Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 1/28/2002
Status: Precedential
Modified Date: 4/17/2021
Office of the Attorney General — State of Texas John Cornyn The Honorable John F. Healy, Jr. Fort Bend County District Attorney 309 South Fourth Street, Suite 258 Richmond, Texas 77469
Re: Authority of a justice of the peace to sentence a juvenile to detention for contempt, and related questions (RQ-0408-JC)
Dear Mr. Healy:
You ask a series of questions regarding the proper construction of several provisions of the Juvenile Justice Code, title 3 of the Family Code, regarding the authority of a justice court to detain a child for contempt. Specifically, you ask:
• May a Justice Court order a juvenile held for a term of detention for the offense of contempt?
• What are the liabilities for the county for detaining juveniles ordered to serve a term of detention for contempt by a Justice Court?
• If a juvenile is referred to detention for the offense of contempt, is the juvenile's detention hearing to be conducted as that for a child who has engaged in delinquent conduct, as a status offender or as a non-offender?
• Can the county, through the Juvenile Board and the Juvenile Probation Department, maintain a non-secure facility to house juveniles pursuant to a contempt finding by a Justice of the Peace and if so what type of facility would be proper?1
We conclude, first, that a justice court may not order a child to be confined for a term of detention for contempt for a violation of a justice court order. Second, if suit is brought as a result of a justice of the peace ordering confinement of a child for contempt, the county could invoke immunity with respect to state claims, but, depending on the facts, could be subject to suit under federal claims brought under
Justice courts are expressly authorized by statute to impose a term of confinement, a fine, or both, on adults determined to be in contempt of a justice court order. See Tex. Gov't Code Ann. §
You inform us that, when the justice court finds that a juvenile is in contempt of a justice court order, "at least one" justice of a justice court in your county sends the juvenile to the county detention facility under orders finding the juvenile in contempt of court and assessing a term of confinement of three days in the juvenile detention facility. Request Letter, supra note 1, at 2. You express concern regarding whether such a practice is authorized by state law. Thus, you first ask: "May a Justice Court order a juvenile held for a term of detention for the offense of contempt?" We answer your first question in the negative.
The relevant statutory provisions, previously set forth in the Family Code and now set forth in the Code of Criminal Procedure, specify the options from which justices of the peace may choose in imposing contempt on a child for violation of a justice court order. Such options do not include confinement for a period of three days in the county juvenile detention center. Moreover, the relevant provisions expressly declare that a justice court may not order a child to a term of confinement or imprisonment for contempt. We note that the 77th Legislature enacted two bills that significantly affected the relevant Family Code sections that governed this issue prior to September 1, 2001, as well as amending, repealing, or adding various other juvenile justice provisions. Because you ask about possible tort liability and do not limit expressly your questions to events that occurred after September 1, 2001, we address the statutory provisions that are relevant both prior to and after September 1, 2001.
Prior to its amendment by one bill and repeal by another later-enacted bill during the 77th Legislative session, section
(h) If a child intentionally or knowingly fails to obey a lawful order of disposition after an adjudication of guilt of an offense that a justice or municipal court has jurisdiction of under Article
4.11 or4.14 , Code of Criminal Procedure, the municipal court or justice court may:(1) except as provided by Subsection (j), hold the child in contempt of the municipal court or justice court order and order the child to pay a fine not to exceed $500; or
(2) refer the child to the appropriate juvenile court for delinquent conduct for contempt of the municipal court or justice court order.
. . . .
(j) A municipal or justice court may not order a child to a term of confinement or imprisonment for contempt of a municipal or justice court order under Subsection (h).
See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 17, 1995 Tex. Gen. Laws 2517, 2524-26, repealed by Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 19(b), 2001 Tex. Sess. Law Serv. 5092, 5105. Thus, prior to September 1, 2001, under section
As stated earlier, the 77th Legislature enacted two bills affecting section 52.027. House Bill 1118 amended the section in ways not relevant to this request and also repealed subsections (h) and (j) of the section. Act of May 24, 2001, 77th Leg., R.S., ch. 1297, §§ 14, 71, 2001 Tex. Sess. Law Serv. 2978, 2983, 3009. At the same time, the bill added section 54.023 to the Family Code, which effectively replaced the repealed subsections (h) and (j), and afforded a justice court both additional options and additional limitations when imposing contempt on a child. Id. § 21, at 2985. The new section
(a) If a child intentionally or knowingly fails to obey a lawful order of disposition after an adjudication of guilt of an offense that a justice or municipal court has jurisdiction of under Article
4.11 or4.14 , Code of Criminal Procedure, the justice or municipal court may:(1) refer the child to the appropriate juvenile court for delinquent conduct for contempt of the justice or municipal court order; or
(2) retain jurisdiction of the case and:
(A) hold the child in contempt of the justice or municipal court order and impose a fine not to exceed $500;
(B) order the child to be held in a place of nonsecure custody designated under Section 52.027 for a single period not to exceed six hours; or
(C) order the Department of Public Safety to suspend the driver's license or permit of the child or, if the child does not have a license or permit, to deny the issuance of a license or permit to the child and, if the child has a continuing obligation under the court's order, require that the suspension or denial be effective until the child fully discharges the obligation.
. . . .
(c) A justice or municipal court may hold a person in contempt and impose a remedy authorized by Subsection (a)(2) if:
(1) the person as a child was placed under an order of the justice or municipal court;
(2) the person failed to obey the order while the person was 17 years of age or older; and
(3) the failure to obey occurred under circumstances that constitute contempt of court.
(d) A justice or municipal court may hold a person in contempt and impose a remedy authorized by Subsection (a)(2) if the person, while younger than 17 years of age, engaged in conduct in contempt of an order of the justice or municipal court but contempt proceedings could not be held before the child's 17th birthday.
(e) A justice or municipal court may not order a child to a term of confinement or imprisonment for contempt of a justice or municipal court order under this section.
Tex. Fam. Code Ann. §
In addition to House Bill 1118, the 77th Legislature enacted Senate Bill 1432, which, inter alia, repealed in its entirety section
(a) In this Article, "child" has the meaning assigned by Article 45.045(h).
(b) A justice or municipal court may not order the confinement of a child for:
(1) the failure to pay all or any part of a fine or costs imposed for the conviction of an offense punishable by fine only; or
(2) contempt of another order of a justice or municipal court.
(c) If a child fails to obey an order of a justice or municipal court under circumstances that would constitute contempt of court, the justice or municipal court:
(1) has jurisdiction to refer the child to the appropriate juvenile court for delinquent conduct for contempt of the justice or municipal court order; or
(2) may retain jurisdiction of the case and:
(A) hold the child in contempt of the justice or municipal court order and impose a fine not to exceed $500; or(B) order the Department of Public Safety to suspend the child's driver's license or permit or, if the child does not have a license or permit, to deny the issuance of a license or permit to the child until the child fully complies with the orders of the court.
(d) A court that orders suspension or denial of a driver's license or permit under Subsection (c)(2)(B) shall notify the Department of Public Safety on receiving proof that the child has fully complied with the orders of the court.
Tex. Code Crim. Proc. Ann. art.
We note that, in the event that the legislature amends the same statute during the same session, the amendments will be harmonized, if possible. If the amendments are irreconcilable, the latest in date of enactment prevails, with the date of enactment being the date on which the last legislative vote is taken. Tex. Gov't Code Ann. §
That the legislature has adopted such a public policy is not surprising in light of the fact that the original jurisdiction of a justice court in criminal cases is limited, basically, to offenses punishable by a fine only or punishable by a fine and an additional sanction not consisting of confinement or imprisonment. Tex. Code Crim. Proc. Ann. art
You next ask: "What are the liabilities for the county for detaining juveniles ordered to serve a term of detention for contempt by a Justice Court?" Request Letter, supra note 1, at 3. We do not understand you to ask about any possible tort liability on the part of the justice of the peace, rather, we understand you to ask only about the possible tort liability of the county. See generally Mireles v. Waco,
Therefore, we understand you to ask, not whether the county might be liable, but whether the county can invoke any doctrines of immunity from suit in the situation you describe. You do not specify what cause of action you believe may be brought, nor do you indicate whether you are concerned about a possible state and/or federal cause of action. For purposes of this opinion, we will assume that the cause of action about which you inquire is false imprisonment4 and that you ask about possible state and federal causes of action.
With respect to a state cause of action, we note that Texas adopted the English common law when it became a republic and later a state, and Texas courts have recognized the English common-law doctrine of sovereign immunity. See Taber Chamberlain, State Sovereign Immunity: No More King'sX?, 52 Tex. L. Rev. 100 (1973); John R. Greenhill Thomas V. Murto, III, Governmental Immunity, 49 Tex. L. Rev. 462 (1971); Glen A. Majure, W.T. Minich, David Snodgrass, Governmental Immunity Doctrine inTexas — An Analysis and Some Proposed Changes, 23 Sw. L. J. 341 (1960). And in the absence of a statute or constitutional provision waiving governmental immunity, immunity remains the rule. Dallas CountyMental Health Mental Retardation v. Bossley,
Chapter 101 of the Texas Civil Practice and Remedies Code (the Texas Tort Claims Act) serves as a limited waiver of sovereign immunity. Tex. Civ. Prac. Rem. Code Ann. ch. 101 (Vernon 1997 Supp. 2002). But, section
With respect to a federal cause of action, title
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress. . . .
As long ago as 1978, the United States Supreme Court held that municipalities and other local governmental units are included among those "persons" to whom section 1983 applies. Monell v. Dep't of SocialServs. of City of New York,
With your third question, you ask: "If a juvenile is referred to detention for the offense of contempt, is the juvenile's detention hearing to be conducted as that for a child who has engaged in delinquent conduct, as a status offender or as a non-offender?" Request Letter,supra note 1, at 3.
We conclude that, in the event a child is referred to a juvenile court for contempt of a justice court order, the juvenile's detention hearing is conducted in the manner as that for a child who has engaged in delinquent conduct.
Section
(A) is subject to jurisdiction of a court under abuse, dependency, or neglect statutes under Title 5 [Tex. Fam. Code Ann. §101.001 et seq.] for reasons other than legally prohibited conduct of the child; or(B) has been taken into custody and is being held solely for deportation out of the United States.
Tex. Fam. Code Ann. §
Section
a child who is accused, adjudicated, or convicted for conduct that would not, under state law, be a crime if committed by an adult, including:
(A) truancy under Section 51.03(b)(2);
(B) running away from home under Section 51.03(b)(3);
(C) a fineable only offense under Section 51.03(b)(1) transferred to the juvenile court under Section 51.08(b), but only if the conduct constituting the offense would not have been criminal if engaged in by an adult;
(D) failure to attend school under Section
(E) a violation of standards of student conduct as described by Section 51.03(b)(5);
(F) a violation of a juvenile curfew ordinance or order;
(G) a violation of a provision of the Alcoholic Beverage Code applicable to minors only; or(H) a violation of any other fineable only offense under Section
8.07 (a)(4) or (5), Penal Code, but only if the conduct constituting the offense would not have been criminal if engaged in by an adult.
Id. § 51.02(15). Most of the violations listed above are found in subsection
Section
(a) Delinquent conduct is:
(1) conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail;(2) conduct that violates a lawful order of a municipal court or a justice court under circumstances that would constitute contempt of that court.
Id. § 51.03(a). Therefore, we conclude that, in the event a child is referred to a juvenile court for contempt of a justice court order, the juvenile's detention hearing is conducted in the manner as that for a child who has engaged in delinquent conduct under section
With your final question, you ask: "Can the county, through the Juvenile Board and the Juvenile Probation Department, maintain a non-secure facility to house juveniles pursuant to a contempt finding by a Justice of the Peace and if so what type of facility would be proper?" Request Letter, supra note 1, at 3. We answered your first question by declaring that a justice of the peace is without authority to order confinement of a child for three days for contempt. When a justice court holds a child in contempt for violating a justice court order, the court has several options, as provided by the new section
If the child is a non-offender or a status offender, then the conditions of Section54.011 of the Texas Family Code must be considered. Section 54.011 states that status offenders and non-offenders shall be released from secure detention after 24 hours, excluding hours of a weekend or holiday, and such time may only be extended on the demand of the defense or in order to return the child to his home, if the home is out of state, There is, however, no prohibition from detaining status offenders or non-offenders in non-secure detention facilities. Then, it would seem, that there would be no prohibition for the Juvenile Board or Juvenile Probation to operate non-secure facilities for such offenders.
Id. We believe your fourth question asks whether the county may operate nonsecure detention facilities to house nonoffenders or status offenders, presumably for all purposes relating to detention. We conclude that the county may operate a nonsecure juvenile detention facility, however, we believe that the place and conditions of detention will vary, depending upon the circumstances surrounding the taking of the child into custody.
Nonsecure detention facilities are mentioned only in four provisions — section
Article 45.058 sets forth conditions under which nonsecure detention facilities may be used in the detention of children taken into custody for offenses over which only justice and municipal courts have jurisdiction; unlike its predecessor statute, section 52.027, article 45.048 does not govern status offenders and nonoffenders. Tex. Code Crim. Proc. Ann. art.
We noted earlier that the 77th Legislature amended and repealed section
Article
Finally, we note that the newly-enacted section
Yours very truly,
JOHN CORNYN Attorney General of Texas
HOWARD G. BALDWIN, JR. First Assistant Attorney General
NANCY FULLER Deputy Attorney General — General Counsel
SUSAN DENMON GUSKY Chair, Opinion Committee
Jim Moellinger Assistant Attorney General
(a) Except as provided by Subsection (h), a child may be detained only in a:
(1) juvenile processing office in compliance with Section 52.025;
(2) place of nonsecure custody in compliance with Article45.058 , Code of Criminal Procedure;(3) certified juvenile detention facility that complies with the requirements of Subsection (f);
(4) secure detention facility as provided by Subsection (j); or
(5) county jail or other facility as provided by Subsection (l).
Tex. Fam. Code Ann. §
chester-jordan-johnston-jr-v-eddie-lucas-aaron-jagers-major-fred , 786 F.2d 1254 ( 1986 )
Brown v. Lyford , 243 F.3d 185 ( 2001 )
Monroe v. Pape , 81 S. Ct. 473 ( 1961 )
Whitley v. Albers , 106 S. Ct. 1078 ( 1986 )
Monell v. New York City Dept. of Social Servs. , 98 S. Ct. 2018 ( 1978 )
Mireles v. Waco , 112 S. Ct. 286 ( 1991 )
Wal-Mart Stores, Inc. v. Odem , 929 S.W.2d 513 ( 1996 )
Delcourt v. Silverman , 919 S.W.2d 777 ( 1996 )
Turner v. Pruitt , 161 Tex. 532 ( 1961 )