Hon. H. W. Allen Opinion No. O-2759 

District Attorney Re: The authority of the district 

Hamilton, Texas court with reference to the commitment of a delinquent child under 

Dear Sir: the described facts. 

Your letter of September 18, 1940, requests a legal 

opinion of this Department in reply to the question stated by 

you as follows: 

“Where a male child under the age of seventeen 

years is charged with a felony by Grand Jury indictment which further sets out the age of such child 

to be under seventeen and over twelve, and the same 

is disposed of as a Juvenile case by the District 

Court, does the District Court have the authority 

under the statutes to commit the child to the care 

and custody of an individual, in the nature of probation, or must the Juvenile be committed to the 

State Juvenile Training School for Boys, or a County 

established home or school?” 

We assume from your letter that the child involved 

has been found to be a delinquent child by the court or by a 

NY. 

Article 1084 of the Code of Criminal Procedure provide s as follows: 

“If an indictment does not allege the age of the 

accused to be within the juvenile limits, then at any 

time before announcement of ready, the accused, or 

the parent, guardian, attorney or next friend of the 

accused may make and file an affidavit in court setting 

up that such accused is a male then under seventeen 

years of age, or is a female then under eighteen years 

of age. When such affidavit is filed, the judge shall 

hear evidence on the question of the age cf the accused, 

and if he is satisfied therefrom th,it the accused, if 

a male is then under the age of seventeen years, or if 

ammale is then under the age of eighteen years, the 

judge shall transfer the case to the juvenile docket, 
Hon. 3. !:‘. Ulen, page 2 

and proceed to try the child under the same indictment. as a delinquent child.” 

Article 1090 of the Code of Criminal Procedure provides: 

“Any juvenile found by the court or jury to be a 

delinquent child shall be committed to the place or institution provided by law for such child, for an indeterminate period not extending beyond the time when 

such child shall reach the age of twenty-one years.” 

Article 1091 of the Code of Criminal Procedure provide s: 

“In any proceeding in any juvenile court, the 

court or jury may substitute as .a place of commitment 

any detention home, parental school, or school for 

girls or boys established by any county, and the further disposition of the juvenile shall be governed 

as provided for by the laws relating to delinquent 

children.” 

Article 1089 of the Code of Criminal Procedure reads: 

When a juvenile is tried by a jury the verdict 

shall state the time and place of confinement. The 

proper judgment shall be rendered on the verdict.” 

You call our attention, also, to Article 2338 of the 

Revised Civil Statutes which provides as follows: 

“In any case of a ‘delinquent child,’ the court 

may continue the hearing from time to time and may 

commit the child to the care of a probation officer, 

or to the care or custody of any other proper person, 

and may allow said child to remain in its own home, 

subject to visitation of the probation officer or 

other person designated by the court, or under any 

other conditions that may seem proper and be imposed 

by the court; or the court may cause the child to be 

placed in the home of a suitable family, under such 

conditions as may be imposed by the court, or it may 

authorize the child to be boarded out in some suitable family, in case provision is made, by voluntary 

contribution or otherwise, for the payment of the 

board of such child until suitable provision may be 

made in a home without such payment; or the court may 
,.- , 

i’.o??.. H. II. Allen, page 3 

commit it to any institution in the county .that may 

care for children that is willing to receive it, or 

which mny be provided for by the State or county, 

suitable for the care of such children, willing to 

receive it or of any state institution for boys or 

girls, wil i ing to receive such child, or to any other 

institution in the State of Texas for the care of such 

children willing to receive it. In no case shall a 

child proceeded against under this law be committed 

beyond the age of twenty-one. The order of the court 

committing such child to the care and custody of any 

person shall prescribe the length of time and the 

conditions of such commitment. Such order shall be 

subject to change by further orders of the court with 

reference to said child; and the court shall have the 

power to change the custody of such child or to entirely discharge it from custody whenever, in the 

judgment of the court, it is to the best interest of 

the child to do so.” 

It appears from these statutes that the commitment 

of a juvenile, after he or she has been found by the court or 

jury to be a delinquent child, is controlled by the specific 

provisions of Articles 1090 and 1091 of the Code of Criminal 

Procc dure . The legislative intent that Articles 1090 and 1091 

should be all-inclusive is demonstrated by the terminology of 

Article 1091 authorizing the substitution of certain described 

places of commitment for those embraced within Article 1090. 

Neither of these statutes provides for, or contemplates, in 

our opinion, that the delinquent child may be committed to the 

care and custody of an individual, either by the court or by 

the jury in its verdict. 

We are mindful of the statements by the Court of 

Criminal Appeals of Texas in the cases of Curry v. State, 296 

S.Y. 307 and Ex parte Lassiter, 18 S.V:. (2d) 637, to the effect that in consiruing Article 109l of the Code of Criminal 

I’rocedure, Article 2338 of the Revised Civil Statutes must 

also be taken into consideration. titer carefully studying 

these cases in the light of the particular subject matter involved in each of them, we are of the opinion that the court 

did not hold, or intend to imply that Article 2338 would relieve the specific provisions of Articles 1089, 1090, and 1091 

of the Code of Criminal Procedure in the situation involved 

in your request. 

Accordingly, you are respectfully advised that it is 

the opinion of this Department that where the court or jury 
Hon. H. ~ti. Allen, page 4 

has found a juvenile to be a delinquent child, the child may 

be committed only to a place or institution described by 

Articles 1090 and 1091 of the Code of Criminal Procedure. As 

stated above, these statutes do not, in our opinion, authorize 

the court to commit 'the delinquent child to the care and custody of an individual. 

Yours very truly 

ATTORNEY GENERAL OF TUAE 

By /a/ Zollie C. Steakley 

Zollie C. Steakley, Assistant 

ni,PROVED OCT 3, 1940 

/s/ Geraldc. Mann 

ATTORNEY GENERAT, OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: , BWB, CHAIRMAN 

ZCSrRBB:wb