Untitled Texas Attorney General Opinion ( 1975 )

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THE ATTORNEY GENERAL
OF TEXAS
AUSTIN. Txcxzas 78711
JOBN L.. arlzd
*-- OENERIL
July 16, 1975
The Honorable Joe Grady Tuck Opinion No. H- 642
District Attorney
216th Judicial District Re: Applicability of section 54.02
998 Sidney Baker South of the Family Code to persons who
Kerrville, Texas 78028 commit crimes before reaching 17
years of age and to persons who
were properly indicted prior to
the effective date of the Code.
Dear Mr. Tuck:
You have requested our opinion concerning the proper legal proceed-
ings to take against one who has committed an offense before reaching 17
years of age, noting a possible conflict between the Texas Family Code and
the Texas Penal Code as to the appropriate manner of disposal of such cases.
In the Family Code a person under 17 years and over lo-years of age
is defined as a “child” (a person over 17 but under 18 is also a “child” for
purposes of extending the juvenile court’s jurisdiction of 17 so that acts
committed by one nearing the age of 17 can be finally dealt with by the
courtj. Tex. Family Code, sec. 51.02. A juvenile court has exclusive
jurisdiction over a “child” who commits a crime. Sec. 51.04. But where
a felony is involved and . . .
the child was 15 year of age or older at the time .he
is alleged to have committed the offense. .
(Emphasis added).
the juvenile court may waive its jurisdiction over the child and transfer the
case to the appropriate district court for regular criminal proceedings. Sec.
54.02 (a) (2). Section 8.07 (a) of the Texas Penal Code provides that no person
can be prosecuted for an offense “that he committed when younger than 15
years. ” That section is in accord with the Family Code on the lower age of
a prosecution of a child. However, the Penal Code further provides in section
8.07 (b) that:
p. 2825
The Honorable Joe Grady Tuck - Page 2
a person who is younger than 17 years may not be
prosecuted or convicted for any offense unless the
juvenile court waives jurisdiction and certifies him
for criminal prosecution. (Emphasis added).
On January 1, 1974, the new Penal Code went into effect., It expressly
repealed that section of the old Code (as amended by the Family Code) which
required waiver of jurisdiction by a juvenile court where one commits a
crime before reaching age 17 (Section 3, Acts 1973, 63rd Leg., ch. 899, p.
911). Thus, a plausible argument can be made that under section 8.07 of the
new Penal Code juveniles committing pre-17 crimes may be indicted, tried
and convicted if criminal proceedings are delayed until the juvenile becomes
17.
However, we do not believe such to be the case. It is our duty to read
these provisions harmoniously, if possible. 53 Tex. Jur. 2d, Statutes, $186.
We believe they.are easily reconciled. Section 8.07 (b) of the new Penal Code
prohibiting the prosecution or conviction of a person younger than 17 years
(absent juvenile court waiver) does not carry the necessary inference that
all other persons can be prosecuted and convicted without such a waiver for
any crimes committed at any time. If restricted to its literal import, the
language of section 8.07 (b) is entirely consistent with Family Code provisions.
Moreover, as the history of the Family and Penal Codes reveals, the
new Penal Code passed the Legislature on May 24, 1973. The Family Code,
with its amendment to the Penal Code forbidding the trial of a child (as
defined) without waiver of jurisdiction by the juvenile court, passed the
Legislature on May 25, 1973. The latest expression of the Legislature
would control in any event. Code Construction Act, V. T. C. S., art. 5429b-2,
sec. 3.05; Ex parte De Jesus De La 0, 227 S.W.2d 212 (Tex. Crim. App.
1950). Attorney General Opinion H-260 (1974). And see, Code Construction
Act, V. T. C. S., art. 5429b-2, 5 3.11(c); Attorney General Opinion H-237
(1974).
Acoordingly;in our opinion, section 8.07 of the new Penal-Code
does not allow the .prosecution or conviction of a person who commits a crime
before he is 17 unless the juvenile court waives jurisdiction and certifies
the person for criminal trial in an appropriate district court. The provisions
of section 54.02 of the Family Code must be met.
p. 2826
The Honorable Joe Grady Tuck - Page 3
You further ask if:
the State can proceed to prosecute a defendant under
the following facts: A defendant, 16 years 10 months
of age on October 21, 1971, is indicted for a felony
offense 2 l/2 months later, after his 17th birthday.
Prior to the enactment of the Family Code, it was permissible to
delay the institution of criminal prosecution until an under-17-violator
reached 17, at which time he came within the jurisdiction of a regular
criminal court (so long as the constitutional requirement of a speedy trial
was met.) Salazar v. State, 494 S.W.2d 548 (Tex.. Crim. App. 1973).
Thus, under the fact situation you have given us, the district court acquired
jurisdiction of the defendant in January of 1972, at which time the defendant
was 17.
The Family Code did not take effect until September 1, 1974, when
the defendant was 19 and l/2. Therefore, there was and can be no way the
juvenile court .could or can obtain jurisdiction. The case you describe is
within the jurisidiction of the district court regularly trying criminal cases.
Salazar v. State, supra; Whitaker v. Estelle, 509 F.2d 194 (5th Cir. 1975).
Prosecution can properly proceed there.
SUMMARY
Persons committing crimes while under 17 years of
age are within the exclusive jurisdiction of the juvenille
court. Before any criminal prweedings can be instituted,
the juvenille court must waive jurisdiction and transfer
the accused to the appropriate court for trial.
A person properly indicted under existing law, prior
to the effective date of the Family Code, September 1,
1974, can be prosecuted under the indictment.
u Attorney General of Texas
p. 2827
The Honorable Joe Grady Tuck - Page 4
C. ROBERT HEATH, Chairman
Opinion Committee
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p. 2828