THEA7m-omEw GENERAL OFTEXAS

Honorable John H. Winters, Executive StateDepartment of PublicWelfare Austin 3, Texas
Dear Sir: OpinionNo. Director

o-7227
Re: Unlawful detention of children prior to filing of petition under ,provisionsof Juven~Lle' DEllnqhency Act (Acts 1943,'48th Legislature,,

ch. 204, p. 313; Art. 2338-1, V. A. C. S.)
We have received your recent request for an opinion and quote from same as follows:

"We shall appreciateyour opinionwith reference to the legality of holding children by the police for the purpose of Investigatinglaw violations.
"Asrepresentatives of'theDivision of Child Welfare are asked to give consultive services to various officials, courts, and key indlviduals and groups, this question frequentlyarises, In some communities, the police have been known to hold children for as long as seventy two (72)hours before they are turned over to the ProbationDepartments OP the courts. This manner of detaining children is not only frequentlyvery harmfulbut helps to contribute toward the very delinquency the police and the communityas a whole are attempting to prevent. It also makes itmore difficult for the ProbatlonDepartment or the ChildWelfareWorker and the Juvenile Courts to help the childwith the very problemswhich are causing his dellnquencg. We wonder whetheror not itwas the intentionof the Legislature to treat children as such and different from adults all up and down the line and whether suchprogram of detention isnot contrary to our Texas Statutes.

c "More speciflcally,what was the intentionof theHon. John H. Winters, Page 2 O-7227

Legislature in its enactment of the Juvenile Court Law, Senate B111 44, 48th Legislature,Vernori'sAnnotated Civil Statutes,Article 2338-1, You are referredparticularly td~Sectlons 7, 11, 17, and these as related to the Act as a whole and specifically to Section 1. "WhatYs',thescope and 1imLtations of the law enforcementauthorities for detaining children on the basis of Investigation,and at what point must he legally get the child referred to the ProbationDepartment office or the Juvenile Court?"
We assume the children inquiredabout are, in the case of females, those over the age of ten gears-andunder the age of eighteenyears and, in the case of males, those over the age of ten years and under the age of seventeenyears. These are the ages necessary to bring said childrenwith the provisions of the JuvenileDelinquency Act-enactedby the 48th Legislature in 1943 (Acts 1943, ch. 204, p0 313).

We quote Sections 1, 7, 8, 10, 11, and 17 of said JuvenileDelinquency Act (Art. 2338-1,Vernon'sAnnotated Civil Statutes) as follows:

"Section 1. The purpose of this Act is to secure for each child under its jurLsdlctlonsuch care, guidance, and control, preferably in his own home, as will serve. the child'swelfare and the best intorestof the state; and when such child isremoved from his own family, to secure for him custody, care and disciplineas nearly as possible equivalent to thatwhich should have been given him by h1s parents. "Theprinciple is hereby recognized that children under the jurisdictionof the court are wards of the state, subject to the dlscipl1ne and entitled to the protection of the state,which may intervene to safeguard them from neglect or injuryand to enforce the legal obligatlonsdue to them and from them."
"Sec.7. Any person may, and any peace officer shall,give to the Judge, County Attorney, or to the Probation Officer of the county, Information in hLs possession that a child iswithin the provisions of thisAct. Thereupon the Judge, the CountyAttorney or the Probation Officer shallmake or havemade, preliminary inquiry to determinewhether the lnterests~ of the public or of the child require that further action be taken. If efther the Judge or the CountyAttor-Hon. John H. Winters, page 3 O-7227

neg shalldetermine that formal jurisdiction shouldbe acquired, the CountyAttorney shall prepare and file in the court, or any attorney may prepare and file in the court, a petitionalleging briefly the factswhich bring said childwithin the provisions of this Act, and stating: (1) the name, age and residence of the child; the names and residences, (2) of his parents legal guardian, if there be one; (4) of'ttZ)p&L?or persons having custody or control of the child; and (5) of the nearest known relative, ifno parent or guardian can be found. If any of the facts herein required are not known by the petitioner, the petition shall so state. The proceedings shallbe styled 'Inthe matter of

, a delinquent child."'
"Sec.8. After a petition shall have been filed, and, after such further investigationas the Judge may direct, unless-the parties hereinabovenamed shall voluntarily appear, the court shall issuea summons reciting briefly the substance of the petition, and requiring the person or personswho have the custody or control of the child to appear personally and being the child before theecourt at a time and place stated. If the person so summoned ' shallbe other than the parent or guardian of the child, then the parent or guardian, or both, shallbe notified of the pendency of the case and of the time and place appointed,by personal servicebefore tbhearlng, if they reside within the jurisdictionof the court, except as hereinaboveprovided. Summons may be Issuedrequiring the appearance of any otherperson whose presence, In the opinlon of the Judge, is necessary. "If it appears that the child Is in such condition or surroundLngsthathiswelfare requires that his custody be immediatelyassumed by the court, the Judge may cause to be endorsedupon the summonsan order that the officer serving the same shall at once take the child into custody."
"Sec. 10. If any person summonedas herein,provided shall,without reasonable cause, fall to appear, he may be proceeded against for contempt of court. In case the summons cannot be served, or the parties served fail to obey the same, or in any casewhen it shallbe made to appear to the Judge that the servicingwill be Ineffectua or the welfare of the child requires that he shall be brought forthwith Into the custody of the couzt, a warrant may be Issued against the child himself.
"Sec. 11. Whenever any officer takes a child Into 1,Hon. John H. Winters, page 4 o-7227

custody, he may release said child to a parent, guardian, or any other person upon receipt of a written or oral promise of said person to assume complete responsibility for said child and to have him before the probation officer or the court at any time then, or subsequently,specifiedby said officer. If not so released, such child shallbe placed In the custody of~a probation officer or other person designated by the court or be taken immediatelyto the probationdepartment, the court, court. or to the place of detentiondesignated by the

The court may make a general orderdesignating such places of detentionwhich may includeprivate foster or boarding homes for children, or such otherplaces of detention which to the court seemdesirable. The County CommissionersCourtmay pay for boarding or foster home care for such children to be detained, or all children. comingwithin the meaning of this Act whether prior to, or after the child has been adjudged a 'delinquentchild.' "Anypeace officer or probation officer shall have the right to take into custody any childwho is found violating any law or ordinance, orwho is reasonab~ly believed to be a fugitive from his parents or from justice, orwhose surroundingsare such as to endanger his health,welfare, ormorals. The child shall forthwith be brought to the Judne,who shall order the child's release, or his temporarydetention either In the compartment provided for the custody of juveniles,or by a suitableperson or agency as in the judgment of the court may seemproper. If the child is ordereddetalned, the petitionprovided for herein shallbe filed immediately. In every such case the said officer shall refer all such cases, togetherwith informationthey have securedconcerning the child, to the court or the probationdepartment, and the case shall theri be proceededwith as specifled In this Act, provided that no child shall be taken before a Police Court or a Justice of Peace Court." (Underscoringadded)
"Sec. 17. No femaleperson over the age of ten (10) years and under the age of eithteen (18) years, or any male person over the age of,ten (10)years and under the age of seventeen (17)years, shallbe placed or committed to any compartment of any jail or lock-up inwhich persons over juvenileage are incarceratedor detained; but shall be placed in a room or ward separateand apart from that occupiedby adults. The proper authorities of all counties shallprovide suitableplace of detention for such juveniles separateand apart from any jail or lock-up in which adults are confined. Said detentionHon. John H. Winters., page 5 O-7227

place may be in the same building housingadults, or ina building separateand apart from thatwhere adults are confined."
Itwill be noted that said Sec. 7, supra,provides for an inquiry or Investigationto determinewhether formal jwisdiction shouldbe acquired over a child reported to be within the provislons of saidAct. Said Sec. 7 furtherprovides for a petition to be filed In the Juvenile Court in case it is determined that such formal jurisdiction shouldbe acquired over such child. Sec. 8, supra,provides for a summons to issue on said petition requiring those in custody or control of said child to appear personally and bring the child before the court. Sec. 11, supra,provides that any peace officer or probation officer shall have the right to take in custody any childwho Is reasonablybelieved to be delinquent under the terms of theAct, but further provides that the child shallbe brought forthwith to the Judge for release or d,etention, as provided by saidAct. Nowhere in saidAct can it be found where the law contemplates the restraint of a child by any officer for any period of time longer than that period of time actually necessary for such officer to conduct such child forthwith to the Judge of the Juvenile Court. Even our criminal laws regarding the arrest of adult offendersprovide for the producing of said offendersbefore a magistrate upon arrest. Itwas said in the case of In re Dendy, Civ. App., 175 S. W. (2d) 297, affirmed by Sup. Ct., 142 Tex. 460, 179 S. W, (2d) 269, that "the purpose of the Juvenile CourtAct is to change the whole policy of the statewith respect to the nature of the proceedings in child dellnquencles,and the express solicitude for children cannot be overlookedwithout violating the fundamentalprinciples of statutory construction." Surely, we cannot assume that saidAct was intendedto allow a more harsh procedure In the arrest and preliminarydetention of children than our criminal statutesprovide In csses of adult lawbreakers.

Therefore, it is our opinion that if an officer takes such child into his custody prior to the filing of the petition provided in said Sec. 7 of saidAct, he must bring such child forthwith to the Judge of the Juvenile Court. In cases where the petition is filed before the child is taken in custody, then, of course, the officer serving the summons or warrant shall execute same as directed by the Judge of the Juvenile Court..-

Hon. Jbhn Ii.Winters, page 6 O-7227

Yours very truly,
ATTORNEY GENERAL OF TEXAS

By s/Robt.L. kttimore; Jr. Robt. L. Lattimore, JP.

Assistant
RLL:LJ:wc

APPROVXD SEP 5, 1946 s/Carlos C. Ashley FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion CommitteeBy s/BWB Chairman