                                             June 29,200O




The Honorable Richard J. Miller                      Opinion No. JC-0242
Bell County Attorney
P.O. Box 1127                                        Re: Whether the state has a right to a jury trial in
Belton, Texas 765 13                                 a juvenile proceeding (RQ-0180-JC)

Dear Mr. Miller:

        You have requested our opinion as to whether the state may require a jury trial in a juvenile
proceeding by withholding its approval of a waiver ofjury trial filed by the attorney for the juvenile.
For the reasons that appear below, we conclude that the state may not do so.

        A juvenile may be found to have engaged in delinquent conduct, or conduct indicating a need
for supervision, only after an adjudication hearing conducted in accordance with section 54.03 of
the Family Code. TEX. FAM. CODEANN. 5 54.03(a) (Vernon Supp. 2000). The terms “delinquent
conduct” and “conduct indicating a need for supervision” are defined in section 5 1.03 of the Family
Code. At the beginning of an adjudication hearing, the juvenile court is directed to explain to the
child and his parent, guardian, or guardian ad litem, the allegations made against the child, the nature
and possible consequences of the proceeding, the child’s protection against self-incrimination, the
child’s right to trial and to confrontation of witnesses, the child’s right to representation by an
attorney, and the child’s right to trial by jury. Id.5 54.03(b). Section 54.03(c) requires that “[tlrial
shall be by jury unless jury is waived in accordance with Section 5 1.09 of this code.”

        Section 5 1.09 provides:

                          Unless a contrary intent clearly appears elsewhere in this title,
                any right granted to a child by this title or by the constitution or laws
                of this state or the United States may be waived in proceedings under
                this title if:

                        (1) the waiver is made by the child and the attorney
                        for the child;

                        (2) the child and the attorney waiving the right are
                        informed of and understand the right and the possible
                        consequences of waiving it;
The Honorable Richard J. Miller - Page 2          (JC-0242)




                       (3)the waiver is voluntary; and

                       (4) the waiver is made in writing or in court
                       proceedings that are recorded.

Id.5 5 1.09. As you indicate, there is “no provision in the Juvenile Code [Title 3 ofthe Family Code]
that addresses the right or authority of the State with respect to such waiver.” Letter from Honorable
Richard J. Miller, Bell County Attorney, to Honorable John Comyn, Texas Attorney General, at 1
(Jan. 28,200O) (on tile with Opinion Committee) [hereinafter “Request Letter”].

        Section 5 1.17 of the Family Code provides:

                          (a) Except for the burden of proof to be borne by the state in
                adjudicating a child to be delinquent or in need of supervision under
                Section 54.03(f) or otherwise when in conflict with a provision ofthis
                title, the Texas Rules of Civil Procedure govern proceedings under
                this title.

                       (b) Discovery in a proceeding under this title is governed by
                the Code of Criminal Procedure and by case decisions in criminal
                cases.

                       (c) Except as otherwise provided by this title, the Texas Rules
                of Evidence applicable to criminal cases and Chapter 38, Code of
                Criminal Procedure, apply in a judicial proceeding under this title.

TEX. FAM.CODEANN. 5 5 1.I7 (Vernon Supp. 2000). You suggest that, since the right of the state
to require a jury trial in a juvenile proceeding is not mentioned in the Family Code, we must,
pursuant to subsection 51.17(a), look to the Texas Rules of Civil Procedure for guidance,
specifically, Rule 216. See Request Letter, supra, at 2. That rule states, in relevant part:

                (a) Request. No jury trial shall be had in any civil suit, unless a
                written request for a jury trial is filed with the clerk of the court a
                reasonable time before the date set for trial of the cause on the non-
                jury docket, but not less than thirty days in advance.

TEX.R. CIV. P. 216. Rule 216, albeit indirectly, grants to either party to a civil suit the right of trial
byjw.

         Inouropinion, Rule 216 does not apply to ajuvenileproceeding. Subsection 51.17(a) ofthe
 Family Code specifically states that the Rules ofCivil Procedure are not applicable “when in conflict
 with a provision” of Title 3 of the Family Code. As one commentator notes, in a treatise on Texas
 Juvenile Law, “If Title 3speaks to an issue, it controls.” See ROBERTO.DAWSON,TEXASJWENILE
The Honorable Richard J. Miller - Page 3          (X-0242)




PROBATION     COMMISSION,    TEXASJUVENILE      LAW 330 (4th ed. 1996). Section 54.03 guarantees to
the child the right of trial by jury in a juvenile proceeding. Section 51.09 sets forth the specific
conditions that must be met in order for waiver to take place. The first of those conditions is that
“the waiver is made by the child and the attorney for the child.” Nothing in section 5 1.09 states or
implies that the state has any role in this decision, and it does not suggest that the state should have
veto power over the decision. Rule 216 conflicts with sections 54.03 and 51.09 by affording to
either party the right to demand ajury trial. Because ofthis conflict, we decline to engraft Rule 216
onto sections 54.03 and 5 1.09 of the Family Code. The state is entitled neither to demand ajury trial
nor to preclude a waiver of a jury trial in a juvenile proceeding.

        We conclude that Rule 216 of the Texas Rules of Civil Procedure is not applicable to the
determination ofwhether ajury trial is available in ajuvenile proceeding. Accordingly, the state has
no right to a jury trial in such a proceeding.
The Honorable Richard J. Miller - Page 4        (X-0242)




                                       SUMMARY

              The state has no right to a jury trial in a juvenile proceeding.




                                              Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
