OPINION
This is a postconviction writ of habeas corpus brought before the Court pursuant to Article 11.07, V.A.C.C.P.
To three separate indictments alleging aggravated robbery applicant plead guilty; thereupon he was convicted and sentenced to concurrent ten year sentences. Applicant here contends that he should be given credit on his sentences for time spent in a juvenile detention center between his having been taken into custody upon committing the robberies and his being sentenced in the causes.
At the time of the commission of these offenses applicant was sixteen years old. On the night of January 14, 1983 police officers observed applicant and an accomplice in the act of robbing and sexually molesting three young women in Dallas. Applicant was taken into custody and referred to the Dallas County Juvenile Department's detention center. See V.T.C.A. Family Code, §§ 52.01(a)(2), 52.02(a)(3). On January 17, presumably as a result of a detention hearing pursuant to Family Code, § 54.01, applicant was detained further on the order of the juvenile court. Applicant was released on March 21, 1983. Subsequently, on August 23, 1983 he was "re-arrested." The instant indictments were filed August 31.1 The judgment in each of the three robbery convictions grants applicant *Page 556 credit for time served in jail beginning August 23.
Applicant now contends that by operation of Article 42.03, § 2(a)2 he is entitled to credit for the 67 days, from January 14 until March 21, that he was confined in the juvenile detention center. He asserts that his detention under the court order "effectively held him in constructive custody. Ex parte Newell, 582 S.W.2d 835 (Tex.Cr.App. 1979) [,]" and that "[w]hen the applicant does not have a choice of custodian and is held on a particular cause, he is entitled to credit for time served. Ex parte Williams, 551 S.W.2d 416 (Tex.Cr.App. 1977). See also, Ex parte Pizzalota, 610 S.W.2d 486 (Tex.Cr.App. 1981)[.]"
The question is thus presented whether time spent by a juvenile in a detention center, where he was confined as a result of behavior which, if committed by an adult would constitute a penal offense, may be credited to a sentence he subsequently receives in a court of criminal jurisdiction to which the case has been transferred.
The district court recommended that relief be denied. In its conclusions of law the court reasoned that, because the policy considerations in detaining juveniles are not comparable to those which underly the incarceration of adult offenders, detention of a juvenile pursuant to V.T.C.A. Family Code, Chapters 52 and 53 should not be treated as "constructive custody" for purposes of implementing penal sanctions. The court concluded that "[b]ecause juvenile confinement is not considered punishment, see Schall v. Martin, [___ U.S. ___, ___, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207, 220 (1984) ], the legislature [in enacting Article 42.03, § 2(a), supra] could not have intended for that time to be applied towards a person's sentence."
We disagree.
To compare the respective policies behind juvenile confinement and adult incarceration in this context is to miss the point. More illuminating for purposes of construing Article 42.03, § 2(a), supra, is the comparison between pretrial detention of adults and the detention of a juvenile prior to his delinquency adjudication hearing, see V.T.C.A. Family Code, § 54.03, and his disposition hearing, if any, see V.T.C.A. Family Code, § 54.04.
That juvenile detention is not considered punishment is of no moment; adult confinement prior to trial is not for punishment either. As the Supreme Court pointed out in Schall:
"It is axiomatic that '[d]ue process requires that a pretrial detainee not be punished.' Bell v. Wolfish, 441 US [520] at 535 n 16, 60 L Ed 2d 447, 99 S Ct 1861 [at 1872 n. 16 (1979) ]."
___ U.S. at ___, 104 S.Ct. at 2412, 81 L.Ed.2d at 220. In Bell, supra, it was observed:
441 U.S. at 536, 99 S.Ct. at 1872, 60 L.Ed.2d at 466.Schall supports the proposition that neither adultsnor juveniles may be constitutionally detained pretrial for purposes of punishment. Hence, the court's reliance onSchall proves inapposite, and its invocation of policy differences as a *Page 557 justification for denying relief, insubstantial."A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a 'judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.' Gerstein v. Pugh, supra, 420 U.S. [103], at 114, 95 S.Ct. [854], at 863 [43 L.Ed.2d 54 (1975) ]; see Virginia v. Paul, 148 U.S. 107, 119, 13 S.Ct. 536, 540, 37 L.Ed. 386 (1893). [. . . ] Under such circumstances, the Government concedely may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution."
Though it has been held that generally there is no Federal constitutional right to credit for time served prior to sentence, see Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App. 1977); Ex parte Eden, 583 S.W.2d 632 (Tex.Cr.App. 1979), the Legislature has amended Article 42.03, § 2, supra, to make it mandatory that the trial court award such credit. Acts 1973, 63rd Leg., p. 205, ch. 91, § 1, eff. August 27, 1973. In so doing the Legislature recognized that pretrial confinement, though not instigated for purposes of punishment, nevertheless has an incidental punitive effect in that it deprives the detainee of his liberty. To compensate for this deprivation the Legislature provided that whenever that detainee is ultimately assessed a term of imprisonment the convicting court shall grant credit to his sentence for time spent in pretrial detention, even though the detention was not imposed at the time for purposes of punishment.
Once a juvenile is "certified" as an adult under V.T.C.A. Family code, § 54.02, it makes no difference that "said cause" began as a civil proceeding, see T.R.S. v. State, 663 S.W.2d 920 (Tex.App. — Ft. Worth 1984, no writ), since "[o]n transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965." Section 54.02(h), supra. We do not think that in enacting Article 42.03, § 2(a) the Legislature intended that an individual initially detained as a juvenile and later certified an adult, then prosecuted and sentenced accordingly, should be treated any differently than one who is initially detained as an adult.
We therefore hold applicant is entitled to the flat time credit he seeks,3 from January 14, 1983 to March 21, 1983. A copy of this opinion will be forwarded to the Texas Department of Corrections.
It is so ordered.
"In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court."