.      .




                THE     ATTORNEY         GENERAL
                            OFTEXAS




    Honorable W. J. Townsend-
    County Attorney, Angellna County
    Lufkin, Texas
    Dear Sir:                   Opinion NO. 0-6620
                                Re: Under the given facts can a
                                     minor be prosecuted In the
                                     justice of the peace court,
                                     under the prov.Isionsof Ar-
                                     ticle 482, Penal Code?
              From you letter of recent date we take the follow-
    ing:
               "We have a case pending in one of the Justice
           Courts of this county, where a youngster, who al-
           leges he 1s only 13 years of age but who has the
           appearance of being much older, is charged with
           abusive language, and admits his guilt. He is
           not a habitual criminal and as far as we know,
           this Is his first offense.
               "Can this party be prosecuted in the Justlce
           Court for abusive language, under the provisions
           of Art. 482 of the Penal Code, where the fine is
           not more than one hundred dollars, if found guilty
           or must this case be referred the Juvenile Court
           for trial?"
            At its regular sessiou Fn 1943 the Forty-Eighth
    Legislature completely altered the law with reference to
    juvenile delinquents in this State. See General and Special
    Laws of Texas, 48th Leg., Reg. Sess., ch. 204, p. 313; Vernon's
    Annotated Civil Statutes, Art. 2338-l. Through this legis-
    lation, all articles of the Code of Criminal Procedure deal-
    Fng with the subject were specifically repealed; the purpose
    of the new Act was declared to be to change the method of harid-
    llng,delinquent children from criminal procedure to a guardian-
    ship, such children being recognized as wards of the state,
    "subject to the discipline and entitled to the protection of
    the state, which may Intervene to safeguard them from neglect
    or injury and to enforce the legal obligations due to them and
    from them."
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Honorable W. J. Townsend - page 2         0-6620


        Your immediate inquiry seems to be answered by Section
12~of the above Act. (Vernon's Ann. Clv. St., art. 2338-1,
Sec. 12). We quote:

        "If during the pendency of a criminal charge
    or indictmentagainst-any person in any other court
    than a juvenile court, it shall be ascertained that
    said person is a female over the age of ten (10)
    years and under the age of eighteen (18) years, or
    is a male person over the a e of ten (10) years and
    under the age of seventeen $17) years at the time
    of the trial for the alleged offense, it shall be
    the duty of such court to transfer such case immed-
    iately together with all papers, documents and testl-
     mony,~connectedtherewith to the Juvenile Court of
    said county. The court making such transfer shall
    order the child to be taken forthwith to the place
    of detention designated by the Juvenile Court, or to
    that court itself, or to release such child to the
    custody of a probation officer or any suitable per-
    son to appear before the Juvenile Court, or the
    probatlon department of said county at a time
    designated. The Juvenile Court shall thereupon
    proceed to set said case for hearing and to dis-
    pose of such case in the'same manner as if It hasp
    been instituted in that court In the first instance."
        If the "youngster" of whom you write is judicially     .
determined to be thirteen (13) years of age, as clalmed by him,
the Justice of the Peace has no choice but to comply with-.the
above section of the Juvenile Act. Irrespective of the fact
that he may~'havebeen misinforming the court as to his age,
if he is really under the age of seventeen (17) years, the
Justice of the Peace has no discretion in the matter. Whether
the erring youth is or is not under the age of seventeen (17)
years is a question to be judicially determined. Under the
statement you submit, inasmuch as the individual mentioned
is clalmlng to be only thirteen (13) years of age, It would
be the duty of the officers tomcarry out the spirit of the
Act and to give effect to the announced intentlon of the Legs-
islature through a careful and thorough Investigation to de-
termine the true age of the alleged miscreant, Note the pro-
vision in Section 11 of said Act that "no child shall be
taken before a Police Court or a Justice of Peace Court,"
        Sectton 3 of said Chapter 204 defines the term "delln-
quent child" as~one coming within the age limits (10 to 17
years for males, 10 to 18 gears for females), who among other
things "babitwviolates      any penal law of this state of the
grade of mlsdemaanor where the punishment prescribed for such
Honorable W. J. Townsend - page 3        0-6620


offense is by pecuniary fine only." AS your letter states that
as far as you know the charge arising under Article 482 of the
Penal Code is the first to be preferred against the individual
you mention, and as a single act cannot be considered "habi-
tual", the effect of said Juvenile Act is to relieve those
within the age group from accountabLlitg under the law. See
Hilton v. State, 41 Text Cr. R. 190, 53 S.W. 113; Cord111 v.
State, 83 Tex. Cr. R. 74, 201 S.W. 181; Branch's Penal Code,
p. 599, for discussions on the meaning of the word "habitual."
        You are therefore advised that It is our opinion that
yours Is a fact question, to be determined from all available
evidence as to the actual age of the individual you mention.
If such person Is a child over the age of ten (10) years and
under the age of seventeen (17) years, the Justice Court is
without jurisdiction to try and fine him. We are further of
the opinion that one within such age group who commits a single
act which would be a misdemeanor punishable by pecuniary fine
only if done by an adult, is subject to no proceedings whatever
at the instance of the State of Texas,
                               Yours very truly
                            ATTORNEY GENERAL OF TEXAS


                               By s/Benjamin Woodall
                                    Benjamin Woodall
                                          Assistant
BW:zd:wc

APPROVED JUL 2, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
