(concurring).
I only concur with Presiding Judge WOODLEY in the disposition of this case. I do not agree with him at all for the reasons that he states in his opinion. I can make no distinction whatsoever in this case and that of Garza v. State, 369 S.W.2d 36. I vigorously dissented in Garza’s case both on original submission and on rehearing. I thought that Garza’s case was wrong, and I still think that it is wrong. I think that Garza should be overruled. Garza was not convicted of murder in the Juvenile Court either. He was adjudged to be a delinquent child because he had committed the felony offense of murder, just as this boy was adjudged a delinquent child because he had murdered both his parents.
I have long taken the position that the Juvenile Act is entirely civil in nature, not criminal. This position was clearly stated by the writer in the opinion that he wrote in Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248. Being civil in nature, jeopardy cannot and does not attach.
If Garza was not decided upon the theory of former jeopardy, then the opinion by the majority on the State’s Motion for Rehearing in Garza does not mean what I read it to mean. Let’s take a look, it says:
“In the present case it is undisputed that the appellant’s conviction for murder is for the same act and offense for which he was, upon petition of the district attorney, adjudged a delinquent child and confined in the state school for boys. Under such facts, the conviction does violate the principles of fundamental fairness and constitutes a deprivation of due process and equal protection of the law.”
I personally think this means double jeopardy. If it doesn’t, then how did Garza’s conviction violate the principles of fundamental fairness and constitute a deprivation of due process under the 14th Amendment?
Judge Woodley says in his opinion that this boy, Sawyer, was declared a delinquent child because he has violated the Penal Code of the State of Texas of the grade of felony. I ask, what felony? It must have been the two murders, those of his parents. None other were shown to have been committed. Judge Woodley further states in his opinion that “[t]he record, including the testimony of the Honorable Joe Frazier Brown, who presided and entered the order declaring the petitioner herein a delinquent child, shows that evidence was introduced as to both murders *278and the Juvenile Court acted upon such evidence, though there was no allegation and no finding that petitioner committed either.” There could not have been under the laws of the State of Texas. The Juvenile Court has no jurisdiction to try-murder cases. All that any juvenile may be tried upon in the Juvenile Court is a petition to determine whether or not he shall be adjudged and declared to be a delinquent child. • The commission of a felony may be alleged as grounds for declaring the child delinquent. The hearing or trial in the Juvenile Court is to determine one thing and one thing only; that is, the status of the juvenile, not a determination of guilt or innocence of any crime, whether it be a felony or a misdemeanor.
I do not think that jeopardy attached in the Juvenile Court, as this court had no jurisdiction except in civil matters. If Garza, supra, was not decided upon jeopardy, the fact remains that there can be no deprivation of due process or violation of fundamental fairness under the 14th Amendment except in a criminal court.
I think that the opinion by Presiding Judge Woodley is another “legal fiction”. My views have been heretofore fully expressed in my two dissenting opinions in Garza, supra, and my views in Hultin, supra.
I agree only with the last paragraph of his opinion in which he denies the relief prayed for and remands petitioner to the custody of the Texas Departments of Corrections.