Jul 25, 2013

Houston Criminal Attorney: Certification of Juveniles to be Tried as Adults in Texas



Adult Certification of Juveniles in Texas

Texas established its first juvenile court in 1907 to “...mend the ways of erring children,” according to a 1908 statement by Bexar County Judge Phil Shook.

The Texas Juvenile Justice System is based on the concept that children aged 10 through 17 are different from adults, and should be treated differently from adults. Separate courts, detention facilities and laws have been created for juveniles with the intent to protect their welfare and rehabilitate them. Nonetheless, the law provides heavy penalties for juveniles who persist in breaking the law or those who commit serious felonies. In certain cases this may include incarceration in adult prisons.

Provisions to enabled juveniles to be tried in criminal court under certain circumstances have been in place since the 1920's in some states, and by the 1940's most others had followed suit. Today all states have at least one provision for trying juveniles as adults in criminal court, typically limited by age and offense criteria.

Texas Juvenile Court 

The Texas Juvenile Court has exclusive jurisdiction over nearly all criminal offenses committed by juveniles, who are defined to be anyone 10 years of age or older but under 18. For discretionary waiver, the minimum age is generally 14. A “once an adult always an adult” policy is enforced for felony charges unless the original case was acquitted, dismissed or reversed.

Texas Penal Code §8.07(b) provides for age affecting criminal responsibility, and states that:
A person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age except:
  1. perjury and aggravated perjury when it appears by proof that the person had sufficient discretion to understand the nature and obligation of an oath; 
  2. a violation of a penal statute cognizable under Chapter 729, Transportation Code, except for conduct for which the person convicted may be sentenced to imprisonment or confinement in jail; 
  3. a violation of a motor vehicle traffic ordinance of an incorporated city or town in this state; 
  4. a misdemeanor punishable by fine only; 
  5. a violation of a penal ordinance of a political subdivision; 
  6. a violation of a penal statute that is, or is a lesser included offense of, a capital felony, an aggravated controlled substance felony, or a felony of the first degree for which the person is transferred to the court under Section 54.02, Family Code, for prosecution if the person committed the offense when 14 years of age or older; or 
  7. a capital felony or an offense under Section 19.02 for which the person is transferred to the court under Section 54.02(j) 

It is important to note that the age limitation is considered jurisdictional. Article 4.18 requires that a defendant or underage child raise the issue of being underage by written motion and the issue must also be presented to the district court judge. If the issue of underage is not raised by written motion in district court, then the issue will be considered waived.

Certification Process

In Texas the judicial waiver process is used in removing juveniles to adult criminal court, and is referred to as discretionary transfer or most commonly certification. Certification allows a juvenile judge to make the determination whether a juvenile respondent is transferred from the juvenile system to the adult criminal system.

Certification proceedings are initiated by the state filing a motion or petition for discretionary transfer and the issuance of a summons. Minimal requirements for certification allow prosecutors a wide range of discretion, but they are usually limited to more serious offenses such as juveniles with a chronic history of delinquency or individuals currently over eighteen but accused of committing offenses when they were younger than seventeen.

Furthermore, Section 54.02 of the Family Code sets forth three general requirements for transfer to adult court:
  1. the child is alleged to have violated a penal law of the grade of felony; 
  2. the child was: a. fourteen or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a first degree felony; or b. fifteen or older at the time he or she allegedly committed a second degree felony, a third degree felony, or a state jail felony; and no adjudication hearing has been conducted concerning that offense; 
  3. after a full investigation and a hearing, the juvenile court finds that: a. there is probable cause to believe that the child committed the offense, and b. because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal proceedings 
Once a juvenile is certified to stand trial as an adult all of the protections available in the juvenile system are lost and the adult system takes over.

Consequences of Certification 

The consequences of transfer to an adult court are very serious, and allow for the same penalties as provided to adults including life without parole. If convicted, there will be an adult criminal record which may significantly affect future education and employment opportunities as well as the loss of rights including the right to vote or to own a firearm.

But even though a juvenile tried as an adult will face harsher penalties, they will also have access to constitutional rights which are restricted in juvenile court. A criminal defense attorney may actually want the trial held in adult court in order to exercise the right to a jury trial, as a jury may prove far more sympathetic to the minor than a juvenile court judge.


Each year thousands of minors are referred to juvenile probation departments across Texas for reasons ranging from minor offenses (such as theft) to sexual assault and homicide. They are generally housed in adult jails even before they stand trial, and may be kept in isolation conditions for a year or more. Studies have shown that the transfer of minors into the adult system serves no deterrent value, but in fact increases rates of recidivism, suicide, and sexual or physical assault. Other studies show links between the incarceration of minors in adult correction facilities and the development or exacerbation of mental illness.
Most minors lack the reasoning skills required to fully comprehend the trial and sentencing process, and even if they do understand their rights they most probably lack the experience to utilize them correctly. Juveniles may falsely believe that an arrest automatically equates to guilt, and false confessions are common as they don’t fully understand the right to remain silent. Other common issues include a false belief that they must speak in court, automatically accepting any information regarding their legal status from a police officer or a prosecutor, or waiving their right to a public defender due to distrust of authority figures.

Many children are not fully aware of the magnitude of their actions and don’t deserve tough sentences. Some even have learning disabilities and impulse control problems like A.D.H.D. or A.D.D. and really just need medication or a good therapist. However the “tough on crime” juvenile justice system may become overly aggressive with your child and attempt to take them away until they turn 18 or sometimes much longer. It is not unusual for sentencing to include counseling, detention in a youth facility such as a boot camp, juvenile hall, or youth authority facility. Because of these possibilities, as well as the special laws involved with juvenile offenses, having a criminal attorney there to fight back and attempt to get the charges dropped or reduced is absolutely essential.

The juvenile justice system is complex, but the rights of juveniles are the same as those of adults. Your child has the right to proper disclosure of charges, a legal defense and a humane arrest. If your child is facing serious criminal charges, please contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com. 

Conditions for Certified Juveniles in Texas County Jails; by Michele Deitch, Anna Lipton Galbraith and Jordan Pollock; Special Project Report, Lyndon B. Johnson School of Public Affairs,The University of Texas at Austin (.pdf )

Texas Family Code - Section 54.02. Waiver Of Jurisdiction And Discretionary Transfer To Criminal Court

Certifications in Texas: a General Overview; Kameron D. Johnson, Travis Co. Juvenile Public defender; Nuts and Bolts of Juvenile Law, July 2010 (.pdf)

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