OFFICE OF THE OF 

Honorable P. Y. hinter 

county Attorney 

Jim So= County 

Hebbronvllle, Texa8 

Bar Sib: opinionR0. ‘0:547g.. ‘x. 

,Re: .A--person not over tha age 

f/d 

of ten years cannot be puniabe& for violating/the penal 

/ /lava of., thir State. 

.’ I 

. 

. . . . . 

,/ - ‘\,: ~“‘” , ;,,, 

,’ 

.,.*- .?FACTS I ! I %.>., 

‘A boy doer ‘9, but tider~.lO tider~.lO year@ of age, and 

apparent;Sg apparent;Sg having due dlrcretlon, dlrcretlon, aonuuitr aonuuitr a felony 

0fSensd obb4r than perjury. 

,/.‘I ,/-Q 

61. 

/;j, ‘,~,~ :*y l!aEF: 

i A& ii Pi c., says the design of the 

P&ml Code is ,to d4fb.m every off4n44, and to affti 

to each of &tie It proper puetshment. Art. 10, 

P. C.;,~pr‘o~ldes.~no act oan be punirhed as an offense uulesa the law makIng it penal wa4 in force 

at the time:of the act. Art. 30, P. C., provides 

that no person shall be convioted of any offense 

before he was 9 years old, except perjury, etc.; 

nor of any other offense comltted betveen the ages 

of $3 & 13 years unless it appearr that he had disor&ion sufficient to uuderetand the nature and lllegality of the aot comtltutlng the offense. 
Honorable P. W. Minter, page 2 

-- ‘2. Former Art. 1083, C. C. P. (now repealed304 belov), defined a Delinquent Child as being any 

boy under 17, and any girl under 18 years of age, 

?ho violates imy penal lav of the State, etc. It 

should be noted that it did not fix a minimum age 

of 10 years, as does the amended lav hsrelnafter 

cited. 

“3. Art. 51438 R. C. 9. (Aots 1937, 45th. 

1328 oh 192) 4xpr44sly repsaled above 

c E P. and redefined s ‘Delinquent 

ChlJd’ as’being’&boy between the ages of 10 d: 

17 years, or any girl between the ages of 10 & 18 

years. Art. 2 38-1, V. A. C. 8. (tits 1943, 48th. 

Is&r S. B. 44 3 again repealed Art. 1083, C. C. P., 

and again redeflnsd a ‘Delinquent Child’ In the 

same way as next above stated. It is noted that 

no provlsian uas made as to a child betveeq 9 k 10 

years of age in either or said last mentioned 

enaotments, and apparently hs oannot be punished 

as a ~Dwlinquent Child’ under either. 

*QUESTION I 

“What lav a@%48 to a child between 9 & 10 yeam 

of age, vho violates. a penal statute, and what is his 

&XIlliShIS4Atf 

I) 

. . i . 

. 

We readily observe the apparent quandary created by 

the enactment of recent legislation pertaining to delinquent 

Children as you have so aptly polnted out in your letter. ROWever, we believe any amblgtity~ that might be present is olariflied by reading said Senate Bill 44 and looking to the intent 

of the Legislature in reference thereto. 

We quote in part from Senate Bill Bo. 44 as follovs: 

‘Section 1. Purpose and B4sio Principle. The 

purpose OS this Act Is to 84cure for each child 

under Its jurlsdlotlon suoh oare, guidance and control, preferably Ln his ovn home, as vi11 serve the 

chlld~s velfare and the best interest of the state; 

and vhen such child is removed from his ovn famlly, 
i;,Iona; 

iiionorable P. W. phlpt4r, page 3 

to seoure for him custody, 04r4 and dlselplin4 as 

nearly as possible equivalent to that which should 

have be4n glvsui him by his psr8nts. 

'The pl?iooipl4 Is hereby r4oogQlssd thst 

ahlldrb~ under the jurlsdiotion of the court are 

vards of the stat4, subjeot to the dlsoipline and 

rntltlad to the proteotlon of ths stats, whiah msy 

interveQ4 to safeguard them from Qegleot or Injury 

sod to 4nforo4 ths legal obllgatians due to th4m 

and from them. 

"sea. 2. Construction of the Aat. This Aat 

shall be liberally~ooustrued to aooompllsh the purpose her el in oueht. 

‘Sea. 3. Derblit1oxL9. The vord *oourt' m4ans 

the juvenile Court'. The Yard 8Judge' nears the 

Judg4 of the Jmenlle Court. The term 'delinquent 

ohild' ws~s any female person over the a or ten 

(10~) y4srs curd under the 864 of eighteen IS) years r 

and sky male person over the age OS ten (10) year0 

and under the age of seventeen (17) years: 

“(a) who violates auy pepal law of this state 

of the gray of felony; 

'(b) or vho violates any pans1 law of this state 

of th4 grade of misdemeanor where ths punishment 

prescribed for suoh offense may be by confinement 

IQ law 

"(0) or who habitually violates any pans1 law 

of this state of the grade of misdePPeanor vhere 

the punishment presoribed for such offense is by 

peouuiary fine only; 

"(d) or who habitually violates any peoal ordlnanc4 of a political subdlv?.slon of this state; 

" 

. . . . 

"Sec. 12. Transfer from other Courts. If 

during the pendency of a criminal aharge or lndlotment against any person in any other oourt than a 

. 4:Ol 
Eonorable P. W. DUnter, page 4 

JuvePile Court, it shall be asaertained that said 

person is a female over the age of ten (10) years 

and under the age of eighteen (18) ears, 

T 

or is a 

nsle person ov4r th4 age 0s ten (10 years and under 

the age of seventeen (17) years at the time of the 

trIa1 for the alleged offense, it shall be the duty 

of such oOuH to traQ8fer such case Immediately 

together vZth all pap4~8, documents and testimony 

OoQnected therewith to the Juvenile Court of said 

county. . . . 

* 

. . . . 

“Ho adjudication upon the status of any child 

in ths jurisdiotion 0s the court 8hall operate to 

impose any of the olvll dlsablllties ordinarily 

Imposed by wnviation, nor shall sny ohild b4 deemed a criminal by reason of such adjudicak+on, nor 

shall auoh adjudioation be deemed a aoQvlotion, 

Qor shall Amy ohlld be oharged with or convlated of 

a crime in any aourt. Th dlspositloc of R ohlld 

or asp evidence given in :he courts shall not be admissible as evldenae against the child lQ atiy 0484 

or prooeedUg Ln Amy other court other than another 

Juvenile Court, nor shall such disposltioQ or evidence operate to dl,squallfy a child IQ any future 

Civil aervloe examiQatlon, appointment, or applioation. 

I( 

. . . . 

“Sea. 21. Appeals. AQ appeal may be taken by 

any part aggrieved to the Court of Civil Appeals, 

and the case may be carried to the Supreme Court by 

Vrit Of error or upon O%PtifiCat%, as iQ other Civil 

cases. . . . 

n 

. . :. 

“Sec. 24. Lava Repealed. Articles 1083, 1084, 

1085, 1086, 1088, 1089, logo, 1091, 1092, 1093 or the 

Code of Criminal Procedure, and Article 1087 of the 

Coda of Criminal Procedure aa amended Acts 1927, 

40th Lagislature,~Chapter 163, Sectlon 1, are hereby repealed. 
: 403 

Zonorable P. W. Minter, page 5 

"Artloles 2329 and 233% of the 

Statutes of TBZBS, 1925, am hsrsby 

'All lava and parts ~of laws in 

with are also repealed. 

. 

. . a . ” (Undersoorlng 0131-8) 

By k4adug s4nste Bill go. 44, 

phasls upon the above quoted portions of 

evident that it was the int%QtiOQ 0s the 

llsh or formulate a comprehensive method 

Revised Civil 

repealed. 

aonfllct hersv,ith particular emthe bill, it Is quite 

Legislaturs to estabOf handUng the juvenlie offenders of the law. lws all-inolusive manner of dealfng with these youthful riolaters was QOt to charg4 and ariminally try them for the offenses they cordsltted, but rather to 

bring them before a Juvenile Court and ln an action of a 01~11 

nature try them for delinquency. The Legislature saw fit to 

place the i8inlisum age Of these deltiquents at Over t4Q years. 

it vould thus follow that these offenders of the law not over 

the age of ten y4ars, being under ths age to be tried as a delinquent child, the only method of dealing with these juvenile 

~f’fsnders, would QOt be subject to any punishment. 

It 18 therefore the opinion of this department 

persons not over ten years of age caunot be p&shed for 

in& the penal lava of this State. 

Very truly yours 

that 

violatATTORHEY QKNERAL OF TEXAS 

BY 

BY 

Fred C. Chandler 

Assistant 

,-Y ? 

Robert 0. Koch ’