Untitled Texas Attorney General Opinion ( 1943 )

OFFICE OF THE OF
Honorable P. Y. hinter
county Attorney
Jim So= County
Hebbronvllle, Texa8
Bar Sib: opinionR0. ‘0:547g.. ‘x.
,Re: .A--person not over tha age
of ten years cannot be pun-
f/d iabe& for violating/the penal
/ /lava of., thir State.
.’ I
. . . .. . ,/ - ‘\,: ~”
“‘, ;,,,
,’
.,.*- .?FACTSI %.>.,
! I
‘A boy doer ‘9, but tider~.lO year@ of age, and
apparent;Sg having due dlrcretlon, aonuuitr a felony
0fSensd obb4r than perjury.
,/.‘I ,/-Q /;j, ‘,~,~
:*y l!aEF:
i 61. A& ii Pi c., says the design of the
P&ml Code is ,to d4fb.m every off4n44, and to affti
to each of &tie It proper puetshment. Art. 10,
P. C.;,~pr‘o~ldes.~no act oan be punirhed as an of-
fense uulesa the law makIng it penal wa4 in force
at the time:of the act. Art. 30, P. C., provides
that no person shall be convioted of any offense
before he was 9 years old, except perjury, etc.;
nor of any other offense comltted betveen the ages
of $3 & 13 years unless it appearr that he had dis-
or&ion sufficient to uuderetand the nature and ll-
legality of the aot comtltutlng the offense.
Honorable P. W. Minter, page 2
-- ‘2. Former Art. 1083, C. C. P. (now repealed-
304 belov), defined a Delinquent Child as being any
boy under 17, and any girl under 18 years of age,
?ho violates imy penal lav of the State, etc. It
should be noted that it did not fix a minimum age
of 10 years, as does the amended lav hsrelnafter
cited.
“3. Art. 51438 Rawle C. 9. (Aots 1937, 45th.
1328 oh 192) 4xpr44sly repsaled above
c E P. and redefined s ‘Delinquent
ChlJd’ as’being’&boy between the ages of 10 d:
17 years, or any girl between the ages of 10 & 18
years. Art. 2 38-1, V. A. C. 8. (tits 1943, 48th.
Is&r S. B. 44 3 again repealed Art. 1083, C. C. P.,
and again redeflnsd a ‘Delinquent Child’ In the
same way as next above stated. It is noted that
no provlsian uas made as to a child betveeq 9 k 10
years of age in either or said last mentioned
enaotments, and apparently hs oannot be punished
as a ~Dwlinquent Child’ under either.
*QUESTION
I
“What lav a@%48 to a child between 9 & 10 yeam
of age, vho violates. a penal statute, and what is his
&XIlliShIS4Atf
I) .
. . i .
We readily observe the apparent quandary created by
the enactment of recent legislation pertaining to delinquent
Children as you have so aptly polnted out in your letter. ROW-
ever, we believe any amblgtity~ that might be present is olari-
flied by reading said Senate Bill 44 and looking to the intent
of the Legislature in reference thereto.
We quote in part from Senate Bill Bo. 44 as follovs:
‘Section 1. Purpose and B4sio Principle. The
purpose OS this Act Is to 84cure for each child
under Its jurlsdlotlon suoh oare, guidance and con-
trol, preferably Ln his ovn home, as vi11 serve the
chlld~s velfare and the best interest of the state;
and vhen such child is removed from his ovn famlly,
. 4:Ol
i;,Iona; iionorable P. W. phlpt4r, page 3
to seoure for him custody, 04r4 and dlselplin4 as
nearly as possible equivalent to that which should
i- have be4n glvsui him by his psr8nts.
'The pl?iooipl4 Is hereby r4oogQlssd thst
ahlldrb~ under the jurlsdiotion of the court are
vards of the stat4, subjeot to the dlsoipline and
rntltlad to the proteotlon of ths stats, whiah msy
interveQ4 to safeguard them from Qegleot or Injury
sod to 4nforo4 ths legal obllgatians due to th4m
and from them.
"sea. 2. Construction of the Aat. This Aat
shall be liberally~ooustrued to aooompllsh the pur-
pose h e r ein
loueht.
‘Sea. 3. Derblit1oxL9. The vord *oourt' m4ans
the juvenile Court'. The Yard 8Judge' nears the
Judg4 of the Jmenlle Court. The term 'delinquent
ohild' ws~s any female person over the a or ten
(10~) y4srs curd under the 864 of eighteen r IS) years
and sky male person over the age OS ten (10) year0
and under the age of seventeen (17) years:
“(a) who violates auy pepal law of this state
of the gray of felony;
'(b) or vho violates any pans1 law of this state
of th4 grade of misdemeanor where ths punishment
prescribed for suoh offense may be by confinement
IQ law
"(0) or who habitually violates any pans1 law
of this state of the grade of misdePPeanor vhere
the punishment presoribed for such offense is by
peouuiary fine only;
"(d) or who habitually violates any peoal or-
dlnanc4 of a political subdlv?.slon of this state;
". . . .
"Sec. 12. Transfer from other Courts. If
during the pendency of a criminal aharge or lndlot-
ment against any person in any other oourt than a
Eonorable P. W. DUnter, page 4
JuvePile Court, it shall be asaertained that said
person is a female over the age of ten (10) years
and under the age of eighteen (18) ears, or is a
nsle person ov4r th4 age 0s ten (10 T years and under
the age of seventeen (17) years at the time of the
trIa1 for the alleged offense, it shall be the duty
of such oOuH to traQ8fer such case Immediately
together vZth all pap4~8, documents and testimony
OoQnected therewith to the Juvenile Court of said
county. . . .
*. . . .
“Ho adjudication upon the status of any child
in ths jurisdiotion 0s the court 8hall operate to
impose any of the olvll dlsablllties ordinarily
Imposed by wnviation, nor shall sny ohild b4 deem-
ed a criminal by reason of such adjudicak+on, nor
shall auoh adjudioation be deemed a aoQvlotion,
Qor shall Amy ohlld be oharged with or convlated of
a crime in any aourt. Th dlspositloc of R ohlld
or asp evidence given in :he courts shall not be ad-
missible as evldenae against the child lQ atiy 0484
or prooeedUg Ln Amy other court other than another
Juvenile Court, nor shall such disposltioQ or evi-
dence operate to dl,squallfy a child IQ any future
Civil aervloe examiQatlon, appointment, or applioa-
tion.
I(. . . .
“Sea. 21. Appeals. AQ appeal may be taken by
any part aggrieved to the Court of Civil Appeals,
and the case may be carried to the Supreme Court by
Vrit Of error or upon O%PtifiCat%, as iQ other Civil
cases. . . .
n. . :.
“Sec. 24. Lava Repealed. Articles 1083, 1084,
1085, 1086, 1088, 1089, logo, 1091, 1092, 1093 or the
Code of Criminal Procedure, and Article 1087 of the
Coda of Criminal Procedure aa amended Acts 1927,
40th Lagislature,~Chapter 163, Sectlon 1, are here-
by repealed.
: 403
Zonorable P. W. Minter, page 5
"Artloles 2329 and 233% of the Revised Civil
Statutes of TBZBS, 1925, am hsrsby repealed.
'All lava and parts ~of laws in aonfllct hers-
with are also repealed.
. . . a .” (Undersoorlng 0131-8)
By k4adug s4nste Bill go. 44, v,ith particular em-
phasls upon the above quoted portions of the bill, it Is quite
evident that it was the int%QtiOQ 0s the Legislaturs to estab-
llsh or formulate a comprehensive method Of handUng the juven-
lie offenders of the law. lws all-inolusive manner of deal-
fng with these youthful riolaters was QOt to charg4 and arim-
inally try them for the offenses they cordsltted, but rather to
bring them before a Juvenile Court and ln an action of a 01~11
nature try them for delinquency. The Legislature saw fit to
place the i8inlisum age Of these deltiquents at Over t4Q years.
it vould thus follow that these offenders of the law not over
the age of ten y4ars, being under ths age to be tried as a de-
linquent child, the only method of dealing with these juvenile
~f’fsnders, would QOt be subject to any punishment.
It 18 therefore the opinion of this department that
persons not over ten years of age caunot be p&shed for violat-
in& the penal lava of this State.
Very truly yours
QKNERALOF TEXAS
ATTORHEY
BY
Fred C. Chandler
Assistant
,-Y ?
BY
Robert 0. Koch ’