Edward A. Sandoval
First Assistant District Attorney, Cameron County District Attorney’s Office
Attorney, The Law Office of Gustavo A. Grajales, PLLC
FALL 2022 ISSUE
In Texas, if a child¹ is arrested and/or cited for a criminal offense, they are not treated as adults. Children, typically, have their criminal cases handled by the Juvenile Justice System.² However, there are times, when a child’s circumstance warrants their case to be sent to adult criminal court, i.e. for the child to be tried as an adult.
A child may only be tried in adult court after they are “certified” as an adult. There are three different types of certifications:
1. Type A Certifications³
2. Type J Certifications⁴
3. Type M Certification⁵
Each type of certification requires different conclusions to be reached—such as satisfaction of eligibility requirements, completion of investigations and studies, and findings made by the court in a hearing—before a juvenile court judge may certify the child as an adult.
Type A Certifications require a “complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.”⁶ These studies and investigations are submitted to the juvenile court judge to assist the judge in determining the appropriateness of certification. Neither the Legislature nor the courts have defined the term “complete diagnostic study,”⁷ so extensiveness of the study may vary depending on the area of the state a case is considered. Typically, the certification report includes a psychiatric report, a psychological report, and a report by a probation department caseworker.⁸ However, nothing absolutely requires that “a psychological or psychiatric evaluation to render a diagnostic study complete.”⁹
J & M Certifications do not require a diagnostic study, social evaluation, or full investigation of the child, their circumstances, or the circumstances of the alleged offense that are required for A Certifications.¹⁰ Nevertheless, the court is still free to consider them at the certification hearing.¹¹
Each type of certification has different eligibility conditions. These include the following:
A child is entitled to notice and a summons informing them of the petition and potential transfer of their case to adult court.¹⁸ While the notice requirements of the juvenile justice code are still required for J Certifications, the parent or legal guardian of the juvenile in J Certifications are not entitled to notice.¹⁹ The summons and notice requirements for A or J Certifications are not required for Type M Certifications.²⁰ All that is required is for Type M are for summons to provide fair notice that the purpose of the hearing is to consider mandatory transfer to criminal court.²¹
Hearing Determination All certification hearings are tried before a judge, which is called a bench trial. Children do not have a right to a jury trial for a certification hearing.²² “At the transfer hearing the [juvenile] court may consider written reports from probation officers, professional court employees, guardians ad litem…, or professional consultants in addition to the testimony of witnesses.”²³ “At least five days prior to the transfer hearing, the court shall provide the attorney for the child and the prosecuting attorney with access to all written matter to be considered by the court in making the transfer decision.”²⁴ If requested by the attorney for the person at least 10 days before the transfer hearing, the juvenile court shall order that the juvenile be subjected to a mental health examination²⁵ and that the results of the examination be provided to the attorney for the person and the attorney for the state at least five days before the transfer hearing.²⁶ “The court may order counsel not to reveal items to the child or the child's parent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.”²⁷
What The Court Needs To Find And Consider Before Certifying
Type A Certification: If the court is considering a Type A Certification, then it must take the following into consideration:
whether the alleged offense was against person or property,²⁸
the sophistication and maturity of the child;
the record and previous history of the child; and
the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.²⁹
The juvenile court judge may only enter the order of certification and transfer the child to the adult court if, after considering these above identified issues, the court finds there is probable cause³⁰ to believe that the child in question:
committed the offense alleged; and
the welfare of the community requires adult proceedings because of either (1) the seriousness of the offense alleged, or (2) the background of the child.³¹
Type J Certification: If the juvenile court judge is considering a Type J Certification, then it must find by preponderance of the evidence³² that:
for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person; or
after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because: (1) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person; (2) the person could not be found; or (3) a previous transfer order was reversed by an appellate court or set aside by a district court.
The juvenile court judge may enter the order of certification and transfer the child to the adult court if the court makes these findings, and finds probable cause to believe that the juvenile committed the offense alleged.
Type M Certification: If the court is considering a Type M certification, then the court shall transfer the child to adult court if
the child is alleged to have violated a penal law of the grade of felony; and,
the child has previously been transferred to a district court or criminal district court for criminal proceedings under this section, unless: (1) the child was not indicted in the matter transferred by the grand jury; (2) the child was found not guilty in the matter transferred; (3) the matter transferred was dismissed with prejudice; or (4) the child was convicted in the matter transferred, the conviction was reversed on appeal, and the appeal is final.
The Completion Of The Transfer
If a transfer to the adult court is approved, then the juvenile court judge must issue an order detailing the reasons for the decision.³³ “On transfer of the person for criminal proceedings, the [juvenile offender] shall be dealt with as an adult and in accordance with the Code of Criminal Procedure, except for the issue of detention.”³⁴ This means that the case will be evaluated by a local prosecutor, if warranted submitted to the grand jury for review, and if true billed, prosecuted like any other adult case prosecuted by the State of Texas.
¹ For this purposes of the juvenile justice system and this article a child is a person that is ten years of age or older and under 17 years of age; or seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age. Tex. Fam. Code Ann. § 51.02(2) (West 2022). ² Joiner v. State, 494 S.W.2d 598, 599 (Tex. Civ. App.—Waco 1973, no writ) (stating the purpose of the Texas Juvenile Justice System is to “secure for each child under its jurisdiction such care, guidance and control as will serve the child's welfare and best interest”). ³ Tex. Fam. Code § 54.02(a) (West 2022). ⁴ Tex. Fam. Code § 54.02(j) (West 2022). ⁵ Tex. Fam. Code § 54.02(m) (West 2022). ⁶ Tex. Fam. Code § 54.02(d) (West 2022). ⁷ In re B.T., 323 S.W.3d 158, 161 (Tex. 2010). ⁸ Matter of J.S.C., 875 S.W.2d 325, 326–27 (Tex. App.—Corpus Christi 1994, writ dism’d by agr.), writ dismissed by agreement (Sept. 1, 1994). ⁹ Pipkin v. State, 329 S.W.3d 65, 70 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). ¹⁰Tex. Fam. Code § 54.02 (l)&(n) (West 2022). ¹¹ Id. ¹² Be aware, a child may be subjected to criminal prosecution for a homicide offense (irrespective if it under Ch. 19 of the Penal Code or Tex. Penal Code § 49.08 (Intoxication Manslaughter) if
the offense arises out of a criminal transaction for which the juvenile court retained jurisdiction over other offenses relating to the criminal transaction; and
on or before the date the juvenile court retained jurisdiction, one or more of the homicide offenses had not occurred.
Tex. Fam. Code § 54.02(g-1) (West 2022). ¹³ See Tex. Fam. Code § 54.02(a)(1)&(2) (West 2022). ¹⁴ A capital felony may be punished by death or life in prison (without parole if the offender is an adult and with chance of parole if the offender is younger than 18). Tex. Penal Code § 12.31 (West 2022). There are only two capital felonies in Texas: Capital Murder (Tex. Penal Code § 19.01), and Aggravated Sexual Assault of a Young Child with Previous Conviction (Tex. Penal Code § 22.021(f) & 12.42(c)(3) (West 2022)). ¹⁵ An Aggravated Controlled Substance Felony is an offense under Subchapter D, Chapter 481, Health and Safety Code that is punishable by a minimum term of confinement that is longer than that of a first-degree felony. Tex. Fam. Code § 51.02(1) (West 2022). For example, possession over 400 grams of fentanyl is punished by a period of imprisonment between 10 and 99 years. Tex. Health & Safety Code § 481.115(f) (West 2022). As the minimum term of prison time is greater than that of the first degree felony (5 years), possession of 400 grams or more of fentanyl would be considered an Aggravated Controlled Substance Felony. Infra Fn. 9. ¹⁶ Felonies explained:
¹⁷ See Tex. Fam. Code § 54.02(m) (West 2022). ¹⁸ Tex. Fam. Code § 54.02(b) (West 2022). ¹⁹ Id.at (l). ²⁰ Id. ²¹ Id. ²² Tex. Fam. Code § 54.02(c) & (l) (West 2022). ²³ Tex. Fam. Code § 54.02(e) (West 2022). ²⁴ Id. at (e). ²⁵ This is provided for by section 51.20 of the Texas Family Code. ²⁶ Id. at (l) ²⁷ Id. at (e). ²⁸ Greater weight is given in favor of transfer for offenses against a person. ²⁹ Tex. Fam. Code § 54.02(f) (West 2022). ³⁰ Probable cause exists where the facts and circumstances within the… [magistrate’s] knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991) ³¹ Tex. Fam. Code § 54.02(a)(2) (West 2022). ³² Preponderance of the evidence means the facts are more likely than not to be true. See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) ³³ Tex. Fam. Code § 54.02(h) (West 2022). ³⁴ Id.