             OFFICE OF THE                                          OF




Honorable P. Y. hinter
county Attorney
Jim So= County
Hebbronvllle,   Texa8
Bar   Sib:                                          opinionR0.    ‘0:547g..   ‘x.
                                                   ,Re: .A--person not over tha age
                                                           of ten years cannot be pun-
                                                      f/d iabe& for violating/the  penal
                                                    /    /lava of., thir State.
                                                  .’ I


              . . . .. .        ,/       - ‘\,:       ~”
                                                       “‘, ;,,,
                           ,’
                                 .,.*-      .?FACTSI        %.>.,
                       !         I
            ‘A boy doer ‘9, but tider~.lO                  year@ of age, and
      apparent;Sg having due dlrcretlon,                    aonuuitr a felony
      0fSensd obb4r than perjury.
      ,/.‘I ,/-Q      /;j, ‘,~,~
                              :*y l!aEF:
      i    61.      A& ii Pi c., says the  design of the
      P&ml Code is ,to d4fb.m every off4n44, and to affti
      to each of &tie It proper puetshment.       Art. 10,
      P. C.;,~pr‘o~ldes.~no act oan be punirhed as an of-
      fense uulesa the law makIng it penal wa4 in force
      at the time:of the act.     Art. 30, P. C., provides
      that no person shall be convioted of any offense
      before he was 9 years old, except perjury,      etc.;
      nor of any other offense comltted      betveen the ages
      of $3 & 13 years unless it appearr that he had dis-
      or&ion    sufficient  to uuderetand the nature and ll-
      legality   of the aot comtltutlng   the offense.
Honorable    P. W. Minter,                   page 2


--           ‘2.   Former Art. 1083, C. C. P. (now repealed-
      304 belov),    defined a Delinquent Child as being any
      boy under 17, and any girl under 18 years of age,
      ?ho violates    imy penal lav of the State, etc.   It
      should be noted that it did not fix a minimum age
      of 10 years, as does the amended lav hsrelnafter
      cited.
             “3. Art. 51438 R. C. 9. (Aots 1937, 45th.
                  1328 oh 192) 4xpr44sly repsaled above
                   c E P. and redefined       s ‘Delinquent
      ChlJd’ as’being’&boy     between the ages of 10 d:
      17 years, or any girl between the ages of 10 & 18
      years.   Art. 2 38-1, V. A. C. 8. (tits      1943, 48th.
      Is&r S. B. 44 3 again  repealed   Art.   1083, C. C. P.,
      and again redeflnsd a ‘Delinquent      Child’ In the
      same way as next above stated.     It is noted that
      no provlsian uas made as to a child betveeq 9 k 10
      years of age in either or said last mentioned
      enaotments, and apparently hs oannot be punished
      as a ~Dwlinquent Child’ under either.
                                                  *QUESTION
                                                          I
      “What lav a@%48     to a child between 9 & 10 yeam
      of age, vho violates. a penal statute,  and what is his
      &XIlliShIS4Atf

             I)                   .
                  .   .   i   .

           We readily observe the apparent quandary created by
the enactment of recent legislation     pertaining to delinquent
Children as you have so aptly polnted out in your letter.        ROW-
ever, we believe any amblgtity~ that might be present is olari-
flied by reading said Senate Bill 44 and looking to the intent
of the Legislature   in reference  thereto.
             We quote                 in   part    from   Senate Bill   Bo. 44 as follovs:
            ‘Section   1. Purpose and B4sio Principle.     The
      purpose OS this Act Is to 84cure for each child
      under Its jurlsdlotlon    suoh oare, guidance and con-
      trol,  preferably   Ln his ovn home, as vi11 serve the
      chlld~s velfare and the best interest     of the state;
      and vhen such child is removed from his ovn famlly,
                                                                            .   4:Ol



 i;,Iona;   iionorable   P. W. phlpt4r, page 3


                  to seoure for him custody, 04r4 and dlselplin4   as
                  nearly as possible  equivalent  to that which should
i-                have be4n glvsui him by his psr8nts.
                         'The pl?iooipl4 Is hereby r4oogQlssd thst
                  ahlldrb~ under the jurlsdiotion       of the court are
                  vards of the stat4, subjeot to the dlsoipline       and
                  rntltlad   to the proteotlon   of ths stats, whiah msy
                  interveQ4 to safeguard them from Qegleot or Injury
                  sod to 4nforo4     ths legal obllgatians   due to th4m
                  and from them.
                        "sea. 2. Construction    of the Aat.   This Aat
                  shall be liberally~ooustrued    to aooompllsh the pur-
                  pose h e r ein
                               loueht.
                        ‘Sea. 3. Derblit1oxL9.   The vord *oourt' m4ans
                  the juvenile  Court'.   The Yard 8Judge' nears the
                  Judg4 of the Jmenlle    Court.  The term 'delinquent
                  ohild' ws~s any female person    over the a    or ten
                  (10~) y4srs curd under the 864 of eighteen r IS) years
                  and sky male person over the age OS ten (10) year0
                  and under the age of seventeen (17) years:
                       “(a) who violates auy pepal    law of this   state
                  of the gray of felony;
                        '(b) or vho violates  any pans1 law of this state
                  of th4 grade of misdemeanor where ths punishment
                  prescribed  for suoh offense may be by confinement
                  IQ law
                        "(0) or who habitually    violates any pans1 law
                  of this state of the grade of misdePPeanor vhere
                  the punishment presoribed    for such offense is by
                  peouuiary fine only;
                        "(d) or who habitually   violates any peoal or-
                  dlnanc4 of a political   subdlv?.slon of this state;
                        ". . . .

                        "Sec. 12. Transfer from other Courts.  If
                  during the pendency of a criminal aharge or lndlot-
                  ment against any person in any other oourt than a
Eonorable P. W. DUnter, page 4


    JuvePile        Court,   it   shall     be asaertained        that said
    person is a female over the age of ten (10) years
    and under the age of eighteen (18)  ears, or is a
    nsle person ov4r th4 age 0s ten (10 T years and under
    the age of seventeen (17) years at the time of the
    trIa1 for the alleged offense, it shall be the duty
    of such oOuH to traQ8fer such case Immediately
    together vZth all pap4~8, documents and testimony
    OoQnected therewith to the Juvenile Court of said
    county. . . .
          *. . . .

              “Ho adjudication          upon the status         of any child
    in      ths   jurisdiotion     0s     the   court   8hall    operate   to
    impose any of the olvll dlsablllties   ordinarily
    Imposed by wnviation,   nor shall sny ohild b4 deem-
    ed a criminal by reason of such adjudicak+on,     nor
    shall auoh adjudioation   be deemed a aoQvlotion,
    Qor shall Amy ohlld be oharged with or convlated of
    a crime in any aourt.   Th dlspositloc    of R ohlld
    or asp evidence given in :he courts shall not be ad-
    missible as evldenae against the child lQ atiy 0484
    or prooeedUg Ln Amy other court other than another
    Juvenile Court, nor shall such disposltioQ     or evi-
    dence operate to dl,squallfy  a child IQ any future
    Civil aervloe examiQatlon, appointment, or applioa-
    tion.

              I(. . . .

          “Sea. 21. Appeals.   AQ appeal                   may be taken by
    any part aggrieved to the Court of                    Civil Appeals,
    and the case may be carried to the                    Supreme Court by
    Vrit Of error or upon O%PtifiCat%,                    as iQ other Civil
    cases. . . .
              n. . :.

          “Sec. 24.   Lava Repealed.   Articles  1083, 1084,
    1085, 1086, 1088, 1089, logo, 1091, 1092, 1093 or the
    Code of Criminal Procedure, and Article     1087 of the
    Coda of Criminal Procedure aa amended Acts 1927,
    40th Lagislature,~Chapter    163, Sectlon 1, are here-
    by repealed.
                                                                            :   403



Zonorable   P. W. Minter,        page   5




           "Artloles 2329 and 233% of the Revised Civil
     Statutes of TBZBS,  1925, am hsrsby repealed.
            'All     lava and parts ~of laws in aonfllct           hers-
     with   are     also   repealed.
            . . .    a .”    (Undersoorlng   0131-8)

            By k4adug   s4nste  Bill go. 44, v,ith particular      em-
phasls upon the above quoted portions of the bill,         it Is quite
evident that it was the int%QtiOQ      0s the Legislaturs      to estab-
llsh or formulate a comprehensive method Of handUng the juven-
lie offenders    of the law.   lws all-inolusive     manner of deal-
fng with these youthful riolaters     was QOt to charg4      and  arim-
inally try them for the offenses     they cordsltted, but rather to
bring them before a Juvenile     Court and ln an action of a 01~11
nature   try them for delinquency.     The Legislature    saw fit to
place the i8inlisum age Of these deltiquents      at Over t4Q years.
it vould thus follow that these offenders        of the law not over
the age of ten y4ars,    being under ths age to be tried as a de-
linquent child,    the only method of dealing with these juvenile
~f’fsnders,  would QOt be subject to any punishment.
          It 18 therefore the opinion of this department that
persons not over ten years of age caunot be p&shed   for violat-
in& the penal lava of this State.
                                                   Very    truly    yours
                                                    QKNERALOF TEXAS
                                             ATTORHEY


                                             BY
                                                          Fred C. Chandler
                                                                 Assistant
                                                          ,-Y              ?
                                             BY
                                                            Robert    0. Koch     ’
