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

District Attorney Re: Theauthority of the district Hamilton, Texas court with reference to the commitmentof a delinquent child under Dear Sir: the described facts.

Your letter of September 18, 1940, requests alegal 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 GrandJury indictmentwhich further sets out the age of such child to be under seventeen and over twelve, andthe 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 homeor school?” Weassumefrom your letter that the child involved has been found to be adelinquent child by the court or by a NY. Article 1084 of the Code of Criminal Procedure provides as follows:

“If an indictment does not allege the age of the accused to bewithin the juvenile limits, then at any time before announcement of ready, the accused, or the parent, guardian, attorney or next friend of the accused maymakeandfile an affidavit in court setting upthat such accused is a male then under seventeen years of age, or is a female then under eighteen years of age. Whensuch affidavit is filed, the judge shall hear evidence on the question of the age cf the accused, andif 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

andproceed to try the child under the sameindictment.as adelinquent child.” Article 1090 of the Code of Criminal Procedure provides:

“Anyjuvenile found by the court or jury to be a delinquent child shall be committed totheplace 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 provides:

“In any proceeding in anyjuvenile court, the court or jury maysubstitute as.a place of commitment anydetention home, parental school, or school for girls or boys established by any county, andthe further disposition of the juvenile shall be governed as provided for by the laws relating to delinquent children.” Article 

### 1089of the Code of Criminal Procedure reads: When ajuvenile is tried by ajury the verdict shall state the time andplace of confinement. The proper judgment shall be rendered onthe 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 maycontinue 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, andmayallow said child to remain in its ownhome, subject to visitation of the probation officer or other person designated by the court, or under any other conditions that mayseemproper andbe imposed by the court; or the court maycause the child to be placed in the homeof a suitable family, under such conditions as maybe imposed by the court, or it may authorize the child to be boarded out in somesuitable family, in case provision is made, byvoluntary contribution or otherwise, for the payment of the board of such child until suitable provision may be madein ahomewithout such payment; or the court may,.- ,

i’.o??.. H. II.Allen, page 

### 3

commit it to anyinstitution in the county .that may care for children that is willing to receive it, or which mnybe provided for bythe State or county, suitable for the care of such children, willing to receive it or of any state institution for boys or girls, i wil 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 nocase shall a child proceeded against under this law be committed beyond the age of twenty-one. Theorder of the court committing such child to the care andcustody of any person shall prescribe the length of time and the conditions of such commitment. Suchorder shall be subject to change by further orders of the court with reference to said child; andthe 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 ajuvenile, after he or she has been found bythe court or jury to be adelinquent child, is controlled by the specific provisions of Articles 1090 and 1091 of the Code of Criminal Proccdure

. Thelegislative intent that Articles 1090 and 1091 should be all-inclusive is demonstrated bythe terminology of Article 1091 authorizing the substitution of certain described places of commitmentfor those embraced within Article 1090. Neither of these statutes provides for, or contemplates, in our opinion, that the delinquent child maybe committed to the care andcustody of an individual, either bythe court or by the jury in its verdict.

Weare mindful of the statements bythe Court of Criminal Appeals of Texas in the cases of Curryv. State, 296 S.Y. 307 andExparte 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, weare of the opinion that the court did not hold, or intend to imply that Article 2338would relieve the specific provisions of Articles 1089, 1090, and 1091 of the Codeof 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 juryHon. H. ~ti.Allen, page 4

has found ajuvenile to be a delinquent child, the child may be committed only to a place or institution described by Articles 

### 1090and 1091 of the Code of Criminal Procedure. As stated above, these statutes donot, in our opinion, authorize the court to commit'the delinquent child to the care andcustody of an individual. Yours very truly ATTORNEY

GENERAL

OFTUAE By/a/ Zollie C. Steakley Zollie C. Steakley, Assistant ni,PROVED

OCT

### 3,1940 /s/ Geraldc. Mann ATTORNEY

GENERAT,

OFTEXAS APPROVED:

OPINIONCOMMITTEE BY: , BWB,CHAIRMAN ZCSrRBB:wb