Tex.
Fam. Code Section 54.02
Waiver of Jurisdiction and Discretionary Transfer to Criminal Court
(a)
The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:(1)
the child is alleged to have violated a penal law of the grade of felony;(2)
the child was:(A)
14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or(B)
15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted concerning that offense; and(3)
after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.(b)
The petition and notice requirements of Sections 53.04 (Court Petition; Answer), 53.05 (Time Set for Hearing), 53.06 (Summons), and 53.07 (Service of Summons) of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.(c)
The juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal proceedings.(d)
Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.(e)
At the transfer hearing the court may consider written reports from probation officers, professional court employees, guardians ad litem appointed under Section 51.11 (Guardian Ad Litem)(d), or professional consultants in addition to the testimony of witnesses. At least five days prior to the transfer hearing, the court shall provide the attorney for the child and the prosecuting attorney with access to all written matter to be considered by the court in making the transfer decision. The court may order counsel not to reveal items to the child or the child’s parent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.(f)
In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:(1)
whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;(2)
the sophistication and maturity of the child;(3)
the record and previous history of the child; and(4)
the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.(g)
If the petition alleges multiple offenses that constitute more than one criminal transaction, the juvenile court shall either retain or transfer all offenses relating to a single transaction. Except as provided by Subsection (g-1), a child is not subject to criminal prosecution at any time for any offense arising out of a criminal transaction for which the juvenile court retains jurisdiction.(g-1)
A child may be subject to criminal prosecution for an offense committed under Chapter 19 (Criminal Homicide) or Section 49.08 (Intoxication Manslaughter), Penal Code, if:(1)
the offense arises out of a criminal transaction for which the juvenile court retained jurisdiction over other offenses relating to the criminal transaction; and(2)
on or before the date the juvenile court retained jurisdiction, one or more of the elements of the offense under Chapter 19 (Criminal Homicide) or Section 49.08 (Intoxication Manslaughter), Penal Code, had not occurred.(h)
If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and shall transfer the person to the appropriate court for criminal proceedings and cause the results of the diagnostic study of the person ordered under Subsection (d), including psychological information, to be transferred to the appropriate criminal prosecutor. On transfer of the person for criminal proceedings, the person shall be dealt with as an adult and in accordance with the Code of Criminal Procedure, except that if detention in a certified juvenile detention facility is authorized under Section 152.0015 (Pretrial Detention Policy for Certain Juveniles), Human Resources Code, the juvenile court may order the person to be detained in the facility pending trial or until the criminal court enters an order under Article 4.19 (Transfer of Person Certified to Stand Trial as an Adult), Code of Criminal Procedure. A transfer of custody made under this subsection is an arrest.(h-1)
If the juvenile court orders a person detained in a certified juvenile detention facility under Subsection (h), the juvenile court shall set or deny bond for the person as required by the Code of Criminal Procedure and other law applicable to the pretrial detention of adults accused of criminal offenses.(i)
A waiver under this section is a waiver of jurisdiction over the child and the criminal court may not remand the child to the jurisdiction of the juvenile court.(j)
The juvenile court may waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings if:(1)
the person is 18 years of age or older;(2)
the person was:(A)
10 years of age or older and under 17 years of age at the time the person is alleged to have committed a capital felony or an offense under Section 19.02 (Murder), Penal Code;(B)
14 years of age or older and under 17 years of age at the time the person is alleged to have committed an aggravated controlled substance felony or a felony of the first degree other than an offense under Section 19.02 (Murder), Penal Code; or(C)
15 years of age or older and under 17 years of age at the time the person is alleged to have committed a felony of the second or third degree or a state jail felony;(3)
no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted;(4)
the juvenile court finds from a preponderance of the evidence that:(A)
for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person; or(B)
after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:(i)
the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person;(ii)
the person could not be found; or(iii)
a previous transfer order was reversed by an appellate court or set aside by a district court; and(5)
the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged.(k)
The petition and notice requirements of Sections 53.04 (Court Petition; Answer), 53.05 (Time Set for Hearing), 53.06 (Summons), and 53.07 (Service of Summons) of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering waiver of jurisdiction under Subsection (j). The person’s parent, custodian, guardian, or guardian ad litem is not considered a party to a proceeding under Subsection (j) and it is not necessary to provide the parent, custodian, guardian, or guardian ad litem with notice.(l)
The juvenile court shall conduct a hearing without a jury to consider waiver of jurisdiction under Subsection (j). Except as otherwise provided by this subsection, a waiver of jurisdiction under Subsection (j) may be made without the necessity of conducting the diagnostic study or complying with the requirements of discretionary transfer proceedings under Subsection (d). If requested by the attorney for the person at least 10 days before the transfer hearing, the court shall order that the person be examined pursuant to Section 51.20 (Physical or Mental Examination)(a) and that the results of the examination be provided to the attorney for the person and the attorney for the state at least five days before the transfer hearing.(m)
Notwithstanding any other provision of this section, the juvenile court shall waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal court for criminal proceedings if:(1)
the child has previously been transferred to a district court or criminal district court for criminal proceedings under this section, unless:(A)
the child was not indicted in the matter transferred by the grand jury;(B)
the child was found not guilty in the matter transferred;(C)
the matter transferred was dismissed with prejudice; or(D)
the child was convicted in the matter transferred, the conviction was reversed on appeal, and the appeal is final; and(2)
the child is alleged to have violated a penal law of the grade of felony.(n)
A mandatory transfer under Subsection (m) may be made without conducting the study required in discretionary transfer proceedings by Subsection (d). The requirements of Subsection (b) that the summons state that the purpose of the hearing is to consider discretionary transfer to criminal court does not apply to a transfer proceeding under Subsection (m). In a proceeding under Subsection (m), it is sufficient that the summons provide fair notice that the purpose of the hearing is to consider mandatory transfer to criminal court.(o)
If a respondent is taken into custody for possible discretionary transfer proceedings under Subsection (j), the juvenile court shall hold a detention hearing in the same manner as provided by Section 54.01 (Detention Hearing), except that the court shall order the respondent released unless it finds that the respondent:(1)
is likely to abscond or be removed from the jurisdiction of the court;(2)
may be dangerous to himself or herself or may threaten the safety of the public if released; or(3)
has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term of jail or prison and is likely to commit an offense if released.(p)
If the juvenile court does not order a respondent released under Subsection (o), the court shall, pending the conclusion of the discretionary transfer hearing, order that the respondent be detained in:(1)
a certified juvenile detention facility as provided by Subsection (q); or(2)
an appropriate county facility for the detention of adults accused of criminal offenses.(q)
The detention of a respondent in a certified juvenile detention facility must comply with the detention requirements under this title, except that, to the extent practicable, the person shall be kept separate from children detained in the same facility.(r)
If the juvenile court orders a respondent detained in a county facility under Subsection (p), the county sheriff shall take custody of the respondent under the juvenile court’s order. The juvenile court shall set or deny bond for the respondent as required by the Code of Criminal Procedure and other law applicable to the pretrial detention of adults accused of criminal offenses.(s)
If a child is transferred to criminal court under this section, only the petition for discretionary transfer, the order of transfer, and the order of commitment, if any, are a part of the district clerk’s public record.
Source:
Section 54.02 — Waiver of Jurisdiction and Discretionary Transfer to Criminal Court, https://statutes.capitol.texas.gov/Docs/FA/htm/FA.54.htm#54.02 (accessed Jun. 5, 2024).
