Untitled Texas Attorney General Opinion ( 1962 )

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FVIJiL WILSON
ATroRNEYca‘fENERAl. October 19, 1962
Mr. R. L. Templeton Opinion No. WW-1455
County Attorney
Collingsworth County Re: Whether a juvenile sixteen
Wellington, Texas years of age can be tried
in county court for the
offense of negligent homi-
Dear Mr. Templeton: clde in the second degree.
You have requested that this office write an opinion on
the following question:
"Whether a juvenile sixteen years of age can
be tried in county court for negligent homicide in
the second degree?"
Negligent homicide Is defined in Article 1230, Vernon's
Penal Code. Article 1242, Vernon's Penal Code, sets out the
punishment for homicide In the second degree where the homi-
cide Is committed during the commission of a misdemeanor, as
is the case here, as follows:
"When the unlawful act attempted or executed
Is known as a misdemeanor, the punishment of negli-
gent homicide committed in the execution of such
unlawful act shall be imprisonment in jail not ex-
ceeding three years, or by fine not exceeding three
xhousand dollars." (Emphasis added)
Article 2338-1, Vernon's Civil Statutes, provides In part as
follows:
"Sec. 3. The word 'court' means the 'Juvenile
Court'. The word 'Judge' means the judge of the
Juvenile Court. The term 'delinquent child' means
any female person over the age of ten (10) years
and under the age of eighteen (18) ears and any
male person over the age of ten (107 years and
under the age of seventeen (17) years:
(a) who violates any penal law of this state of
the grade of felony;
Mr. R. L. Templeton, Page 2 (WW-1455)
(b) or who violates any penal law of this
state of the grade of misdemeanor where the
punishment prescribed for such offense may
be by confinement in jail;" (Emphasis added)
Section 5 of Article 2338-l provides:
"The Juvenile Court shall have exclusive
original jurisdiction in proceedings governing
any delinquent child . . .'
"Sec. 12. If during the pendency of a criminal
charge or indictment against any person in any
other court than a Juvenile Court, it shall be
ascertained that said person is a female over
the age of ten (10) years and under the age of
eighteen (18) years, or is a male person over
the age of ten (10) years and under the age of
seventeen (17) years at the time of the trial
for the alleged offense, it shall be the duty
of such court to transfer such case immediately
together with all papers, documents and testi-
mony connected therewith to the Juvenile Court
of said county."
The Act further provides in Section 13:
II
. . .
No adjudication upon the status of any child
In the jurisdiction of the court shall operate to
impose any of the civil disabilities ordinarily
imposed by conviction, nor shall any child be
deemed a criminal by reason of such adjudication,
nor shall such adjudication be deemed a convic-
tion, nor shall any child be charged with or con-
victed of a crime In any court." (Emphasis added)
The Supreme Court in Dendy v. Wilson, 179 S.W.2d 269 (Sup.
Ct. 1944) construed the provisions of the juvenile act, Article
2338-1, Vernon's Civil Statutes, and held as follows:
"It Is quite clear that the Legislature in-
tended by this Act to radically change the law
relating to minors. It specifically states that
the Act shall be liberally construed to accomplish
Mr. R. L. Templeton, Page 3 (WW-1455)
the purposes sought therein. We think from
the language used that the Legislature made
it plain that the juvenile courts are Invested
with exclusive original 3urisdlction over
-Juvenile Court shall have exclusive ori-
deemed In session at all times.’ (Italics
ours.) In Section 12 is found the following:
'If during the pendency of a criminal charge
or indictment against any person In any other
court than a Juvenile Court, it shall be as-
certained that said person Is a female over
the age of ten (10) years and under the age
of eighteen (18) years, or is a male person
over the age of ten (10) years and under the
age of seventeen (17) years at the time of
the trial for the alleged of'fense,it shall
be the duty of such court to transfer such
case Immediately together with all papers,
documents and testimony connected therewith
to the Juvenile Court of said county.'
(Italics ours.) This section of the Act
makes It the duty of any other court to
transfer such a case to the juvenile court
upon ascertaining that the accused Is with-
in the statutory age limits. No discretion
is vested in the other court; as was the
case under an early statute.
It therefore appears that inasmuch as the crime of
negligent homicide of the second degree is a misdemeanor
punishable by imprisonment In jail it comes within the pro-
visions of Article 2338-l quoted above. The county court
could not under the provisions of Article 2338-l have any
jurisdiction in the case once it Is determined that the child
falls within the age limits set out in that statute. We,
therefore, agree with your opinion that a juvenile male be-
tween the ages of ten (10) and seventeen (17) years and a
juvenile female between the ages of ten (10) and eighteen (18)
years cannot be tried for negligent homicide inasmuch as under
the provisions of Article 2338-1, Vernon's Civil Statutes,
quoted above the juvenile would come within the provisions of
this juvenile act.
1 - .,
Mr. R. L. Templeton, Page 4 (WW-1455)
You also asked whether a juvenile who kills a school
child stepping away from a school bus while passing the school
bus unloading children could be tried under the provisions of
827b Law of the Road. This office believes that you are re-
ferring to the provisions of 802e, Vernon's Penal Code. This
question we feel has been answered by Oplnionsv-1328, WW-547,
WW-1220 and WW-1290 which are attached hereto.
SUMMARY
Male juveniles between the ages of ten and
seventeen years and female juveniles between the
ages of ten and eighteen years cannot be tried
in a county court for negligent homicide in the
second degree because of the provisions of Article
2338-1, Vernon's Civil Statutes.
Yours very truly,
NVS:nss
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
H. Grady Chandler
Hen M. Harrison
Scranton Jones
Marvin F. Sente11
REVIEWED FOR THE ATTORNEY GENERAL:
BY: Leonard Passmore