DELINQUENCY & DISCIPLINE

EVERYTHING YOU WANTED TO KNOW --

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ABOUT THE JUVENILE JUSTICE SYSTEM



By: Sharon E. McLauchlin

This article functions as an overview of the juvenile justice system. It is designed for the school law practitioner who has limited or no knowledge of juvenile court proceedings. The article will also address some of the more obvious gaps and overlaps between the Family and Education Codes with respect to juvenile and student discipline.

Jurisdiction

The Juvenile Court's jurisdiction is, in large part, related to the age of the accused individual. The Juvenile Court possesses exclusive jurisdiction in cases over children alleged to have engaged in delinquent conduct or conduct indicating a need for supervision.(1) The Code defines "child" to mean either (1) a person who is ten years of age or older and under 17 years of age; or (2) 17 years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.(2) If a child is under 10 years of age, he is legally incapable of engaging in delinquent conduct or conduct indicating a need for supervision. The adult criminal system has jurisdiction over a person who commits a new law violation after turning 17.

The Juvenile Court may waive its jurisdiction and transfer a child between the ages of 15 and 17 alleged to have engaged any felony to the appropriate criminal court for prosecution as an adult. A child between the ages of 14 and 15 may likewise be certified to stand trial as an adult if he is alleged to have committed a capital, aggravated controlled substance, or first degree felony. The decision to waive its jurisdiction and certify a child is discretionary with the court. In making the decision to certify a child, the court shall consider whether the offense was against person or property, the sophistication and maturity level of the child, the child's juvenile record, public safety, and the likelihood of rehabilitation through the use of juvenile court services. After a full investigation and hearing, the court may waive its jurisdiction if probable cause exists to believe the child committed the offense and the welfare of the community requires the child to be prosecuted as an adult, taking into consideration the foregoing factors.(3) If the court does not certify the child as an adult, it retains jurisdiction, and the child is prosecuted within the juvenile system.

The Juvenile Court's jurisdiction is limited to two types of juvenile misconduct: delinquent conduct and conduct indicating a need for supervision. Traffic offenses, which are handled within the municipal court, and perjury are excluded from the juvenile court's jurisdiction.(4) A child may be prosecuted within the adult criminal court for perjury.(5) In order to understand proceedings in the juvenile system, and sanctions that may be imposed, it is important to understand the differences between the two types of juvenile misconduct.

Delinquent conduct involves law violations for which imprisonment could be imposed if the child offender were an adult, and includes violations of certain types of court orders. Delinquent conduct is the more serious type of misconduct under the jurisdiction of the juvenile court, and the range of sanctions includes possible commitment to the Texas Youth Commission. Specifically, the Juvenile Justice Code defines "delinquent conduct" as follows:

(1) conduct, other than a traffic violation, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail (Class A and B misdemeanors and felonies);

(2) conduct that violates a reasonable and lawful order of a juvenile court entered at a disposition hearing or hearing on a motion to modify disposition, except an order prohibiting the following conduct (conduct indicating a need for supervision):

(A) a misdemeanor that is punishable by fine only or a violation of the penal ordinances of any political subdivision of this state (Class C misdemeanors);

(B) the unexcused voluntary absence of a child from school; or

(C) the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without the intent to return;

(3) conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of court;

(4) conduct that violates Penal Code §§ 49.04, 49.05, 49.06, 49.07 and 49.08, (Driving, Flying, and Boating While Intoxicated, Intoxication Assault, and Intoxication Manslaughter); or

(5) conduct that violates Section 106.041 of the Alcoholic Beverage Code, relating to driving under the influence of any detectable amount of alcohol by a minor (lesser standard than 0.10).(6)

Conduct indicating a need for supervision, or "CINS" conduct, involves law violations and other misconduct of a less serious nature, as well as conduct specifically related to school attendance and misbehavior at school. A child adjudicated of CINS conduct cannot be committed to the Texas Youth Commission.(7) Specifically, CINS conduct includes:

(1) conduct that violates:

(a) the penal laws of this state of the grade of misdemeanor that are punishable by fine only (Class C Misdemeanors), or

(b) the penal ordinances of any political subdivision of this state;

(2) the unexcused voluntary absence of a child on 10 or more days or parts of days within a six-month period, or three or more days or parts of days within a four-week period, from school without the consent of his parents; (This section does not apply if the child is married, widowed or divorced)

(3) the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return; (This section does not apply if the child is married, widowed or divorced.)

(4) conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of volatile substances listed in Tex. Health § Safety Code § 484.002;

(5) an act that violates a school district's previously communicated written standards of student conduct for which the child has been expelled under Tex. Educ. Code § 37.007(c) (i.e., serious or persistent misbehavior violating the code of conduct committed while the student is placed in an AEP for disciplinary reasons); or

(6) conduct that violates a reasonable and lawful order of a court entered pursuant to Tex. Fam. Code § 264.305 (Court Order for Services for At-Risk Children).(8)



A juvenile "proceeding" begins with the referral of a child who is alleged to have engaged in delinquent or CINS conduct to the juvenile system. Proceedings are initiated by the referral of a child or the child's case to the office or official, including an intake or probation officer, designated by the juvenile court to process children's cases within the juvenile justice system.(9) A referral is simply an allegation that a child has engaged in delinquent or CINS conduct. Although a referral is required in order for the juvenile court to become involved, there are three ways in which a case may be disposed prior to formal juvenile court proceedings.

Informal Disposition

First, a law enforcement officer authorized to take a child into custody for delinquent conduct or conduct indicating a need for supervision may issue a warning in lieu of taking the child into custody or making a referral in accordance with the local Juvenile Board's guidelines.(10) Alternatively, upon referral, an intake or probation officer may place the child on "supervisory caution" without referral to the Juvenile Court.(11) The probation department may require a child placed on supervisory caution to participate in a program for "at-risk" youth or make other community service referrals, but must release the child to his parents once these referrals are made and the child is not placed on probation.(12) Finally, the child may be placed on "deferred prosecution", a form of probation that lasts three to six months.(13) It is important to note that "deferred prosecution" is a disposition whereby prosecution is deferred altogether, prior to evidence being formally presented to the court. This is not to be confused with "deferred adjudication", a form of probation existing within the adult criminal system wherein a court hears evidence, finds that the evidence substantiates a finding of guilt, but defers further proceedings without entering such finding while the defendant is placed on probation.(14) There is no provision within the Juvenile Code for "deferred adjudication," except in cases involving certain Class C misdemeanors for which the child may be referred to the local Teen Court program.(15)

While the dispositions described above may occur prior to a formal referral to the district attorney, the probation department is required to refer certain other cases to the prosecuting attorney, and, consequently, cannot place the child on deferred prosecution for a "referable" offense without the prosecutor's consent. If a child has been previously adjudicated for felony conduct or is alleged to have engaged in a felony, a misdemeanor involving violence to a person, or the use or possession of a firearm, illegal knife, or club, the probation officer must refer the child's case to the prosecuting attorney, and the child may be placed on deferred prosecution only if the prosecuting attorney consents in writing.(16) The prosecuting attorney may defer prosecution for any child, except in cases of DWI, Flying While Intoxicated, Boating While Intoxicated, Intoxication Assault, Intoxication Manslaughter, and a third offense of Driving under the Influence of Alcohol.(17)

Supervisory caution and deferred prosecution are considered "sanctions" under the Progressive Sanction Guidelines in the Juvenile Justice Code.(18) The distinction between these two informal dispositions is important because of the direct and collateral consequences to the juvenile. Generally, a child may only be placed on supervisory caution for CINS conduct, excluding non-criminal conduct resulting in expulsion from school.(19) A child may generally be placed on deferred prosecution for Class A and B misdemeanors not involving the use or possession of a firearm or non-criminal conduct resulting in expulsion from school.(20)

Off Campus Felonies

Under the 1997 amendments to the Education Code, a student must be removed from class and placed in an Alternative Education Program (AEP) if he receives deferred prosecution for off-campus conduct defined as a felony under Title 5 of the Penal Code.(21) These offenses include the various types of criminal homicide, kidnaping, false imprisonment, assaultive offenses and sexual offenses. Under the Progressive Sanction Guidelines, it would appear that supervisory caution and deferred prosecution are generally not available to a child alleged to have engaged in this type of conduct. However, if the prosecuting attorney reviews a child's case and does not file a petition due to lack of prosecutorial merit, the referral is returned to the juvenile probation department for further "non-judicial" proceedings, typically, deferred prosecution or supervisory caution.(22) The probation department can unilaterally place a child accused of a Title 5 felony on supervisory caution if the prosecuting attorney does not accept the case and returns the referral to the probation department.(23) On the other hand, the probation department cannot unilaterally place the child on deferred prosecution, as such a disposition requires the consent of the child and his parent, guardian, or custodian, and attorney if he is represented by counsel.(24)

Although a reasonable belief that a student has engaged in an off-campus Title V felony requires removal to an AEP, the prosecutor must notify the school district if the student is not found to be delinquent or if the case is dismissed for lack of prosecutorial merit or insufficient evidence and no formal proceedings, deferred adjudication or deferred prosecution will be initiated.(25) The school district must, upon receipt of such notice, review the child's AEP placement and may only continue the placement if there is reason to believe the student's presence in the regular classroom threatens the safety of other students or teachers.(26) If the child is placed on deferred prosecution, he shall remain in the AEP as though a formal adjudication has occurred. Requiring the child to remain in the AEP once he is placed on deferred prosecution is permissible (and required) even though no formal proceeding has occurred because the child has consented to this juvenile court sanction and implicitly admitted responsibility. If, on the other hand, the child is placed on supervisory caution, the child must be returned to the regular classroom absent a finding that the student's presence in a regular classroom constitutes a safety issue. School personnel should verify which type of informal disposition has occurred in order to determine whether this placement review is implicated.

Formal Proceedings

The decision to formally act upon a referral rests exclusively with the prosecutor, who initiates formal court proceedings by filing a petition alleging the child to have engaged in delinquent (or CINS) conduct. When the prosecuting attorney files a Petition absent an informal disposition, then the case is set for an adjudication hearing. While the child awaits his adjudication hearing, he may be detained in a juvenile detention facility upon a finding by the Court that the child is likely to flee or be removed from the jurisdiction of the court; that suitable supervision, care, or protection is not being provided by his parent or guardian; that he has no parent, guardian or other person to ensure his appearance in court; that he may be dangerous to himself or pose a threat to the public safety; or that he has previously been adjudicated delinquent and is likely to commit an offense if released.(27) Absent any of the above findings, the Court must release the child pending his adjudication hearing.(28) In counties with populations greater than 125,000, the release of a child from detention that has been expelled under §37.007, Education Code, shall be conditioned on the child's attending a JJAEP pending a deferred prosecution or formal adjudication and disposition of the child's case.(29)

A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing conducted in accordance with §54.03 of the Texas Family Code, the Rules of Criminal Evidence and Criminal Discovery, and the Rules of Civil Procedure.(30) The child has an absolute right to a jury trial unless he intelligently and voluntarily waives such right in writing or on the record.(31) Constitutional rights available to adult criminal defendants are also available to the juvenile. For example, a child has the privilege against self-incrimination, the right to confront and cross-examine witnesses, the right to a jury trial, and the right to legal representation.(32) The child is presumed innocent and the State must prove that the child has engaged in delinquent or CINS conduct beyond a reasonable doubt.(33) If the State fails to meet its burden of proof, the child is found not delinquent and the court shall dismiss the child's case with prejudice.(34) This is the equivalent of an acquittal and, in the case of certain offenses, also requires notice to the child's school if the child was removed to an AEP pursuant to Tex. Educ. Code 37.006.(35) Upon receipt of this notice, the school must evaluate the child's placement as described earlier.

A finding that the child has engaged in delinquent or CINS conduct triggers a dispositional hearing, analogous to a punishment hearing in an adult criminal trial. The motivations behind juvenile disposition are somewhat different from the motivations behind the adult criminal system. While protecting the public and promoting the concept of punishment for criminal acts are components of the juvenile justice system, the stated purposes of the Juvenile Justice Code encompass more than punishment. Additional objectives include removing the taint of criminality from children who violate the law, and providing treatment, training and rehabilitation that emphasizes accountability and responsibility of both the parent and child. Final objectives of the juvenile justice system include providing for the care, protection and moral, mental and physical development of children referred to system, and protecting the welfare of the community and controlling commission of unlawful acts.(36) The Juvenile Justice Code calls upon the court to meet these objectives in a family environment whenever possible, by separating the child from his family only when necessary for the welfare of the child or the public.(37)

Court Disposition

The court may make a disposition of a child's case in one of two ways. First, the State and the child may enter into "plea bargaining" in a way that is substantially similar to the adult criminal system.(38) The juvenile court is not required to accept the agreement made between the State and the child, but must allow the child to withdraw his plea or stipulation of evidence in the event it rejects the agreement.(39) If the court accepts the agreement, the court makes disposition of the case in accordance with the terms agreed upon between the State and the child.(40) In the absence of an agreement, a dispositional hearing is held if there is a finding that the child is in need of rehabilitation or that the protection of the public or the child requires disposition.(41)

At the disposition hearing, the court may consider testimony of witnesses as well as written reports of probation officers, professional court employees, or other professional consultants.(42) Additionally, the child may admit and the court may consider prior unadjudicated conduct with the written consent of the prosecutor.(43) In that case, the child, who has been adjudicated for one offense, admits to conduct for which he cannot face future prosecution. In any event, the court can consider this conduct and the child's admission in making its disposition.

If the child has been adjudicated for CINS conduct, the court may place the child on probation in his own home, in the home of a relative or other "fit" person, or in a suitable foster home or institution.(44) The court may not commit the child to the Texas Youth Commission.(45) If the child is found to have engaged in delinquent conduct, the court may place the child on probation or may commit the child to the Texas Youth Commission, depending on the severity of the offense.(46) Although the court cannot commit a child to the Texas Youth Commission for CINS conduct, the court may revoke a child's probation for CINS conduct and commit him to the Texas Youth Commission if his original probation was for delinquent conduct.

All offenses and conduct are assigned a sanction level found in the Progressive Sanction Guidelines located in Chapter 59 of the Texas Family Code. Each sanction level is the presumptive disposition for the assigned conduct or offense. If the court deviates from the guidelines, it must state its reasons for doing so in writing and submit the statement to the juvenile board.(47) In addition to the informal dispositions previously described in this paper, these sanctions range from probation in the juvenile's home,(48) intensive supervision,(49) probation with a secure placement outside the home,(50) to an indeterminate commitment to the Texas Youth Commission.(51) Finally, the court may commit the child to the Texas Youth Commission under the Determinate Sentencing Act, whereby the child is committed for a determinate number of years, depending on the severity of the offense, with the possibility of transfer to the adult prison system.(52) This sanction is available in limited cases of violent or habitual felony offenders, and its application is extremely complex and beyond the scope of this article.

The above Progressive Sanction Guidelines are merely guidelines for the court, however. Although the court must specify its reasons for deviating from the guidelines when doing so, the decision to deviate or not to deviate is solely within the discretion of the juvenile court.

The foregoing has merely been an overview of the general workings of the Juvenile Court System and is certainly not exhaustive of all juvenile law issues. In recent years, each legislative session has brought many changes to both the Education and the Juvenile Justice Codes, and changes are certain to occur in the future. As society's and the legislature's response to juvenile misconduct continues to evolve, it will be incumbent upon school officials, and their attorneys, to keep abreast of current issues in the juvenile system and the manner in which a child's juvenile referral or disposition may impact the school's disciplinary decisions.

_____________________________________________

*J.D. 1992, Baylor University School of Law. The author wishes to thank Judith VanHoof, J.D., for her assistance with this article.

1. 1. Tex. Fam. Code § 51.04(a).

2. 2. Tex. Fam. Code § 51.02(2).

3. 3. Tex. Fam. Code § 54.02.

4. 4. Tex. Fam. Code § 51.03(a)(1), (c).

5. 5. Tex. Fam. Code § 51.03(c); Tex. Code Crim. Proc. § 8.07(a)(1).

6. 6. Tex. Fam. Code §51.03(a)(1-5).

7. 7. Tex. Fam. Code §54.04(d).

8. 8. Tex. Fam. Code § 51.03(b)(1-6).

9. 9. Tex. Fam. Code § 51.02(12).

10. 10. Tex. Fam. Code § 52.03.

11. 11. Tex. Fam. Code § 59.004.

12. 12. Id.

13. 13. Tex. Fam. Code § 53.04; 59.005.

14. 14. See Tex. Code Crim. Proc. art. 42.12 § 5.

15. 15. See Tex. Fam. Code § 54.032.

16. 16. Tex. Fam. Code § 53.03.

17. 17. Tex. Fam. Code § 53.03(e), (g).

18. 18. Tex. Fam. Code § 59.003.

19. 19. Tex. Fam. Code § 59.003(a)(1).

20. 20. Tex. Fam. Code § 59.003(a)(2).

21. 21. TEC § 37.006(c)(1).

22. 22. Tex. Fam. Code §53.012; 59.002.

23. 23. Tex. Fam. Code §59.002.

24. 24. Tex. Fam. Code § 53.03.

25. 25. Tex. Code Crim. Proc. §15.27.

26. 26. Tex. Educ. Code §37.006(h).

27. 27. Tex. Fam. Code § 54.01(e).

28. 28. Id.

29. 29. Tex. Fam. Code § 54.01 (f).

30. 30. Tex. Fam. Code § 51.17.

31. 31. Tex. Fam. Code §51.09(1-4); 54.03(c).

32. 32. Tex. Fam. Code § 54.03(b).

33. 33. Tex. Fam. Code § 54.03 (f).

34. 34. Tex. Fam. Code § 54.03(g).

35. 35. Tex. Code Crim. Proc. §15.27(g).

36. 36. Tex. Fam. Code 51.01.

37. 37. Id.

38. 38. Tex. Fam. Code § 54.03(j).

39. 39. Id.

40. 40. Id.

41. 41. Tex. Fam. Code § 54.04(c).

42. 42. Tex. Fam. Code § 54.04(b).

43. 43. Tex. Fam. Code § 54.045.

44. 44. Tex. Fam. Code § 54.04(d)(1).

45. 45. Id.

46. 46. Tex. Fam. Code § 54.04(d)(2).

47. 47. Tex. Fam. Code § 59.003(e).

48. 48. Tex. Fam. Code § 59.006

49. 49. Tex. Fam. Code § 59.007

50. 50. Tex. Fam. Code §59.008

51. 51. Tex. Fam. Code § 59.009.

52. 52. See Tex. Fam. Code § 54.04(d)(3); 59.010.