dissenting.
To the denial of relief and to the refusal of the Court to give effect to clear legislative statements of intent respecting persons who commit felony offenses while juveniles but are tried as adults after reaching age seventeen, I respectfully dissent. The rule of stare decisis, if that is what has been at work here, was never thought an appropriate mask to cover judicial oversight and, hence, an erroneous conclusion. With all deference, when the historical record is incorrectly read, albeit consistently so, my judgment is it must be corrected at the first opportunity. I thought it had been by the carefully researched and thoughtfully expressed opinion just rendered in Trahan v. State, 591 S.W.2d 837 (Tex.Cr.App.1979). There we concluded that from specified sections of Article 2338-1, as amended in 1967, “it is clear that where criminal charges are brought against a juvenile who was 15 or older when he committed the alleged offense, the juvenile court has exclusive jurisdiction.”1 But now the majority does not follow Trahan.
This Court has nearly always seen, or professed to see, “perplexing problems”2 with juvenile delinquency acts of the Legislature. Even after the Legislature revised certain sections of the act in 1965 to say rather plainly in, inter alia, § 6,3 Article 2338-1, V.A.C.S., what is meant with respect to what it mandated in the juvenile court was “exclusive original jurisdiction” to handle described juveniles,4 the Court unabashedly found the language quoted in the margin “so indefinitely framed and of such doubtful construction that it cannot be understood . . . and must be regarded as wholly inoperative,” Foster v. State, 400 S.W.2d 552, 557-558 (Tex.Cr.App.1966).
The legislative reaction and response came the very next session in the form of *134amendments to the law.5 Section 1 of the amendatory act served to inform anyone who read it6 just what the Legislature had in mind:
“The purpose of this Act is to . provide a procedure and grounds for the juvenile court to waive jurisdiction and transfer children for criminal proceedings in cases involving offenses committed by children 15 years of age or older; and to prevent children being proceeded against in both the juvenile court and district court or criminal district court for offenses committed while of juvenile age. This Act is necessary because a portion of a similar Act was declared unconstitutional in Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), because the court was unable to determine the purpose and intent of the Legislature.’’
Consistently with other changes made in Article 2338-1 to implement its expressly stated intent and purpose — I need not examine them for their construction should be governed by such a definitely emphasized declaration — the same act amended Article 30, Penal Code 1925.7
Thus, notwithstanding a line of cases from the Court with the uniform holding that age at time of trial rather than age when committing an offense — except perjury — controls a determination of juvenile court jurisdiction, Trahan correctly concludes they are not controlling after the 1967 amendments to Article 2338-1 and Article 30, supra. Neither are those cases decided after the 1967 amendments since they did not address headon the expressly declared legislative intent and purpose, and thereby fell into error.8
To its perpetuation of the error by this instant opinion of the Court, I respectfully dissent.
ONION, P. J., joins.. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983, 989 (1947) in which four opinions were written on one aspect of the very problem before the Court today, the notion nagging the Court being “to hold that a boy who committed a heinous offense before he became 17 years of age could not be tried for that offense after he arrived at the age of 17 would be equally bad” since “[o]rderly society is entitled to protection as well as a delinquent child.” That rationale is not an expression of stare decisis, although the opinion cites many prior cases also relied on by the Court today; it is purely an expression of personal values deeply held.
. Acts 1965, 59th Leg., p. 1256, ch. 577, § 3.
. In pertinent part, in 1965 the rather elaborate certification and transfer procedure provided:
“If a child sixteen (16) years of age or older is charged with an offense which would be a felony if committed by an adult and the (juvenile) Court .... deems it contrary to best interest of such child or the public to retain its jurisdiction . . . .; but no child under sixteen (16) years of age at the time the offense was committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court . . .”
. Acts 1967, 60th Leg., p. 1082, ch. 475, §§ 2-7.
. Being a statement of purpose and intent of the amendatory act, § 1 of that act was never codified into Article 2338-1, supra. It appears, however, following the article under the heading, “Purpose of 1967 Amendatory Act,” in 7A V.A.C.S. 70.
. Until then Article 30, supra, barred conviction of any person before age nine “except perjury,” or any other offense committed between the age of nine and thirteen unless he understood the nature and illegality of the act. The 1967 changes, as pertinent:
“Section 1. No person may be convicted of any offense except perjury, which was committed before he was 15 years of age
Section 2. No male under 17 years of age and no female under 18 years of age may be convicted of an offense except perjury unless the juvenile court waives jurisdiction and certifies the person for criminal proceedings.”
Ex parte Matthews, 488 S.W.2d 434, 438 (Tex.Cr.App.1973), cited by the Court throughout its opinion, refers to the stated intent and purpose of the 1967 amendments and construes two of them to provide that “the juvenile court has exclusive jurisdiction in proceedings governing any delinquent child and the juvenile court may waive jurisdiction of a child who is charged with a felony offense committed when the child was fifteen years of age or older by following the procedure set forth therein.” Curiously, today the Court paraphrases that very language — “. . it becomes clear that where criminal charges were brought against a juvenile who was 15 or older when he committed the alleged offense, the juvenile court had exclusive original jurisdiction” — but refuses to apply it apparently because although under seventeen when the offense was committed petitioner was not arrested, indicted or tried until he became seventeen.
.The first such case following chronologically the amendments appears to be Dillard v. State, 439 S.W.2d 460 (Tex.Civ.App. Houston [14th], writ ref'd n. r. e.), and it is plain that the majority opinion, if aware of it, chose not to discuss § 1 of the 1967 amendatory act, and that the concurring opinion, in alluding to the purpose of the amendatory act, must have read something other than § 1 as quoted above to find that nothing “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.” Let us read, again, the phrase in § 6 of the 1965 act, “and no child under sixteen (16) years of age at the time the offense was committed shall be prosecuted as an adult at any later date unless transferred by the Juvenile Court . . .,” § 1 of the amendatory act of 1967, and § 6 as amended. Dillard’s progeny are not relied on by the Court in its opinion in the instant case but none, except Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973), as shown on note 7, even advert to § 1 of the amendatory act, and it reaches the same conclusion I do.