                                  QBfficeof tip Bttornep Qhmeral
                                                 &Mateof IlLexae
DAN MORALES
 ATTORNEY
      GENERAL                                     December 18.1997




  The Honorable James Warren Smith, Jr.                        Opinion No. DM-461
  Frio County Attorney
  500 East San Antonio, Box 1                                  Re: Whether a community supervision and
  Pearsall, Texas 78061-3100                                   corrections department may refuse to supervise a
                                                               sixteen-year-old defendant who has been con-
                                                               victed of perjury in a criminal proceeding and
                                                               placed on conununity supervision by the criminal
                                                               court (RQ-990)

  Dear Mr. Smith:

          You ask whether a community supervision and corrections department may refuse to
  supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding
  and placed on community supervision by the criminal court. We conclude that a community
  supervision and corrections department must supervise a defendant who has been convicted of
  petjury in a criminal pmceeding and placed on community supervision by the crimmal court.,
  regardless of the defendant’s age.

           As you note, a person between the ages of ten and seventeen, who would generally be within
  the jurisdiction of the juvenile court system, may be tried for perjury or aggravated perjury in either
  juvenile court’ or in a regnlar criminal proceeding;r thus, juvenile wurts and criminal courts have
  concurrent jurisdiction over a person between the ages of ten and seventeen who wnnnits perjury




            ‘Perjury is punishable as a class A misdemeanor, Penal code Q37.02, and aggravated perjury is punishable
  as a third degree felony, id. 0 37.03. l-ilaefore, lxmdua mat constitotes either perjwy or aggravatedperjury constitlltcs
  dclinqumt c.mduct for purposes of Family Code section 51.03(+1) (delinquent conduct is conduct that violates penal
  law of this state and is punishable by imprisonment OIcontinement in jail).

           ‘A juvenile court gmomlly has exclusive jurisdiction over cases involving delinquent conduct by a juvenile.
  See Fam. Code 5 51.04. Family Code section 5 1.03(c) makes an exception for perjury, however, by pmviding that
  nothing in tide 3 of the Family Code prevents criminal proceedings against a child for perjury. Family Code section
  51.08, which requires a criminaI court to transfer B case involving a child to the juvenile court, excepts a proceeding
  in which a child is charged with perjury. In addition, Penal Code section 8.07(a)(l) provides that a person may not be
  pmsecuted for any penal offense that he committed when younger than 15 years of age except, among other offenses,
  perjury or aggravated perjury.
The Honorable James Warren Smith, Jr. - Page 2                      (DM-461)




or aggravated perjury.” You explain that in your county a sixteen-year-old defendant was tried in
a criminal proweding by a criminal court, wnvicted of perjury under Penal Code section 37.02, and
sentenced to jail. The court suspended the jail sentence and placed the defendant on wmmunity
supervision. You state that the county community supervision and corrections department then
refused to supervise the defendant because the defendant is a juvenile and was not certified as an
adult under Family Code section 54.02.

         You suggest that a wmmunity supervision and wrrections department is not authorized to
supervise a sixteen-year-old defendant “because the juvenile would of necessity be exposed to
misdemeanant and felonious probationers when they report monthly to the department.” You rely
on Family Code section 5 1.12, a provision mandating that a child detained in a juvenile detention
facility adjacent to sn adult jail, lockup, or other place of secure wntinement “be separated by sight
and sound Tom adults detained in the same building,‘4 and similar provisions in the Family Code.5

        We disagree with the conclusion that a community supervision and wrrections department
is not authorized to supervise a sixteen-year-old defendant who has been convicted of perjury in a
criminal proweding and placed on community supervision by the wurt. First, Family Code section
5 1.12 requires the separation of children and adults in detention facilities; it does not require the
separation of children and adults in any other context. We are not aware of any provision that
precludes a wmmunity supervision and wrrections department tiom supervising a sixteen-year-old
defendant. Indeed, we have found one statute that expressly authorizes a wmmunity supervision
and wrrections department to supervise juveniles, Human Resources Code section 142.003, which
permits a county that does .not have a sufficient number of juvenile probation cases to justify a
juvenile probation department to contract with a wmmunity supervision and wrrections depsrtment


          S.ee ROBERT   0. DAWSON,Tam Juvenile Law 35 (4th cd. 1596). As Professor Dawson observes, “bIerjury
and aggravated perjury arc the only crimiml offcmes for which either a juvenile court or a aim&d court has
jurisdiction witboot * prior transferorderfrom the other cow” id. He cxplaios i&c.reason for the unique statue of these
offemcs ss follows:

                Article 1, Section 5 of the Texas Ckmstitutionprovides that the oath required of a witness
                testifying in my judicial proceeding, civil or crimiml, must be taken “subject to the pains
                and pcmlties of perjury.” Them is case law that soggcsts that simx juvenile proceedings arc
                mnnimlly civil, not aimins& a witness who would be subject only to juvenile proceedings
                for lying under oath might not be a compctcnt witness under that constitutional provision.
                SeeSwztiZIim v. St&, 182 S.W.2d 812 (Tcx. Cxim ASP. 1944). ‘llmt, in tom, might mean
                that a juvenile could not testify in my court proceedings. Rather thm incur such a
                catastrophic risk, the Family Code gives the crimiml coorts concurrent jurisdiction over
                those offenses in order to leave no doubt that persons of juvmile cmrt age, if othavise
                competent witnesses, may testify under the constih~tioml qualifying provision.

Id. (emphasii   in original)

         ‘Fam. Code 5 51.12(f).

          5You also cite Family Code section 52.02.



                                                       p.   2584
The Honorable James Warren Smith, Jr. - Page 3                   (DM-461)




to provide juvenile probation services.6 This express legislative approval of such an arrangement
undermines any contention that supervision of a sixteen-year-old defendant by a community
supervision and corrections department is somehow contrary to public policy.

        Second, as explained above, the laws of this state provide that a child may be prosecuted for
perjury in a criminal proceeding. See supra notes l-3 and accompanying text. Given those
provisions, we believe that a sixteen-year-old defendant who is tried for perjury in a criminal
proceeding is no less an adult in the eyes of the law than a child certified as an adult under Family
Code section 54.02. We are aware of no statute that would preclude a criminal court from placing
a convicted perjurer on community supervision because of his age. Furthermore, once a court has
placed such a defendant on community supervision, we do not believe the wmmunity supervision
and wrrections department has the discretion to refuse to supervise the defendant in defiance of the
court’s order.’

        In sum, we do not believe that a wnnnunity supervision and wrrections department is
authorized to refuse to supervise a sixteen-year-old defendant under the cimumstances you describe.
Ifthe community supervision and wrrections department is concerned about exposing the sixteen-
year-old defendant to adult defendants on its premises, the department may take stops to minimize
such contacts, such as providing a separate waiting srea or arrsnging for the defendant to meet with
his community supervision officer at a different location.*




        %e Hum. Ros. Cede 5 142.003(a)(l).

         Placiag defendants on community supervision is witbin the sole pmvince of the.judiciary. See Code Grim.
FYOC. art 42.12 $5 1 (papose of article 42.12 is to place wholly within state cowls responsibility for determix@ when
imposition of sentence in certaincases shall bc swpmded), 10 (only court in w%ichdefendant tried may grant or revoke
community sqewision). conmrunity sqervision and corrections departments exist, in part, to apewise community
supavision; departments have no authority to ultimately determine whether commodity supervision is appropriate in
a parti& UISC.See genemlly Code Crhn. Pmt. at. 42.12; Gov’t Code ch. 76 (establisbiog community supervision
and corrections departments).

         Wedonotaddrcsswhetheraco mmunity sopewision and caxctious dcpartmnt is audmrizd to contract with
a juvenile probation dqartncnt to sopenise a sixteen-year-old defendant who has been convicted of pajury in a
chid     pmceediag and placed on commordty supervision, nor do we address whether a crimbnl court is authorized
to order a juvenile probation departmentto supervise such a defendant.



                                                   p.   2585
The Honorable James Warren Smith, Jr. - Page 4       (DM-46   1)




                                    SUMMARY

              A community supervision and wrrections department must supervise a
          sixteen-year-old defendant who has been convicted of perjury in a criminal
          proceeding and placed on community supkrvision by a criminal court,
          regardless of the defendant’s age.




                                           DAN MORALES
                                           Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney Genera1




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