Ex Parte Morgan

595 S.W.2d 128, 1980 Tex. Crim. App. LEXIS 1135

• Court: Court of Criminal Appeals of Texas
• Decided: March 12, 1980
• Docket: 61840
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an application for a writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Petitioner contends that his conviction in January 1973 for the offense of robbery by assault is void because he was a juvenile at the time he committed the offense, and the trial court failed to hold an examining trial before petitioner was indicted and subjected to criminal proceedings as an adult. Petitioner relies on White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979), in which this Court reversed the cause because the record did not reflect that the defendant, who had been transferred from the juvenile court, received an examining trial prior to the indictment issuing against him. See also Menefee v. State, 561 S.W.2d 822 (Tex.Cr.App.1977).

The decisions in White and Menefee were based on the discretionary transfer provision in the Family Code, V.T.C.A., Family Code, Section 54.02. Title 3 (Sections 51-56) of the Family Code did not go into effect until September 1, 1973, after petitioner committed the offense and had been tried and convicted. Thus its provisions do not apply to him. However, petitioner points out that the predecessor to Section 54.02(h), supra, Article 2338-1, Section 6(j), V.A.C.S., as amended in 1967, was in effect at the time of the offense and made a similar provision for an examining trial to be held upon transfer of a juvenile to the district court. Petitioner urges that we should interpret Article 2338-1, Section 6(j) in the same manner as we interpreted Section 54.02(h) of the Family Code in Menefee and White, and that he is entitled to relief.

We do not reach the merits of this contention because a prior problem arises with respect to whether petitioner was ever subject to the jurisdiction of the juvenile court under Article 2338-1, supra.

Petitioner was 16 when he committed the offense on March 4,1972; he turned 17 four days later on March 8,1972. Petitioner was not arrested until July 18, 1972, and was not indicted until August 28,1972. He was tried in January 1973. Being 17 years old, petitioner was not a child within the terms of the statute at the time he was arrested, indicted, or tried. See Article 2338-1, Section 3, V.A.C.S.; Ex parte Trahan, 591 S.W.2d 887 (Tex.Cr.App.1979); Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973).

Section 5(a) of Article 2338-1 as amended in 1967 provided that

The juvenile court has exclusive original jurisdiction in proceedings governing any delinquent child. However, in those cases specified in Section 6 of this Act, the juvenile court may waive jurisdiction" to the appropriate district court or criminal district court. The juvenile court is considered in session at all times.

Section 6 was the discretionary transfer provision of Article 2338-1, analogous to Section 54.02 of the present Family Code. Subsection 6(b) provided that if a child under the terms of the act was charged with an offense and was 15 or older at the time of offense, the juvenile court could waive its jurisdiction by following the procedures set out in Subsections 6(c) — 6(j). See Ex parte Trahan, supra.

Article 30, V.A.P.C., was amended in 1967 by the same act that amended Article 2338-1. As amended, it provided that no person under 17 years of age could be convicted of an offense except perjury unless the juvenile court waived jurisdiction and certified the person for criminal proceedings. See Ex parte Trahan, supra; Ex parte Matthews, supra. Comparing Sections 5(a) and 6(b) and Article 30, it becomes clear that where criminal charges were brought against a juvenile who was 15 or older when he committed the alleged offense, the juvenile court had exclusive original jurisdiction. The juvenile could only be made subject to adult criminal proceedings if the juvenile court waived jurisdiction and transferred him to the district court in accordance with the procedure of Section 6, supra.

In this case petitioner was not charged with an offense until after he turned 17 years of age and thus was no longer a juvenile. See Section 6(b), supra. He was never made subject to any judicial proceedings as a juvenile. See Section 5(a), supra. The juvenile court never acquired jurisdiction of petitioner under the terms of Article 2338-1, and he was not denied any rights under that statute.¹

The relief sought is denied.

DALLY, J., concurs in result.

1 . The dissent charges that in reaching this result we do not follow the recent decision in Ex parte Trahan, 591 S.W.2d §37 (Tex.Cr.App.1979). To the contrary, this case is perfectly consistent with Trahan.

Upon comparing the language of Sections 5(a) and 6(b) of Article 2338-1, V.A.C.S., we held in Trahan that where criminal charges are brought against a child, “i. e., a person over the age of 10 years and under the age of 17 years,” and the child was 15 years of age or older at the time of the offense, the juvenile court had exclusive jurisdiction under Article 2338-1, and the district court could only obtain jurisdiction if the certification procedures of Article 2338-1, Sections 6(c)-(j) were followed. An examination of this statement reveals that two requirements had to be fulfilled under Article 2338-1 before the juvenile court had exclusive jurisdiction that, in its discretion, it could waive to the district court. One, criminal charges had to be brought against a “child” as defined under the Act. A person 17 years of age or older was not a child under the Act. See Section 3 of the Act, as construed in Trahan. Two, the child who was charged with an offense must have committed the offense when he was 15 years of age or older; in other words, when he was either 15 or 16 years of age. Children who committed offenses at a younger age were not subject to being transferred to the district court.

Thus, if a person had already turned 17 by the time criminal charges were initiated against him, he was not charged as a child but as an adult. He was not made subject to the jurisdiction of the juvenile court because the first requirement was lacking. If the Legislature intended something different from this result, it did not express its intention in the words of the Act. We note that in 1975, the Legislature did express the intention to have the time of offense control the jurisdiction of the juvenile court. It declared that the juvenile court would have jurisdiction over all cases involving “conduct . . . engaged in by a person who was a child within the meaning of this Title at the time he engaged in the conduct.” V.T.C.A. Family Code, Section 51.04(a).