THE .fiT’PORNEY GENERAL
OF TEXAS
PRICEDANIEL
ATTORNEY
GENERAL
Mr. Maxwell Weloh, Opinion No. V-193
Distriot ,&ttorn6y,
%tfh Judicial UiPtrict, x0: L6gQlity of holding 8
New Boatcm, Texae minor aoousad of r&k
bery until ho r6a6&8
17 years 0r age ae
thatbe may be trfed
as a felon rather than
a juvenile delinquent.
bsar Sir:
Tour letmr of April 16, 1947, to this de
partlwnt &&l68~ tllo following question:
atly 8 boy rho ooD0itt6d the oft6nse
of robbery with rlreaw at the age ot six-
tesa years and clnrn montha, and who was
armsted inmediately after the offemss oo-
ourred, be Q%diot~od and held. gatil he xbaohes
the age of serentwn and then b6 tried aa an
adult, or ehoald he be 'tried 8s juwml.l6?~
You are ad+ind tiiat the trial of such y6uth
my not be int6ntlonally delytid for the sole purpose of
-6ll6winc: him to rmoh htsl 17th birthdate, Art. 1, 980-
tien 10 oi the Te&o Coutltutlon, aad Arto 3, Co&P, prop
vlda :
%In all oriniorl proseoutione the ao-
oussd &all hay96 6p66dy publAo tdal O ,'o **
This same rfght is &aranteed by the 0th A-'
&6ndment of the T6d6ral Constitution. While proc66dings
under the Jurenilr~Aot (Art. 9336~1) *re hot strictly.
criminal in nature, it is belimed that the acousod, im-
der suah sot, (who a&y.bd deprived 01 his liberty uatil
he is 21 ybare of age), ir entitlid to the pmthotllon ar-
forded by suoh provision. To pOatp6Lt6 th6 trial o? the
lotiuaed for the above arbitrary r6a8on would bs to deny
him the inalienable right above gu6ranteed. If the trial
oould purposely b6 pestponed a month, as in ths oas6 UII-
drr~ooneideration, it would,be extmm6ly difrioult~to mu
draw a line in othee oas68 wIna! it might be thought dq-
yr. Wxw411 W416h - Fag0 2 &mli~on mor v-loal
‘: .
sirabls to postpone th6 trial of oth# y6uths fork 0
neatha, a year, or longer, until they Should becom6 19
years of age. Suoh a 06~1~6 of a&ion oould not be
justified under our 06natltntioMo
This principle ia reoagntzsd~by the Court
or Criminal Ap~alr. Tn 237 s. wi. 298,
the acoused laoked om 6 liIl6 17 rholl
the off6nse was committ4dc Aft62 he became 17, h6 wM
tried as a felona Tlw oont6ntian -8 made that bia
trialhad beenln~ntlomlly &la* Imfdlh0 ke 1%
The Appellate Q6urt eaid that It frplhd l6 erid6404 t6
support euoh 06ak&i4n and overruled it. It titatsd,
h6woYerr
969, the'isaune ?wia ral86
ror rehrarhg thatthe trial of t&e dnm he& 8rw1 1&&M=
tionally delayed until &a ~coabd L'po f$ nu &a&d t&e*
there was~no 4~Id6nc6 to sortaln mwh 64mMrUn amd r~
that the p6int wa# raikd'tao la@., n, Qnr+ d *iS$-
rrplAp~als,~oCthole~,~esoasl~~nrytthe
above quqtsd prin6ip1eo
It huot be etatad,how616rs
that it lr th6
ofiferm Texas rub that th6 ago of the y6uth a* ti&O~tm
af trial, (and nd his a@ at the time 6f th6 ocrslmlss;taa
OS the off4!~#6) whlohIS OontrollinB
with ~lcr~~~Wt0
whothorho ohm&id bo tried48 a
(a%~ wiml?)1
S66tien la of hrt, 2338-l mmed tn. 194S
iollowr the abwe ru&abf td
etatif.qf a youbl, 4n t&l
oOarto ehould b6 dellvemd to'
t should be amobrtain6d that the
the age of serenteon (17) yeare &,
~Bmpha~l~ our81
Mr. Maxwell Weloh - phs4 3 (V-192)
offense, he is held to be properly triable hS a felOIb
In Hardie vti State, (Tsx, Grim,) 144 Y. w. (2d) 571,
an offense was committed by a 16 year old boy on April
28ths His mother appeared on May 6th and disolosed
that the boy would not be 17 years old until May 9th.
all of the same year* She requested that the child be
tried immediately aa a delinquent child, The oounty
attorney told the mother that he intsndsd to pF4Sent
the matter to,the Grand Jury on Nay 10th; and he fol-
lowed suoh oourm of aotio& On appeal, the oontention
was made that it waa obligatory for the count;l attorney.
to proceed imdiately against the minor a8 a delln@tent,
and that he wae not juetified In holding the rrmtter ut+
til the Grand Jury should act* The Court ,of erifuinal
&ppeale held:
"The law oontemplat68 au oontroli$g
in euoh matter&i the age of the aoouaed a%
the time of the trial. not his am at the
the aipellant-hi&be& iirat tried.i'or f&4
murder of his father while he wa8,onl.y sir-
teen years of age whioh first oaw wa6 reL
versed by this court on that ground, the
oourt holding that he should~ h&vi been pro-
oeeded a&net ~8 a jnreaile. ~. B Upon the
rerereal of this aaM) theaooused had
reached the ago of aetenteen year.9,~ and he
was agaih put up40 hia trial for mu.rda& Q a
and although the oifeaae was oharmd t0 haye
bean committed OD.a date which showed the
acoumd was under the age of. seventeen yearail,,
aevertheleee it wa8 held that the ago of the
aaeused at the tinm of the trial and not at
the time of the oomrPLamionof the Off6n86 wal
that whioh govemod in regard to his 5rttenil-
ity* o o We have 80 doubt of the correatnere
of this doatrine, and this bill ie orerT@edbo”
(~ha8is ours)
ridtwit that ho uaa 16 years of slge, and would not be 17
. .
MT. ypirsla Reloh - BB#e 4 (Y-192)
until May 25, the month rollowlng; The matter was set
for a hearing on April 21st, at which time the oourt
metalned the motion of the State to contlnue_the mat-
ter to the next term or oourt, to begin-May 28, (rive
days after the aoou8ed’s 17th birthday), beoause the
district attorney had not haa an adequate opportunity
to prepare hie proof on the youth’ 8 age. When the .case
was tried, the aooumd admltted that he had beoome, and
was, 17 years 0r age. upon appeal, it was held that,
there being no showing Or bad faith on the part Of the
dletrlot attorney, and a ahowing that the youth98 afff-
aavlt was riled on the last bay or the terms the aooueea
was properly tried a8 a felon, since he wata 17 at the
time 0r triUr
In a deoi6ien.handed down by the Court oi
CrMnal App6als April 50, 1947, DearMa
ret reDorts4). a 16 smar’ola boy robbed an
?armer’e wlri-on July ‘14, 1945,- On July 20th iolla-
ing, the county attorney riled ohxrgss againat’him a8
a delinquent child. because of a former robbery: ‘and the
boy wae mnt to the Gatearllle Sohool until he Should
become 21. In May or 1946, after-the boy beoame 17, he
was indicted ror the above murder, returned from Gates-
ville, tried aa a r+$:9n
~.&%%&~pe~ rtg ~=&“o~““c~~-
Following the oaWB
nal Appeals affirmed the fudgment,aholdlng the boy prop&
erly triable au a felon aitor reaohlng 17. The opinion,
a copy or which is enclosed, made la part:
‘To hold that a male. child who com-
mitted an orrsnm two days, two we&~, or
two months prior to the time that he be-
~plb 17 ysars or age 00ula not be proas-
outed ror said erfease after he reaohee
his 17th year. weuld be creating a haven
91: fufnge rOr the ocfrinally inclined. o o
Orderly uoefOlty La entitled to proteotion
98 wella8 a aeiinqtmtt Ohiiaow .~
The’ trial of a youth 16 yeare and 11
months or age oannot be fatentfonally a+
layed until he beoartse a7 yeare 0r age for
the sole purpose 0r trying him as’s rel0a
rather than a delinquent, Art, 1, See. 10,
Texas ‘Constitution. Where, however, in the
normal oou~p118of evontu8the youth reaches
ylr. Manmll Welch - Page 5 (V-192)
the a&o or 17 berore trial, her iar
properly triable ab a felon. One
who oommits a felony while under 17,
may bs'indlctsd and tried artier reach*
hg the age or 17* (Dearing v. State, ',
~er~~Crlrn, App+, opinion of April 90,
X947* mt yet repfmted,)
Yours very away,
ATTORNIIY-GlZNERALOF~
A!l'TORNEYGENERAL
OP'l'EikS