Honorable Ted Butler 

Criminal District Attorney 

Bexar County Courthouse 

San Antonio. Texas 78204 

Opinion No. M-1151 

Re: Whether an exami%g"'/T+ 

trial is required in 

the case of-a child 

transferred from-the 

juvenile court to 

distrkt court for 

Dear Mr. Butler: prosecution. 

You have requested the opinion of this office on the 

following questions: 

1. Must the Criminal District Court conduct an 

examining trial when a juvenile is transferred to that court 

by the juvenile court, although no examining trial has been 

requested? 

2. Will indictment by the grand jury prior to ,a 

request for an examining trial waive the juvenile's right 

to have an examining trial under Article 2338-1, Section 

6(j), Vernon's Civil Statutes? 

Section 6(j) of~Article 2338-l reads as follows: 

"If the juvenile court waives jurisdiction it 

shall certify its action, including the written 

order and findings of the court and accompanied by 

a complaint against the child, and transfer the 

child to the appropriate district courtor criminal 

district court for criminal proceedings. 

transfer of the child for criminal proceed F ngs he 

shall be dealt with as an adult and in accordance 

with the Code of Criminal Procedure. The transfer 

of custody is an arrest. However, the examining 

trial shall be conducted by the district court or 

criminal district court which may remand the child 

to the jurisdiction of the juvenile c,ourt." 

(Emphasis added.) 

if-7 

/ 

-5609- 
, ‘_ 

Honorable Ted Butler, page 2. (~-1151) 

Since transfer of custody from the,juvenile court to 

the district court is an arrest, the juvenile normally,will 

be dealt with in accordance with Article 15.17, Vernon's 

Code of Criminal Procedure, which requires an arresting 

~officer to take an accused before a magistrate to be informed of the charges and the accused's~legal rights, ineluding the right to an examining trial. 

Provision is made in Article 16.01, Vernon's Code of 

Criminal Procedure, for examining trials in criminal cases. 

This article reads in part: 

. ..The accused in any, felony case shall have the 

right to an examining trial before indictment in 

the county having jurisdiction of the offense, 

whether he be in custody or on bail, at which time 

the magistrate at the hearing shall determine the 

amount or the sufficiency of bail, if a bailable 

offense," 

No court decision has squarely decided whether an examining trial is mandatory in the case of a juvenile transferred to district court for prosecution as an adult. The 

Court of Criminal Appeals has been presented with~the question of whether Section 6(~) of Article 2338-l makes mandatory 

an examining trial in this situtation, but the record of the 

case reflects that sn examining trial hai: been held. The 

court.therefore did not rule on whether an examining trial 

is mandatory. Garza v. State, 469 S.W.2d 169 (Tex. Grim., 

1971); 

In Buchanan v. State, 453 S.W.2d 479 (Tex.Crim., 1970), 

the court was faced with the question of whether the district 

court had jurisdiction to try a defendant who was only sixteen years old when the indictment was returned. The court 

noted that the juvenile court had held a hearing on the 

state's request to waive jurisdiction and had entered an 

order waiving jurisdiction and transferring the case to the 

district court, after which the defendant was indicted. 

The opinion did not indicate that an examining trial was 

held by the district court, but the Court of Criminal Appeals 

observed that all statutory requirements for transfer of 

the case had been cornplied with ard that the indictment was 

valid. 

In two decisions, both styled Jackson v. State, 449 

S;W.=ld 242 (Tex.Crim,;~ 1969) and &&3 S,W.%d 2.45 (Tex.Crim;, 

-5610- 
Honorable Ted Butler, page 3. (~-1151) 

1969), the Court of Criminal Appeals was also confronted 

with the question of whether a defendant of juvenile age had 

been properly transferred for prosecution. In these cases, 

zhe'court mentioned that an examining~trf;al was conducted 

.,.as authorized by Article 2338-1, . . . (449 S.W.2d 242, 

243)'but did not rule whether an examining trial was mandatory. The language of Article 2338-1 at zhe time of Jackson's 

trial, however, was 

derived from a 1967 

not the same as the present language 

amendment. 

The purpose of 

be twofold. 

evidence to wL%% 

mine if bail should 

an examining trial has been declared to 

determine whether there is sufficient 

further uroceedinas. and (2) to deterbe allowed and, i? so, to‘s& the 

amount. Harris v. State, 4 

reversed on other grounds, 

(Tex.Crim., 1970), 

91 s.ct. 2291, 29 

L.Ed.2d 859 (1971); The first purpose mentioned is clearly 

satisfied by the return of an indictment, since the grand 

jury will have determined that the evidence warrants further 

proceedings. 

The Court of Criminal Appeals has ruled that the right 

to an examining trial is terminated by indictment. Klechka 

v. State, 429 S.W.2d 900 (Tex.Crim., 1968), certiorari '* 

denied 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592 (1969). 

The co&t has adhered to this rule even in situations where 

an examining trial has been requested, but indictment has 

been returned before a hearing could be'held. Solomon v. 

State, 467 S.W.2d 422 (Tex.Crim., 1971). Thurman v. State, 

m.W.2d 738 (Tex.Crim., 1971); Ash v. State, 420 S W 26 

703 (Tex.Crim., 1967). In various cases such as Klechka v. 

State, supra, the court has observed that no examining trial 

was requested. This office has ruled that the failure of a 

defendant to reauest an examining trial constitutes a 

waiver of the right to that hearing. 

c-717 (1966). 

Attorney General 

Opinion,, 

Various court decisions have indicated that minors can 

waive legal rights. such as the right to counsel and the 

privilege agai&t self-incrimination, as long as the minor's 

action is both knowin and voluntary. Garza v. State, 

supra; In re Garcia, fi 43 S.W.2d 594 (Tex.Civ.App., 1569, no 

writ); West v. United States, 399 F.2d 467 (5th Cir., x968), 

certiorari denied 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed. 795 

(1969); United St&es v. yeager, 446 F.2d 1360 (3rd Cir., 

1971). Since the courts have held that these important constitutional rights can be waived, the right to an examining 

-5611- 
. - 

Honorable Ted Butler, page 4. (M-1151) 

trial, which is merely procedural in nature, should also be 

subject to waiver by a minor. A hearing must be held in the 

juvenile court anyway on the waiver of jurisdiction to the 

district court, so the examining trial to a large extent 

would be simply a repetition of the waiver hearing. 

Since Section 6(j) of Article 2338-1. provides that a 

child transferred to district court for criminal proceedings 

shall be dealt with as an adult in accordance with the Code 

of Criminal Procedure, that statute should be harmonized, if 

possible, with provisions of criminal procedure and court 

inte 

tion 2 

retations,,of~these provisions. The provision of Sec- 

(j) that . ..the examining trial shall be conducted by 

the district court or criminal district court..." can be 

interpreted to mean that the waiver proceeding in the juvenile.court should not take the place of an examining trial. 

Also, since an examining trial normally may be held in a 

justice court, the provision of Section 6(j) can be interpreted as merely limiting the examining trial to a district 

court or criminal district court in those cases when a 

juvenile is certified for prosecution. Nothing in either 

Articles 2338-l or 16.01 or the Garza and Buchanan decisions, supra, indicates that an -ning trial i s mandatory. The many cases construing Article 16.01 have clearly 

demonstrated that the validity of an indictment and subsequent conviction is not dependent on whether an examining 

trial has been conducted. In cases of adults, the holding 

of an examining trial is dependent on a request. 

This office therefore is of the opinion that a district 

court is not required to conduct an examining trial in the 

case of a child transferred from juvenile court to district 

court for proseCution in the absence of a request for the 

exsmining trial. In view of the express language of Article 

16.01 and the many decisions holding that the right to an 

examining trial is terminated by indictment, we are also of 

the opinion that the right of a child transferred for prosecution as an adult to have an examining trial is terminated 

by indictment. 

SuMMaRY 

The terms of Article 2338-1, Section 6(j), 

Vernon's Civil Statutes, do not require a district 

court or criminal district court to conduct an 

examining trial in the case of a child transferred 

from juvenile court to district court for prosecution as an adult when no examining trial is requested. 

-5612- 
. . 

. . 

Honorable Ted Butler, page 5. (&,f-1151) 

The right of a child so transferred for prosecution 

to have an examining trial is terminated-by the 

return of an indictment. 

rs very truly, 

Prepared by Roland Daniel Green III 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Ben Harrison 

Jack Sparks 

Harold Kennedy 

Gordon Cass 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-5613-