(concurring).
This opinion concurs in the determination that these four juvenile cases are moot. It must be noted, however, that in the opinion of this writer there was fundamental error occasioned in the Juvenile Court in its effort to comply with the Juvenile Act, Art. 2338-1.
Nevertheless, the courts of this state have uniformly and historically held that the age of a juvenile defendant at the time of trial is controlling rather than his age at the time of the alleged offense. The defendant here became 17 years of age on February 7, 1969 and any disposition of these juvenile cases would now occur during or after his 17th year. It necessarily follows that the instant juvenile cases are moot, and, this being true, errors occasioned in the juvenile court are of no consequence. This is true even though on October 31, 1968, while the defendant was still 16 years of age, the Grand Jury returned felony indictments in each of the alleged offenses.
The Legislature first provided for Juvenile Court waiver and transfer of a child sixteen years of age or older for a trial of any felony in 1965. By virtue of Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), substantial amendments in the Juvenile Act were dictated. In 1967, the Legislature amended Art. 2338-1, Sections 3, 5, 6, 12, 13, Vernon’s Annotated Civil Statutes, and Art. 30, of Vernon’s Annotated Penal Code. These, along with the *463unchanged portions of Art. 2338-1, are the articles of statutory significance in juvenile proceedings or prosecution.
Neither the purpose of the amendatory 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 IS years of age. It is not for the judiciary to supply a changed intent where the Legislature has not particularized it.
The entire Juvenile Act, taken together, would seem to hold the laudatory purpose of proceeding against a 15 or 16 year old juvenile in one of two ways, either as a juvenile in the Juvenile Court or as an adult after proper waiver of jurisdiction in compliance with the Act. The instant determination provides a third alternative which, though dictated by the Act itself, was undoubtedly beyond any legislative contemplation.