is triggered.
We emphasize that this opinion is limited to the facts described, i.e., an unemancipated
seventeen-year-old who voluntarily left the care and control of her legal custodian, and whose
whereabouts are not unknown to her legal custodian. See Request Letter, supra note 1.
4These provisions were originally placed in chapter 74 of the Human Resources Code; the term “child” at that
time was defmed as “a person under 17 years of age.” See Act ofMay6, 1985,69thLeg.,R.S., ch. 132,§ 1, 1985 Tex.
Gen. Laws 614,614.
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SUMMARY
While a child under 17 who is voluntarily absent from home
without the consent of his or her parent or guardian “for a substantial
length of time or without intent to return” may be taken into custody
by a law enforcement officer pursuant to Family Code provisions, a
seventeen-year-old who engages in the sarne conduct may not be.
A child, including an unemancipated seventeen-year-old, who
voluntarily leaves the care and control of his or her legal custodian
without the custodian’s consent and without intent to return is not a
“missing child” under C ode o f C riminal P rocedure chapter 6 3 i f
the custodian knows where the child is located. If the custodian
determines the child’s location after filing a missing child report and
notifies the investigating law enforcement agency, the agency has no
duty to continue the investigation or to take possession of the child
and return him or her to the custodian.
Attorr&&eral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee