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 a jury trial in 

a juvenile proceeding (RQ-0180-JC) 

Dear Mr. Miller: 

You have requested our opinion as to whether the state may require a jury trial in a juvenile 

proceeding by withholding its approval of a waiver ofjury trial filed by the attorney for the juvenile. 

For the reasons that appear below, we conclude that the state may not do so. 

A juvenile may be found to have engaged in delinquent conduct, or conduct indicating a need 

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 a need for supervision” are defined in section 5 1.03 of the Family 

Code. At the beginning of an adjudication hearing, the juvenile court is directed to explain to the 

child and his parent, guardian, or guardian ad litem, the allegations made against the child, the nature 

and possible consequences of the 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 by jury. Id. 5 54.03(b). Section 54.03(c) requires that “[tlrial 

shall be by jury unless jury is waived in accordance with Section 5 1.09 of this code.” 

Section 5 1.09 provides: 

Unless a contrary intent clearly appears elsewhere in this title, 

any right granted to a child by this title or by the constitution or laws 

of this state or the United States may be waived in proceedings 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. 5 5 1.09. As you indicate, there is “no provision in the Juvenile Code [Title 3 ofthe Family Code] 

that addresses the right or authority of the State with 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 5 1.17 of the Family Code provides: 

(a) Except for the burden of proof to be borne by the state in 

adjudicating a child to be delinquent or in need of supervision under 

Section 54.03(f) or otherwise when in conflict with a provision 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 as otherwise provided by this title, the Texas Rules 

of Evidence applicable to criminal cases and Chapter 38, Code of 

Criminal Procedure, apply in a judicial proceeding under this title. 

TEX. FAM. CODE ANN. 5 5 1 .I7 (Vernon Supp. 2000). You suggest that, since the right of the state 

to require a jury trial in a juvenile 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 a jury 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 a civil suit the right of trial 

byjw. 

Inouropinion, Rule 216 does not apply to ajuvenileproceeding. Subsection 51.17(a) ofthe 

Family Code specifically states that the Rules ofCivil Procedure are not applicable “when in conflict 

with a provision” 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.” See ROBERTO. DAWSON, TEXAS JWENILE 
The 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 a juvenile 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 5 1.09 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 5 1.09 of the Family Code. The state is entitled neither to demand ajury trial 

nor to preclude a waiver of a jury trial in a juvenile 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 a jury trial in such a proceeding. 
The Honorable Richard J. Miller - Page 4 (X-0242) 

SUMMARY 

The state has no right to a jury trial in a juvenile 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