June 29,200O

The Honorable Richard J. Miller Bell County Attorney P.O. Box 1127 Belton, Texas 765 13 Opinion No. JC-0242 Re: Whether the state has a right to ajury trial in ajuvenile proceeding (RQ-0180-JC) Dear Mr. Miller: You have requested our opinion asto whether the state may require ajury trial in ajuvenile proceeding by withholding its approval ofawaiver ofjury trial filed by the attorney for thejuvenile. For the reasons that appear below, we conclude that the state may not do so. Ajuvenile may be found to have engaged in delinquent conduct, orconduct indicating aneed for supervision, only after an adjudication hearing conducted in accordance with section 54.03 of the Family Code. TEX.FAM.CODE ANN.5 54.03(a) (Vernon Supp. 2000). The terms “delinquent conduct” and “conduct indicating aneed for supervision” are defined in section 51.03ofthe Family Code. At the beginning of an adjudication hearing, thejuvenile court is directed to explain to the child and his parent, guardian, orguardian ad litem, the allegations made against the child, the nature and possible consequences ofthe proceeding, the child’s protection against self-incrimination, the child’s right to trial and to confrontation of witnesses, the child’s right to representation by an attorney, and the child’s right to trial byjury. Id. 5 54.03(b). Section 54.03(c) requires that “[tlrial shall be byjury unlessjury is waived in accordance with Section 51.09 of this code.” Section 51.09 provides:

Unless acontrary intent clearly appears elsewhere in this title, any right granted to a child by this title orby the constitution or laws of this state or the United States may be waived inproceedings under this title if: (1) the waiver is made by the child and the attorney for the child; (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;The Honorable Richard J. Miller - Page 2 (JC-0242)

(3) the waiver is voluntary; and (4) the waiver is made in writing or in court proceedings that are recorded. Id. 551.09. As you indicate, there is “no provision in the Juvenile Code [Title 3ofthe Family Code] that addresses the right or authority ofthe Statewith respect to such waiver.” Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable John Comyn, Texas Attorney General, at 1 (Jan. 28,200O) (on tile with Opinion Committee) [hereinafter “Request Letter”]. Section 51.17 of the Family Code provides:

(a) Except for the burden ofproof to be borne by the state in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) orotherwise when inconflict with aprovision ofthis title, the Texas Rules of Civil Procedure govern proceedings under this title. (b) Discovery in a proceeding under this title is governed by the Code of Criminal Procedure and by case decisions in criminal cases. (c) Except asotherwise provided by this title, the Texas Rules of Evidence applicable to criminal cases and Chapter 38, Code of Criminal Procedure, apply in ajudicial proceeding under this title. TEX.FAM.CODE

ANN.5 51.I7 (Vernon Supp. 2000). You suggest that, since the right ofthe state to require ajury trial in ajuvenile proceeding is not mentioned in the Family Code, we must, pursuant to subsection 51.17(a), look to the Texas Rules of Civil Procedure for guidance, specifically, Rule 216. See Request Letter, supra, at 2. That rule states, in relevant part:

(a) Request. No jury trial shall be had in any civil suit, unless a written request for ajury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the nonjury docket, but not less than thirty days in advance. TEX.R. CIV.P. 216. Rule 216, albeit indirectly, grants to either party to acivil suit the right oftrial byjw. Inouropinion, Rule 216 does not apply to ajuvenileproceeding. Subsection 51.17(a) ofthe Family Code specifically states that the Rules ofCivil Procedure arenot applicable “when inconflict with aprovision” of Title 3 of the Family Code. As one commentator notes, in a treatise on Texas Juvenile Law, “If Title 3speaks to an issue, it controls.” SeeROBERTO. DAWSON,

TEXAS JWENILEThe Honorable Richard J. Miller - Page 3 (X-0242)

PROBATION

COMMISSION,

TEXAS JUVENILE

LAW 330 (4th ed. 1996). Section 54.03 guarantees to the child the right of trial by jury in ajuvenile proceeding. Section 51.09 sets forth the specific conditions that must be met in order for waiver to take place. The first of those conditions is that

“the waiver is made by the child and the attorney for the child.” Nothing in section 51.09 states or implies that the state has any role in this decision, and it does not suggest that the state should have veto power over the decision. Rule 216 conflicts with sections 54.03 and 51.09 by affording to either party the right to demand ajury trial. Because ofthis conflict, we decline to engraft Rule 216 onto sections 54.03 and 51.09ofthe Family Code. The state is entitled neither to demand ajury trial nor to preclude a waiver of ajury trial in ajuvenile proceeding. We conclude that Rule 216 of the Texas Rules of Civil Procedure is not applicable to the determination ofwhether ajury trial is available in ajuvenile proceeding. Accordingly, the state has no right to ajury trial in such a proceeding.The Honorable Richard J. Miller - Page 4 (X-0242)

SUMMARY The state has no right to ajury trial in ajuvenile proceeding.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Rick Gilpin Assistant Attorney General - Opinion Committee