### DAN MORALES

ATTORNEY GENERAL 

# QBffice

of tip Bttornep Qhmeral &Mate of IlLexae December 18.1997

The Honorable James Warren Smith, Jr. Frio County Attorney 500 East San Antonio, Box 1 Pearsall, Texas 78061-3100 Opinion No. DM-461 Re: Whether a community supervision and corrections department may refuse to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on conununity supervision by the criminal court (RQ-990) 

### DearMr. Smith: You ask whether a community supervision and corrections department may refuse to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision by the criminal court. We conclude that a community supervision and corrections department must supervise a defendant who has been convicted of petjury in a criminal pmceeding and placed on community supervision by the crimmal court., regardless of the defendant’s age. As you note, aperson between the ages of ten and seventeen, who would generally be within thejurisdiction of thejuvenile court system, may be tried for perjury or aggravated perjury in either juvenile court’ or in a regnlar criminal proceeding;r thus, juvenile wurts and criminal courts have concurrent jurisdiction over a person between the ages of ten and seventeen who wnnnits perjury

‘Perjuryis punishable as a class A misdemeanor,Penal code Q37.02, and aggravatedperjuryis punishable as athirddegreefelony, id. 0 37.03. l-ilaefore, lxmdua matconstitoteseitherperjwy or aggravated perjuryconstitlltcs dclinqumt c.mductforpurposesofFamilyCode section 51.03(+1) (delinquent conduct is conduct thatviolates penal law of this stateand is punishable by imprisonmentOIcontinement injail).

‘Ajuvenile court gmomlly has exclusive jurisdiction over cases involving delinquent conduct by ajuvenile. See Fam. Code 5 51.04. Family Code section 51.03(c) makes an exception for perjury,however, by pmviding that nothing in tide 3 of the Family Code prevents criminalproceedings against a child forperjury. Family Code section 51.08, which requiresa crimina Icourt to transferBcase involving a child to thejuvenile court, excepts aproceeding in which a child is chargedwith perjury. In addition,Penal Code section 8.07(a)(l) provides thataperson may not be pmsecutedforany penal offense thathe committed when younger than 15years of age except, among other offenses, perjuryor aggravatedperjury.The Honorable James Warren Smith, Jr. - Page 2 (DM-461)

or aggravated perjury.” You explain that in your county a sixteen-year-old defendant was tried in a criminal proweding by a criminal court, wnvicted of perjury under Penal Code section 37.02, and sentenced to jail. The court suspended the jail sentence and placed the defendant on wmmunity supervision. You state that the county community supervision and corrections department then refused to supervise the defendant because the defendant is ajuvenile and was not certified as an adult under Family Code section 54.02. You suggest that a wmmunity supervision and wrrections department is not authorized to supervise a sixteen-year-old defendant “because the juvenile would of necessity be exposed to misdemeanant and felonious probationers when they report monthly to the department.” You rely on Family Code section 51.12, a provision mandating that a child detained in ajuvenile detention facility adjacent to sn adultjail, lockup, or other place of secure wntinement “be separated by sight and sound Tom adults detained in the same building,‘4 and similar provisions in the Family Code.5 We disagree with the conclusion that a community supervision and wrrections department is not authorized to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proweding and placed on community supervision by the wurt. First, Family Code section 5 1.12 requires the separation of children and adults in detention facilities; it does not require the separation of children and adults in any other context. We are not aware of any provision that precludes a wmmunity supervision and wrrections department tiom supervising a sixteen-year-old defendant. Indeed, we have found one statute that expressly authorizes a wmmunity supervision and wrrections department to supervisejuveniles, Human Resources Code section 142.003, which permits a county that does .not have a sufficient number ofjuvenile probation cases to justify a juvenile probation department to contract with a wmmunity supervision and wrrections depsrtment

S.ee ROBERT 0. DAWSON, Tam Juvenile Law 35 (4th cd. 1596). As Professor Dawson observes, “bIerjury and aggravated perjury arc the only crimiml offcmes for which either a juvenile court or a aim&d court has jurisdiction witboot *priortransfer orderfromthe othercow” id. He cxplaios i&c. reasonfortheunique statueof these offemcs ss follows:

Article 1, Section 5 of the Texas Ckmstitution provides thatthe oath requiredof a witness testifying in my judicial proceeding, civil or crimiml, mustbe taken “subjectto the pains andpcmlties of perjury.” Themis case law thatsoggcsts thatsimxjuvenile proceedings arc mnnimlly civil, not aimins& a witness who would be subject only tojuvenile proceedings for lying under oath might not be a compctcnt witness underthatconstitutional provision. SeeSwztiZIimv.St&, 182 S.W.2d 812 (Tcx. Cxim ASP. 1944). ‘llmt,in tom, might mean that a juvenile could not testify in my court proceedings. Rather thm incur such a catastrophic risk,the Family Code gives the crimiml coorts concurrentjurisdiction over those offenses in orderto leave no doubt thatpersons ofjuvmile cmrt age, if othavise competent witnesses, may testify underthe constih~tioml qualifying provision. Id. (emphasii in original)

‘Fam. Code 5 51.12(f). 5Youalso cite Family Code section 52.02.

p. 2584The Honorable James Warren Smith, Jr. - Page 3 (DM-461)

to provide juvenile probation services.6 This express legislative approval of such an arrangement undermines any contention that supervision of a sixteen-year-old defendant by a community supervision and corrections department is somehow contrary to public policy. Second, as explained above, the laws of this state provide that a child may be prosecuted for perjury in a criminal proceeding. See supra notes l-3 and accompanying text. Given those provisions, we believe that a sixteen-year-old defendant who is tried for perjury in a criminal proceeding is no less an adult in the eyes of the law than a child certified as an adult under Family Code section 54.02. We are aware of no statute that would preclude a criminal court from placing a convicted perjurer on community supervision because of his age. Furthermore, once a court has placed such a defendant on community supervision, we do not believe the wmmunity supervision and wrrections department has the discretion to refuse to supervise the defendant in defiance of the court’s order.’ In sum, we do not believe that a wnnnunity supervision and wrrections department is authorized to refuse to supervise a sixteen-year-old defendant under the cimumstances you describe. Ifthe community supervision and wrrections department is concerned about exposing the sixteenyear-old defendant to adult defendants on its premises, the department may take stops to minimize such contacts, such as providing a separate waiting srea or arrsnging for the defendant to meet with his community supervision officer at a different location.*

%e Hum. Ros. Cede 5 142.003(a)(l). Placiag defendants on community supervision is witbin the sole pmvince of the. judiciary. See Code Grim. FYOC. art 42.12 $5 1(papose ofarticle42.12 is to place wholly within statecowls responsibility for determix@ when imposition of sentence in certaincases shallbc swpmded), 10 (only courtin w%ich defendanttriedmay grantor revoke community sqewision). conmrunity sqervision and corrections departmentsexist, in part,to apewise community supavision; departmentshave no authorityto ultimately determine whether commodity supervision is appropriatein a parti& UISC.

See genemlly Code Crhn. Pmt. at. 42.12; Gov’t Code ch. 76 (establisbiog community supervision andcorrections departments). Wedonotaddrcsswhetheraco mmunitysopewision andcaxctious dcpartmnt is audmrizd to contractwith ajuvenile probation dqartncnt to sopenise a sixteen-year-old defendant who has been convicted of pajury in a chid pmceediag andplaced on commordty supervision, nor do we addresswhether a crimbnl court is authorized to orderajuvenile probation departmentto supervise such a defendant.

p. 2585The Honorable James Warren Smith, Jr. - Page 4 (DM-46 1)

SUMMARY A community supervision and wrrections department must supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supkrvision by a criminal court, regardless of the defendant’s age.

DAN MORALES Attorney General of Texas JORGE VEGA Fii Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney Genera1

p. 2586