dissenting.
I dissent to the majority’s holding that the district court never acquired jurisdiction of these offenses and would hold that the appellant’s right to an examining trial under V.T.C.A. Family Code, Sec. 54.02(h), was terminated upon the return of indictments.
The holding in Ex parte Menefee (Tex.Cr.App.), 561 S.W.2d 822, that an indictment returned against a juvenile who has been transferred to district court prior to examining trial is void, is based on the faulty premise that the examining trial in district court is a “mandatory second step” in determining whether a juvenile should be tried as an adult in district court.
The majority elevates the examining trial provided for in Sec. 54.02(h) to the jurisdictional level of the requirement that an indictment be returned by a grand jury. It is readily apparent that the Legislature intended that any examining trial held after the transfer be in district court rather than before a justice of peace who might be a non-lawyer, but this provision only addresses the question of who shall hold the examining trial.
In Criss v. State, (Tex.Cr.App.), 563 S.W.2d 942, it was held that the examining trial provided for in the district court could be waived provided the waiver met the requirement of V.T.C.A. Family Code, Sec. 51.09. I would hold that an examining trial is not mandatory for the district court to acquire jurisdiction and, like an adult, the right to an examining trial is terminated by the return of an indictment.
V.T.C.A. Family Code, Sec. 56.01,1 provides for an appeal from the juvenile court *851order transferring the juvenile to district court for trial as an adult and Sec. 56.01(e), supra, requires that the juvenile court instruct the accused’s counsel to advise the child and his parent, guardian, or guardian ad litem of the child’s right to appointment of an attorney for appeal if an attorney cannot be obtained because of indigency. The record reflects careful compliance by the juvenile court judge of this provision. The orders of the juvenile court waiving jurisdiction contained findings “that evidence was presented concerning the alleged offense upon which a grand jury may be expected to return an indictment” pursuant to V.T.C.A. Family Code, Sec. 54.02(f)(3). There is no indication that appellant took such an appeal or desired to appeal from those orders.
The provision 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 in the juvenile court and negates any suggestion that a second step is required to be taken in this procedure. If the district court did not acquire jurisdiction of the offenses until an examining trial is held in district court, then it would logically follow that there should be no provision for an appeal to the Courts of Civil Appeals from the order of the juvenile court. Under such circumstances, the juvenile court’s order would amount to nothing more than an interlocutory order with final determination to be made in the district court.
Upon the district court accepting jurisdiction on March 25, 1976, following the waiver of jurisdiction by the juvenile court, the appellant was to “be dealt with as an adult” [emphasis supplied] under the express terms of Sec. 54.02(h), supra. In Menefee, it was emphasized that the accused was given the additional opportunity to have the criminal proceedings terminated and the jurisdiction of the juvenile court resumed at the examining trial in district court. The pertinent portion of Sec. 54.02(h), supra, provides that the court conducting the examining trial “may remand the child to the jurisdiction of the juvenile court.” The provision that the district court may remand the accused to the juvenile court further reflects the Legislature’s intent that the district court had acquired jurisdiction at this stage of the proceeding. It is noted that there is no mandatory provision that the accused be remanded to juvenile court if the examining trial does not bind him over for grand jury action, Sec. 54.02(h), supra, providing this action “may” be taken. If the examining trial in district court were a mandatory “second vital step” in determining whether a juvenile should be tried as an adult, as held in Menefee, the district court would not be vested with the discretion of whether to remand the accused to juvenile court in the event he was not bound over for grand jury action. On the other hand, Section 54.02(i) provides if the grand jury does not indict, the district court “shall certify the grand jury’s failure to indict to the juvenile court.” [Emphasis supplied.] If the grand jury does not indict the accused for a felony offense, it is mandatory that this fact be certified to the juvenile court which court “may resume jurisdiction of the case.” Since the juvenile court has supervision of juveniles who violate the compulsory school attendance laws and children who leave home without the consent of their parents, it is obvious why this mandatory provision may be desirable where the grand jury fails to indict the juvenile for a criminal offense. While the district court, sitting as an examining tribunal, has a power not granted over ordinary adults in that it “may” remand the accused to juvenile court, this provision imposes no limitation on the grand jury’s authority to take action where the district court has accepted jurisdiction but no examining trial has been held. It should be remembered that the juvenile has already been afforded a mandatory hearing in juvenile court in which it must have been determined that there was evidence presented “[u]pon which a grand jury may be expected to return an indictment.” Sec. 54.02(f)(3), supra.
*852After this determination had been made by the juvenile court in the instant case and no appeal taken therefrom, the district court accepted jurisdiction of the cause on March 25, 1976. Upon the district court accepting jurisdiction, the appellant was to “be dealt with as an adult” under the express terms of Sec. 54.02(h), supra. The inescapable conclusion to be drawn from the record is that appellant felt that an examining trial would avail him of nothing and he did not make a request for such a hearing. The appellant had already had a hearing in juvenile court in which it was found that there was evidence upon which a grand jury may be expected to return an indictment. This hearing and determination in juvenile court was mandatory before the appellant ever reached district court. Thus, appellant had already had a hearing not offered an adult on the question of evidence to support an indictment. From March 25, 1976, when the district court accepted jurisdiction, until June 9,1976, when the indictments were returned, appellant made no request for an examining trial, and for that matter has not to this date made any complaint about the denial of same. Under such circumstances, it is unthinkable that the appellant, who was to be dealt with as an adult when reaching district court, could be heard to complain that he was not accorded an examining trial in district court.
It has long been held that the return of an indictment against an adult terminates any right to an examining trial. See Bullard v. State (Tex.Cr.App.), 533 S.W.2d 812; Brown v. State (Tex.Cr.App.), 475 S.W.2d 938. Article 16.01, V.A.C.C.P., provides for an examining trial “before a magistrate” whereas Section 54.02(h), supra, provides that the examining trial shall be conducted “by the court to which the case was transferred.” It is apparent that the Legislature’s concern was that any examining trial be held by the court to which the case was transferred (instead of any magistrate under Art. 16.01, supra), rather than making such hearing a necessary step in the district court acquiring jurisdiction. Just as an indictment terminates the right of an adult to an examining trial, I would hold that an indictment terminates the right of a juvenile (when jurisdiction has been accepted in the district court) who by the express terms of Sec. 54.02(h), supra, is to be “dealt with as an adult.”2
I dissent,
DOUGLAS, DALLY and W. C. DAVIS, JJ., join in this dissent.. V.T.C.A. Family Code, Sec. 56.01, “Right to Appeal,” provides in pertinent part:
“(a) An appeal from an order of a juvenile court is to the Texas Court of Civil Appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally.
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“(c) An appeal may be taken by or on behalf of the child from:
“(1) an order entered under Sec. 54.02 of this code respecting transfer of the child to criminal court for prosecution as an adult; . . .”
. The majority opinion is contrary to our holding in Winegarner v. State, 505 S.W.2d 303, which was overruled sub silentio by Ex parte Menefee, supra, and expressly overruled by the majority herein.
If the examining trial is the “second vital step” or a “mandatory second step” in determining whether a juvenile should be tried as an adult, then the record on appeal must reflect that an examining trial was held in district court just as the record must show a waiver of jurisdiction of the juvenile court and an indictment (or felony information).
The majority opinion would also appear to be contrary to Attorney General’s Opinion M-1151, dated June 7, 1972, construing a similar provision in the statute applicable at that time,
Sec. 6(g) of Art. 2338-1, V.A.C.S. The Attorney General In this opinion concluded that an examining trial in district court is not mandatory for a juvenile transferred from the juvenile court to district court for prosecution and that the right to an examining trial is terminated by the return of an indictment. While the opinions by the Attorney General are not binding upon courts and have no judicial precedent, courts have frequently said they are entitled to be given considerable weight in determining proper construction of statutes. Smith v. Panorama Country Club (Tex.Civ.App., 1976) 538 S.W.2d 268; Bradley v. Swearingen (Tex.Civ.App., 1975), 525 S.W.2d 280; City of Houston v. Southern Pac. Transp. Co. (Tex.Civ.App., 1973), 504 S.W.2d 554.