OFFICEOFTHE OF

Honorable P. Y. hinter county Attorney JimSo= 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.

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,’ .,.*- .?FACTS

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‘A boy doer 

### ‘9,but tider~.lO year@ of age, and tider~.lO apparent;Sg dlrcretlon, aonuuitr a felony apparent;Sg having due dlrcretlon, aonuuitr 0fSensd obb4rthan 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 makIngit penal wa4in 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&

### 13years 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 minimumage of 10years, as does the amendedlav hsrelnafter cited.

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

1328 oh 192) 4xpr44sly repsaled above c E P. andredefined s ‘Delinquent ChlJd’ as’being’&boy between the ages of 10d: 17years, 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 Is&r S. B. 443 again repealed Art. 1083, C. C. P., and **again** redeflnsd **a ‘** **Delinquent** Child’ In the samewayas next above stated. It is noted that no provlsian uas madeas 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

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“Whatlav a@%48 to a child between 9 & 10yeam of age, vho violates. a penal statute, and what is his **&XIlliShIS4Atf**

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**. .**  Wereadily 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, webelieve 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.

Wequote **in part**  **from** Senate Bill Bo. 44 as follovs:

‘Section 1. Purpose and B4sio Principle. The purpose OSthis Act Is to 84cure for each child under Its jurlsdlotlon suoh oare, guidance and control, preferably Lnhis ovn home, as vi11 serve the chlld~s velfare and the best interest of the state; andvhen 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 themfrom Qegleot or Injury sod to **4nforo4** ths legal obllgatians due to th4m and fromthem. "sea. 2. Construction of the Aat. This Aat shall be liberally~ooustrued to aooompllsh the purpose 

### herein

l oueht.

‘Sea. 

### 3. Derblit1oxL9. Thevord *oourt' **m4ans** thejuvenile Court'. TheYard 8Judge' nears the Judg4 of the Jmenlle Court. The term 'delinquent ohild' ws~s any female **person** over **the a**  or ten (10~)y4srs curdunder the 864 of eighteen IS) years **r** and sky male person over the age OSten (10) year0 and 

### under the age of seventeen (17) years:

“(a) whoviolates 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 maybe by confinement IQ law "(0) orwhohabitually violates any pans1 law of this state of the grade of misdePPeanorvhere the punishment presoribed 

### for such offense is by peouuiary fine only; "(d) or whohabitually 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:OlEonorable P. W. DUnter, page 4

JuvePile Court, it shall be asaertained that said 

### personis a female over the age of ten (10) years and 

### underthe age ofeighteen (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.

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“Hoadjudication 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 Amyohlld be oharged with 

### or convlated of a crime in any aourt. Th dlspositloc of Rohlld or asp evidence given in :he courts shall not be admissible as evldenae against the child lQ atiy 0484 or prooeedUg LnAmyother 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(

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“Sea. 21. Appeals. AQappeal maybe taken by any part aggrieved to the Court of Civil Appeals, and the case maybe carried to the Supreme Court by Vrit Of error or upon O%PtifiCat%, as iQ other Civil cases. . . . n

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“Sec. 24. LavaRepealed. 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 amendedActs 1927, 40th Lagislature,~Chapter 163, Sectlon 1, are hereby repealed.

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Zonorable P. W.Minter, **page 5** 

"Artloles 2329 and 233%of the Statutes of **TBZBS,** 1925, am hsrsby 'All lava and parts ~oflaws 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 estabOfhandUng the juvenlie offenders of the law. lws all-inolusive manner of dealfng with these youthful riolaters was QOt to **charg4 and**  ariminally try them 

### forthe offenses they cordsltted, but rather to bring thembefore a Juvenile Court and ln an action of a 01~11 nature try themfor delinquency. TheLegislature sawfit to place the i8inlisumage 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 underths 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 thatviolatATTORHEY

QKNERAL

OFTEXAS
BY

BY Fred C. Chandler

Assistant ,-Y ?
’ Robert 0. Koch