Hon. Criss Cole, Chairman         Opinion No. M-405
Se,nateYouth Affairs Committee
Senate of the State of Texas      Re:   Constitutionality
Austin, Texas                           of Senate Bill
                                        No. ll+Amendments
                                        to Article 2338-1,
                                        Sections 5 (a) and
Dear Senator Cole:                      6, V.C.S.
     You have requested the opinion of this office as to
the constitutionality of certain amendments to Article
2338-1,Sections 5 (a) and 6, Vernon's civil Statutes.
These amendments are contained in Senate Bill No. 119
and relate to felony prosecution (as an adult) of a
juvenile fifteen (15) years of age or older at the time
of the commission of a felony and providing for certain
procedural steps.
     It appears that the intent of Senate Bill No. 119
is to eliminate the "waiver of jurisdiction and certi-
fication" required by the juvenile court under the present
provisions of Article 2338-1, V.C.S. and to confer juris-
diction over certain juveniles in a district court or
criminal court for prosecution as in the case of an adult.
     We particularly call to your attention Section 6 (b)
(1)J of Senate Bill No. 119, which reads as follows:
     (1) "When the district attorney, county attorney,
     or the foreman of a grand jury has reason to believe
     that the welfare of the community requires that
     criminal proceedings be initiated, he shall give
     notice to the juvenile court that the circumstances
     concerning the offense with which the child is
     charged will be presented to the grand jury."
     It appears that this particular section removes the
rights of juveniles from a civil remedy to a criminal
proceeding without a waiver hearing before the Court and
now vests this discretion with the District Attorney,
County Attorney, or the foreman of the Grand Jury. There
is no realistic guide lines set down to determine which
juveniles will be tried as juveniles and which juveniles
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Hon. Criss Cole, page 2 (M-405)


will be charged and tried under the criminal laws of this
State. Thereby, this important unreviewable decision is
left to prosecuting attorneys or a layman untrained in
the law. However, even if guide lines had been laid down,
it is believed that this section would still be inadequate
to meet the requirements of "due process" and "equal pro-
tection" guaranteed under the 14th amendment of the Con-
stitution-of the United States. Kent v. United States,
383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed 2d 84 (lgbb    In
Gault, 387 U.S. 1, 87 S.Ct. 1428, 18'L.Ed. 2d 527)!197
     In the Gault case, supra, the Court "...emphasized
the necessityth&t the basic requirements of due process
and fairness be satisfied in such proceedings.:: It said
that the requirements of the juvenile hearing ...must
measure up to the essentials of due process and fair
treatment." "Welfare of the Community" is not a term of
art and has not been judicially defined, nor is any leg-
islative definition given by the Statute. The constitu-
tional requirement of equal protection of the law requires
that in the administration of justice no different or
higher punishment should be imposed upon an individual
than that which is prescribed to all for like offenses.
Barbier v. Connolly 113 U.S. 27, 31 (1885). A statute
relating to crime a:d punishment ' ...must operate in a
uniform manner on individuals of the class embraced in
the law, and must require the same treatment of all who
are in like conditions and circumstances." 16 Tex. Jur.
2d 101, Criminal Law, Sec. 8. While a reasonable classi-
fication and discrimination between individuals is per-
missible, in our opinion it is unconstitutional for the
legislature to delegate to others the unreviewable right
to choose those individuals for criminal prosecution
which they determine should be subjected to such pros-
ecution solely on the basis of their interpretation of
the "welfare of the community," and without benefit of
any standard or guide line and without a hearing. Such
a criteria appears vague, uncertain, and lacking in
measurement by objective standards. It is certainly
subject to non-uniform application throughout the State.
     The seriousness of the question is highlighted by
the recent action of the United States Supreme Court,
on Februarv 24, 1969.
                 - -_ which noted urobable jurisdiction
and a reed-to hear the ap eal in DeBacker v; Brainard
(No. 8623, 161 N.W. 2d 50E 183 Neb. 461 (1968). One
of the questions presented'is substantially the same
with which we are confronted here, as shown in Vol. 4,

                           - 2005-
Hon. Criss Cole, page 3 (M-405)


The Criminal Law Re orter 4177: "Is a juvenile denied due
process under the 1$ th Amendment by a Nebraska Juvenile
Code's conferral upon the prosecution of an unreviewable
discretion as to whether he will proceed against the
juvenile in juvenile court or under the Criminal Code?"
We have delayed rendering this opinion in the hope that
the Supreme Court would establish proper guide lines;
but in the absence of any opinion to this date, we believe
the fundamental principles herein stated clearly apply.
     In the recent case of Estes v. Hopp, Superior Court,
73 Wash. 2d 272, 438 P 2d 2b5 (lgbo) it was pointed out
by the Court, in considering the,,benificialconcept of
the juvenile court system, that ...it is a direction
that the juvenile be offered the benefits of an informal
hearing at which rules of fairness and basic procedural
rights are observed..."
     We hold that Senate Bill No. 119, if enacted into
law, in its present form would be unconstitutional.
     Having directed our attention to Section 6 (b) (1)
of Senate Bill 119, and having found same to be uncon-
stitutional, we find it unnecessary to consider Section
5 of Senate Bill 119.
                        SUMMARY
          Senate Bill 119, if enacted into law, in
     the form presented to this office amending
     Sections 5 (a) and 6 of Article 2338-1, Vernon's
     Civil Statutes would be unconstitutional.




                                      C. MARTIN
                                      General of Texas




                             -2006-
Hon. Criss Cole, page 4 (M-405)


Prepared by Tom W. Bullington
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bob Flowers
Howard Fender
Neil Williams
Bob Lattimore
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant




                                -2007-
