Untitled Texas Attorney General Opinion ( 1946 )

THEA7m-omEw GENERAL
OFTEXAS
Honorable John H. Winters, Executive Director
State Department of Public Welfare
Austin 3, Texas
Dear Sir: Opinion No. o-7227
Re: Unlawful detention of children
prior to filing of petition
under ,provisions of Juven~Lle'
DEllnqhency Act (Acts 1943,'48th
Legislature,,ch. 204, p. 313;
Art. 2338-1, V. A. C. S.)
We have received your recent request for an opinion
and quote from same as follows:
"We shall appreciate your opinion with refer-
ence to the legality of holding children by the
police for the purpose of Investigating law
violations.
"As representatives of'the Division of Child
Welfare are asked to give consultive services
to various officials, courts, and key indlvi-
duals and groups, this question frequently a-
rises, In some communities, the police have
been known to hold children for as long as
seventy two (72) hours before they are turned
over to the Probation Departments OP the courts.
This manner of detaining children is not only
frequently very harmful but helps to contribute
toward the very delinquency the police and the
community as a whole are attempting to prevent.
It also makes it more difficult for the Proba-
tlon Department or the Child Welfare Worker
and the Juvenile Courts to help the child with
the very problems which are causing his delln-
quencg. We wonder whetheror not it was the
intention of the Legislature to treat children
as such and different from adults all up and
down the line and whether such program of deten-
tion is not contrary to our Texas Statutes.
c
"More speciflcally, what was the intention of the
Hon. John H. Winters, Page 2 O-7227
Legislature in its enactment of the Juvenile Court
Law, Senate B111 44, 48th Legislature, Vernori'sAn-
notated Civil Statutes, Article 2338-1, You are re-
ferred particularly td~Sectlons 7, 11, 17, and these
as related to the Act as a whole and specifically
to Section 1.
"WhatYs',the scope and 1imLtations of the law en-
forcement authorities for detaining children on the
basis of Investigation, and at what point must he
legally get the child referred to the Probation De-
partment office or the Juvenile Court?"
We assume the children inquired about are, in the case
of females, those over the age of ten gears-and under the age
of eighteen years and, in the case of males, those over the
age of ten years and under the age of seventeen years. These
are the ages necessary to bring said children with the pro-
visions of the Juvenile Delinquency Act-enacted by the 48th
Legislature in 1943 (Acts 1943, ch. 204, p0 313).
We quote Sections 1, 7, 8, 10, 11, and 17 of said Ju-
venile Delinquency Act (Art. 2338-1, Vernon's Annotated Civil
Statutes) as follows:
"Section 1. The purpose of this Act is to secure
for each child under its jurLsdlctlon such care, guidance,
and control, preferably in his own home, as will serve.
the child's welfare and the best intorest of the state;
and when such child isremoved from his own family, to
secure for him custody, care and discipline as nearly
as possible equivalent to that which should have been
given him by h1s parents.
"The principle is hereby recognized that children
under the jurisdiction of the court are wards of the
state, subject to the dlscipl1ne and entitled to the
protection of the state, which may intervene to safe-
guard them from neglect or injury and to enforce the
legal obligatlons due to them and from them."
"Sec. 7. Any person may, and any peace officer
shall, give to the Judge, County Attorney, or to the
Probation Officer of the county, Information in hLs
possession that a child is within the provisions of
this Act. Thereupon the Judge, the County Attorney
or the Probation Officer shall make or have made,
preliminary inquiry to determine whether the lnterests~
of the public or of the child require that further ac-
tion be taken. If efther the Judge or the County Attor-
Hon. John H. Winters, page 3 O-7227
neg shall determine that formal jurisdiction should be
acquired, the County Attorney shall 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, and stat-
ing: (1) the name, age and residence of the child; the
names and residences, (2) of his parents
legal guardian, if there be one; (4) of'ttZ)p&L?or
persons having custody or control of the child; and (5)
of the nearest known relative, if no parent or guardian
can be found. If any of the facts herein required are
not known by the petitioner, the petition shall so state.
The proceedings shall be styled 'In the matter of
, a delinquent child."'
"Sec. 8. After a petition shall have been filed, and,
after such further investigation as the Judge may direct,
unless-the parties hereinabove named shall voluntarily
appear, the court shall issue a summons reciting briefly
the substance of the petition, and requiring the person
or persons who have the custody or control of the child
to appear personally and being the child before theecourt
at a time and place stated. If the person so summoned '
shall be other than the parent or guardian of the child,
then the parent or guardian, or both, shall be notified
of the pendency of the case and of the time and place
appointed, by personal service before tbhearlng, if
they reside within the jurisdiction of the court, except
as hereinabove provided. Summons may be Issued requiring
the appearance of any other person whose presence, In the
opinlon of the Judge, is necessary.
"If it appears that the child Is in such condition
or surroundLngs thathis welfare requires that his custody
be immediately assumed by the court, the Judge may cause
to be endorsed upon the summons an order that the officer
serving the same shall at once take the child into cus-
tody."
"Sec. 10. If any person summoned as herein,provided
shall, without reasonable cause, fall to appear, he may
be proceeded against for contempt of court. In case the
summons cannot be served, or the parties served fail to
obey the same, or in any case when it shall be made to
appear to the Judge that the servicing will be Ineffectua1,
or the welfare of the child requires that he shall be
brought forthwith Into the custody of the couzt, a war-
rant may be Issued against the child himself.
"Sec. 11. Whenever any officer takes a child Into
Hon. John H. Winters, page 4 o-7227
custody, he may release said child to a parent, guar-
dian, or any other person upon receipt of a written or
oral promise of said person to assume complete respon-
sibility for said child and to have him before the
probation officer or the court at any time then, or
subsequently, specified by said officer. If not so
released, such child shall be placed In the custody of~a
probation officer or other person designated by the court
or be taken immediately to the probation department, the
court, or to the place of detention designated by the
court. The court may make a general order designating
such places of detention which may include private foster
or boarding homes for children, or such other places of
detention which to the court seem desirable. The County
Commissioners Court may pay for boarding or foster home
care for such children to be detained, or all children.
coming within the meaning of this Act whether prior to,
or after the child has been adjudged a 'delinquent child.'
"Any peace officer or probation officer shall have
the right to take into custody any child who is found
violating any law or ordinance, or who is reasonab~ly
believed to be a fugitive from his parents or from
justice, or whose surroundings are such as to endanger
his health, welfare, or morals. The child shall forth-
with be brought to the Judne, who shall order the child's
release, or his temporary detention either In the com-
partment provided for the custody of juveniles, or by a
suitable person or agency as in the judgment of the court
may seem proper. If the child is ordered detalned, the
petition provided for herein shall be filed immediately.
In every such case the said officer shall refer all such
cases, together with information they have secured con-
cerning the child, to the court or the probation depart-
ment, and the case shall theribe proceeded with as speci-
fled In this Act, provided that no child shall be taken
before a Police Court or a Justice of Peace Court."
(Underscoring added)
"Sec. 17. No female person over the age of ten (10)
years and under the age of eithteen (18) years, or any
male person over the age of,ten (10) years and under the
age of seventeen (17) years, shall be placed or committed
to any compartment of any jail or lock-up in which persons
over juvenile age are incarcerated or detained; but shall
be placed in a room or ward separate and apart from
that occupied by adults. The proper authorities of
all counties shall provide suitable place of detention
for such juveniles separate and apart from any jail or
lock-up in which adults are confined. Said detention
Hon. John H. Winters.,page 5 O-7227
place may be in the same building housing adults, or
in a building separate and apart from that where
adults are confined."
It will be noted that said Sec. 7, supra, provides for
an inquiry or Investigation to determine whether formal jwis-
diction should be acquired over a child reported to be within
the provislons of said Act. Said Sec. 7 further provides for
a petition to be filed In the Juvenile Court in case it is
determined that such formal jurisdiction should be acquired
over such child. Sec. 8, supra, provides for a summons to
issue on said petition requiring those in custody or control
of said child to appear personally and bring the child before
the court. Sec. 11, supra, provides that any peace officer
or probation officer shall have the right to take in custody
any child who Is reasonably believed to be delinquent under
the terms of the Act, but further provides that the child
shall be brought forthwith to the Judge for release or d,eten-
tion, as provided by said Act. Nowhere in said Act can it
be found where the law contemplates the restraint of a child
by any officer for any period of time longer than that period
of time actually necessary for such officer to conduct such
child forthwith to the Judge of the Juvenile Court. Even our
criminal laws regarding the arrest of adult offenders provide
for the producing of said offenders before a magistrate upon
arrest. It was said in the case of In re Dendy, Civ. App.,
175 S. W. (2d) 297, affirmed by Sup. Ct., 142 Tex. 460, 179
S. W, (2d) 269, that "the purpose of the Juvenile Court Act
is to change the whole policy of the state with respect to the
nature of the proceedings in child dellnquencles, and the ex-
press solicitude for children cannot be overlooked without
violating the fundamental principles of statutory construction."
Surely, we cannot assume that said Act was intended to allow
a more harsh procedure In the arrest and preliminary deten-
tion of children than our criminal statutes provide In csses
of adult lawbreakers.
Therefore, it is our opinion that if an officer takes
such child into his custody prior to the filing of the peti-
tion provided in said Sec. 7 of said Act, he must bring such
child forthwith to the Judge of the Juvenile Court. In cases
where the petition is filed before the child is taken in cus-
tody, then, of course, the officer serving the summons or
warrant shall execute same as directed by the Judge of the
Juvenile Court.
.-
Hon. Jbhn Ii.Winters, page 6 O-7227
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/Robt. L. kttimore; Jr.
Robt. L. Lattimore, JP.
Assistant
RLL:LJ:wc
APPROVXD SEP 5, 1946
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman