in the Matter of B. M.

Court of Appeals of Texas·Decided April 30, 2019·No. 01-18-00898-CV·Published

Opinion

Opinion issued April 30, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00898-CV ——————————— IN THE MATTER OF B.M.

On Appeal from the County Court at Law No. 2 Fort Bend County, Texas Trial Court Case No. 18-CJV-021629

CONCURRING OPINION

In Kent v. United States, 383 U.S. 541 (1966), the Supreme Court determined

that children1 in juvenile proceedings should not be denied procedural rights given

to adult criminal defendants merely because juvenile proceedings are characterized

1 See TEX. FAM. CODE ANN. § 51.02(2) (defining child); In re Hall, 286 S.W.3d 925, 927 (Tex. 2009) (“Child is defined to include persons less than eighteen years old.” (internal quotations omitted)). as civil. See Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) (citing

Kent, 383 U.S. at 560). While identifying the determination to transfer a child from

juvenile court to criminal court for prosecution as an adult “as ‘critically important,’

the [Supreme] Court held [that] a state juvenile transfer process must operate in

accordance with traditional notions of fundamental fairness.” Id. (quoting Kent, 383

U.S. at 560). And that “[t]he process must include a hearing, effective assistance of

counsel, and counsel’s access to the child’s social file.” Id. (emphasis added).

Further, in In re Gault, 387 U.S. 1 (1967), the Supreme Court held that the

Fourteenth Amendment’s Due Process Clause applied to juvenile proceedings

“entitling children to notice of charges, defense counsel, the privilege against

self-incrimination, confrontation of and cross[-]examination of witnesses.”

Hidalgo, 983 S.W.2d at 750–51 (citing In re Gault, 387 U.S. at 49); see also In re

Gault, 387 U.S. at 13 (“[N]either the Fourteenth Amendment nor the Bill of Rights

is for adults alone.”).

The Supreme Court has also determined that, as compared to adults, children

under eighteen years of age lack of maturity, have “an underdeveloped sense of

responsibility,” and are “more vulnerable or susceptible to negative influences and

outside pressures, including peer pressure.” Roper v. Simmons, 543 U.S. 551, 569

(2005) (internal quotations omitted). In the Roper majority opinion, Justice

Kennedy further noted that “[t]hese qualities often result in impetuous and

2 ill-considered actions and decisions” by a child. Id. Moreover, the Court explained

that children “have less control, or less experience with control, over their own

environment” and their character “is not as well formed as that of an adult”; their

personality traits are “more transitory, less fixed.” Id. at 569–70. Based on these

differences, the Court found suspect any conclusion that a child falls among the

worst offenders because a child’s “irresponsible conduct is [simply] not as morally

reprehensible as that of an adult.” Id. at 561, 570 (internal quotations omitted); see

also Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (“[T]he Court has already

endorsed the proposition that less culpability should attach to a crime committed by

a juvenile than to a comparable crime committed by an adult. . . . Inexperience, less

education, and less intelligence make the teenager less able to evaluate the

consequences of his . . . conduct while at the same time he . . . is much more apt to

be motivated by mere emotion or peer pressure than as an adult.”).

Texas courts have also recognized that children are different from adult

criminal defendants and warrant additional protections. See In re Hall, 286 S.W.3d

925, 927 (Tex. 2009) (“The Legislature enacted the Juvenile Justice Code as a

separate system for the prosecution, adjudication, sentencing, and detention of

juvenile offenders to protect the public and provide for the wholesome moral,

mental, and physical development of delinquent children. This separate system

often provides enhanced procedural protections to juvenile offenders, who, because

3 of youth, ordinarily lack the mental and emotional maturity needed to . . . maintain

an adequate defense.” (internal citations omitted)); Henderson v. State, 962 S.W.2d

544, 562 (Tex. Crim. App. 1997) (“[The] State has a legitimate, and in fact

compelling, interest in protecting the well-being of its children. . . . Children are

deemed to warrant protection because of their inexperience, lack of social and

intellectual development, moral innocence, and vulnerability.”); Lanes v. State, 767

S.W.2d 789, 791–800 (Tex. Crim. App. 1989) (including historical discussion of

juvenile justice policy and noting “rehabilitation and child protection remain as the

pervasive and uniform themes of the Texas juvenile system”); In re S.G.R., 496

S.W.3d 235, 238 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“Children

ordinarily are not subject to criminal proceedings like adults.”); In re J.G., 905

S.W.2d 676, 680–81 (Tex. App.—Texarkana 1995), writ denied, 916 S.W.2d 949

(Tex. 1995) (“[A] juvenile is not similarly situated to an adult . . . . [T]he juvenile

justice system is arranged with a special emphasis on the welfare of the child . . . .”);

In re E.Q., 839 S.W.2d 144, 145–46 (Tex. App.—Austin 1992, no writ) (“The [S]tate

has an interest in providing for the care, protection, and development of its

children . . . . The civil juvenile justice system was established in part to insulate

minors from the harshness of criminal prosecutions, to promote rehabilitation over

punishment, and to eliminate the taint of criminal conviction after incarceration by

characterizing such actions as delinquent rather than criminal.”); see also TEX. FAM.

4 CODE ANN. § 51.01 (purposes of Juvenile Justice Code include “provid[ing]

treatment, training, and rehabilitation that emphasizes the accountability and

responsibility of both the parent and the child for the child’s conduct” and

“provid[ing] for the care, the protection, and the wholesome moral, mental, and

physical development of children coming within its provisions”). Thus, “[t]he

transfer of a [child] from juvenile court to criminal court for prosecution as an adult

should be regarded as the exception, not the rule; the operative principle is that,

whenever feasible, children and adolescents below a certain age should be protected

and rehabilitated rather than subjected to the harshness of the criminal system[.]”

Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (third alteration in

original) (internal quotations omitted); see also Lanes, 767 S.W.2d at 796 (“The

Texas juvenile system . . . seeks to avoid the taint of criminality in order to prevent

recidivism and promote rehabilitation. The best method of avoiding attachment of

a criminal taint is keeping the child completely out of the [criminal] system.”).

Furthermore, because proceedings in juvenile court are quasi-criminal in

nature, they are subject to numerous due process restrictions mirroring those at play

in a full criminal trial. In re A.J.S., 442 S.W.3d 562, 565 (Tex. App.—El Paso 2014,

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