concurring.
I concur in the opinion of the majority for the reason that the language of the 1967 amendment to Article 2338-1, V.A.T.S., whatever the presumed intent of the Legislature, cannot be held to effect the change attributed to it by the dissent.
The statement denominated “Purpose of 1967 Amendatory Acts” fails to promulgate what the dissent perceives to be the legislative purpose of extending juvenile court jurisdiction. In pertinent part, this so-called statement of purpose sought “to prevent children being proceeded against in both juvenile court and district court or criminal district court for offenses committed while of juvenile age.” [Emphasis added]
The amended act, Article 2338-1, Sec. 3, defines child as “any female person over the age of ten years and under the age of eighteen years and any male person over the age of ten years and under the age of seventeen years.” A delinquent child is said to.be one who violates a penal law of the grade of felony or who falls into any of the other six categories of delinquency listed. The 1965 codification of 2338-1 contained no separate definition of child, mere*131ly defining “delinquent child” in the same terms set forth in the 1967 act. For jurisdictional purposes, the additional definition makes no difference. See Garza v. State, 469 S.W.2d 169 (Tex.Cr.App.1971) (term “child” is used in statute to include delinquent children).
The dissent finds support for its view of juvenile court jurisdiction predicated on age at the time of the commission of an offense in that part of the transfer provision of Article 2338-1, Sec. 6, declared to be of no effect in Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966). I cannot agree with the dissent that Section 6 said anything plainly, much less that it defined clearly the boundaries of juvenile court jurisdiction. To the contrary, even upon cursory examination, Section 6 is revealed to have been internally inconsistent and contradictory. It was provided that “no child under sixteen (16) years of age at the time the offense is committed shall be so certified, and no child under sixteen (16) years of age at the time the offense is committed shall” be prosecuted as an adult at any later date unless transferred by the Juvenile Court, . . . .” It will be readily apparent that, on the one hand, an offender under the age of 16 could not have been certified for prosecution as an adult at all and, on the other hand, that he could not have been prosecuted as an adult without such juvenile court certification! Moreover, the subject of each verb in this section is “child” which, considering the legal definition thereof, hardly militates in favor of a finding that Section 6 was meant to expand the jurisdiction of the juvenile court. It could hardly have been the occasion of great surprise to the Legislature that this Court should find such a statute incomprehensible.
Turning now to the statement following the 1967 amendments to Article 2338-1, V.A.T.S., entitled “Purpose of 1967 Amend-atory Act,” and subjecting to scrutiny the language therein, one seeks in vain for a declaration of legislative intent to expand the jurisdiction of the juvenile courts so that such jurisdiction is determined by the age of the defendant at the time of the commission of the criminal act. Not even by the most labored and attenuated exegesis can one derive from the study of this statement the conclusion that the Legislature intended to overturn the long-standing judicial rule, of which it must surely have been aware, that the jurisdiction of the juvenile court was to be determined as of the time of trial. See Salazar v. State, 494 S.W.2d 548 (Tex.Cr.App.1973); Boyett v. State, 487 S.W.2d 357 (Tex.Cr.App.1972); Dillard v. State, 439 S.W.2d 460 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.); Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983 (1947); Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944). See also cases collected at 89 A.L.R.2d 506.
Moreover, an examination of Sec. 6(b) of the amended act, wherein one would logically expect to find a clear expression of legislative intent to expand the jurisdiction of the juvenile court, reveals no such expression. Sec. 6(b) reads:
“If a child is charged with the violation of a penal law of the grade of felony and was fifteen years of age or older at the time of the commission of the alleged offense, the juvenile court may, within a reasonable time after the alleged offense, waive jurisdiction by following the requirements set out in Subsections (c) through (j) of this section, and transfer the child to the appropriate district court or criminal district court for criminal proceedings.” [Emphasis added]
Taking into account the definition of “child” in the 1967 codification and the pri- or judicial construction of the limits of juvenile court jurisdiction, one can hardly imagine that the quoted language was intended to express the intent of the Legislature that a juvenile court should have jurisdiction of one who, by the definition of the statute, was an adult when charged, merely because he committed a crime while within the jurisdictional age limits of the juvenile court.
Similarly, the language of Section 6(j) negates the inference that one arrested after reaching majority is within the jurisdiction of the juvenile court. Section 6(j) provides:
*132“If the juvenile court waives jurisdiction it shall certify its action, including the written order and findings of the court and accompanied by a complaint against the child, and transfer the child to the appropriate district court or criminal district court for criminal proceedings. Upon transfer of the child for criminal proceedings he shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. . . .” [Emphasis added]
Section 6(k) provides:
“If the child’s case is brought to the attention of the grand jury and the grand jury does not indict for the offense charged in the complaint forwarded by the juvenile court, the district court or criminal district court shall certify the grand jury’s failure to indict to the juvenile court. Upon receipt of the certification the juvenile court may resume jurisdiction of the child.” [Emphasis added]
Here again, the language of Section 6(k) does not lend itself to an interpretation favoring juvenile court jurisdiction of one who has, by the definition of Article 2338-1, reached adulthood.
Section 12 of Article 2338-1 was likewise amended by the 60th Legislature in 1967. A comparison of the language in the amended section to that of the 1965 version reveals no substantive change. As revised, Section 12 read:
“Sec. 12. If, while a criminal charge or indictment is pending against any person in a court other than a juvenile court, it is ascertained that the person is a child at the time of the trial for the alleged offense, it is the duty of the court in which the case is pending to transfer the child immediately together with all papers, documents, and records of testimony connected with the case to the juvenile court of the county unless the child is being held under the authority of Section 6 of this Act. The transferring court shall order the child to be taken forthwith to the place of detention designated by the juvenile court, or to the juvenile court itself, or to release the child to the custody of a probation officer or any suitable person to appear before the juvenile court or the probation department of the county at a time designated. The receiving juvenile court shall set the case for hearing and dispose of the case as if it had been instituted in that court originally. Unless the child is subsequently transferred by the juvenile court as provided by Section 6 of this Act, he is not subject to prosecution at any later date for the alleged offense.” [Emphasis added]
Nothing in this revised version of Section 12 is so at variance with prior versions, upon which was founded the judicial rule that age at the time of trial was the controlling jurisdictional factor, as to lead to the logical inference that it was the intent of the Legislature to abrogate the judicial rule.
We are not here presented with a situation where, this Court having annulled a clearly-expressed statutory rule, the Legislature thereafter enacted one of similar ten- or. In Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), we found part of Section 6 to be unintelligible. The Legislature amended the Act in the following year, stating that this was necessary because of the holding in Foster. Since that part of Article 2338-1 struck down in Foster was beyond comprehension to begin with, a mere statement of the Legislature’s intention to replace it with one of like import can be of no use in divining the underlying purpose of the original enactment. Longstanding precedent ought not to be abrogated on the basis of an intuitive conjecture as to the intended meaning of an indecipherable statutory provision.
Moreover, there is nothing in the language of any of the amended sections of Article 2338-1 which necessarily supports the inference that it was the Legislature's intention to avoid the judicial rule. It would have been simple indeed for the Legislature to so state had they meant to provide that juvenile court jurisdiction was to be determined by the age of the defendant at the time of the commission of the offense. As stated in the concurring opinion *133in Dillard v. State, 439 S.W.2d 460, 462 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.) (Justice Johnson, concurring).
“Neither the purpose of the amendato-ry act of 1967 nor the act itself specifies an intent that the age of the defendant at the time of the alleged offense rather than his. age at the time of trial is to be controlling. The same is true of Art. 30, Vernon’s Annotated Penal Code, for defendants over 15 years of age. It is not for the judiciary to supply a changed intent where the Legislature has not particularized it.”
As the majority points out, this defendant was arrested, indicted and tried after he had reached the age of 17 and was no longer a child within the terms of Article 2338-1. According to the provisions of the Act, he was never subject to the jurisdiction of the juvenile court and should not be heard to say that his conviction as an adult was obtained in violation of the terms of the Act. Habeas corpus relief should be denied.
DOUGLAS and W. C. DAVIS, JJ., join in this opinion.