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) 

Dear Mr. 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, a person between the ages of ten and seventeen, who would generally be within 

the jurisdiction of the juvenile 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 

‘Perjury is punishable as a class A misdemeanor, Penal code Q 37.02, and aggravated perjury is punishable 

as a third degree felony, id. 0 37.03. l-ilaefore, lxmdua mat constitotes either perjwy or aggravated perjury constitlltcs 

dclinqumt c.mduct for purposes of Family Code section 51.03(+1) (delinquent conduct is conduct that violates penal 

law of this state and is punishable by imprisonment OI continement in jail). 

‘A juvenile court gmomlly has exclusive jurisdiction over cases involving delinquent conduct by a juvenile. 

See Fam. Code 5 51.04. Family Code section 5 1.03(c) makes an exception for perjury, however, by pmviding that 

nothing in tide 3 of the Family Code prevents criminal proceedings against a child for perjury. Family Code section 

51.08, which requires a crimina I court to transfer B case involving a child to the juvenile court, excepts a proceeding 

in which a child is charged with perjury. In addition, Penal Code section 8.07(a)(l) provides that a person may not be 

pmsecuted for any penal offense that he committed when younger than 15 years of age except, among other offenses, 

perjury or aggravated perjury. 
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 a juvenile 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 5 1.12, a provision mandating that a child detained in a juvenile detention 

facility adjacent to sn adult jail, 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 supervise juveniles, Human Resources Code section 142.003, which 

permits a county that does .not have a sufficient number of juvenile 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 * prior transfer order from the other cow” id. He cxplaios i&c. reason for the unique statue of these 

offemcs ss follows: 

Article 1, Section 5 of the Texas Ckmstitution provides that the oath required of a witness 

testifying in my judicial proceeding, civil or crimiml, must be taken “subject to the pains 

and pcmlties of perjury.” Them is case law that soggcsts that simx juvenile proceedings arc 

mnnimlly civil, not aimins& a witness who would be subject only to juvenile proceedings 

for lying under oath might not be a compctcnt witness under that constitutional provision. 

SeeSwztiZIim v. 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 concurrent jurisdiction over 

those offenses in order to leave no doubt that persons of juvmile cmrt age, if othavise 

competent witnesses, may testify under the constih~tioml qualifying provision. 

Id. (emphasii in original) 

‘Fam. Code 5 51.12(f). 

5You also cite Family Code section 52.02. 

p. 2584 
The 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 of article 42.12 is to place wholly within state cowls responsibility for determix@ when 

imposition of sentence in certain cases shall bc swpmded), 10 (only court in w%ich defendant tried may grant or revoke 

community sqewision). conmrunity sqervision and corrections departments exist, in part, to apewise community 

supavision; departments have no authority to ultimately determine whether commodity supervision is appropriate in 

a parti& UISC. See genemlly Code Crhn. Pmt. at. 42.12; Gov’t Code ch. 76 (establisbiog community supervision 

and corrections departments). 

Wedonotaddrcsswhetheraco mmunity sopewision and caxctious dcpartmnt is audmrizd to contract with 

a juvenile probation dqartncnt to sopenise a sixteen-year-old defendant who has been convicted of pajury in a 

chid pmceediag and placed on commordty supervision, nor do we address whether a crimbnl court is authorized 

to order a juvenile probation department to supervise such a defendant. 

p. 2585 
The 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