THEA7m-omEw GENERAL 

OFTEXAS 

Honorable John H. Winters, Executive 

State Department of Public Welfare 

Austin 3, Texas 

Dear Sir: Opinion No. 

Director 

o-7227 

Re: Unlawful detention of children 

prior to filing of petition 

under ,provisions of 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 appreciate your opinion with reference to the legality of holding children by the 

police for the purpose of Investigating law 

violations. 

"As representatives of'the Division of Child 

Welfare are asked to give consultive services 

to various officials, courts, and key indlviduals and groups, this question frequently arises, 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 Probation Departments OP the courts. 

This manner of detaining children is not only 

frequently very harmful but helps to contribute 

toward the very delinquency the police and the 

community as a whole are attempting to prevent. 

It also makes it more difficult for the Probatlon Department or the Child Welfare Worker 

and the Juvenile Courts to help the child with 

the very problems which are causing his dellnquencg. We wonder whetheror not it was the 

intention of the Legislature to treat children 

as such and different from adults all up and 

down the line and whether such program of detention is not contrary to our Texas Statutes. 

c 

"More speciflcally, what was the intention of the 
Hon. John H. Winters, Page 2 O-7227 

Legislature in its enactment of the Juvenile Court 

Law, Senate B111 44, 48th Legislature, Vernori's Annotated Civil Statutes, Article 2338-1, You are referred particularly td~Sectlons 7, 11, 17, and these 

as related to the Act as a whole and specifically 

to Section 1. 

"WhatYs',the scope and 1imLtations of the law enforcement authorities for detaining children on the 

basis of Investigation, and at what point must he 

legally get the child referred to the Probation Department office or the Juvenile Court?" 

We assume the children inquired about are, in the case 

of females, those over the age of ten gears-and under the age 

of eighteen years and, in the case of males, those over the 

age of ten years and under the age of seventeen years. These 

are the ages necessary to bring said children with the provisions of the Juvenile Delinquency Act-enacted by the 48th 

Legislature in 1943 (Acts 1943, ch. 204, p0 313). 

We quote Sections 1, 7, 8, 10, 11, and 17 of said Juvenile Delinquency Act (Art. 2338-1, Vernon's Annotated Civil 

Statutes) as follows: 

"Section 1. The purpose of this Act is to secure 

for each child under its jurLsdlctlon such care, guidance, 

and control, preferably in his own home, as will serve. 

the child's welfare and the best intorest of the state; 

and when such child isremoved from his own family, to 

secure for him custody, care and discipline as nearly 

as possible equivalent to that which should have been 

given him by h1s parents. 

"The principle is hereby recognized that children 

under the jurisdiction of 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 injury and to enforce the 

legal obligatlons due 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 is within the provisions of 

this Act. Thereupon the Judge, the County Attorney 

or the Probation Officer shall make or have made, 

preliminary inquiry to determine whether the lnterests~ 

of the public or of the child require that further action be taken. If efther the Judge or the County Attor- 
Hon. John H. Winters, page 3 O-7227 

neg shall determine that formal jurisdiction should be 

acquired, the County Attorney shall prepare and file in 

the court, or any attorney may prepare and file in the 

court, a petition alleging briefly the facts which bring 

said child within 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, if no 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 shall be styled 'In the matter of 

, a delinquent child."' 

"Sec. 8. After a petition shall have been filed, and, 

after such further investigation as the Judge may direct, 

unless-the parties hereinabove named shall voluntarily 

appear, the court shall issue a summons reciting briefly 

the substance of the petition, and requiring the person 

or persons who have the custody or control of the child 

to appear personally and being the child before thee court 

at a time and place stated. If the person so summoned ' 

shall be other than the parent or guardian of the child, 

then the parent or guardian, or both, shall be notified 

of the pendency of the case and of the time and place 

appointed, by personal service before tbhearlng, if 

they reside within the jurisdiction of the court, except 

as hereinabove provided. Summons may be Issued requiring 

the appearance of any other person whose presence, In the 

opinlon of the Judge, is necessary. 

"If it appears that the child Is in such condition 

or surroundLngs thathis welfare requires that his custody 

be immediately assumed by the court, the Judge may cause 

to be endorsed upon the summons an order that the officer 

serving the same shall at once take the child into custody." 

"Sec. 10. If any person summoned as 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 case when it shall be made to 

appear to the Judge that the servicing will 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, specified by said officer. If not so 

released, such child shall be placed In the custody of~a 

probation officer or other person designated by the court 

or be taken immediately to the probation department, the 

court, 

court. 

or to the place of detention designated by the 

The court may make a general order designating 

such places of detention which may include private foster 

or boarding homes for children, or such other places of 

detention which to the court seem desirable. The County 

Commissioners Court may pay for boarding or foster home 

care for such children to be detained, or all children. 

coming within the meaning of this Act whether prior to, 

or after the child has been adjudged a 'delinquent child.' 

"Any peace officer or probation officer shall have 

the right to take into custody any child who is found 

violating any law or ordinance, or who is reasonab~ly 

believed to be a fugitive from his parents or from 

justice, or whose surroundings are such as to endanger 

his health, welfare, or morals. The child shall forthwith be brought to the Judne, who shall order the child's 

release, or his temporary detention either In the compartment provided for the custody of juveniles, or by a 

suitable person or agency as in the judgment of the court 

may seem proper. If the child is ordered detalned, the 

petition provided for herein shall be filed immediately. 

In every such case the said officer shall refer all such 

cases, together with information they have secured concerning the child, to the court or the probation department, and the case shall theri be proceeded with as specifled In this Act, provided that no child shall be taken 

before a Police Court or a Justice of Peace Court." 

(Underscoring added) 

"Sec. 17. No female person 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, shall be placed or committed 

to any compartment of any jail or lock-up in which persons 

over juvenile age are incarcerated or detained; but shall 

be placed in a room or ward separate and apart from 

that occupied by adults. The proper authorities of 

all counties shall provide suitable place of detention 

for such juveniles separate and apart from any jail or 

lock-up in which adults are confined. Said detention 
Hon. John H. Winters., page 5 O-7227 

place may be in the same building housing adults, or 

in a building separate and apart from that where 

adults are confined." 

It will be noted that said Sec. 7, supra, provides for 

an inquiry or Investigation to determine whether formal jwisdiction should be acquired over a child reported to be within 

the provislons of said Act. Said Sec. 7 further provides for 

a petition to be filed In the Juvenile Court in case it is 

determined that such formal jurisdiction should be 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 child who Is reasonably believed to be delinquent under 

the terms of the Act, but further provides that the child 

shall be brought forthwith to the Judge for release or d,etention, as provided by said Act. Nowhere in said Act 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 offenders provide 

for the producing of said offenders before a magistrate upon 

arrest. It was 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 Court Act 

is to change the whole policy of the state with respect to the 

nature of the proceedings in child dellnquencles, and the express solicitude for children cannot be overlooked without 

violating the fundamental principles of statutory construction." 

Surely, we cannot assume that said Act was intended to allow 

a more harsh procedure In the arrest and preliminary detention of children than our criminal statutes provide 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 said Act, 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 Committee By s/BWB Chairman