Hon. H. W. Allen         Opinion No. O-2759
District  Attorney       Re: The authority of the district
Hamilton, Texas          court with reference to the commit-
                         ment of a delinquent child under
Dear Sir:                the described facts.
            Your letter of September 18, 1940, requests a legal
opinion of this Department in reply to the question stated by
you as follows:
             “Where a male child under the age of seventeen
      years is charged with a felony by Grand Jury indict-
      ment which further sets out the age of such child
      to be under seventeen and over twelve, and the same
      is disposed of as a Juvenile case by the District
      Court, does the District    Court have the authority
      under the statutes to commit the child to the care
      and custody of an individual,    in the nature of pro-
      bation, or must the Juvenile be committed to the
      State Juvenile Training School for Boys, or a County
      established   home or school?”
          We assume from your letter  that the child involved
has been found to be a delinquent child by the court or by a
NY.
            Article   1084 of the Code of Criminal   Procedure   pro-
vide s as follows:
            “If an indictment does not allege the age of the
      accused to be within the juvenile limits,     then at any
      time before announcement of ready, the accused, or
      the parent, guardian, attorney or next friend of the
      accused may make and file an affidavit     in court setting
      up that such accused is a male then under seventeen
      years of age, or is a female then under eighteen years
      of age.   When such affidavit    is filed, the judge shall
      hear evidence on the question of the age cf the accused,
      and if he is satisfied   therefrom th,it the accused, if
      a male is then under the age of seventeen years, or if
      ammale is then under the age of eighteen years, the
      judge shall transfer   the case to the juvenile docket,
Hon. 3. !:‘. Ulen,      page 2


         and proceed to try the child    under the same indict-
         ment. as a delinquent child.”
              Article   1090 of the Code of Criminal   Procedure   pro-
vides:
                “Any juvenile found by the court or jury to be a
         delinquent child shall be committed to the place or in-
         stitution   provided by law for such child, for an inde-
         terminate period not extending beyond the time when
         such child shall reach the age of twenty-one years.”
              Article   1091 of the Code of Criminal   Procedure   pro-
vide s:

               “In any proceeding in any juvenile court, the
         court or jury may substitute    as .a place of commitment
         any detention home, parental school, or school for
         girls or boys established   by any county, and the fur-
         ther disposition   of the juvenile   shall be governed
         as provided for by the laws relating      to delinquent
         children.”
              Article   1089 of the Code of Criminal   Procedure   reads:
               When a juvenile is tried by a jury the verdict
         shall state the time and place of confinement.    The
         proper judgment shall be rendered on the verdict.”
              You call our attention,  also, to Article    2338 of the
Revised     Civil Statutes which provides as follows:
               “In any case of a ‘delinquent    child,’  the court
         may continue the hearing from time to time and may
         commit the child to the care of a probation officer,
         or to the care or custody of any other proper person,
         and may allow said child to remain in its own home,
         subject to visitation    of the probation officer   or
         other person designated by the court, or under any
         other conditions    that may seem proper and be imposed
         by the court; or the court may cause the child to be
         placed in the home of a suitable     family, under such
         conditions   as may be imposed by the court, or it may
         authorize the child to be boarded out in some suit-
         able family, in case provision    is made, by voluntary
         contribution   or otherwise,  for the payment of the
         board of such child until suitable provision      may be
         made in a home without such payment; or the court may
,.-   ,



          i’.o??..
                H. II. Allen,   page   3


               commit it to any institution        in the county .that may
               care for children that is willing        to receive it, or
               which mny be provided for by the State or county,
               suitable for the care of such children,         willing to
               receive it      or of any state institution     for boys or
               girls,   wil i ing to receive such child,    or to any other
               institution     in the State of Texas for the care of such
               children willing     to receive it.     In no case shall a
               child proceeded against under this law be committed
               beyond the age of twenty-one.         The order of the court
               committing such child to the care and custody of any
               person shall prescribe       the length of time and the
               conditions     of such commitment.     Such order shall be
               subject to change by further orders of the court with
               reference     to said child;   and the court shall have the
               power to change the custody of such child or to en-
               tirely    discharge it from custody whenever, in the
               judgment of the court, it is to the best interest          of
               the child to do so.”
                      It appears from these statutes that the commitment
          of a juvenile,   after he or she has been found by the court or
          jury to be a delinquent child,       is controlled    by the specific
          provisions   of Articles   1090 and 1091 of the Code of Criminal
          Procc dure . The legislative     intent that Articles      1090 and 1091
          should be all-inclusive     is demonstrated by the terminology of
          Article 1091 authorizing      the substitution     of certain described
          places of commitment for those embraced within Article 1090.
          Neither of these statutes provides for, or contemplates,            in
          our opinion,   that the delinquent child may be committed to the
          care and custody of an individual,       either by the court or by
          the jury in its verdict.
                      We are mindful of the statements by the Court of
          Criminal Appeals of Texas in the cases of Curry v. State, 296
          S.Y. 307 and Ex parte Lassiter,      18 S.V:. (2d) 637, to the ef-
          fect that in consiruing    Article   109l of the Code of Criminal
          I’rocedure, Article  2338 of the Revised Civil Statutes must
          also be taken into consideration.       titer carefully   studying
          these cases in the light of the particular        subject matter in-
          volved in each of them, we are of the opinion that the court
          did not hold, or intend to imply that Article 2338 would re-
          lieve the specific   provisions    of Articles  1089, 1090, and 1091
          of the Code of Criminal Procedure in the situation        involved
          in your request.
                        Accordingly, you are respectfully advised     that it is
          the opinion     of this Department that where the court     or jury
Hon. H. ~ti. Allen,   page 4


has found a juvenile   to be a delinquent child, the child may
be committed only to a place or institution    described by
Articles 1090 and 1091 of the Code of Criminal Procedure.       As
stated above, these statutes do not, in our opinion,     authorize
the court to commit 'the delinquent child to the care and cus-
tody of an individual.
                                  Yours very truly
                                  ATTORNEY
                                         GENERAL
                                               OF TUAE
                                  By /a/   Zollie C. Steakley
                                  Zollie   C. Steakley, Assistant
ni,PROVEDOCT 3, 1940
/s/ Geraldc.  Mann
ATTORNEY  GENERAT,
                 OF TEXAS

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