                               ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                               December     152003



The Honorable Charles A. Rosenthal, Jr.               Opinion No. GA-O 13 1
Harris County District Attorney
1201 Franklin Street, Suite 600                       Re: Whether a juvenile court may detain a child
Houston, Texas 77002                                  under section 53.02 or 54.01, Family Code, before
                                                      adjudicating and disposing of a charge of delinquent
                                                      conduct, such as contempt of a justice court order
                                                      (RQ-0072-GA)

Dear Mr. Rosenthal:

         You ask generally whether a juvenile court may detain a child under section 53.02 or 54.01
of the Family Code before adjudicating and disposing of a charge of delinquent conduct, such as
contempt of a justice court order.’ See TEX.FAM.CODE ANN. $5 51.03(a), 53.02, 54.01 (Vernon
2002 & Supp. 2004). You are specifically concerned that Attorney General Opinion JC-0454
erroneously construes sections 53.02(b) and 54.01(e) of the Family Code, concerning juvenile
detention, with respect to detaining children charged with violating a justice court order. See id. $3
53.02(b), 54.01 (e) (Vernon 2002 & Supp. 2004); Tex. Att’y Gen. Op. No. JC-0454 (2002) at 6; Brief
attached to Request Letter, supra note 1, at 3; see also Probation Commission Letter, supra note 1,
at 1.

         The statutes you cite are spread throughout the Juvenile Justice Code (the “Code”), chapters
51 through 61 of the Family Code. See TEX.FAM.CODE ANN. tit. 3, chs. 51-60 (Vernon 2002 &
Supp. 2004); id. ch. 61 (Vernon Supp. 2004) (“Rights and Responsibilities of Parents and Other
Eligible Persons”). Section 5 1.03(a)(2) defines the term “delinquent conduct” to include “conduct
that violates a lawful order of a court under circumstances that would constitute contempt of that
court in: . . . (A) a justice . . . court.” Id. § 51.03(a)(2)(A) (Vernon Supp. 2004).

         A law-enforcement officer may take custody of a child who has allegedly violated a penal
law or ordinance, engaged in delinquent conduct, or engaged in conduct indicating a need for
supervision. See id. 8 52.01 (a). After taking the child to a juvenile processing office, the officer may



          ‘See Letter from Honorable Charles A. Rosenthal, Jr., Harris County District Attorney, to Honorable Greg
Abbott, Texas Attorney General (June 24,2003) (on file with the Opinion Committee) [hereinafter Request Letter]; Brief
attached to Request Letter, supra, at l-2; see also Letter from John Gonzales, Attorney, Texas Juvenile Probation
Commission, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General, at l-2 (Aug. 20,2003) (on
tile with the Opinion Committee) (discussing Opinion JC-0454) [hereinafter Probation Commission Letter].
The Honorable    Charles A. Rosenthal    - Page 2           (GA-0131)




release the child to a parent or guardian; bring the child to a detention or medical facility; or dispose
of the case in accordance with section 52.03, Family Code. Id. 8 52.02(a); see also id. 8 52.025
(Vernon 2002) (providing for and restricting the use of a juvenile processing office). If the child’s
case is referred to a juvenile court, or if the child is brought to a secure detention facility, the child
typically is released until later proceedings unless a preliminary investigation indicates that section
53.02(b) authorizes detaining the child. Id. 9 53.02(a) (Vernon 2002); see infra (listing factors
warranting detention under sections 53.02 and 54.0 1). If a child is detained, the court promptly must
hold a detention hearing and release the child unless the court finds that continued detention is
warranted under section 54.01(e). See TEX.FAM.CODE ANN. 8 54.01(a) (Vernon Supp. 2004); see
infra (listing factors warranting detention under sections 53.02 and 54.01). A juvenile court
determines the truth or falsity of the allegations against a child at a subsequent, separate adjudication
hearing. See TEX.FAM.CODE ANN. 9 54.03(a) (Vernon Supp. 2004).

        Sections 53.02(b) and 54.01(e) both authorize a juvenile court to order a child’s detention
before adjudication if one of five circumstances is present:

                          (1) the child is likely to abscond or be removed      from the
                jurisdiction of the court;

                        (2) suitable supervision, care, or protection for the child is not
                being provided by a parent, guardian, custodian, or other person;

                       (3) the child has no parent, guardian, custodian,         or other
                person able to return the child to the court when required;

                       (4) the child may be dangerous to himself or herself or the
                child may threaten the safety of the public if released;

                         (5) the child has previously been found to be a delinquent
                child or has previously been convicted of a penal offense punishable
                by a term in jail or prison and is likely to commit an offense if
                released;




Id. fj 53.02(b) (V emon 2002); see id. 6 54.01(e) (Vernon Supp. 2004). In addition, section 53.02(b)
authorizes a juvenile court, before a detention hearing, to order a child detained if the child is alleged
to have engaged in delinquent conduct involving possession of a firearm. See id. 6 53.02(b), (f)
(Vernon 2002).

         While a county’s juvenile court generally has exclusive original jurisdiction over proceedings
involving a child’s alleged delinquent conduct or conduct indicating a need for supervision, juvenile
and justice courts have concurrent jurisdiction over truancy cases in counties with populations of less
than 100,000. Id. 8 5 1.04(a), (h); seealso TEX.EDUC.CODE ANN. 8 25.094(a)-(c) (Vernon Supp.
The Honorable Charles A. Rosenthal                - Page 3             (GA-0131)




2004) (creating an offense for failure to attend school); TEX.FAM. CODE ANN. 8 54.021 (Vernon
Supp. 2004) (permitting juvenile court to waive its exclusive jurisdiction in a truancy case). A
justice court also may have jurisdiction over certain traffic offense proceedings involving juveniles.
See TEX.FAM. CODE ANN. 8 5 1.03(a)-(g) (Vernon Supp. 2004) (defining the phrases “delinquent
conduct” and “conduct indicating a need for supervision” to exclude traffic offenses); TEX.CODE
 GRIM.PROC.ANN.art. 4.1 l(a) (Vernon Supp. 2004) (outlining justice courts’ original jurisdiction).

        If a child whose case is before a justice court is accused of violating a court order under
circumstances that would constitute contempt of court, article 45.050 of the Code of Criminal
Procedure forbids a justice court to order the child confined. See TEX.CODE GRIM.PROC.ANN.art.
45.050(b)(2) (V emon Supp. 2004). Instead, the justice court may, “after providing notice and an
opportunity to be heard,”

                            (1) refer the child to the appropriate juvenile court for
                    delinquent conduct for contempt of the justice . . . court order;2 or

                             (2) retain jurisdiction of the case, hold the child in contempt
                    of the justice . . . court, and order either or both of the following:

                                     (A) that the contemnor               pay a fine not to
                              exceed $500; or

                                      (B) that the Department of Public Safety
                             suspend the contemnor’s driver’s license or permit or,
                             if the contemnor does not have a license or permit, to
                             deny the issuance of a license or permit to the
                             contemnor until the contemnor fully complies with the
                             orders of the court.

Id. art. 45.050(c) (footnote added); see id. art. 45.058(h) (defining the term “child” for purposes of
article 45.050); id. art. 45.050(a).

       In Attorney General Opinion JC-0454 this office concluded, among other things, that article
45.050 expressly prohibits a justice court from ordering a child confined “for contempt of a justice




            2Under article 45.058 of the Code of Criminal Procedure, a child whom the justice court has referred to a
juvenile court for contempt of a justice court order may be detained if the justice court has jurisdiction of the case under
article 4.11 of the Code of Criminal Procedure unless the child is charged with public intoxication. See TEX. CODEGRIM.
PROC.ANN.art. 45058(f)(2)          (V emon Supp. 2004) (providing that “[a] child taken into custody for an offense that a
justice . . . court has jurisdiction of. . . , other than public intoxication, may be presented or detained in a detention
facility designated by the juvenile court under [slection 52.02(a)(3), Family Code, only if: . . . the child is referred to the
juvenile court by a justice . . . court for contempt of court”); see aLso id. art. 4.11 (a) (providing justices of the peace with
jurisdiction in criminal cases punishable in fine-only cases and in other cases that are not punishable by imprisonment).
The Honorable Charles A. Rosenthal             - Page 4            (GA-0131)




court order.“3 Tex. Att’y Gen. Op. No. JC-0454 (2002) at 6; see TEX.CODE GRIM.PROC. ANN. art.
45.050 (Vernon Supp. 2004). Rather, article 45.050 limits a justice court “to referring the case to
a juvenile court, holding the child in contempt and imposing a fine not to exceed $500, or ordering
the Department of Public Safety to suspend the child’s driver’s license.” Tex. Att’y Gen. Op. No.
JC-0454 (2002) at 6.

        Although the language of article 45.050 was sufficient to reach the conclusion that a justice
court is forbidden to order detention for a child who allegedly has violated a justice court order, the
opinion also suggested that sections 53.02 and 54.01 of the Family Code are probative:

                  Moreover, section 53.02 of the Family Code specifies the reasons for
                  which a child may be detained prior to a detention hearing and
                  contempt is not one of them. TEX.FAM.CODE ANN. 8 53.02 (Vernon
                  Supp. 2002). Section 54.01 of the Family Code sets forth the reasons
                  that a child may be detained at a detention hearing, and, again,
                  contempt is not one of them. Id. 8 54.01. In fact, only after a child
                  has been adjudicated by a juvenile court as engaging in delinquent
                  conduct for violating a court order and is held to be in contempt[]
                  may the child be confined if the court so orders at the later disposition
                  hearing. Id. 89 5 1.03(a)(2) (defining delinquent conduct to include
                  “conduct that violates a lawful order of a municipal court or justice
                  court under circumstances that would constitute contempt of that
                  court”); 54.03 (adjudication hearing); 54.04 (disposition hearing).

Tex. Att’y Gen. Op. No. JC-0454 (2002) at 6.

         You agree with the opinion’s conclusion, but you believe that these three sentences
discussing sections 53.02 and 54.01 inaccurately suggest that unless “a particular type of delinquent
conduct [is] expressly listed in section 53.02 or 54.01, . . . pre-disposition detention for that conduct
is not authorized.” Brief attached to Request Letter, supra note 1, at 2; see Tex. Att’y Gen. Op. No.
JC-0454 (2002) at 6. You are similarly concerned about the broader implication that, regardless of
the conduct charged, a juvenile court may not order the detention of a child prior to an adjudication
hearing unless the conduct is expressly listed in section 53.02 or 54.01. See Tex. Att’y Gen. Op. No.
JC-0454 (2002) at 6; Brief attached to Request Letter, supra note 1, at 3. Accordingly, while you
believe that “the opinion [is] largely correct,” these “inaccuracies . . . unnecessarily limit” a juvenile
court’s “authority . . . to use all . . . resources” available under Texas law, and you ask us to clarify
a juvenile court’s authority in this regard. Brief attached to Request Letter, supra note 1, at 1.




         ‘Opinion JC-0454 considered article 45.050 of the Code of Criminal Procedure in conjunction with section
54.023 of the Family Code, which was repealed in the most recent regular session of the legislature. See Tex. Att’y Gen.
Op. No. JC-0454 (2002) at 3-6; Act ofMay 24,2001,77th      Leg., R-S., ch. 1297, $21,2001 Tex. Gen. Laws 3 142,3 149-
50, repealed by Act of May 30,2003,78th     Leg., R.S., ch. 283, 5 61(l), 2003 Tex. Gen. Laws 1221, 1245 (repealing
section 54.023, Family Code). Section 54.023 largely duplicated article 45.050, and its repeal does not affect Attorney
General Opinion JC-0454’s conclusions.
The Honorable Charles A. Rosenthal      - Page 5         (GA-0131)




         To the extent Opinion JC-0454 suggests that a juvenile court may not, prior to an
adjudication hearing in accordance with section 53.02 or 54.01 of the Family Code, order the
detention of a child who is charged with violating a justice court order, it requires clarification. The
opinion relies upon the fact that contempt is not among the factors listed in section 53.02 or 54.01,
the presence of any one of which warrants detaining a child. See Tex. Att’y Gen. Op. No. JC-0454
(2002) at 6; see also TEX.FAM.CODE ANN. 45 53.02(b), 54.01 (e) (Vernon 2002 & Supp. 2004). But
neither section 53.02 nor 54.01 list the types of conduct defined as “delinquent conduct” or “conduct
in need of supervision” as factors warranting detention. Compare TEX.FAM.CODE ANN.$51.03(a)-
(b) (Vernon Supp. 2004), with id. $5 53.02(b), 54.01(e) (Vernon 2002 & Supp. 2004). Rather, as
you correctly indicate, a juvenile court may order the detention of any child who is taken into custody
“if the additional requirements of section 53.02 or 54.01 are met,” regardless of the type of
delinquent conduct with which the child is charged. Brief attached to Request Letter, supra note 1,
at 2. Thus, any type of delinquent conduct might form a basis for detention if a circumstance listed
in section 53.02 or 54.01 is present.

         To directly answer the first issue you raise, we conclude that a juvenile court may order the
detention of a child who has been taken into custody for any type of delinquent conduct if a factor
listed in section 53.02 or 54.01 is present. See TEX.FAM. CODE ANN. $8 51.03(a), 53.02, 54.01
(Vernon 2002 & Supp. 2004). Accordingly, a child who is charged with contempt of a justice court
order may be detained prior to adjudication by the juvenile court if detention is warranted under
section 53.02 or 54.01.

         You are also concerned that Opinion JC-0454 incorrectly suggests that a juvenile court may
order that a child adjudged in contempt of court be detained in a secure post-adjudicative   facility.
See id. 8 54.04(o)(3) (Vernon Supp. 2004); Tex. Att’y Gen. Op. No. JC-0454 (2002) at 6; Brief
attached to Request Letter, supra note 1, at 2-3; see also Probation Commission Letter, supra note
1, at 3. Section 54.04(o)(3) of the Family Code expressly prohibits a juvenile court from placing a
child adjudicated for contempt of a justice court order “in a post-adjudication  secure correctional
facility or committed to the Texas Youth Commission for that conduct.” TEX.FAM.CODE ANN. $
54.04(o)(3) (Vernon Supp. 2004). Consequently, a juvenile court may not order a child adjudicated
for contempt of a justice court order to be placed in a secure correctional facility. To the extent
Opinion JC-0454 suggests to the contrary, it is clarified.

        As clarified here, we affirm Attorney General Opinion JC-0454 (2002).
The Honorable Charles A. Rosenthal     - Page 6          (GA-0131)




                                        SUMMARY

                        Regardless of the type of delinquent conduct with which a
               child is charged, the child may be detained by a juvenile court before
               an adjudication hearing if a factor listed in section 53.02 or 54.01 of
               the Family Code is present. Accordingly, a child who is charged with
               contempt of a justice court order may be detained by a juvenile court
               if detention is warranted under section 53.02 or 54.01. A juvenile
               court may not order a child adjudicated for contempt of a justice court
               order to be placed in a secure correctional facility.

                       To the extent Attorney General Opinion JC-0454            (2002)
               suggests otherwise, it is clarified. Otherwise, it is affirmed.

                                               Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
