Honorable Ted Butler

Criminal DistrictAttorney Bexar County Courthouse San Antonio. Texas 78204 OpinionNo. 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 CriminalDistrict 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 indictmentby the grand juryprior 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 courtwaives jurisdiction it shall certify its action, including the written order and findings of the court and accompaniedby a complaint against the child, and transfer the child to the appropriate district courtor criminal district court for criminalproceedings. F transfer of the child for criminalproceed 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 conductedby the district court or criminal district courtwhich may remand the child to the jurisdiction of the juvenile c,ourt." (Emphasisadded.) if-7 /

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Since transfer of custody from the,juvenile court to the district court is an arrest, the juvenilenormally,will be dealt with in accordancewith Article 15.17, Vernon's Code of Criminal Procedure,which requires an arresting ~officerto 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 ismade in Article 16.01, Vernon's Code of Criminal Procedure, for examining trials in criminal cases. This article reads inpart:

...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 decidedwhether an examining trial ismandatory in the case of a juvenile transferred to district court forprosecution 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 defendantwho was only sixteen years old when the indictmentwas 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 defendantwas indicted. The opinion did not indicate that an examining trial was held by the district court, but the Court of CriminalAppeals observed that all statutory requirements for transfer of the case had been cornplied with ard that the indictmentwas valid.

In two decisions, both styled Jackson v. State, 449 S;W.=ld242 (Tex.Crim,;~ 1969) and &&3 S,W.%d 2.45 (Tex.Crim;,

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1969), the Court of CriminalAppeals was also confronted with the question of whether a defendantof juvenile age had been properly transferred forprosecution. In these cases, zhe'courtmentioned that an examining~trf;al was conducted .,.asauthorizedby Article 2338-1,

. . . (449S.W.2d 242, 243)'but did not rulewhether an examining trialwas 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 determinewhether there is sufficient furtheruroceedinas. 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 firstpurposementioned is clearly satisfiedby the return of an indictment,since the grand jurywill have determinedthat the evidencewarrants further proceedings.
The Court of CriminalAppeals has ruled that the right to an examining trial is terminatedby 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 situationswhere an examining trial has been requested,but indictmenthas been returnedbefore a hearing couldbe'held. Solomonv. 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 Klechkav. State, supra, the court has observed that no examining trial
was requested. This officehas 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 decisionshave indicated that minors can waive legal rights. such as the right to counsel and the privilege agai&t self-incrimination,as long as theminor'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 (5thCir., 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 (3rdCir., 1971). Since the courtshave held that these important constitutional rights can be waived, the right to an examining

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trial,which ismerely procedural in nature, should also be subject to waiver by a minor. A hearingmust be held in the juvenile court anyway on the waiver of jurisdictionto the district court, so the examining trial to a large extent would be simply a repetitionof the waiver hearing.
Since Section 6(j) of Article 2338-1. provides that a child transferred to district court for criminalproceedings shallbe dealtwith as an adult in accordancewith the Code of Criminal Procedure, that statute shouldbe harmonized, if possible, with provisions of criminalprocedure and court inte tion2 retations,,of~these provisions. The provision of Sec- (j)that

...theexaminingtrial shallbe conductedby the district court or criminal district court..." can be interpretedto mean that the waiverproceeding in the juvenile.court shouldnot take the place of an examining trial. Also, since an examining trial normallymay be held in a justice court, the provision of Section 6(j) can be interpreted as merely limitingthe examining trial to a district court or criminaldistrict court in those caseswhen a juvenile is certified forprosecution. Nothing in either Articles 2338-l or 16.01 or the Garza and Buchanan decisions, supra, indicates that an -ning trial ismandatory. The many cases construingArticle 16.01 have clearly demonstratedthat the validity of an indictmentand subsequent conviction is not dependenton whether an examining trial has been conducted. In cases of adults, the holding of an examining trial is dependenton 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 forproseCution in the absence of a request for the exsmining trial. In view of the express language of Article 16.01 and the many decisionsholding that the right to an examining trial is terminatedby indictment,we are also of the opinion that the right of a child transferred forprosecution 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 criminaldistrict court to conduct an examining trial in the case of a child transferred from juvenile court to district court forprosecution as an adultwhen no examining trial is requested.

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Honorable Ted Butler,page 

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The right of a child so transferred forprosecution to have an examining trial is terminated-bythe return of an indictment.

rs very truly,

Preparedby Roland Daniel Green III AssistantAttorney 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 ExecutiveAssistant

NOLAWHITE FirstAssistant

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