Hon. Criss Cole, Chairman Opinion No. M-405

Se,nate Youth Affairs Committee Senate of the State of Texas Re: Constitutionality Austin, Texas of Senate Bill No. ll+Amendments to Article 

### 2338-1, Sections 5 

### (a)and Dear Senator Cole: 

### 6,V.C.S.
You have requested the opinion of this office as to the constitutionalityof certain amendments to Article 

### 2338-1,Sections 

### 5 (a)and 

### 6, Vernon's 

### civilStatutes. These amendments are contained in Senate Bill No. 119 and relate to felony prosecution (asan adult) of a juvenile fifteen (15)years of age or older at the time of the commission of a felony and providing for certain procedural steps.
It appears that the intent of Senate Bill No. 119 is to eliminate the "waiverof jurisdictionand certification" requiredby the juvenile court under the present provisions of Article 2338-1,V.C.S. and to confer jurisdiction over certain juveniles in a district court or criminal court for prosecution as in the case of an adult.
We particularly call to your attention Section 6 (b) (1)Jof Senate Bill No. 119, which reads as follows: (1) "When the district attorney, county attorney, or the foreman of a grand jury has reason to believe that the welfare of the community requires that criminalproceedingsbe initiated,he shall give notice to the juvenile court that the circumstances concerning the offensewith which the child is chargedwill be presented to the grand jury."
It appears that this particular section removes the rights of juveniles from a civil remedy to a criminal proceedingwithout a waiver hearing before the Court and now vests this discretionwith the DistrictAttorney, CountyAttorney, or the foreman of the Grand Jury. There is no realisticguide lines set down to determinewhich juvenileswill be tried as juveniles andwhich juveniles -2004-I

.

Hon. Criss Cole,page 2 (M-405)

will be charged and tried under the criminal laws of this State. Thereby, this important unreviewabledecision is left to prosecuting attorneys or a layman untrained in the law. However, even if guide lines had been laid down, it is believed that this sectionwould stillbe inadequate to meet the requirements of "dueprocess" and "equalprotection" guaranteed under the 14th amendment of the Constitution-ofthe United States. 383 U.S. 541, 86 S.Ct. 1045, Kent v. United States, Gault, 387 U.S. 1, 87 16 L.Ed 2d 84 (lgbb In S.Ct. 

### 1428,18'L.Ed. 2d 527)!197
In the Gault case, supra, the Court "...emphasized the necessityth&t the basic requirements of due process and fairnessbe satisfied in suchproceedings.:: It said that the requirements of the juvenilehearing

...must measure up to the essentials of due process and fair treatment." "Welfareof the Community" is not a term of art and has not been judiciallydefined, nor is any legislative definition given by the Statute. The constitutional requirement of equalprotection of the law requires that in the administrationof justiceno different or higher punishment should be imposed upon an individual than that which is prescribed to all for like offenses. Barbier v. Connolly 113 U.S. 27, 31 

### (1885).A statute relating to crime a:d punishment '

...mustoperate in a uniform manner on individuals of the class embraced in the law, and must require the same treatment of all who are in like conditions and circumstances." 

### 16Tex. Jur. 2d 101, CriminalLaw, Sec. 8. While a reasonable classification and discriminationbetween individuals is permissible, in our opinion it is unconstitutional for the legislature to delegate to others the unreviewable right to choose those individuals for criminalprosecution which they determine shouldbe subjected to suchprosecution solely on the basis of their interpretationof the "welfareof the community," and without benefit of any standard or guide line and without a hearing. Such a criteria appears vague, uncertain, and lacking in measurement by objective standards. It is certainly subject to non-uniform application throughout the State. The seriousnessof the question is highlightedby the recent action of the United States Supreme Court, on Februarv 24, 

### 1969.which noted urobable jurisdiction - -_ and a reed-tohear the ap (No.

### 8623,161 N.W. 2d 50Eeal in DeBacker v; Brainard 183 Neb. 461 (1968)

. One of the questionspresented'is substantiallythe same with which we are confrontedhere, as shown in Vol. 4,



### -2005 -Hon. Criss Cole,page 

### 3 (M-405)

The CriminalLaw Re

### $orter 

### 4177: "Is a juvenile denied due process under the 1 th Amendmentby a Nebraska Juvenile Code's conferralupon the prosecution of an unreviewable discretion as to whether he will proceed against the juvenile in juvenile court or under the Criminal Code?" We have delayed rendering this opinion in the hope that the Supreme Courtwould establishproper guide lines; but in the absence of any opinion to this date,we believe the fundamentalprinciples herein stated clearly apply.
In the recent case of Estes v. Hopp, Superior Court, 

### 73Wash. 2d 272, 

### 438 P 2d 2b5 (lgbo) it was pointed out by the Court, in considering the,,benificial concept of the juvenile court system, that
...it is a direction that the juvenilebe offered the benefits of an informal hearing at which rules of fairness and basic procedural rights are observed..."
We hold that Senate Bill No. 119, if enacted into law, in its present form would be unconstitutional. Having directed our attention to Section 

### 6 (b) (1) of Senate Bill 119, and having found same to be unconstitutional,we find it unnecessary to consider Section 

### 5 of Senate Bill 119.
SUMMARY

Senate Bill 119, if enacted into law, in the form presented to this office amending Sections 5 (a)and 

### 6 of Article 

### 2338-1,Vernon's Civil Statuteswould be unconstitutional.

C. MARTIN General of Texas



### -2006-Hon. Criss Cole,page 4 (M-405)

Preparedby Tom W. Bullington AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman Bob Flowers Howard Fender Neil Williams Bob Lattimore
W. V. Geppert Staff Legal Assistant Hawthorne Phillips ExecutiveAssistant



### -2007-