                                                                        PD-1634-14
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
July 27, 2015                                         Transmitted 7/24/2015 6:06:10 PM
                                                        Accepted 7/27/2015 8:16:26 AM
                                                                        ABEL ACOSTA
                            NO. PD-1634-14                                      CLERK

                 IN THE COURT OF CRIMINAL APPEALS
                          STATE OF TEXAS


                        AARON JACOB MOORE
                             Appellant,

                                 VS.
                         THE STATE OF TEXAS
                               Appellee.


                          ON APPEAL FROM:

                      N0. 01-13-00663-CR
      IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

                 CAUSE N0. 12-DCR-059791
IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


                APPELLANT’S REPLY BRIEF ON THE MERITS



                                      CARMEN ROE
                                      CARMEN ROE LAW FIRM
                                      440 Louisiana, Suite 900
                                      Houston, Texas 77002
                                      713.236.755
                                      713.236.7756 Fax
                                      TBN: 24048773
                                      carmen@carmenroe.com
                                      www.carmenroe.com
                                      ATTORNEY FOR APPELLANT
                                      [ON APPEAL ONLY]



                                  1
               IDENTIFICATION OF INTERESTED PARTIES

      Pursuant to TEX.R.APP.P. 38.1(a), a complete list of the names and

addresses of all interested parties is provided below so the members of this

Honorable Court may at once determine whether they are disqualified to serve or

should recuse themselves from participating in the decision of this case.

                        Trial Counsel for the Defendant:
                                  Kirby Taylor
                               4810 Caroline Street
                              Houston, Texas 77004

                                Tommy Stickler, Jr.
                                 235 Sealy Street
                                 Alvin, TX 77511

                      Counsel on Appeal for the Appellant:
                                Carmen M. Roe
                                The Lyric Centre
                            440 Louisiana, Suite 900
                             Houston, Texas 77002

                          Trial Counsel for the State:
                                  Alex Foley
                   Fort Bend County District Attorney’s Office
                               301 Jackson Street
                            Richmond, Texas 77469

                                 Alexandra Foley
                                301 Jackson Street
                               Richmond, TX 77469

                        Counsel on Appeal for the State:
                           Gail Kikawa McConnell
                         301 Jackson Street, Room 101
                           Richmond, Texas 77469


                                         2
        Trial Judge:
Honorable Jeffrey A. McMeans
       Presiding Judge
  County Court at Law No. 2
Fort Bend County, Texas 77469

 Honorable Jeffrey McMeans
 County Court at Law No. 2
  Fort Bend County, Texas




             3
                                    TABLE OF CONTENTS
                                                                                                   Page

IDENTIFICATION OF INTERESTED PARTIES...................................................2

INDEX OF AUTHORITIES.....................................................................................6

STATEMENT OF THE CASE.................................................................................9

STATEMENT REGARDING ORAL ARGUMENT ............................................10

GRANTED QUESTION FOR REVIEW................................................................10

          DOES THE COURT OF APPEAL’S CONSTRUCTION OF “THE STATE” IN
         SECTION 54.02(J)(4)(A), FAMILY CODE REQUIRE DISMISSAL
                                                          OF A CASE
         WITH PREJUDICE WITHOUT CONSIDERATION OF THE FACTORS FOR
         OPPRESSIVE DELAY IN VIOLATION OF THE SEPARATION OF POWERS
         DOCTRINE?

    I.      STATEMENT OF THE FACTS..............................................................10


   II.      SUMMARY OF THE ARGUMENT…………………………………...13


   III.      ARGUMENT AND AUTHORITIES………………………………….15

          A. Standard of Review…………………………………..............................15

    B. Whether the separation of powers clause protects a district attorney’s
       duties……………………………………………………………………...15

   C. Whether the legislative enactment is constitutionally authorized…………17

   D. Whether the statutorily imposed duty to represent the state in criminal
      Cases requires, first, the existence of a criminal case……………………..17

   E. In the alternative, whether Section 54.02(j)(4)(A) is a contractual
      arrangement and the separation of powers concerns clearly outweigh
      it’s enforcement……………………………………………………………20

                                                    4
         1. Section 54.02(j)(4)(A) is contractual in nature……………………....…20

         2. The separation of powers clause concerns do not clearly outweigh
            the interests underlying Section 54.02(j)(4)(A)’s enforcement…………21

                  i. Those interests favoring enforcement…………………………….21

                  ii. Those interest disfavoring enforcement………………………….22

PRAYER.................................................................................................................23

CERTIFICATE OF SERVICE ..............................................................................24

CERTIFICATE OF COMPLIANCE .....................................................................25




                                                            5
                      INDEX OF AUTHORITIES

CASES                                                           PAGE

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)…………………………..17

Commr’s v. Guardian Life Ins Co., 180 S.W.2d 906 (Tex. 1988)…………….….22

Daimler Chrysler Corp v. Inman, 252 S.W.3d 299 (Tex. 2008)…………………18

Dendy v. Wilson, 179 S.W.2d 269 (Tex. 1944)…………………………………..19

Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978)……………...…….15

Gibson v. State, 803 S.W.2d 316 (Tex. Crim. App. 1991)………………...……..21

Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996)…………………….………….17

In Matter of D.W.M., 562 S.W.2d 851 (Tex. 1978)……………………….….…..20

In re M.N., 262 S.W.3d 799 (Tex. 2008)…………………………………………13

In re N.J.A., 997 S.W.2d 554 (Tex. 1999)………………………………………..20

Kent v. United States, 381 U.S. 541 (1967)……………………………….……..22

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)………………………..17

Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987)………………..…16,17

Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014)………………..19,20,21,22

Rushing v. State, 85 S.W.3d 283 (Tex. Crim. App. 2002)……………..………..17

State v. Salavea, 86 P.3d 126 (Wash. 2004)…………………………………….20




                                  6
Texas Ass’n of Bus. v. Tex. Air Control Bd.,

        852 S.W.2d 440 (Tex. 1993)……………………………………………18

Toussie v. United States, 397 U.S. 112 (1970)…………………………….….23

State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997)………...16,19,20,21



STATUTES

TEX. FAM. CODE § 51.02..........................................................................................11

TEX. FAM. CODE § 51.02(a).....................................................................................19

TEX. FAM. CODE § 51.04..........................................................................................10

TEX. FAM. CODE § 51.0412(3)............................................................................11,12

TEX. FAM. CODE § 51.17…......................................................................................19

TEX. FAM. CODE § 51.19(c).....................................................................................18

TEX. FAM. CODE § 53.01 (d)....................................................................................19

TEX. FAM. CODE § 54.02(j)......................................................................................20

TEX. FAM. CODE § 54.02(j)(4)(A)....................................................................Passim

TEX. FAM. CODE § 54.02(j)(4)(B)............................................................................15



TEX. CODE. CRIM. PROC. 2.01................................................................................18

TEX. CODE. CRIM. PROC. 12.01(7).........................................................................19

TEX. CODE. CRIM. PROC. 12.02..............................................................................18


                                                        7
TEX. CONST. ART. V § 1..........................................................................................16

TEX. CONST. ART. V § 31(a)....................................................................................17




                                                        8
                            STATEMENT OF THE CASE

          This appeal concerns the constitutionality of Section 54.02(j)(4)(A) of the

Juvenile Justice Code in the Texas Family Code, as construed by the First Court of

Appeals in Moore v. State, 446 S.W.3d 47 (Tex. App.—Houston [1st Dist.] 2014,

pet. granted).

         Section 54.02(j)(4)(A) applies to proceedings in juvenile court that begin

after an accused’s 18th birthday, and affords to the juvenile court the limited

jurisdiction to determine if the alleged delinquent conduct should be transferred to

district court for criminal proceedings. Whether this jurisdictional inquiry is

satisfied depends in part upon a prosecuting attorney demonstrating, by a

preponderance of the evidence, that because of “a reason beyond the control of the

state, it was not practicable to proceed in juvenile court before the person’s 18th

birthday.” TEX. FAM. CODE ANN. § 54.02(j)(4)(A) (West 2014).

         The State’s Brief on the Merits1 argues that the burden of persuasion under

Section 54.02(j)(4)(A) is actually fact-specific: When “the state” refers to

prosecutorial delays, then the burden of persuasion at the discretionary waiver

hearing is with the petitioner. However, when “the state” refers to investigatory

delays, then the case must be transferred to criminal district court, unless the


1   (“SB” refers to the State’s Brief on the Merits, followed by page number.)



                                            9
respondent successfully demonstrates to the juvenile court an intentional

oppressive delay.2

                 STATEMENT REGARDING ORAL ARGUMENT

                    This Court has denied oral argument in this case.

                       GRANTED QUESTION FOR REVIEW

               DOES  THE COURT OF APPEAL’S CONSTRUCTION OF “THE
               STATE” IN SECTION 54.02(J)(4)(A), FAMILY CODE
               REQUIRE DISMISSAL OF A CASE WITH PREJUDICE WITHOUT
               CONSIDERATION OF THE FACTORS FOR OPPRESSIVE DELAY
               IN VIOLATION OF THE SEPARATION OF POWERS DOCTRINE?

                             I. STATEMENT OF FACTS3

         Two months after Moore’s sixteenth birthday, 4 on September 21, 2008,

Detective Cox began her investigation into a potential civil action5 alleged to have

occurred in the month before. 6 Nearly two weeks after Moore’s eighteenth

birthday, 7 Detective Cox forwarded her investigatory report to the district


2Moore has been granted one time-extension, and timely submits this reply brief on
the merits due on or before July 24, 2015.

3Moore challenges all factual assertions made by the State in both its petition for
discretionary review and brief on the merits.

4   Moore was born on July 11, 1992. [2 RR 22].

5 Because of Moore’s age, the alleged sexual assault fell within the exclusive original
jurisdiction of the juvenile court. See TEX. FAM. CODE ANN. § 51.04 (West 2014).

6   That is, on or about August 29, 2008. [1 RR 72].

7   Or, July 22, 2010. [CR at 13-17, 83].

                                            10
attorney’s office. One month after Moore’s nineteenth birthday,8 the prosecuting

attorney9 filed a petition with the juvenile court, requesting it waive its original

jurisdiction, and transfer the alleged delinquent conduct to district court for

criminal proceedings. Six months later, on February 10, 2012, the juvenile court:

held a discretionary waiver hearing, granted the prosecuting attorney’s petition,

and transferred Moore’s juvenile case to district court for the commencement of

criminal charges. [CR at 28-32] [CR at 13-7, 83].

         In juvenile court, discretionary waiver hearings are statutorily defined, and

in these circumstances, afford to a prosecuting attorney the choice to proceed under

any one of the four alternatives made available by Sections 54.02(j)(4)(A) and (B).

See TEX. FAM. CODE. ANN. § 54.02(j)(4) (West 2014). Here, the prosecuting

attorney selected the burden under Section 54.02(j)(4)(A), which provides the

following:

               (j) The juvenile court may waive its exclusive original
               jurisdiction and transfer a person to the appropriate
               district court or criminal district court for criminal
               proceedings if:




8   Or, August 17, 2011. [CR at 22].

9 In juvenile court, the “’Prosecuting attorney’ means the county attorney, district
attorney, or other attorney who regularly serves in a prosecutory capacity in a
juvenile court.” TEX. FAM. CODE. ANN. § 51.02(11) (West 2014).



                                           11
                    (4) the juvenile court finds from a preponderance
                    of the evidence that:

                            (A) 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.

TEX. FAM CODE. ANN. § 54.02(j)(4)(A) (West 2014). Thus, the prosecuting

attorney argued at Moore’s discretionary waiver hearing, as well as on appeal, that

its 13-month delay in filing its petition to transfer was excused under Section

54.02(j)(4)(A), because Detective Cox transferred her investigatory report to the

district attorney’s office 11 days after Moore’s eighteenth birthday. This delay by

Detective Cox, the prosecuting attorney urged, and juvenile court ultimately

believed, was a sufficient reason “beyond the control of the state [that is, the

prosecuting attorney]” to proceed in juvenile court before Moore’s 18th birthday.

        One month before Moore’s twenty-first birthday, on June 11, 2013, Moore

pled guilty pursuant to a plea agreement; the criminal district court deferred

adjudication and placed Moore on five years community supervision. [CR at 92-

115].

        On appeal, Moore challenged the prosecuting attorney’s construction of “the

state” under Section 54.02(j)(4)(A), arguing that the juvenile court abused its

discretion, because: (1) “the state”, for purposes of Section 54.02(j)(4)(A),




                                         12
included investigatory delays by law enforcement; 10 and, (2) Detective Cox’s

reasons for the delay fell within—as opposed to beyond—her control, and

therefore could not satisfy Section 54.02(j)(4)(A)’s jurisdictional inquiry. The First

Court of Appeals agreed, vacating the district court’s judgment, and dismissing the

case.

        The State subsequently filed its Motion to Reconsider En Banc, arguing, as

it does here, that unless the burden of persuasion under Section 54.02(j)(4)(A) flips

to the respondent whenever “the state” refers to investigatory delays, and the Court

also write-in the requirement that the respondent demonstrate intentional

oppressive delay, then the jurisdictional inquiry in juvenile court unduly interferes

with a district attorney’s exclusive prosecutorial discretion “to prosecute criminal

cases,” and therefore violates the separation of powers provision of the Texas

Constitution. After Moore’s response, the First Court of Appeals denied the

motion. This Court’s grant of discretionary review concerning this matter of first

impression now follows.




10See TEX. FAM. CODE. ANN. §§ 51.0412(3) (West 2014) (Showcasing the
Legislature’s ability to limit a statutory provision within the Juvenile Code to a
prosecuting attorney’s efforts.); see In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)
(“We also presume the Legislature included each word in the statute for a purpose,
and that words not included were purposefully omitted.”).

                                         13
                     II. SUMMARY OF THE ARGUMENT

      First,11 Moore challenges the State’s underlying assumption that a district

attorney’s12 duties are entitled to the protection afforded by the separation of

powers provision of the Texas Constitution. The Separation of Powers Clause

protects those duties constitutionally conferred, whereas a district attorney’s duty

to prosecute criminal cases is imposed statutorily.

      Second, Moore argues that the Legislature’s enactment of Section

54.02(j)(4)(A) is expressly authorized under Article 5, Section 1 of the Texas

Constitution.

      Third, and in the alternative, Moore argues that a district attorney’s duty to

prosecute criminal cases, assuming protected by the separation of powers

provision, requires—well, a criminal case. A case in juvenile court, however, is a

civil matter, and only becomes a “criminal case” after a juvenile court properly

transfers jurisdiction to the appropriate district court. Thus, Moore submits to this

Court that any meaningful exercise of a district attorney’s duty to prosecute

criminal cases should coincide with a district court’s jurisdiction over the matter,


11The State’s Brief on the Merits divides its argument into five sections, labeled “A”
through “E”. Moore’s Reply Brief responds primarily to section “D”, because the
persuasiveness underlying sections “A”, “B”, and “C” depend upon the
presupposition that section “D” is sound.

12For the first time in this Court, the State attempts to include “county attorneys.”
Compare State’s Brief on the Merits at 4 with State’s Petition for Discretionary
Review at 13.

                                         14
which in this case is triggered after—as opposed to before—a juvenile court

properly waives its jurisdiction at the discretionary waiver hearing.

      Finally, fourth and also in the alternative, Moore argues Section

54.02(j)(4)(A) is a contractual arrangement, and its enforcement is not clearly

outweighed by separation of power concerns. A district attorney receives a

“benefit”—that is, the opportunity to criminally prosecute alleged acts committed

by children that are otherwise outside its reach—and in exchange, agrees to submit

to the juvenile court’s jurisdiction, “leaving at the door” those conflicting

prosecutorial discretions applicable in criminal district court.

      Moreover, Section 54.02(j)(4)(A)’s particular burden of persuasion is non-

obligatory at discretionary waiver hearings, applying only when a prosecuting

attorney chooses it over the three alternatives made available under Section

54.02(j)(4)(B). Therefore, Section 54.02(j)(4)(A), similar to a plea bargain and the

Interstate Agreement on Detainers Act (or, “IADA”) compact, is contractual in

nature, and its enforcement, as will be demonstrated herein, is not clearly

outweighed by separation of power concerns.

                     III. ARGUMENT AND AUTHORITIES

A.     Standard of Review

      A statute is presumed constitutional, and the burden rests with the challenger

to demonstrate its unconstitutionality. Rodriguez v. State, 93 S.W.3d 60, 69


                                          15
(Tex. Crim. App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim.

App. 1978).

B.    Whether the Separation of Powers Clause Protects a District Attorney’s
      Duties

      The State asserts, but does not demonstrate, its entitlement to the protection

afforded by the separation of powers provision of the Texas Constitution. (SB at

12, 16-7).13

      In Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987), this Court

determined that the separation of powers provision protected the Freestone County

Attorney’s duties, because (1) the Legislature had not created a district attorney in

Freestone County; and, (2) Article V, Section 21 of the Texas Constitution,

assigned to a county attorney without a district attorney, “the constitutional duty

‘to represent the State in all cases in the District and inferior courts.’” Id. at 253.

Premised thereupon, this Court went on to find that the separation of powers

provision, which protected the Freestone County Attorney’s constitutionally

assigned function also, as a necessary corollary, protected its prosecutorial

discretion “in the preparation of those cases for trial.” Id at 254.


13 At the crux of this argument, the State contends that because a district attorney
is constitutionally created, then it is constitutionally protected (by the Separation of
Powers Clause). (SB at 12). Moore’s position, on the other hand, is that the
Separation of Powers Clause protects constitutionally conferred duties, as opposed
to constitutionally created entities, and the State has failed to identify a relevant
constitutional duty conferred exclusively to a district attorney.



                                           16
      Unlike the Freestone County Attorney, a district attorney is not assigned the

exclusive constitutional function14 to represent the State in all cases in the district

and inferior courts.15 Rather, Article 5, Section 21, of the Texas Constitution,

expressly provides that the Legislature—and therefore, not the Texas

Constitution—shall regulate the duties of a district attorney.16

C.    Whether the Legislative Enactment is Constitutionally Authorized17

      The Texas Constitution expressly authorizes the Legislature to “establish

such other courts as it may deem necessary and prescribe the jurisdiction and

organization thereof, and may conform the jurisdiction of the district and other

inferior courts thereto.” TEX. CONST.,     ART.   V, § 1. The Legislature, having

14See (SB at 12) (Suggesting that a district attorney’s “primary” function to
prosecute criminal cases is akin to an “exclusive” constitutional function protected
by the separation of powers clause.).

15To clarify, the State does not advocate an exclusive constitutional function to seek
the adjudication of a juvenile’s delinquent conduct in juvenile court. Instead, its
argument is premised upon an unidentified duty, protected by the Separation of
Powers Clause, to criminally prosecute acts outside a district court’s jurisdiction.
(SB at 4, 7, 12, 14, 17, 19).

16 See State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997) (Framing the
issue as whether the statutory provisions “unduly interfere with the exercise of
constitutionally assigned powers.”) (emphasis added); Holmes v. Morales, 924
S.W.2d 920, 922 (Tex. 1996) (Determining that “the district attorney’s office is not
included in the meaning of ‘judiciary’ because the Texas Constitution invests no
judicial power in that office.”).

17Meshell v. State, 739 S.W.2d 246, 254-55. (“[U]nder the separation of powers
doctrine, the Legislature may not remove or abridge a district or county attorney’s
exclusive prosecutorial function, unless authorized by an express constitutional
provision.”) (emphasis added).


                                          17
established the juvenile court system, is therefore constitutionally authorized18 to

use Section 54.02(j)(4)(A) as its means for both regulating the procedures

prescribing a juvenile court’s jurisdiction, as well as conforming the jurisdictions

of the district courts and inferior courts thereto.19

D.       Whether the Statutorily Imposed Duty to Represent the State in
         Criminal Cases Requires, First, the Existence of a Criminal Case

         En arguendo that the Separation of Powers Clause protects a district

attorney’s statutorily imposed duty 20 to prosecute criminal cases, a district

attorney’s discretion to exercise this protected duty should not extend into a

juvenile court’s discretionary waiver hearing, because an alleged act by a child is

neither a criminal case, nor a “first-degree felony.”21 (SB at 5, 7, 19). That is,


18   See TEX. CONST., ART. V, § 31(a).

19See Marin v. State, 851 S.W.2d 275, 277 (Tex. Crim. App. 1993) overruled on
other ground by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (“And
that which the Legislature may withhold altogether, it may withhold in part.”);
Rushing v. State, 85 S.W.3d 283, 286-87 (Tex. Crim. App. 2002) (“It is the
Legislature, after all, that established the juvenile court system, and ultimately it is
up to that body to determine what procedures guide the movement of case from that
system to the adult criminal court system.”).

20See TEX. CODE. CRIM. PROC. ANN. art. 2.01 (West 2014) (“Each district attorney
shall represent the state in all criminal cases in the district courts of his district and
in appeals therefrom, except in cases where he has been, before his election,
employed adversely.”).

21As a corollary, the limitations period appears to be two-years, because “it has no
limitations period” under Chapter 12, Texas Code of Criminal Procedure. (SB at 5,
7). See TEX. FAM. CODE ANN. § 51.19 (c) (West Supp. 2014) (Stating that the
Juvenile Justice Code adopts Chapter 12’s limitations period, with the exception
that: “The limitation period is two years for an offense or conduct that is not given a

                                           18
unless and until a juvenile court properly waives its jurisdiction over the matter,

thereby conferring jurisdiction onto the district court, any ruling on the matter by

the district court is merely an advisory opinion.22 Therefore, a district attorney’s

duty to prosecute criminal cases should not extend into a juvenile court’s

discretionary transfer proceeding, because the conduct at issue there relates to a

civil matter, 23 not criminal, as evidenced by its classification as “delinquent

conduct”, rather than a “first-degree felony.”24


specific limitation period under Chapter 12, Code of Criminal Procedure, or other
statutory law.”); see TEX.CODE CRIM. PROC. 12.01(7) (West Supp. 2014) (Providing
residual three-years limitations period for all other felonies); see TEX.CODE CRIM.
PROC. 12.02 (West Supp. 2014) (Providing residual two-year limitations period for
all misdemeanors); See TEX.CODE CRIM. PROC. art. 12.01(1) (West Supp. 2014)
(Listing offenses under Chapter 12 that are not given specific limitation periods);
see TEX. FAM. CODE ANN. § 53.01(d) (requiring law enforcement to promptly
forward to a prosecuting attorney alleged delinquent conduct of the grade of felony,
regardless of a finding of probable cause, or lack thereof.). Thus, Moore’s alleged
delinquent conduct, an offense not given a specific limitations period under Chapter
12, appears to be subject to a two-year limitations period in juvenile court.

22 See Daimler Chrylser Corp v. Inman, 252 S.W.3d 299, 307 (Tex. 2008) (“The
denial of a claim on the merits is not an alternative to dismissal for want of subject
matter jurisdiction merely because the ultimate result is the same, because the
assertion of jurisdiction carries the courts beyond the bounds of authorized judicial
action and thus offends fundamental principles of separation of powers.”) (internal
citation omitted); see generally Texas Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440 (Tex. 1993) (Explaining that the separation of powers provision
prohibits courts from rendering advisory opinions, which occurs when a court lacks
jurisdiction over the matter.).

23The civil nature of discretionary waiver hearings may also be gleaned from the
lower burden of proof (i.e., “by a preponderance of the evidence”). See TEX. FAM.
CODE ANN. § 54.02(j) (West 2014); see also TEX. FAM. CODE. ANN § 51.17.

24See Moon v. State 451 S.W.3d 28, 45 (Tex. Crim. App. 2014) (“The juvenile
transfer proceeding remains civil in character, governed by the Juvenile Justice

                                         19
      Granted, “delinquent conduct” could be reclassified as a “felony offense,”

and in turn afford to a district attorney the meaningful opportunity to seek the

commencement of criminal charges. But this “benefit” is conditioned upon a

discretionary waiver hearing, that if satisfied, provides to a criminal district

court—and by extension, a district attorney seeking criminal charges—jurisdiction

otherwise unavailable.25 Thus, a child’s alleged “delinquent conduct” could be

redefined as a “felony offense,” but this does not entail that it must be redefined as

a “felony offense.”26

      Therefore, any conceivable duty a district attorney may have in criminally

prosecuting alleged acts committed by children should coincide with a district


Code; the proceedings do not become criminal unless and until the juvenile court
waives its exclusive jurisdiction and transfers the child to a criminal court for
prosecution as an adult.”); see TEX. FAM. CODE. ANN. § 51.04(a) (West 2014)
(defining “a child”, for jurisdictional purposes, by the accused’s age at the time of
the alleged act.); see Dendy v. Wilson, 179 S.W.2d 269, 273 (Tex. 1944) (Explaining
that a juvenile court “is not a criminal court… [but] is a special court created by
statute, and the statute specifically provides what disposition may be made of a
‘delinquent child.’”).

25C.f. State v. Williams, 938 S.W.2d 456, 462 (Tex. Crim. App. 1997) (“Because the
prosecutor has no extraterritorial power, he gains a benefit by using the provision of
the IADA [or, the Interstate Agreement on Detainers Act]—access to a defendant
whom he would otherwise have no power to reach. The Legislature was not obliged
to give the prosecutor that benefit.”).

26C.f. In Matter of D.W.M 562 S.W.2d 851 (Tex. 1978) (Standing for the proposition
that juvenile waiver hearings require strict adherence, and “the failure to comply
with 54.02(b) will deprive the juvenile court jurisdiction to consider discretionary
transfer.”); see Grayless v. State, 567 S.W.2d 216 (Tex. Crim. App. 1978) (same); In
re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999) (same).


                                         20
court’s jurisdiction over the matter, which begins after—as opposed to before—a

juvenile court properly conducts its discretionary waiver proceeding. 27

E.    In the Alternative, Whether Section 54.02(j)(4)(A) is a Contractual
      Arrangement and the Separation of Powers Concerns Clearly Outweigh
      its Enforcement

      1.     Section 54.02(j)(4)(A) is Contractual-in-Nature

      Similar to a plea bargain and the IADA compact, Section 54.02(j)(4)(A)’s

arrangement is also contractual in nature. The jurisdictional provision at issue here

affords to a district attorney the “benefit” of criminally prosecuting acts otherwise

outside a district court’s jurisdiction; and in exchange for this opportunity, a

prosecuting attorney agrees to “leave at the door” those prosecutorial discretions in

criminal district court that may conflict with the juvenile court’s jurisdiction and

discretion at its waiver proceeding. 28 Furthermore, Section 54.02(j)(4)(A)’s

particular application at discretionary transfer hearings is an exercise of

prosecutorial discretion in itself, because the prosecuting attorney is neither




27See Moon v. State, 451 S.W.3d 28, 52 n.90 (Tex. Crim. App. 2014) (Explaining the
jurisdictional “chicken-and-egg paradox” within the context of Rule 44.4 of the
Texas Rules of Appellate Procedure.).

28 See State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997) citing Gibson
v. State, 803 S.W.2d 316, 318 (Tex. Crim. App. 1991) (Analogizing the discretionary
nature of plea bargains, which are enforceable under specific performance, to the
IADA compact, for the proposition that a prosecutor can relinquish at least some of
its prosecutorial discretions in contractual arrangements.).



                                         21
required to petition a juvenile court to transfer the matter to district court, nor is it

required to satisfy Section 54.02(j)(4)(A)’s particular burden of persuasion.29

      2.   The Separation of Powers Clause Concerns do not Clearly Outweigh
           the interests underlying Section 54.02(j)(4)(A)’s Enforcement

      The Separation of Powers Clause does not expressly state that jurisdictional

procedures in juvenile court are unenforceable, 30 and those interest favoring

Section 54.02(j)(4)(A)’s enforcement are not outweighed—much less, clearly

outweighed—by separation of powers concerns (if any) weighing in opposition.

                    i.     Those Interests Favoring Enforcement

      “The transfer of a juvenile offender from juvenile court to criminal court for

prosecution as an adult should be regarded as the exception, not the rule.” Moon v.

State 451 S.W.3d 28, 33 (Tex. Crim. App. 2014). Under the State’s construction

of Section 54.02(j)(4)(A), however, the Legislature’s statutorily created

discretionary waiver hearings will transform into de facto automatic transfer




29As an alternative to Section 54.02(j)(4)(A), a prosecuting attorney seeking to
persuade a juvenile court to waive its exclusive, original jurisdiction at a
discretionary waiver hearing can instead choose one of the three alternative
statutory provisions made available by Section 54.02(j)(4)(B). See TEX. FAM. CODE
ANN. § 54.02(j) (West 2014).

30State v. Williams, 938 S.W.2d 456, 461 (Tex. Crim. App. 1997) (“Obviously, the
separation of powers clause does not expressly state that these types of provisions
are unenforceable.”).



                                           22
proceedings, 31 whereby a prosecutor will be granted the “bonanza right” to

criminally prosecute adults in district court for acts alleged to have been committed

while in adolescence.32 Adopting the State’s construction, then, would seriously

disrupt the bedrock of the juvenile court system—that “the State is parens partriae,

rather than prosecuting attorney and judge.” Kent v. United States, 381 U.S. 541,

555 (1967).33

                    ii.     Those Interests Disfavoring Enforcement

        Prohibiting Section 54.02(j)(4)(A)’s enforcement would not advance those

interests underlying the separation of powers provision, because a district attorney

is without a constitutional function to criminally prosecute acts outside a district


31C.f. State v. Salavea, 86 P.3d 126, 128 (Wash. 2004) (Analyzing a due-process
challenge within the context of Washington State’s automatic—as opposed to
discretionary—transfer proceeding.); see also Board of Ins. Commr’s v. Guardian
Life Ins Co., 180 S.W.2d 906, 908 (Tex. 1988) (Standing for the proposition that a
court should not write special exceptions into a statute so as to make it inapplicable
under certain circumstances not mentioned therein.).

32 Appellant’s circumstances are exemplary of this point. A detective’s “heavy
workload”—or, some other readily available “non-oppressive” basis—will become a
commonplace reason “beyond the control of the [prosecuting attorney] to proceed in
juvenile court before the 18th birthday of the person.” This excuse will even exist
when the detective’s delay exceeds the deadline—that is, the respondent’s 18th
birthday—by 11 days, and the prosecuting attorney then waits an additional 13-
months before filing its petition to transfer the alleged civil act to district court for
the commencement of criminal proceedings. See Moore v. State, 446 S.W.3d 47 (Tex.
App.—Houston [1st Dist.] 2014, pet. granted).

33See Moon v. State 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (Acknowledging “the
goals between criminal justice system and juvenile justice system to be
fundamentally different, describing the former as more ‘retributive’ than its
‘rehabilitative’ juvenile counterpart.”).

                                           23
court’s jurisdiction. Therefore, and similar to the IADA compact, “[t]he

Legislature was not obliged to give the prosecutor that benefit”, and it should not

be unreasonable for the Legislature to place some restrictions on its discretion in

these circumstances. State v. Williams, 938 S.W.2d 456, 462 (Tex. Crim. App.

1997).

      Finally, enforcement of Section 54.02(j)(4)(A) neither relates to, nor

encourages misconduct. Rather, and similar to a statute of limitations, the

jurisdictional inquiry at issue here has “the salutary effect of encouraging law

enforcement officials to promptly investigate suspected” delinquent conduct before

a juvenile court is deprived of its jurisdiction.34

      Accordingly, this Court should find that those interests favoring Section

54.02(j)(4)(A)’s    enforcement      are    not   outweighed—much    less   clearly

outweighed—by those separation of powers’ concerns (if any) weighing in

opposition.

                                       PRAYER

      Moore prays that the Honorable Court of Criminal Appeals sustain these

appellate contentions raised herein, and affirm the First Court of Appeals

construction of Section 54.02(j)(4)(A) of the Juvenile Justice Code in the Texas

Family Code.

34C.f. Toussie v. United States, 397 U.S. 112, 114-115 (1970) (Explaining that a
similar effect is also achieved through a statute of limitations.).

                                           24
                                     RESPECTFULLY SUBMITTED,

                                      /s/ Carmen Roe
                                     _____________________________
                                     CARMEN ROE
                                     CARMEN ROE LAW FIRM
                                     TBN:24048773
                                     440 Louisiana, Suite 900
                                      Houston, Texas 77002
                                      713.236.7755Phone
                                      713.236.7756Fax
                                     carmen@carmenroe.com
                                     www.carmenroe.com
                                     ATTORNEY FOR APPELLANT




                        CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of the foregoing Appellant’s

Brief was served the Fort Bend District Attorney, Appellate Division, 301 Jackson,

Richmond, Texas 77469, on 24th day of July 2015.

                                                        /s/ Carmen Roe
                                                        ___________________
                                                        CARMEN ROE




                                       25
                     CERTIFICATE OF COMPLIANCE


      This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with

the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it

contains 3,129 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).



                                                         /s/ Carmen Roe
                                                         ____________________
                                                         CARMEN ROE




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