concurring.
I concur in the result reached by the majority opinion authored for the court by Judge Roberts. In light of some of the things said by the dissent, I feel it necessary to review the history of the various enactments dealing with the discretionary transfer of a juvenile to be tried as an adult.
Turning the clock back only a few years, we find that the age of an accused at the time of the trial and not his age at the date of the alleged offense determined whether the accused was to be tried in juvenile or adult court. Northern v. State, 152 Tex. Cr.R. 569, 216 S.W.2d 192 (1948); Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21 (1961). Thus, an accused, upon attaining the age of seventeen years, was properly tried in adult court for felony offenses committed prior to reaching that age. Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983 (1947); Roberts v. State, 153 Tex.Cr.R. 308, 219 S.W.2d 1016 (1949); Peterson v. State, 156 Tex.Cr.R. 105, 235 S.W.2d 138 (1950), cert. den. 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361; Eiliott v. State, 168 Tex.Cr.R. 140, 324 S.W.2d 218 (1959); Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605 (1961); Perry v. State, supra; Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966).
As a result, a juvenile accused of a heinous felony offense was often declared a juvenile delinquent on the basis of the same offense, some other offense growing out of the same transaction, a revocation of a previous juvenile probation, etc., and committed to the Texas Youth Council, and later brought to trial as an adult when he reached seventeen, eighteen or nineteen years of age, and had matured in appearance, etc. See, e. g., Perry v. State, supra; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929 (1961); Huitin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248 (1961); Foster v. State, supra.
In Garza v. State, 369 S.W.2d 36 (Tex.Cr.App.1963), this court held that the conviction of Garza for murder violated the principle of fundamental fairness and constituted a deprivation of due process where prior to such conviction, which occurred after *846Garza reached the age of seventeen years, Garza had been adjudged a delinquent child on the basis of the same act of murder and held in custody as a delinquent child until his trial as an adult. Other cases where the convictions had been upheld in this court were set aside by the federal courts. Sawyer v. Hauck, 245 F.Supp. 55 (W.D.Texas, San Antonio Division, 1965); Huitin v. Beto, 396 F.2d 216 (5th Cir. 1968); Martinez v. Beto, 398 F.2d 542 (5th Cir. 1968).
It was obvious that a new approach involving fairness had to be adopted when the state judicial system was dealing with a juvenile who had allegedly committed a heinous felony offense. Thus, in 1965 the first discretionary transfer act was passed as an amendment to Article 2338-1 (See, e. g., Acts 1965, 59th Leg., p. 1256, ch. 577, § 3 [H.B. 444].). At first the transfer provisions were limited to the juveniles sixteen years old still within the jurisdiction of the juvenile court who were accused of a felony. The Legislature was, of course, concerned that other safeguards be installed before a juvenile be thrust into district court for trial as an adult. The pertinent parts of the 1965 enactment were set out in Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), and need not be requoted here. It provided a three step procedure commencing with a certification hearing in juvenile court, an examining trial in district court, and a return of the juvenile to the jurisdiction of the juvenile court if the grand jury refused to indict, in which case no further action by any grand jury could be taken against the juvenile with regard to the offense involved. At any of the three steps of the certification process the proceedings could be terminated and the matter handled solely in the juvenile court.
The said 1965 amendment provided that in regard to the examining trial aspect district judges would have the powers and duties conferred upon examining magistrates by the Code of Criminal Procedure. It further stated, “Provided that upon hearing the District Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require.”
The amendment was widely acclaimed as removing the old injustice and providing that the juvenile could be tried willy-nilly as an adult in view of the three step procedure enacted as safeguards.
In Billings, “The New Juvenile Delinquent Law,” 31 Tex.Bar Journal 203, 242, 243, the author in discussing the amendment wrote:
“The Juvenile Court may, instead of retaining jurisdiction decide to transfer the child to the District or Criminal District Court for criminal proceedings. This court, however, may disagree with the Juvenile Court and return the child to the Juvenile Court to be proceeded against as a juvenile delinquent. The District or Criminal District Court must hold an examining trial to make its determination at which time the child is to be represented by a lawyer ....
“The District or Criminal District Court may instead of referring the child back to the Juvenile Court, send the case on to the Grand Jury. However, the Grand Jury is under no compulsion to indict. If the Grand Jury does not indict then the District or Criminal District Court must certify that fact to the Juvenile Court, which then must resume jurisdiction of the child.” (Emphasis supplied.)
A portion of the 1965 amendment to Article 2338-1, supra, was held unconstitutional in Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), but it did not directly relate to the above discussion, and in 1967 Article 2338-1, supra, was again amended (Acts 1967, 60th Leg., p. 1082, ch. 475).
The 1967 amendment to the said statute was similar in nature to the 1965 amendment with certain language changes, all of which is set forth in Menefee. § 6(j) of the statute, as amended, provided in part that after transfer from the juvenile court the “child” shall be dealt with as an adult in accordance with the Code of Criminal Procedure. The subsection then provided, “However, the examining trial shall be con*847ducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.”
In 1973 Article 2338-1, supra, was replaced by V.T.C.A., Family Code, § 54.02 (Acts 1973, 63rd Leg., ch. 543 [see p. 1406]). Like its forerunners, said § 54.02 provided the same safeguards as earlier provided. In subsection (h) of the statute it is provided in part, “The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”1
In Menefee v. State, supra, this court wrote:
“It is clear from these enactments that the legislative intent has been that a three step procedure be followed before a juvenile, sixteen and later fifteen years old or older, is tried in district court as an adult. At each step safeguards were provided. If the juvenile court decides to retain jurisdiction at the hearing to determine if the court should waive jurisdiction and certify the juvenile for criminal proceedings, that ends the matter with regard to certification. The juvenile then will be handled as a juvenile. If there has been certification and the district court, following an examining trial, decides to remand the juvenile to juvenile court, then the juvenile will not be tried as an adult but will be subject to the jurisdiction of the juvenile court. If the juvenile, after an examining trial in district court, is bound over for action by the grand jury and the grand jury does not indict, the district court certifies such failure to indict to the juvenile court and the jurisdiction of the case is resumed by the juvenile court. Thus, at any of the three steps if there is a decision not to prosecute the juvenile as an adult, then the juvenile will not be so prosecuted.
“While there have been changes in the language in the various enactments, the purpose and basic procedure has remained the same.”
Thereafter, the court in Menefee concluded that the examining trial was to be the second vital step in determining whether a juvenile should be tried as an adult, and that the indictment returned against Mene-fee prior to an examining trial must be set aside.
The dissent now says the reasoning in Menefee was based on a faulty premise. How was it faulty? Did the Legislature never intend the examining trial to be a second vital step in the discretionary transfer procedure, or having once so intended, did it amend the law to provide otherwise? The dissent does not tell us and seems to steer clear of any analysis or.even discussion or mention of’the various enactments providing for an examining trial since 1967 for the discretionary transfer procedure.
After labeling the premises in Menefee faulty, the dissent, without more, immediately launches into a discussion of V.T.C.A., Family Code, § 56.01, providing for an appeal from the juvenile court’s order transferring a juvenile to a district court. Thereafter, the dissent boldly asserts, without reasoning and without a discussion of previous provisions for appeals:
“The provisions for an appeal from the juvenile court’s order of transfer reflects the Legislature’s intent that a determination is to be made on this issue (whether the grand jury may be expected to return an indictment) in the juvenile court and negates any suggestion that a second step is required to be taken in this procedure.”
Said § 56.01 provides, inter alia, generally for various appeals from the orders of the juvenile court to the Courts of Civil Appeals and by writ of error or upon certificate to the Supreme Court of Texas as in other civil cases. It does provide, inter alia, that “(c) An appeal may be taken by or on behalf of the child from: (1) an order entered under Section 54.02 of this code respecting transfer of the child to criminal court for prosecution as an adult.” In subsection (c)(2), (3), (4) and (5), appeals are *848also provided for from orders entered in juvenile court under §§ 54.03, 54.04, 54.05 and Chapter 55 of the Family Code.
A reading of § 56.01 (Acts 1973, 63rd Leg., p. 1485, ch. 544, § 3) clearly shows it is applicable to all types of appeals from orders of the juvenile court just as its forerunner, Article 2338-1, § 21, provided in more general terms for appeals from orders of the juvenile court long before the enactment of the first discretionary transfer act in 1965. It cannot be said, as does the dissent, that merely because an appeal is provided from the order of the juvenile court transferring a juvenile to the district court that such is indicative of the legislative intent that an examining trial is not a second vital step in the transfer process. There is nothing to support such assertion and it is therefore obvious why the majority offers no support for its assertion.
It is true that in making the determination whether to transfer the juvenile to district court one of the factors the juvenile court shall consider, among other matters, is whether there is evidence on which a grand jury may be expected to return an indictment. This, of course, is only one of the many factors that must be considered by the juvenile court, and on appeal the failure to consider a necessary factor may be raised. However, such appeal is not a substitute for the examining trial in district court after transfer. § 56.01(g) of the Family Code provides that an appeal does not suspend the order of the juvenile court. The appeal is entirely distinct from the examining trial procedure prescribed by transferred juveniles. If the Court of Civil Appeals determines on appeal that reversible error was made by the juvenile court in the discretionary transfer procedure, the case is generally remanded to the juvenile court, but this does not mean that the proceedings to try the juvenile as an adult are then terminated. The proceedings may commence anew in the juvenile court. However, as we have interpreted the law in Menefee, when the examining trial takes place in district court the trial judge may remand the case to the juvenile court and that terminates the adult proceedings against the juvenile, it being one of the three step procedural safeguards provided by law. The district judge in conducting an examining trial in such situation is not conducting an appellate review of the correctness of the juvenile court’s proceedings, as that is provided for elsewhere, but is making an independent determination whether the proceedings against the juvenile as an adult should be ended at that point or should be continued.
As noted by Chief Justice Cadena in Q_ V_ v. State, 564 S.W.2d 781, 785 (Tex.Civ.App.—San Antonio, 1978), “There is nothing in the Family Code indicating that, after transfer, the examining trial conducted by the criminal district court must be, in effect, a second hearing on the question of waiver of juvenile court jurisdiction ... If the criminal district court, after conducting the examining trial, concludes that there is no probable cause for holding the child to await the action of the grand jury, it may, instead of ordering the child released, as would be the result in a case involving an adult, remand the child to the jurisdiction of the juvenile court.”
The dissent argues that a certified or transferred juvenile is to be treated as an adult under the express terms of V.T.C.A., Family Code, § 54.02(h). The section so provides, but this cannot be taken too literally. The section also provides that the examining trial shall be conducted by the district court to which the transfer is made and that the court may remand the juvenile to the jurisdiction of the juvenile court. While legally trained district judges are magistrates (Article 2.09, V.A.C.C.P.) and may conduct examining trials for adults, there is no requirement they do so in ordinary cases, and in fact, as we know, most of the examining trials for adults are conducted by Justices of the Peace, many of whom are non-lawyers. It is obvious that the Legislature intended to avoid having the transferred juvenile’s examining trial 'Where adults have their examining trials by providing that the examining trial for a juvenile shall be in the district court. As *849noted in Menefee, the district court may remand the juvenile to juvenile court which no magistrate has the authority to do in the case of an adult. Further, where the grand jury does not indict the transferred juvenile, that fact is certified to the juvenile court and that court may resume jurisdiction. No such right is accorded an adult. Thus, it is clear that the transferred juvenile is not always “dealt with as an adult” as the dissent insists in its reasoning that the return of an indictment terminates the right to an examining trial for the transferred juvenile, nor did the Legislature so intend.
I concur.
. Said § 54.02 was amended in 1975 by adding subsections (j). 00 and (7), not here involved (Acts 1975, 64th Leg., p. 2156, ch. 693, § 16).