Untitled Texas Attorney General Opinion ( 1953 )

November 9, 1953
Hon. William H, ~Scott Opinion No. S-112
District Attorney
Criminal Courts Bldg. Rer 1. Authority of a county
Houston 2, Texas detention home to continue
as custodian of dependent
and neglected children af-
ter such children reach the
age of sixteen years.
2. Authority of one other
than the District Attorney
of Harris County to sign and
file a petition to have a
child declared a delinquent
Dear Mr, Scott: child.
You have requested our opinion in regard to cer-
tain matters concerning dependent, neglected and delinquent
children. Your first question is in substance as follows:
Does a county detention home which has
been appointed custodian by a court of com-
petent jurisdiction have the right to retain
custody of a dependent and neglected child
after such child reaches the age of sixteen
years?
Article 2330, Vernon's Civil Statutes, provides
in part:
"The term 'dependent child' or 'neglected
child' includes any child under sixteen years
of age who is dependent upon the public for
support or who is destitute, homeless or
abandoned' 0 . .'
Article 2335, V.C.S., provides:
"Upon the hearing of such case, if the
child shall be found to be a dependent or
Hon. William H. Scott - Page 2 (S-112)
neglected child, as defined herein, it
shall be adjudged a 'dependent child';
and an order may be entered making dis-
position of such child as to the court
seems best for its moral and physical wel-
fare. It may be turned over to the care
and custody of any suitable person or any
suitable institution in the county or state
organized for the purpose of caring for 'de-
pendent children,' and which is able and
willing to care for same. And when such
child is so turned over to the custody of
such person or institution, such person or
institution shall have the right to the custo-
dy of said child, and shall be at all times
responsible for its education and maintenance,
subject at all times to the order of the court."
Article 2336, V.C.S., provides that upon such ad-
judication and award "the child, unless otherwise ordered,
shall become a ward and be subject to the guardianship of
the institution or individual to whose care it is com-
mitted," and further provides that the court may for the
best interest of the child change Its guardianship from
time to time.
It will be noted that a dependent and neglected
child is in no way restrained for the purpose of the in-
fliction of punishment for any wrong committed. Upon the
adjudication the child becomes the ward of the State,
and the State occupies the position of parens patriae
toward such child.
The statutes above referred to provide that the
child once adjudged a dependent and neglected child be-
comes a ward of the court and the court may turn its cus-
tody over to any suitable person or institution, and such
person or institution shall "have the right Taothe custody
of said child . . . subject at all times to the order of
the court,'!
. The court further has the right to change the
guardianship of the child from time to time and may make
such orders in relation thereto as in its discretion may
be for the best interest of such child, including a dis-
charge from custody.
Therefore, a county home rhlch has been given
custodial care and control over such child retains such
custody, subject to the further orders of the court, until
. . ,
Hon. William H. Scott, Page 3 (S-112)
terminated or altered by the court or until such child
reaches the age of twenty-one.
Your s,econdquestion is in effect as follows:
Is the District A'ttorneyof Harris County the onlyper-
son or official who may sign and file a petition in'such
county to have a child declared a delinquent child?
Chapter 315, Acts of the 53rd Legislature, 1953,
created the constitutional office of District Attorney
for Harris County. Such Act makes it the primary duty of
the District Attorney,to represent the State of Texas in
criminal cases pending in the district and inferior
courts of Harris County.
Chapter 316 created the constitutional office
of County Attorney of Harris County. It provides that
it shall be the primary duty of the County Attorney to
represent the State of Texas, Harris County and the of-
ficials of such county in all civil matters in Harris
County and elsewhere.
Chapter 325,,in creating the Court of Domestic
Relations for Harris County, provides that the District
Attorney of Harris County shall prosecute or defend all
cases involving children alleged to be dependent, neg-
lected or delinquent, or in which the Probation Officer,
Child Welfare Board, County Welfare Office,~County
Health Officeror any other welfare agency is interested.
A proceeding in delinquency is a civil not a
criminal proceeding. Dends v. Wilson, 142 Tex. 464, 179
S.W.2d 269 (1944). ~Seotion 7 of Article 2338-l outlines
the procedure to be followed in the institution of pro-
ceedings against a delinquent child. It reads in part:
"If either the Judge or the County
Attorney shall determine that formal juris-
diction should be acquired, the County At-
torney may prepare and file in the Court, or
any attorney may prepare and file in the court,
a petition alleging briefly the facts which
bring said child within the provisions of this
Act. . . ."
Hon. William H. Scott, Page 4 (S-112)
The proceeding is not a prosecution in the
name of the State. See Constitution of Texas, Article V,
Sec. 12. The only issue to be determined at the trial
is whether the juvenile is a delinquent child within the
meaning of Article'2338-l. It is not to convict and
punish a child for the commission of a crime. Dendy v.
Wilson, supra. The proceeding is begun by the filing of
a petition, not by complaint, information or indictment.
Chapter 325 makes it the duty of the District
Attorney to represent the interest of the State in all
cases involving dependent, neglected or delinquent Ghil-
dren whenever any of the named officers are interested
in the case and to prosecute all criminal cases in said
Domestic Relations Court. The right to prepare and file
in the court petitions alleging a child to be delinquent
is not exclusive with the District Attorney.
SUMMARY
A person or institution given custodial
care and control over a dependent and neg-
lected child retains such custody, subject to
the orders of the court, until terminated or
altered by the court or until such Child
reaches the age of twenty-one.
The District Attorney of,Harris County
does not have the exclusive right or authority
to file petitions alleging a child to be a
delrinquentchild. Art. 2338-1, V.C.S.
Yours very truly,
JOHN BEN SHEPPERD
APPROVED:
J. C. Davis, Jr.
County Affairs Division
Willis E. Gresham Assistant
Reviewer
Robert S, Trotti
First Assistant
John Ben Shepperd
Attorney General
EB:bt