    OPPlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN    CORNYN




                                                    June 7.2000



The Honorable Florence Shapiro                            Opinion No. JC-0229
Chair, Committee on State Affairs
Texas State Senate                                        Re:     Whether law enforcement       officers are
P.O. Box 12068                                            authorized to take a seventeen-year-old        into
Austin, Texas 78711                                       custody simply because he or she has been
                                                          reported as a missing child under chapter 63 ofthe
                                                          Code ofCriminal Procedure, and related questions
                                                          (RQ-0169-JC)


Dear Senator Shapiro:

         On behalf of the City of Plan0 Police Department (the “Police Department”), you ask
whether police officers are authorized to take a seventeen-year-old into custody simply because he
or she has been reported as a missing child under chapter 63 of the Code of Criminal Procedure. We
conclude that article 63.009(g) re q uires a law enforcement officer who locates a seventeen-year-old
who has been reported as a missing child to take possession of the child and to deliver the child to
the person entitled to his or her possession or to the Department of Protective and Regulatory
Services. See TEX. CODE CRIM. PROC. ANN. art. 63.009(g) (Vernon Supp. 2000). We also conclude
that the detention of an unemancipated seventeen-year-old against his or her wishes for the purpose
of returning the child to his or her parent or guardian does not violate the child’s constitutional
rights. In addition, we conclude that an officer may use force to take possession of a missing child,
but only to the degree the officer reasonably believes is necessary to safeguard or promote the child’s
welfare consistent with the protective purpose of article 63.009(g).

        Chapter 63 of the Code of Criminal Procedure creates a state clearinghouse for information
on missing children and missing persons in the Department of Public Safety and establishes various
requirements    regarding missing children and missing persons for state agencies, local law
enforcement agencies, and schools. See id. arts. 63.002, .003, ,008, ,009, .020. Article 63.009,
among other things, requires a local law enforcement agency that receives a report of a missing child
or missing person to investigate the present location of the child or person and to file the information
with the state clearinghouse and the national crime information center. See id. art. 63.009(a). These
requirements apply to municipal police departments and county sheriffs departments. See id. art.
63.001(S) (defining “law enforcement agency”).
The Honorable   Florence Shapiro    - Page 2       (JC-0229)




         The Police Department’s questions specifically pertain to the duties imposed on law
enforcement officers by subsection (g) of article 63.009. For purposes of these questions, the
pertinent subsections of article 63.009 are as follows:

                    (a) Local law enforcement agencies, on receiving        a report of a
                missing child or a missing person, shall:

                         (1) if the subject of the report is a child and the well-being of
                the child is in danger or if the subject of the report is a person who is
                known by the agency to have or is reported to have chronic dementia,
                including Alzheimer’s dementia, whether caused by illness, brain
                defect, or brain injury, immediately start an investigation in order to
                determine the present location of the child or person;

                        (2) if the subject of the report is a child or person other than
                a child or person described by Subdivision (1) start an investigation
                with due diligence in order to determine the present location of the
                child or person;




                     (g) On determining the location of achildunder Subsection (a)( 1)
                or (2), other than a child who is subject to the continuing jurisdiction
                of a district court, an officer may take possession of the child and
                shall deliver or arrange for the delivery of the child to a person
                entitled to possession ofthe child. If the person entitled to possession
                of the child is not immediately available, the law enforcement officer
                shall deliver the child to the Department ofprotective and Regulatory
                Services.

Id. art. 63.009 (footnote omitted) (emphasis added). Subsection (g) governs the conduct of a law
enforcement officer who determines the location of a missing child pursuant to an investigation into
a report under subsection (a)( 1) or (2). The version of subsection (g) published in Vernon’s includes
a footnote after the word “may,” in the phrase “an officer may take possession of the child.” The
footnote indicates that one version of subsection (g) enacted by the Seventy-sixth Legislature used
the word “shall” in place of the word “may.” The Police Department’s questions are premised on
the belief that subsection (g) uses the word “shall” and imposes a mandatory duty on officers to take
possession of a missing child. See Letter from Bruce D. Glasscock, Chief of Police, Plan0 Police
Department, to Senator Florence Shapiro, at 1 (Dec. 3, 1999) (on file with Opinion Committee)
[hereinafter “Police Department Letter”]. Therefore, we must address the proper wording of
subsection (g) before turning to the Police Department’s specific questions.
The Honorable    Florence Shapiro           - Page 3       (JC-0229)




        The missing children and persons provisions now in chapter 63 of the Code of Criminal
Procedure were originally enacted as a chapter in the Human Resources Code.’ In 1997, the
Seventy-fifth Legislature enacted the precursor to subsection (g), which used the word “may,” as
section 79.008(a)(4) ofthe Human Resources Code.* The Seventy-fifth Legislature also moved the
missing children and persons provisions from chapter 79 of the Human Resources Code to chapter
62 of the Code of Criminal Procedure.)

         The Seventy-sixth Legislature enacted three bills affecting subsection(g)-    Senate Bill 1368,
House Bill 605, and House Bill 668. While the first two bills used the word “may,” House Bill 668
replaced “may” with “shall.” Senate Bill 1368, a nonsubstantive cleanup bill,4 moved section
79.008(a)(4) ofthe Human Resources Code to article 62.009(g) of the Code of Criminal Procedure’
and renumbered the provisions of chapter 62 of the Code of Criminal Procedure in chapter 63.”
House Bill 605 relocated section 79.008(a)(4) ofthe Human Resources Code to article 62.009(g) of
the Code of Criminal Procedure without changing “may” to “shall.“’ House Bill 668, however,
relocated section 79,008(a)(4) of the Human Resources Code to article 62.009(g) of the Code of
Criminal Procedure and amended the provision to change “may” to “shall.” See House Bill 668,
enacted as Act of May 26,1999,76th Leg., R.S., ch. 685, 5 5, 1999 Tex. Gen. Laws 3256,3257
(purpose of act “to relocate and nmend language” enacted in 1997) (emphasis added). Significantly,
it also amended article 2.13 of the Code of Criminal Procedure, which establishes duties and powers
ofpeace officers, to provide in subsection (c) that “[i]t is the duty ofevery officer to take possession
 of a child under Article 62.009(g).” Id. 3 1. Thus, House Bill 668 imposes an affirmative duty on
 an officer to take possession of a missing child who he or she has located. See id. $5 1,5; see also
 TEX. GOV’T CODE ANN. 5 311.016(2) (Vernon 1998) (the term “shall” “imposes a duty” unless
 context in which it appears “necessarily requires a different construction”).

         The Code Construction Act provides that when amendments to the same statute are enacted
in the same session without reference to each other, the statutes must be harmonized ifpossible. See
TEX. GOV’T CODE ANN. 5 3 11.025(b) (Vernon 1998). If the statutes are irreconcilable, the latest in
date of enactment prevails. See id. The language of Senate Bill 1368, House Bill 605, and House
Bill 668 conflict to the extent the first two bills provide that an officer “may” take possession of a


          ‘See Act of May 6,1985,69th Leg., R.S., ch. 132,s 1,1985 Tex. Gen. Laws 614; Act of May 1,1987,7Oth
 Leg., RX, ch. 167, 5 S,Ol(a)(26), 1987 Tex. Gen. Laws 1338, 1358.

         %e Act ofApr. 25, 1997,75th         Leg., R.S., ch. 51, 5 2, 1997 Tex. Gen. Laws 120, 121.

         ‘See Act of May 26,1997,75th        Leg., R.S., ch. 1427,s    1, 1997 Tex. Gen. Laws 5487.

         ‘See Senate Bill 1368, Act ofApr. 23, 1999,76th Leg., R.S., ch. 62, 55 1.01, .02, 1999 Tex. Gem Laws 127.

         %e id. 5 3.12, at 133.

         %ee id. 5 19.01(8)(A),   at 412.

         ‘See House Bill 605, Act ofMay 10, 1999,76th Leg., RX, ch. 200, g 2, 1999 Tex. Gen. Laws 677,678.
The Honorable Florence Shapiro         - Page 4         (JC-0229)




missing child and the latter provides that an officer “shall” take possession of a missing child.
Senate Bill 1368 provided that “[i]f any provision of this Act conflicts with a statute enacted by the
76th Legislature, Regular Session, 1999, the statute controls.“* Therefore, Senate Bill 1368’s
version of subsection (g), which conflicts with the House Bill 668 version, does not control.
Accordingly, only House Bills 605 and 668 must be reconciled.

         For purposes ofthe Code Construction Act’s provision relating to conflicting bills, “the date
of enactment is the date on which the last legislative vote is taken on the bill enacting the statute.”
Id. 6 3 11.025(d). The last legislative vote was taken on House Bill 605 on May 10,1999,9 while the
last legislative vote was taken on House Bill 668 on May 26, 1999.“’ Accordingly, House Bill 668,
the later enacted provision, prevails. Therefore, the first sentence of subsection (g) of article 63.009
provides as follows:

                     On determining the location of a child under Subsection (a)( 1) or
                (2), other than a child who is subject to the continuing jurisdiction of
                a district court, an officer shall take possession of the child and shall
                deliver or arrange for the delivery of the child to a person entitled to
                possession of the child.

We also note that the reference in article 2.13(c) of the Code of Criminal Procedure to article
62.009(g) must be construed as a reference to article 63.009(g), as Senate Bill 1368 renumbered the
provisions of chapter 62 in chapter 63. See note 6 supra. Thus, subsection(c) of article 2.13 should
be construed to provide that “tilt is the duty of every officer to take possession of a child under
Article 63.009(g).”

         We now turn to the Police Department’s specific questions. These questions turn on the
different definitions of the term “child” in chapter 63 of the Code of Criminal Procedure and title
3 of the Family Code. Title 3 of the Family Code, the Juvenile Justice Code, defines the term
“child” to mean a person who 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 indicaling a need for supervision as a result of acts committed before
becoming 17 years of age.” TEX. FAM. CODEANN. 5 5 1.02(2) (Vernon Supp. 2000). Both the terms
“delinquent conduct” and “conduct indicating a need for supervision,” the two categories ofjuvenile
offenses, include “the voluntary absence of a child from his home without the consent of his parent
or guardian for a substantial length oftime or without intent to return.” Id. 9 5 1.03(a)(2)(C), (b)(3).
The Juvenile Justice Code authorizes a law enforcement officer to take a child into custody if there
is probable cause that the child has engaged in delinquent conduct or conduct indicating a need for



        ‘Act of Apr. 23, 1999,76tb Leg., RX, ch. 62, 5 1.02(b), 1999 Tex. Gen. Laws 127

        gSeeS.J.~~TE~.,76thLeg.,R.S.     1589(1999)

        %ee S.J. OF TEX., 76th Leg., R.S. 2906 (1999)
The Honorable   Florence Shapiro   - Page 5       (JC-0229)




supervision.   See id. 5 52,01(a)(3)(B). Under the Juvenile Justice Code, however, a person who
voluntarily leaves home after reaching seventeen years of age does not commit a juvenile offense
and may not be taken into custody for doing so. See id. $5 51,02(2)(A), (B); 51,03(a)(2)(C), (b)(3).

         On the other hand, subsection (g) of article 63.009 requires an officer to take possession of
a seventeen-year-old     who has been reported as missing, even a seventeen-year-old          who has
voluntarily left the care and control of his legal custodian without the custodian’s consent and
without intent to return. This is because the term “child” is defined for purposes of chapter 63 of the
Code of Criminal Procedure as a person under eighteen years of age, see TEX. CODE GRIM. PROC.
ANN. art. 63.001(l) (Vernon Supp. 2000), and a “missing child” is defined as:

                    a child whose whereabouts are unknown to the child’s legal
                custodian, the circumstances of whose absence indicate that:

                        (A) the child did not voluntarily leave the care and control
                of the custodian, and the taking of the child was not authorized by
                law;

                        (B)   the child voluntarily left the care and control of his
                    legal custodian without the custodian’s consent and without
                    intent to return; or

                        (C) the child was taken or retained in violation of the terms
                of a court order for possession of or access to the child.

Id. art. 63.001(3) (emphasis added); see also id. art. 63.001(4)(C) (“Missing child” or “missing
person” also includes a person of any age who is missing and “is unemancipated as defined by the
law of this state.“).

         The Police Department asks five questions about an officer’s duty with respect to a missing
seventeen-year-old under chapter 63 ofthe Code of Criminal Procedure. These questions stem from
the anomaly in the law that a seventeen-year-old is an adult for purposes of criminal statutes but, as
we shall discuss in greater detail, a child for purposes of civil law. Compare TEX. FAM. CODE ANN.
5 5 1.02(2) (Vernon Supp. 2000) (Juvenile Justice Code applicable only to conduct committed prior
to age seventeen), and TEX. PEN. CODE ANN. 9 8.07 (Vernon Supp. 2000) (age affecting criminal
responsibility), with TEX. FAM. CODE ANN. $101.003(a) (Vernon 1996) (defining child for purposes
ofprovisions governing parent-child relationship     to includepersonunder    eighteen years ofage), and
TEX. CIV. PRAC. & REM. CODE ANN. 5 129.001 (Vernon 1997) (providing that age of majority is
 eighteen). We wish to preface our response to these questions with the following observations,
which inform our analysis. Article 63.009(g) is not a penal statute nor is it related to juvenile
 misconduct; its purpose is to locate missing children, to ensure their safety, and to reunite them with
 their parents or guardians. Furthermore, taking possession of a child under article 63.009(g) is not
The Honorable Florence Shapiro      - Page 6      (JC-0229)




tantamount to an arrest for criminal behavior.    The custody the statute contemplates    is protective
rather than penal in nature.

         The first question posed by the Police Department is whether “police officers [are] authorized
to take a person who is over the age of seventeen, but not yet eighteen, into custody simply because
the person has been listed as ‘missing ‘7” Police Department Letter at 2. As we have explained,
subsection(g) ofarticle 63.009 affirmatively requires an officer to take possession ofachildreported
as missing. See sup-a discussion pp. 2-4. Under chapter 63, a child is defined as a person under
eighteen years of age. See TEX. CODECRIM. PROC. ANN. art. 63.001(l) (Vernon Supp. 2000). Thus,
in answer to this question, a law enforcement officer must take a person who is over the age of
seventeen, but not yet eighteen, into custody, simply because the person has been listed as “missing.”
The Police Department appears concerned that the seventeen-year-old              may wish to remain
“missing.” In this regard, we note that a seventeen-year-old who has voluntarily left the care and
control of his legal custodian without the custodian’s consent and without intent to return may be
reported as missing. See id. art. 63.001(3)(B). The fact that a child reported as missing is seventeen
and has left home voluntarily does not mitigate the duty of an officer to take possession ofthe child.

         In a related question, the Police Department asks: “What if the person does not want to be
detained?” Police Department Letter at 2. It is not relevant under subsection (g) whether the
seventeen-year-old    wishes to be taken into protective custody. Again, under chapter 63 a child,
including a seventeen-year-old,    is “missing” even if the child “voluntarily left the care and control
of his legal custodian without the custodian’s consent and without intent to return.” TEX. CODE
GRIM. PROC. ANN. art. 63.001(3)(B) (V emon Supp. 2000). An officer has a duty under article
63.009(g) to take possession of a seventeen-year-old who has been reported as missing even if the
seventeen-year-old    does not wish to be detained.

         The Police Department expresses concern that detaining a seventeen-year-old against his or
her wishes constitutes an arrest and may violate the seventeen-year-old’s      constitutional rights
because running away from home at the age of seventeen is not an offense under the Juvenile Justice
Code. The Police Department poses the following dilemma: “[D]o we ‘arrest’ aperson.          who haa
committed no crime, or do we ignore what appears to be a statutory mandate in order to avoid an
allegation of an unconstitutional seizure.” Police Department Letter at 2. As explained below, in
our view this concern is unfounded.

        The Police Department describes the detention of a seventeen-year-old              under article
63.009(g) as an arrest. As we believe that the custody the statute contemplates is protective rather
than penal in nature, we do not agree with this characterization. Furthermore, we do not believe that
a peace officer who takes possession of a seventeen-year-old under the authority of article 63.009(g)
and detains the child against his or her will violates the child’s constitutional rights. Chapter 63
provides a system for a parent or guardian to report to a law enforcement agency that a child is
missing and to have this information included in a statewide database, thereby informing law
enforcement agencies of the fact that the child is missing and of the parent or guardian’s desire to
have the child returned. It is entirely consistent with the laws of this state and constitutional law to
The Honorable   Florence Shapiro    - Page 7      (JC-0229)




include seventeen-year-olds  who voluntarily   leave the care and control of their parents or guardians
in this system as missing children.

         Under the laws of this state, the age of majority is eighteen years. See TEX. CIV. PRAC. &
REM. CODE ANN. 3 129.001 (Vernon 1997). Under title 5 of the Family Code, which governs the
parent-child relationship, a “child” is defined as “a person under 18 years of age who is not and has
not been married or who has not had the disabilities ofminority removed for general purposes,” TEX.
FAM. CODE ANN. 5 101.003(a) (Vernon 1996), or, in other words, a person seventeen years of age
or younger who has not been emancipated by marriage or by court order, see id. 5 1.104 (Vernon
1998) (disabilities of minority removed by marriage); ch. 31 (Vernon 1996 & Supp. 2000)
(procedures for child to petition court to remove disabilities of minority). A parent or legal guardian
has a statutory right under the Family Code to have physical possession of his or her unemancipated
child and to establish the child’s residence.      See id. 5 151.003(a)(l) (Vernon 1996) (rights of
parents); TEX. PROB. CODE ANN. $767 (Vernon Supp. 2000) @owers and duties of legal guardians).
Therefore, under the laws of this state, a parent or guardian has a right to physical possession of an
unemancipated seventeen-year-old who has let? home without the parent’s or guardian’s permission.

         Furthermore, as the United States Supreme Court has recognized, unemancipated seventeen-
year-olds’ constitutional liberty rights arenot as great as adults’ and are subject to the control oftheir
parents or guardians: “Traditionally at common law, and still today, unemancipated minors lack
some of the most fundamental rights of self-determination       -- including even the right of liberty in
its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical
freedom, to the control of their parents or guardians.” Vernonia Sch. Dist. 47Jv. Acton, 515 U.S.
646, 654 (1995). Furthermore, a child’s liberty interest may, in appropriate circumstances, be
subordinated to the state’s interest in preserving and promoting the welfare of the child. See Schall
v. Martin, 467 U.S. 253,265 (1984) (“[Jluveniles, unlike adults, are always in some form ofcustody.
Children, by definition, are not assumed to have the capacity to take care of themselves. They are
assumed to be subject to the control of their parents, and if parental control falters, the State must
play its part as parens patriae. In this respect, the juvenile’s liberty interest may, in appropriate
circumstances, be subordinated to the State’s ‘parens patriae’ interest in preserving and promoting
the welfare of the child.“) (citations omitted).

          In sum, given the statutory right of a parent or guardian to physical possession of his or her
 child and that an unemancipated child’s liberty rights are subject to parental and state control, we
 conclude that the involuntary detention of an unemancipated          seventeen-year-old   under article
 63.009(g) for the purpose of returning the child to his or her parent or guardian does not amount to
 an unconstitutional deprivation of liberty. Furthermore, we note that a law enforcement officer who
 acts reasonably to take possession of a child under the authority of article 63.009(g) would be
 shielded Tom civil liability under the qualified immunity doctrine. A plaintiff complaining of the
 officer’s conduct would have to establish that the officer was not entitled to qualified immunity, a
 difficult burden to bear. See, e.g., Mackenzie v. Cartagenn, 1999 WL 1201786 (N.D. Tex. 1999)
 (granting summary judgment against plaintiff who claimed that officer violated her constitutional
 rights by taking possession of her child under precursor to article 63.009(g) on basis that officer was
The Honorable    Florence Shapiro    - Page 8      (JC-0229)




entitled to qualified immunity); see also TEX. FAM. CODEANN. $262.003 (Vernon 1996) (“A person
who takes possession of a child without a court order is immune from civil liability if, at the time
possession is taken, there is reasonable cause to believe there is an immediate danger to the physical
health or safety of the child.“).

         With respect to detention, the Police Department also asks how long an officer may detain
a seventeen-year-old.    See Police Department Letter at 2. Article 63.009(g) requires an officer who
takes possession of a child reported as missing “to deliver or arrange for the delivery of the child to
a person entitled to possession of the child. If the person entitled to possession of the child is not
immediately available, the law enforcement officer shall deliver the child to the Department of
Protective and Regulatory Services.” TEX. CODE GRIM. PROC. ANN. art. 63.009(g); see also TEX.
FAM. CODE ANN. 5 262.007 (Vernon Supp. 2000) (law enforcement officer “who, during a criminal
investigation relating to a child’s custody, discovers that a child is a missing child and believes that
aperson may flee with or conceal the child shall take possession ofthe child” and shall deliver child
to person entitled to take possession of child or Department ofprotective and Regulatory Services).
Thus, an officer may detain a seventeen-year-old who has been reported as missing until the child
has been reunited with his parent or guardian, ifthat person is immediately available. If that person
is not immediately available, the officer should deliver the child to the Department of Protective and
Regulatory Services. In this regard, we note that section 262.110 of the Family Code specifically
authorizes an authorized representative of the Department of Protective and Regulatory Services or
a law enforcement officer to take temporary possession of a child without a court order “on
discovery of a child in a situation of danger to the child’s physical health or safety when the sole
purpose is to deliver the child withoutunnecessary    delay to the [person]    . who is presently entitled
to possession of the child.” TEX. FAM. CODE ANN. 5 262.110(a) (Vernon Supp. 2000). For purposes
of section 262.110, which is also located in title 5 of the Family Code, a “child” is defined as “a
person under 18 years of age who is not and has not been married or who has not had the disabilities
 of minority removed for general purposes.” Id. 5 101.003(a) (Vernon 1996).

         The Police Department also asks if officers would be authorized to use force to take
possession of a missing seventeen-year-old.     We assume that this question pertains to use of force
against the child rather than some third person who may have absconded with the child. We
conclude that an officer may use force to detain a missing child who wishes to elude protective
custody, but only to the degree the officer reasonably believes is necessary to safeguard or promote
the child’s welfare consistent with the protective purpose of article 63.009(g).

        We believe that the use of force in this situation would be governed by section 9.61 of the
Penal Code, a provision of chapter 9 of the Penal Code, which governs use of force for purposes of
the criminal law. Section 9.02 of the Penal Code provides that “[i]t is a defense to prosecution [for
use of force] that the conduct in question is justified under this chapter.” TEX. PEN. CODE ANN.
$9.02 (Vernon 1994). Under chapter 9, confinement, i.e. detention of a person for purposes other
than arrest, constitutes use of force. See id. § 9.03. Chapter 9 contains various provisions governing
use of force by law enforcement officers. See, e.g., id. $5 9.51-.53. As these provisions deal with
use of force in the context of arrests, searches, custody following an arrest, and prisons, they are
The Honorable Florence Shapiro          - Page 9       (X-0229)




inapplicable here where we consider use of force to take a child into protective custody. Rather,
section 9.61 of the Penal Code provides that the use of force, but not deadly force, against a child
younger than eighteen years is justified under certain circumstances, specifically:

                          (1) if the actor is the child’s parent or stepparent or is acting in
                    loco parentis to the child; and

                          (2) when and to the degree the actor reasonably believes the
                    force is necessary to discipline the child or to safeguard or promote
                    his welfare.

Id. 5 9.61(a)(l),   (2). For purposes of section 9.61, “in loco parentis” includes a “grandparent and
guardian, any person acting by, through, or under the direction of a court with jurisdiction over the
child, and anyone who has express or implied consent of the parent or parents.” Id. 3 9.61(b)
(emphasis added); see also id. 5 9.62 (“The use of force, but not deadly force, against a person is
justified: (1) if the actor is entrusted with the care, supervision, or administration of the person for
 a special purpose; and (2) when and to the degree the actor reasonably believes the force is necessary
to further the special purpose or to maintain discipline in a group.“).

         Section 9.61 applies to use of force against a child (i) to discipline the child or to safeguard
or promote the child’s welfare, see id. 4 9,61(a)(2), (ii) by the parent or person acting in loco
parentis, which is broadly defined to include any person acting with the parent’s implied or express
consent, see id. 5 9.61(a)(l), (b). Ag ain, the purpose of chapter 63 of the Code of Criminal
Procedure is to locate missing children, to ensure their safety, and to reunite them with their parents
or guardians. Thus, we believe that an officer who takes possession of a child under article 63.009(g)
does so to safeguard or promote the child’s welfare within the meaning of section 9.61. See id. §
9.61(a)(2).

         The more difficult question is whether an officer has parental consent to use force against the
child for purposes of section 9.61. See id. $ 9.61(a)(l), (b). Based on the statutory scheme, we
conclude that a parent or guardian who reports a child as missing consents to use of reasonable force
against the child. First, we believe it is clear from the statute that an officer who locates a child who
has been reported as missing by a parent or guardian has the express consent of the parent or
guardian to confine the child. The very act of reporting a child as missing triggers the mandatory
duty in article 63.009(g) (and article 2.13(c)) that an officer who locates the child take possession
of the child. This duty includes the duty to keep the child in the officer’s possession until the person
entitled to possession or the Department ofprotective and Regulatory Services representative arrives.
Again, if the child does not wish to stay with the officer, the detention will constitute confinement,
a use of force. See id. 3 9.03. Furthermore, we believe that a parent or guardian who reports a child
as missing must reasonably anticipate that use of some force may be necessary to take physical
possession of a child who does not wish to be taken into protective custody. For this reason, an
officer who locates a child who has been reported as missing by a parent or guardian has the implied
consent of the parent or guardian to use force to take physical possession of the child.
The Honorable     Florence Shapiro      - Page 10       (JC-0229)




         Accordingly, we conclude that section 9.61 would generally apply to an officer who takes
possession of a child under article 63.009(g). Thus, such an officer is justified in using force “to the
degree the [officer] reasonably believes        is necessary     to safeguard or promote [the child’s]
welfare.” Id. § 9.61(a)(2). Clearly an officer who locates a child who has been reported as missing
by a parent or guardian would be justified in confining the child until the person entitled to
possession or the Department of Protective and Regulatory Services representative arrives. We
caution, however, that although article 63.009(g) clearly contemplates confinement of an unwilling
child, the child is not under arrest, and it would not be appropriate for a law enforcement officer to
place a missing child in a jail or with persons under arrest for crimes or juvenile misconduct, Cf:
TEX. FAM. CODE ANN. 5 262.108 (Vernon Supp. 2000) (“When a child is taken into possession
under [chapter 262 of the Family Code, which provides for taking children into protective custody
in certain situations,] that child may not be held in isolation or in a jail, juvenile detention facility,
or other secure detention facility.“).

         In addition, use of force greater than confinement may be justified in some circumstances
to take physical possession of a child. We stress, however, that the purpose of taking possession of
a child under article 63.009(g) is to protect the child, who, presumably, has not committed an offense
and is not under arrest. We believe that a trier of fact would consider whether the degree of force
was reasonable in light of the protective purpose of article 63.009(g). Moreover, while we have
focused our analysis on criminal liability for use of force, the reasonableness of the use of force
would also be an important factor in the context of a civil suit under state or federal law arising from
the use of force under article 63.009(g) and would be considered in light of the protective purpose
of the statute. Cf: Thompson v. City of Galveston, 979 F. Supp. 504 (S.D. Tex. 1997) (to sustain
cause of action under Fourth Amendment that officers used excessive force to take child into custody
under chapter 52 of the Family Code, plaintiff must establish that use of force was “objectively
unreasonable”); Hudson Y. Vasquez, 941 S.W.2d 334,337 (Tex. App.-Corpus Christi 1997, no writ)
(reasonableness     of force used in making an arrest an element of determining whether law
enforcement officer is entitled to official immunity under state law); id. at 338-39 (whether law
enforcement officer is entitled to official immunity in action under 42 U.S.C. 5 1983 for use of force
in making an arrest depends in part upon reasonableness of force used). In the final analysis,
however, the determination whether the degree of force used in a particular case is reasonable
depends upon the circumstances and is beyond the purview of an attorney general opinion.”

         Finally, thePoliceDepartmentnotes  that article63.010ofchapter63 oftheCodeofCrimina1
Procedure provides that “[tlhe Attorney General shall require each law enforcement agency to
comply with this chapter and may seek writs of mandamus or other appropriate remedies to enforce
this chapter.” TEX. CODE GRIM. PROC. ANN. art. 63.010 (Vernon Supp. 2000). The Police
Department asks: “Would [the Oftice ofthe Attorney General] pursue an action against an agency
that refused to detain a seventeen-year-old who had committed no crime and did not voluntarily



         “See 2 e.g. , Tex. Att’y Gen. Gp. Nos. K-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done inopinionprocess); M-187 (1968) at 3 (“[Tlhis office is without authority to make.   factual
determinations.“); O-2911 (1940) at 2 (“[Tlhis     presents a fact question which we are unable to answer.“).
The Honorable   Florence Shapiro   - Page 11      (JC-022.9)




remain in police custody?’ Police Department Letter at 2. Whether this office would undertake an
enforcement action in any particular instance is an issue that is not amenable to an attorney general
opinion.

                                        SUMMARY

                         Article 63.009(g) of the Code of Criminal Procedure requires
                a law enforcement officer who locates a seventeen-year-old who has
                been reported as a missing child to take possession of the child and
                to deliver the child to the person entitled to his or her possession or
                to the Department of Protective and Regulatory Services.            The
                detention of an unemancipated seventeen-year-old against his or her
                wishes for the purpose of returning the child to his or her parent or
                guardian does not violate the child’s constitutional rights. An officer
                may use force to take possession of a missing child, but only to the
                degree the officer reasonably believes is necessary to safeguard or
                promote the child’s welfare consistent with the protective purpose of
                article 63.009(g).




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
