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LI
                                      THE      ATTORNEY    GENERAL
                                                  OF TEXAS
                                                AUSTIN.      Txcxzas   78711
           JOBN     L..     arlzd
     *--                  OENERIL
                                                          July 16, 1975




                  The Honorable       Joe Grady     Tuck                   Opinion   No.   H- 642
                  District   Attorney
                  216th Judicial    District                               Re: Applicability       of section 54.02
                  998 Sidney Baker South                                   of the Family     Code to persons who
                  Kerrville,     Texas     78028                           commit     crimes    before reaching   17
                                                                           years of age and to persons        who
                                                                           were properly      indicted prior to
                                                                           the effective    date of the Code.

                  Dear       Mr.    Tuck:

                          You have requested   our opinion concerning   the proper legal proceed-
                  ings to take against one who has committed    an offense  before reaching  17
                  years of age, noting a possible  conflict between the Texas Family     Code and
                  the Texas Penal Code as to the appropriate    manner of disposal   of such cases.

                             In the Family     Code a person under 17 years and over lo-years             of age
                  is defined as a “child”        (a person over 17 but under 18 is also a “child” for
                  purposes      of extending    the juvenile court’s   jurisdiction     of 17 so that acts
                  committed       by one nearing the age of 17 can be finally dealt with by the
                  courtj.      Tex. Family     Code, sec. 51.02.      A juvenile      court has exclusive
                  jurisdiction     over a “child” who commits        a crime.       Sec. 51.04.    But where
                  a felony is involved       and . . .

                                        the child was 15 year of age      or older at the time .he
                                        is alleged to have committed       the offense.  .
                                        (Emphasis   added).

                  the juvenile   court may waive its jurisdiction       over the child and transfer      the
                  case to the appropriate      district court for regular     criminal  proceedings.      Sec.
                  54.02 (a) (2). Section    8.07 (a) of the Texas Penal Code provides         that no person
                  can be prosecuted     for an offense     “that he committed     when younger    than 15
                  years. ” That section is in accord with the Family            Code on the lower age of
                  a prosecution    of a child.    However,     the Penal Code further    provides    in section
                  8.07 (b) that:




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The Honorable      Joe Grady    Tuck   - Page     2




                  a person who is younger       than 17 years may not be
                  prosecuted    or convicted   for any offense unless the
                  juvenile   court waives jurisdiction    and certifies him
                  for criminal    prosecution.     (Emphasis  added).

         On January 1, 1974, the new Penal Code went into effect.,           It expressly
repealed   that section of the old Code (as amended by the Family          Code) which
required  waiver    of jurisdiction    by a juvenile court where one commits       a
crime before    reaching    age 17 (Section 3, Acts 1973, 63rd Leg.,      ch. 899, p.
911). Thus, a plausible       argument    can be made that under section 8.07 of the
new Penal Code juveniles         committing   pre-17 crimes  may be indicted,     tried
and convicted   if criminal     proceedings   are delayed until the juvenile    becomes
17.

          However,     we do not believe      such to be the case.       It is our duty to read
these provisions      harmoniously,     if possible.       53 Tex. Jur. 2d, Statutes,       $186.
We believe     they.are    easily reconciled.      Section 8.07 (b) of the new Penal Code
prohibiting    the prosecution     or conviction     of a person younger       than 17 years
 (absent juvenile    court waiver)    does not carry the necessary           inference   that
all other persons       can be prosecuted      and convicted    without such a waiver       for
any crimes      committed     at any time.     If restricted   to its literal    import,  the
language    of section 8.07 (b) is entirely       consistent    with Family      Code provisions.

         Moreover,   as the history     of the Family     and Penal Codes reveals,       the
new Penal Code passed the Legislature            on May 24, 1973.       The Family   Code,
with its amendment    to the Penal Code forbidding          the trial of a child (as
defined) without waiver    of jurisdiction     by the juvenile    court, passed the
Legislature    on May 25, 1973.     The latest expression        of the Legislature
would control in any event.      Code Construction        Act, V. T. C. S., art. 5429b-2,
sec. 3.05; Ex parte De Jesus De La 0, 227 S. W. 2d 212 (Tex.                 Crim.  App.
1950).   Attorney  General   Opinion H-260 (1974).         And see,     Code Construction
Act, V. T. C. S., art. 5429b-2,       5 3.11(c);   Attorney   General    Opinion H-237
(1974).

         Acoordingly;in   our opinion,    section 8.07 of the new Penal-Code
does not allow the .prosecution   or conviction   of a person who commits          a crime
before he is 17 unless the juvenile    court waives jurisdiction      and certifies
the person for criminal   trial in an appropriate    district  court.    The provisions
of section 54.02 of the Family    Code must be met.




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The Honorable     Joe Grady      Tuck   - Page   3




         You further   ask if:

                 the State can proceed      to prosecute    a defendant under
                 the following   facts:   A defendant,    16 years 10 months
                 of age on October      21, 1971, is indicted for a felony
                 offense   2 l/2 months later,     after his 17th birthday.

           Prior    to the enactment    of the Family  Code, it was permissible       to
delay the institution       of criminal   prosecution until an under-17-violator
reached 17, at which time he came within the jurisdiction            of a regular
criminal     court (so long as the constitutional     requirement   of a speedy trial
was met.)        Salazar   v. State, 494 S. W. 2d 548 (Tex.. Crim.     App.     1973).
 Thus, under the fact situation you have given us, the district          court acquired
jurisdiction      of the defendant in January of 1972, at which time the defendant
was 17.

          The Family     Code did not take effect until September       1, 1974, when
the defendant was 19 and l/2.         Therefore,     there was and can be no way the
juvenile   court .could or can obtain jurisdiction.         The case you describe   is
within the jurisidiction     of the district   court regularly   trying criminal  cases.
Salazar   v. State, supra; Whitaker        v. Estelle,    509 F. 2d 194 (5th Cir. 1975).
Prosecution     can properly    proceed    there.

                                    SUMMARY

                    Persons    committing   crimes    while under 17 years of
                 age are within the exclusive      jurisdiction  of the juvenille
                 court.    Before   any criminal   prweedings    can be instituted,
                 the juvenille    court must waive jurisdiction     and transfer
                 the accused    to the appropriate    court for trial.

                    A person properly   indicted under existing   law, prior
                 to the effective date of the Family  Code, September     1,
                 1974, can be prosecuted    under the indictment.




                                                 u   Attorney   General   of Texas



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The Honorable   Joe Grady   Tuck   - Page   4




C. ROBERT   HEATH,     Chairman
Opinion Committee

jwb




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