Honorable Ted Butler                   Opinion No. M-1151
Criminal District Attorney
Bexar County Courthouse                Re:   Whether an exami%g"'/T+
San Antonio. Texas   78204                   trial is required in
                                             the case of-a child     if-7
                                             transferred from-the           /
                                             juvenile court to
                                             distrkt court for
Dear Mr. Butler:                             prosecution.
     You have requested the opinion of this office on the
following questions:
     1. Must the Criminal District Court conduct an
examining trial when a juvenile is transferred to that court
by the juvenile court, although no examining trial has been
requested?
     2. Will indictment by the grand jury prior to ,a
request for an examining trial waive the juvenile's right
to have an examining trial under Article 2338-1, Section
6(j), Vernon's Civil Statutes?
     Section 6(j)   of~Article 2338-l reads as follows:
         "If the juvenile court waives jurisdiction it
    shall certify its action, including the written
    order and findings of the court and accompanied by
    a complaint against the child, and transfer the
    child to the appropriate district courtor criminal
    district court for criminal proceedings.
    transfer of the child for criminal proceedFngs he
    shall be dealt with as an adult and in accordance
    with the Code of Criminal Procedure. The transfer
    of custody is an arrest. However, the examining
    trial shall be conducted by the district court or
    criminal district court which may remand the child
    to the jurisdiction of the juvenile c,ourt."
    (Emphasis added.)


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Honorable Ted Butler, page 2.     (~-1151)


      Since transfer of custody from the,juvenile court to
the district court is an arrest, the juvenile normally,will
be dealt with in accordance with Article 15.17,  Vernon's
 Code of Criminal Procedure, which requires an arresting
~officer to take an accused before a magistrate to be in-
 formed of the charges and the accused's~legal rights, in-
eluding the right to an examining trial.
     Provision is made in Article 16.01, Vernon's Code of
Criminal Procedure, for examining trials in criminal cases.
This article reads in part:
          ...The accused in any,felony case shall have the
         right to an examining trial before indictment in
         the county having jurisdiction of the offense,
         whether he be in custody or on bail, at which time
         the magistrate at the hearing shall determine the
         amount or the sufficiency of bail, if a bailable
         offense,"
     No court decision has squarely decided whether an exam-
ining trial is mandatory in the case of a juvenile trans-
ferred to district court for prosecution as an adult. The
Court of Criminal Appeals has been presented with~the ques-
tion of whether Section 6(~) of Article 2338-l makes mandatory
an examining trial in this situtation, but the record of the
case reflects that sn examining trial hai:been held. The
court.therefore did not rule on whether an examining trial
is mandatory. Garza v. State, 469 S.W.2d 169 (Tex. Grim.,
1971);
     In Buchanan v. State, 453 S.W.2d 479 (Tex.Crim., 1970),
the court was faced with the question of whether the district
court had jurisdiction to try a defendant who was only six-
teen years old when the indictment was returned. The court
noted that the juvenile court had held a hearing on the
state's request to waive jurisdiction and had entered an
order waiving jurisdiction and transferring the case to the
district court, after which the defendant was indicted.
The opinion did not indicate that an examining trial was
held by the district court, but the Court of Criminal Appeals
observed that all statutory requirements for transfer of
the case had been cornpliedwith ard that the indictment was
valid.
     In two decisions, both styled Jackson v. State, 449
S;W.=ld242 (Tex.Crim,;~1969) and &&3 S,W.%d 2.45 (Tex.Crim;,

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Honorable Ted Butler, page 3.   (~-1151)


1969),  the Court of Criminal Appeals was also confronted
with the question of whether a defendant of juvenile age had
been properly transferred for prosecution. In these cases,
zhe'court mentioned that an examining~trf;alwas conducted
  .,.as authorized by Article 2338-1,  ...  (449 S.W.2d 242,
243)'but did not rule whether an examining trial was manda-
tory.   The language of Article 2338-1  at zhe time of Jackson's
trial, however, was not the same as the present language
derived from a 1967 amendment.
     The purpose of an examining trial has been declared to
be twofold.         determine whether there is sufficient
evidence to wL%%    further uroceedinas. and (2) to deter-
mine if bail should be allowed and, i? so, to‘s& the
amount. Harris v. State, 4               (Tex.Crim., 1970),
reversed on other grounds,               91 s.ct. 2291, 29
L.Ed.2d 859 (1971); The first purpose mentioned is clearly
satisfied by the return of an indictment, since the grand
jury will have determined that the evidence warrants further
proceedings.
     The Court of Criminal Appeals has ruled that the right
to an examining trial is terminated by indictment. Klechka
v. State, 429 S.W.2d 900 (Tex.Crim., 1968), certiorari     '*
denied 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592 (1969).
The co&t has adhered to this rule even in situations where
an examining trial has been requested, but indictment has
been returned before a hearing could be'held. Solomon v.
State, 467 S.W.2d 422 (Tex.Crim., 1971). Thurman v. State,
m.W.2d     738 (Tex.Crim., 1971); Ash v. State, 420 S W 26
703 (Tex.Crim., 1967).  In various cases such as Klechka v.
State, supra, the court has observed that no examining trial
was requested. This office has ruled that the failure of a
defendant to reauest an examining trial constitutes a
waiver of the right to that hearing. Attorney General
Opinion,, c-717 (1966).

        Various court decisions have indicated that minors can
waive legal rights. such as the right to counsel and the
privilege agai&t self-incrimination, as long as the minor's
action is both knowin and voluntary. Garza v. State,
supra; In re Garcia, fi  43 S.W.2d 594 (Tex.Civ.App., 1569, no
writ); West v. United States, 399 F.2d 467 (5th Cir., x968),
certiorari denied 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed. 795
(1969);    United St&es v. yeager, 446 F.2d 1360 (3rd Cir.,
1971). Since the courts have held that these important con-
stitutional rights can be waived, the right to an examining

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Honorable Ted Butler, page 4.   (M-1151)


trial, which is merely procedural in nature, should also be
subject to waiver by a minor. A hearing must be held in the
juvenile court anyway on the waiver of jurisdiction to the
district court, so the examining trial to a large extent
would be simply a repetition of the waiver hearing.
     Since Section 6(j) of Article 2338-1. provides that a
child transferred to district court for criminal proceedings
shall be dealt with as an adult in accordance with the Code
of Criminal Procedure, that statute should be harmonized, if
possible, with provisions of criminal procedure and court
inte retations,,of~theseprovisions. The provision of Sec-
tion2 (j) that ...the examining trial shall be conducted by
the district court or criminal district court..." can be
interpreted to mean that the waiver proceeding in the juve-
nile.court should not take the place of an examining trial.
Also, since an examining trial normally may be held in a
justice court, the provision of Section 6(j) can be inter-
preted as merely limiting the examining trial to a district
court or criminal district court in those cases when a
juvenile is certified for prosecution. Nothing in either
Articles 2338-l or 16.01 or the Garza and Buchanan deci-
sions, supra, indicates that an -ning      trial is manda-
tory. The many cases construing Article 16.01 have clearly
demonstrated that the validity of an indictment and subse-
quent conviction is not dependent on whether an examining
trial has been conducted. In cases of adults, the holding
of an examining trial is dependent on a request.
     This office therefore is of the opinion that a district
court is not required to conduct an examining trial in the
case of a child transferred from juvenile court to district
court for proseCution in the absence of a request for the
exsmining trial. In view of the express language of Article
16.01 and the many decisions holding that the right to an
examining trial is terminated by indictment, we are also of
the opinion that the right of a child transferred for prose-
cution as an adult to have an examining trial is terminated
by indictment.
                          SuMMaRY
         The terms of Article 2338-1, Section 6(j),
    Vernon's Civil Statutes, do not require a district
    court or criminal district court to conduct an
    examining trial in the case of a child transferred
    from juvenile court to district court for prosecu-
    tion as an adult when no examining trial is requested.

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        Honorable Ted Butler, page 5.     (&,f-1151)


                 The right of a child so transferred for prosecution
                 to have an examining trial is terminated-by the
                 return of an indictment.
                                            rs very truly,




        Prepared by Roland Daniel Green III
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman
        Ben Harrison
        Jack Sparks
        Harold Kennedy
        Gordon Cass
        SAMUEL D. MCDANIEL
        Staff Legal Assistant
        ALFRED WALKER
        Executive Assistant
        NOLA WHITE
        First Assistant




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