ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 7,2012
The Honorable Jeri Yenne Opinion No. GA-0927
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Whether article 4.19 of the Code of Criminal
Angleton, Texas 77515 Procedure permits a child under the age of seventeen
who has been transferred to criminal court for
prosecution to be detained in a facility that does not
comply with subsection 51.12(f) of the Family Code
(RQ-1012-GA)
Dear Ms. Yenne:
You ask whether, under article 4.19 of the Code of Criminal Procedure, a child under the age
of seventeen who has been transferred to criminal court for prosecution may be detained in a facility
that does not comply with Family Code subsection 51.12(f). I
Article 4.19 of the Code of Criminal Procedure, which we will discuss in more detail below,
was added during the regular session of the Eighty-second Legislature by Senate Bill 1209. See Act
of May 27,2011, 82d Leg., R.S., ch. 1087, §§ 1,5,2011 Tex. Gen. Laws 2822, 2823-24 ("Senate
Bill 1209"). Among several changes to juvenile law, Senate Bill 1209 added a section to the Human
Resources Code requiring ajuvenile board to establish a policy specifying whether certain juveniles
certified to be prosecuted as an adult may be detained in a juvenile facility pending trial. Senate Bill
1209, § 3, at 2823 (codified at TEX. HUM. RES. CODE ANN. § 152.0015).
Senate Bill 1209 also amended section 51.12 ofthe Family Code, concerning the place and
conditions of detention of juveniles. Subsection 51.l2(f) of the Family Code provides that a child
detained in certain buildings "shall be separated by sight and sound from adults detained in the same
building." TEX.FAM. CODE ANN. § 51. 12(f) (West Supp. 2011). Senate Bill 1209 added a provision
that, for purposes of the separation requirements in subsection (f), a juvenile under the age of
seventeen who is transferred to criminal court for trial as an adult is to be considered a child. Senate
Bill 1209, § 1, at 2822 (codified at TEX. FAM. CODE ANN. § 51. 12(f)). Before it was amended by
the Legislature, subsection (h) provided that section 51.12 did not apply after a juvenile is transferred
ISee Brief from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (Oct. 31, 2011), http://www.texasattorneygeneral.goy/opin ("Requestor's Brief').
The Honorable Jeri Yenne - Page 2 (GA-0927)
to criminal court for prosecution. 2 Senate Bill 1209 narrowed the exception in subsection (h) to
juveniles who are at least seventeen years of age. Senate Bill 1209, § 1, at 2822 (codified at TEX.
FAM. CODE ANN. § 51. 12(h».
Further, Senate Bill 1209 added article 4.19 to the Code of Criminal Procedure:
Notwithstanding the order of a juvenile court to detain a child in a
certified juvenile detention facility under section 54.02(h), Family
Code, the judge of the criminal court having jurisdiction over the
child may order the child to be transferred to another facility and
treated as an adult as provided by this code.
Senate Bill 1209, § 5, at 2823 (codified at TEX. CODE CRlM. PROC. ANN. art. 4.19). This provision
specifically governs juveniles who are being tried as adults in state criminal courts-rather than
juvenile courts. TEX. CODECRlM. PROC. ANN. art. 4.19 (West Supp. 2011); TEX. FAM. CODE ANN.
§ 54.02(h) (West Supp. 2011). Your request letter suggests that the authority to order that a child
be "transferred to another facility and treated as an adult" overrides subsection 51.12(f) of the Family
Code, which requires that a child be detained separately from adult detainees. Requestor's Brief
at 1.
As the Texas Supreme Court has held, the purpose of statutory construction is to discern and
give effect to the Legislature's intent. 20801, Inc. v. Parker, 249 S.W.3d 392,396 (Tex. 2008).
Legislative intent must be derived "from the entire act and not just isolated portions," and a statute
should be interpreted to give effect to all of its provisions. Id. Article 4.19 of the Code of Criminal
Procedure broadly authorizes a court to order a child "to be transferred to another facility and treated
as an adult as provided by this code." TEX. CODE CRIM. PROC. ANN. art. 4.19 (West Supp. 2011)
(emphasis added). The statute expressly authorizes treating ajuvenile as an adult only "as provided
by [the Code of Criminal Procedure]." [d. The Code of Criminal Procedure generally addresses
matters related to the conduct of criminal prosecutions and trials. By authorizing a court to order
that a juvenile be "treated as an adult as provided by this code," article 4.19 provides for juveniles,
on court order, to be subjected to the provisions ofthe Code of Criminal Procedure that are normally
applicable to adults. Significantly, however, the Code of Criminal Procedure does not generally
govern the conditions of detention.
Instead, other statutes govern the condition of confinement for individuals who are detained
for criminal conduct. For juveniles, the relevant statute is section 51.12 of the Family Code. See
TEX. FAM. CODE ANN. § 51.12 (West Supp. 2011) (entitled "Place and Conditions of Detention").
That statute prescribes conditions for the detention of juveniles, including a juvenile who has been
certified to stand trial as an adult. Id. Subsection (f) provides that a child "shall" be detained in
specified buildings separately from adult detainees. [d. § 51.12(f). Generally, courts construe the
word "shall" as mandatory. City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002).
2Act of May 27,1995, 74th Leg., R.S ., ch. 262, § 12, 1995 Tex. Gen. Laws 2517,2524.
The Honorable Jeri Yenne - Page 3 (GA-0927)
As noted above, the Legislature amended subsection (f) during the Eighty-second legislative session
to specify that a person under age seventeen who is transferred to criminal court for prosecution is
considered a child for purposes of the separate-confinement requirement. Senate Bill 1209, § 1, at
2822. Further, subsection (h) was amended to restrict the exception so that it only applies to persons
who are at least seventeen years of age. [d. Therefore, subsection (f)'s separation requirements
apply to a juvenile who is not seventeen years of age who is certified as an adult for prosecution in
criminal court. TEx. FAM. CODE ANN. § 51.12(f), (h) (West SUpp. 2011). When we construe Code
of Criminal Procedure article 4.19 with subsection 51.12(f) of the Family Code, a juvenile certified
as an adult may be transferred to a facility and treated as an adult under the Code of Criminal
Procedure, but if the juvenile is not at least seventeen years of age, the juvenile is considered a child
who must be detained according to the separation requirements of subsection 51.12(f) of the Family
Code. Consequently, we conclude that article 4.19 of the Code of Criminal Procedure does not
authorize the detention of a child under the age of seventeen who has been transferred to criminal
court for prosecution in a facility that does not comply with subsection SI.12(f) ofthe Family Code.
The Honorable Jeri Yenne - Page 4 (GA-0927)
SUMMARY
Article 4.19 of the Code of Criminal Procedure does not
authorize the detention of a child under the age of seventeen who has
been transferred to criminal court for prosecution in a facility that
does not comply with Family Code subsection Sl.12(f).
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee