               THE    .fiT’PORNEY         GENERAL
                            OF   TEXAS

PRICEDANIEL
ATTORNEY
     GENERAL


    Mr. Maxwell Weloh,              Opinion No. V-193
    Distriot   ,&ttorn6y,
    %tfh Judicial   UiPtrict,       x0:   L6gQlity of holding 8
    New Boatcm, Texae                     minor aoousad of r&k
                                          bery until ho r6a6&8
                                          17 years 0r age ae
                                          thatbe may be trfed
                                          as a felon rather than
                                          a juvenile delinquent.
    bsar Sir:
                  Tour letmr      of April 16, 1947, to this   de
    partlwnt    &&l68~ tllo following   question:
                    atly 8 boy rho ooD0itt6d the oft6nse
             of robbery with rlreaw      at the age ot six-
             tesa years and clnrn    montha, and who was
             armsted    inmediately after the offemss oo-
             ourred, be Q%diot~od and held. gatil he xbaohes
             the age of serentwn and then b6 tried aa an
             adult, or ehoald he be 'tried 8s juwml.l6?~
                 You are ad+ind    tiiat the trial of such y6uth
   my not be int6ntlonally     delytid   for the sole purpose of
   -6ll6winc: him to rmoh htsl 17th birthdate,      Art. 1, 980-
    tien 10 oi the Te&o Coutltutlon,        aad Arto 3, Co&P, prop
    vlda :

                   %In all oriniorl proseoutione the ao-
             oussd &all hay96 6p66dy publAo tdal    O ,'o **
                 This same rfght is &aranteed by the 0th A-'
   &6ndment of the T6d6ral Constitution.        While proc66dings
   under the Jurenilr~Aot     (Art. 9336~1) *re hot strictly.
   criminal in nature, it is belimed       that the acousod, im-
   der suah sot, (who a&y.bd deprived 01 his liberty        uatil
   he is 21 ybare of age), ir entitlid      to the pmthotllon     ar-
   forded by suoh provision.       To pOatp6Lt6 th6 trial o? the
   lotiuaed for the above arbitrary     r6a8on would bs to deny
   him the inalienable    right above gu6ranteed.      If the trial
   oould purposely b6 pestponed a month, as in ths oas6 UII-
   drr~ooneideration,   it would,be extmm6ly difrioult~to          mu
   draw a line in othee oas68 wIna! it might be thought dq-
yr.   Wxw411 W416h - Fag0 2        &mli~on mor v-loal
                                        ‘: .

sirabls   to postpone th6 trial of oth# y6uths fork 0
neatha, a year, or longer, until they Should becom6 19
years of age.     Suoh a 06~1~6 of a&ion oould not be
justified   under our 06natltntioMo
            This principle  ia reoagntzsd~by the Court
or Criminal Ap~alr.    Tn                   237 s. wi. 298,
the acoused laoked om 6                    liIl6 17 rholl
the off6nse was committ4dc   Aft62 he became 17, h6 wM
tried as a felona  Tlw oont6ntian -8 made that bia
trialhad beenln~ntlomlly &la*               Imfdlh0 ke        1%
The Appellate Q6urt eaid that It frplhd l6 erid6404 t6
support euoh 06ak&i4n   and overruled it.   It titatsd,
h6woYerr




969, the'isaune   ?wia ral86
ror rehrarhg      thatthe trial     of t&e dnm    he& 8rw1 1&&M=
tionally   delayed until &a ~coabd L'po f$ nu &a&d t&e*
there was~no 4~Id6nc6 to sortaln mwh 64mMrUn       amd r~
that the p6int wa# raikd'tao       la@., n, Qnr+ d *iS$-
rrplAp~als,~oCthole~,~esoasl~~nrytthe
above quqtsd prin6ip1eo
               It huot be     etatad,how616rs
                                            that it      lr th6
ofiferm   Texas rub    that    th6 ago of  the y6uth a* ti&O~tm
af trial,   (and nd his a@        at the time 6f th6 ocrslmlss;taa
OS the off4!~#6)   whlohIS OontrollinB
                                    with ~lcr~~~Wt0
whothorho ohm&id bo tried48 a
               (a%~ wiml?)1


              S66tien la of     hrt, 2338-l mmed tn. 194S
iollowr   the abwe ru&abf               td
                                etatif.qf    a youbl, 4n t&l
                               oOarto ehould b6 dellvemd to'
                              t should be amobrtain6d that the
                            the age of serenteon (17) yeare &,
                                     ~Bmpha~l~ our81
Mr. Maxwell Weloh - phs4 3         (V-192)


offense,  he is held to be properly triable   hS a felOIb
In Hardie vti State, (Tsx, Grim,) 144 Y. w. (2d) 571,
an offense was committed by a 16 year old boy on April
28ths His mother appeared on May 6th and disolosed
that the boy would not be 17 years old until May 9th.
all of the same year*   She requested that the child be
tried immediately aa a delinquent child,    The oounty
attorney told the mother that he intsndsd to pF4Sent
the matter to,the Grand Jury on Nay 10th; and he fol-
lowed suoh oourm of aotio&      On appeal, the oontention
was made that it waa obligatory   for the count;l attorney.
to proceed imdiately    against the minor a8 a delln@tent,
and that he wae not juetified   In holding the rrmtter ut+
til the Grand Jury should act*    The Court ,of erifuinal
&ppeale held:
                 "The law oontemplat68 au oontroli$g
          in euoh matter&i the age of the aoouaed a%
          the time of the trial.  not his am at the




           the aipellant-hi&be&       iirat  tried.i'or f&4
          murder of his father while he wa8,onl.y sir-
           teen years of age whioh first       oaw wa6 reL
          versed by this court on that ground, the
           oourt holding that he should~ h&vi been pro-
           oeeded a&net       ~8 a jnreaile.  ~. B Upon the
          rerereal     of this aaM) theaooused      had
          reached the ago of aetenteen year.9,~ and he
          was agaih put up40 hia trial for mu.rda& Q a
          and although the oifeaae was oharmd t0 haye
          bean committed OD.a date which showed the
          acoumd was under the age of. seventeen yearail,,
          aevertheleee     it wa8 held that the ago of the
          aaeused at the tinm      of the trial and not at
          the time of the oomrPLamionof the Off6n86 wal
          that whioh govemod in regard to his 5rttenil-
          ity*     o o We have 80 doubt of the correatnere
          of this doatrine,      and this bill ie orerT@edbo”
           (~ha8is      ours)



ridtwit     that ho uaa 16 years of slge, and would not be 17
                                                                 .   .




MT. ypirsla     Reloh - BB#e 4    (Y-192)


until May 25, the month rollowlng;      The matter was set
for a hearing on April 21st, at which time the oourt
metalned the motion of the State to contlnue_the mat-
ter to the next term or oourt, to begin-May 28, (rive
days after the aoou8ed’s 17th birthday),     beoause the
district   attorney had not haa an adequate opportunity
to prepare hie proof on the youth’ 8 age.     When the .case
was tried,    the aooumd admltted that he had beoome, and
was, 17 years 0r age.     upon appeal, it was held that,
there being no showing Or bad faith on the part Of the
dletrlot   attorney,  and a ahowing that the youth98 afff-
aavlt was riled on the last bay or the terms the aooueea
was properly tried a8 a felon,    since he wata 17 at the
time 0r triUr
              In a deoi6ien.handed   down by the Court oi
CrMnal     App6als April 50, 1947, DearMa
ret reDorts4).    a 16 smar’ola boy robbed an
?armer’e wlri-on July ‘14, 1945,- On July 20th iolla-
ing, the county attorney riled ohxrgss againat’him a8
a delinquent child. because of a former robbery: ‘and the
boy wae mnt to the Gatearllle      Sohool until he Should
become 21.    In May or 1946, after-the     boy beoame 17, he
was indicted   ror the above murder, returned from Gates-
ville,  tried aa a r+$:9n
                      ~.&%%&~pe~        rtg   ~=&“o~““c~~-
Following the oaWB
nal Appeals affirmed the fudgment,aholdlng       the boy prop&
erly triable   au a felon aitor reaohlng 17.      The opinion,
a copy or which is enclosed,     made la part:
              ‘To hold that a male. child who com-
      mitted an orrsnm two days, two we&~, or
      two months prior to the time that he be-
      ~plb 17 ysars or age 00ula not be proas-
      outed ror said erfease after he reaohee
      his 17th year. weuld be creating a haven
      91: fufnge rOr the ocfrinally   inclined.    o o
      Orderly uoefOlty  La entitled  to proteotion
      98 wella8 a aeiinqtmtt Ohiiaow          .~


               The’ trial of a youth 16 yeare and 11
      months    or age oannot be fatentfonally  a+
      layed    until   he beoartse a7   yeare 0r age for
      the sole purpose     0r trying him as’s rel0a
      rather than a delinquent,      Art, 1, See. 10,
      Texas ‘Constitution.     Where, however, in the
      normal oou~p118of evontu8the youth reaches
ylr. Manmll   Welch - Page 5   (V-192)


      the a&o or 17 berore trial,   her iar
      properly triable  ab a felon.   One
      who oommits a felony while under 17,
      may bs'indlctsd  and tried artier reach*
      hg the age or 17* (Dearing v. State,       ',
      ~er~~Crlrn, App+, opinion of April 90,
      X947* mt yet repfmted,)
                                 Yours very away,
                           ATTORNIIY-GlZNERALOF~




                           A!l'TORNEYGENERAL
                                          OP'l'EikS
