Any time a juvenile is accused of delinquent conduct it is a serious matter. Accusations of violent felony delinquent conduct could mean your child is certified as an adult and tried in the adult legal system. If not certified as an adult, juveniles can still be sentenced to time in juvenile detention. Also, having a juvenile criminal record could affect your childs ability to get accepted to college, obtain financial aide, or seek other government programs or assistance.
ADJUDICATION, DELINQUENT CONDUCT, DEFERRED PROSECUTION?
DIFFERENCES IN THE JUVENILE JUSTICE SYSTEM IN TEXAS
Like criminal cases, juvenile cases are bifurcated. The two phases of a juvenile case are adjudication and disposition. Adjudication is essentially a hearing or trial on the merits of the charge petitioned by the government. Essentially, adjudication is the finding of guilt or not. If a juvenile has been found to have engaged in delinquent conduct or conduct indicating a need for supervision (the equivalent of guilt), the court or jury must next decide whether or not disposition (the equivalent of punishment) should be made. If so, the appropriate disposition is determined in a disposition hearing.
Deferred prosecution is often thought of as a disposition to a juvenile case; however, by its very nature it is not a disposition because a disposition can only follow adjudication. When the prosecution of the child is deferred, there is no adjudication. Deferred prosecution is an alternative to seeking a formal adjudication. It is essentially a period of supervision without adjudication. It is a contract between the juvenile and the court, and sometimes the prosecutor. Upon successful completion of the terms of the contract, the court will dismiss the prosecution.
Section 53.03(e) provides the authority for the prosecutor or the probation department to place a child on deferred prosecution. And, §53.03(i) provides authority for the court to defer prosecution.
Offenses under Penal Code Sections 49.04, 49.05, 49.06, 49.07 and 49.08 (intoxication offenses) as well as third or subsequent offenses under Alcoholic Beverage Code Section 106.04 or 106.041 (consumption of alcohol by minor and driving under the influence of alcohol by a minor) are not subject to deferred prosecution.
The court may add to the period of deferred prosecution following a previous order of deferred prosecution but the combined period may not exceed one year. §53.03(j).
When Can A Child Be Adjudicated?
The juvenile court has exclusive jurisdiction over children between the ages of 10 and 17 for delinquent conduct and conduct indicating a need for supervision.
Delinquent Conduct is defined in §51.03(a) as:
- (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 court under circumstances that would constitute contempt of that court in:
- (A) a justice or municipal court; or
- (B) a county court for conduct punishable only by a fine;
- (3) conduct that violates Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code; or
- (4) conduct that violates Section 106.041, Alcoholic Beverage Code, relating to driving under the influence of alcohol by a minor (third or subsequent offense).
Conduct Indicating a Need for Supervision is defined in §51.03(b) as:
- (1) subject to Subsection (f), conduct, other than a traffic offense, that violates:
- (A) the penal laws of this state of the grade of misdemeanor that are punishable by fine only; or
- (B) the penal ordinances of any political subdivision of this state;
- (2) the absence of a child on 10 or more days or parts of days within a six-month period in the same school year or on three or more days or parts of days within a four-week period from school;
- (3) the voluntary absence of a child from the child’s home without the consent of the child’s parent or guardian for a substantial length of time or without intent to return;
- (4) conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint and other protective coatings or glue and other adhesives and the volatile chemicals itemized in Section 485.001, Health and Safety Code;
- (5) an act that violates a school district’s previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Education Code; or
- (6) conduct that violates a reasonable and lawful order of a court entered under Section 264.305.
Before proceeding to an adjudication hearing, the prosecuting attorney must first determine whether to proceed with the case as an ordinary delinquency or seek a determinate sentence. Determinate Sentencing is not within the scope of this paper, but determinate sentencing must be approved by a grand jury and then is presented in the juvenile court.
Certification, again beyond the scope of this paper, is not a question for adjudication but rather a request by the prosecutor to transfer the case to adult court for further proceedings. For a certification to occur, there can be no adjudication.
Constitutional Protections for the Child
In 1967, the United States Supreme Court determined that juveniles charged with a crime had many of the same rights as adults. In the landmark case of In re Gault, the Supreme Court held that children held a Fifth Amendment right to be free from self-incrimination at an adjudication hearing, just like adults. Further, the Court held that children were entitled to counsel, confrontation, cross-examination, and due process. Though the Supreme Court did not guarantee a right to a jury trial, most fundamental rights were guaranteed to children. In re Gault, 387 U.S. 1 (1967). These rights were further defined and expanded to include the state’s burden of beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)) as well as double jeopardy protection (Breed v. Jones, 421 U.S. 519 (1975)).
Juveniles must be represented by Counsel – No “Pro Se” Juveniles (in most instances)
Under §51.10(b) a child must be represented by an attorney and that right may not be waived in: (1) a hearing to consider transfer to criminal court as required by Section 54.02 of this code; (2) an adjudication hearing as required by Section 54.03 of this code; (3) a disposition hearing as required by Section 54.04 of this code; (4) a hearing prior to commitment to the Texas Youth Commission as a modified disposition in accordance with Section 54.05(f) of this code; or (5) hearings required by Chapter 55 of this code. The child is entitled to by adequately represented by counsel, and therefore, must receive effective assistance of counsel. In re E.Q., 839 S.W.2d 144 (Tex.App. 1992), no writ.
With regard to the required admonishments, it is incumbent upon child or his attorney to object to the inadequate admonishments in order to preserve the claim properly for appeal.
IS YOUR CHILD CHARGED WITH A JUVENILE OFFENSE? – YOU NEED A TOUGH DEFENSE ATTORNEY
Our criminal defense law firm takes all juvenile cases very seriously. Whether it is an allegation of felony or misdemeanor delinquent conduct, we will zealously defend your case.