THE .fiT’PORNEY GENERAL 

OF TEXAS 

PRICE DANIEL ATTORNEY GENERAL 

Mr. Maxwell Weloh, 

Distriot ,&ttorn6y, 

%tfh Judicial UiPtrict, 

New Boatcm, Texae 

Opinion No. V-193 

x0: L6gQlity of holding 8 

minor aoousad of r&k 

bery until ho r6a6&8 

17 years 0r age ae 

bsar Sir: 

that be may be trfed 

as a felon rather than 

a juvenile delinquent. 

Tour letmr of April 16, 1947, to this de 

partlwnt &&l68~ tllo following question: 

atly 8 boy rho ooD0itt6d the oft6nse 

of robbery with rlreaw at the age ot sixtesa years and clnrn montha, and who was 

armsted inmediately after the offemss ooourred, be Q%diot~od and held. gatil he xbaohes 

the age of serentwn and then b6 tried aa an 

adult, or ehoald he be 'tried 8s juwml.l6?~ 

You are ad+ind tiiat the trial of such y6uth 

my not be int6ntlonally delytid for the sole purpose of 

-6ll6winc: him to rmoh htsl 17th birthdate, Art. 1, 980- 

tien 10 oi the Te&o Coutltutlon, aad Arto 3, Co&P, prop 

vlda : 

%In all oriniorl proseoutione the aooussd &all hay96 6p66dy publAo tdal O ,'o ** 

This same rfght is &aranteed by the 0th A-' 

&6ndment of the T6d6ral Constitution. While proc66dings 

under the Jurenilr~Aot (Art. 9336~1) *re hot strictly. 

criminal in nature, it is belimed that the acousod, imder suah sot, (who a&y.bd deprived 01 his liberty uatil 

he is 21 ybare of age), ir entitlid to the pmthotllon arforded by suoh provision. To pOatp6Lt6 th6 trial o? the 

l otiuaed for the above arbitrary r6a8on would bs to deny 

him the inalienable right above gu6ranteed. If the trial 

oould purposely b6 pestponed a month, as in ths oas6 UIIdrr~ooneideration, it would,be extmm6ly difrioult~to mu 

draw a line in othee oas68 wIna! it might be thought dq- 
yr. Wxw411 W416h - Fag0 2 &mli~on mor v-loal 

‘: . 

sirabls to postpone th6 trial of oth# y6uths fork 0 

neatha, a year, or longer, until they Should becom6 19 

years of age. Suoh a 06~1~6 of a&ion oould not be 

justified under our 06natltntioMo 

This principle ia reoagntzsd~by the Court 

or Criminal Ap~alr. Tn 237 s. wi. 298, 

the acoused laoked om 6 l iIl6 17 rholl 

the off6nse was committ4dc Aft62 he became 17, h6 wM 

tried as a felona Tlw oont6ntian -8 made that bia 

trial had been ln~ntlomlly &la* Imfdl h0 ke 1% 

The Appellate Q6urt eaid that It frplhd l 6 erid6404 t6 

support euoh 06ak&i4n and overruled it. It titatsd, 

h6woYerr 

969, the'isaune ?wia ral86 

ror rehrarhg that the trial of t&e dnm he& 8rw1 1&&M= 

tionally delayed until &a ~coabd L'po f$ nu &a&d t&e* 

there was~no 4~Id6nc6 to sortaln mwh 64mMrUn amd r~ 

that the p6int wa# raikd'tao la@., n, Qnr+ d *iS$- 

rrplAp~als,~oCthole~,~esoasl~~nrytthe 

above quqtsd prin6ip1eo 

It huot be etatad, how616rs that it lr th6 

ofiferm Texas rub that th6 ago of the y6uth a* ti&O~tm 

af trial, (and nd his a@ at the time 6f th6 ocrslmlss;taa 

OS the off4!~#6) whloh IS OontrollinB with ~lcr~~~Wt0 

whothor ho ohm&id bo tried 48 a 

(a%~ wiml?) 1 

S66tien la of hrt, 2338-l mmed tn. 194S 

iollowr the abwe ru&a bf etatif.qf td a youbl, 4n t&l 

oOarto ehould b6 dellvemd to' 

t should be amobrtain6d that the 

the age of serenteon (17) yeare &, 

~Bmpha~l~ our81 
Mr. Maxwell Weloh - phs4 3 (V-192) 

offense, he is held to be properly triable hS a felOIb 

In Hardie vti State, (Tsx, Grim,) 144 Y. w. (2d) 571, 

an offense was committed by a 16 year old boy on April 

28ths His mother appeared on May 6th and disolosed 

that the boy would not be 17 years old until May 9th. 

all of the same year* She requested that the child be 

tried immediately aa a delinquent child, The oounty 

attorney told the mother that he intsndsd to pF4Sent 

the matter to,the Grand Jury on Nay 10th; and he followed suoh oourm of aotio& On appeal, the oontention 

was made that it waa obligatory for the count;l attorney. 

to proceed imdiately against the minor a8 a delln@tent, 

and that he wae not juetified In holding the rrmtter ut+ 

til the Grand Jury should act* The Court ,of erifuinal 

&ppeale held: 

"The law oontemplat68 au oontroli$g 

in euoh matter&i the age of the aoouaed a% 

the time of the trial. not his am at the 

the aipellant-hi&be& iirat tried.i'or f&4 

murder of his father while he wa8,onl.y sirteen years of age whioh first oaw wa6 reL 

versed by this court on that ground, the 

oourt holding that he should~ h&vi been prooeeded a&net ~8 a jnreaile. ~. B Upon the 

rerereal of this aaM) theaooused had 

reached the ago of aetenteen year.9,~ and he 

was agaih put up40 hia trial for mu.rda& Q a 

and although the oifeaae was oharmd t0 haye 

bean committed OD. a date which showed the 

acoumd was under the age of. seventeen yearail,, 

aevertheleee it wa8 held that the ago of the 

aaeused at the tinm of the trial and not at 

the time of the oomrPLamion of the Off6n86 wal 

that whioh govemod in regard to his 5rttenility* o o We have 80 doubt of the correatnere 

of this doatrine, and this bill ie orerT@edbo” 

(~ha8is ours) 

ridtwit that ho uaa 16 years of slge, and would not be 17 
. . 

MT. ypirsla Reloh - BB#e 4 (Y-192) 

until May 25, the month rollowlng; The matter was set 

for a hearing on April 21st, at which time the oourt 

metalned the motion of the State to contlnue_the matter to the next term or oourt, to begin-May 28, (rive 

days after the aoou8ed’s 17th birthday), beoause the 

district attorney had not haa an adequate opportunity 

to prepare hie proof on the youth’ 8 age. When the .case 

was tried, the aooumd admltted that he had beoome, and 

was, 17 years 0r age. upon appeal, it was held that, 

there being no showing Or bad faith on the part Of the 

dletrlot attorney, and a ahowing that the youth98 afffaavlt was riled on the last bay or the terms the aooueea 

was properly tried a8 a felon, since he wata 17 at the 

time 0r triUr 

In a deoi6ien.handed down by the Court oi 

CrMnal App6als April 50, 1947, DearMa 

ret reDorts4). a 16 smar’ola boy robbed an 

?armer’e wlri-on July ‘14, 1945,- On July 20th iollaing, the county attorney riled ohxrgss againat’him a8 

a delinquent child. because of a former robbery: ‘and the 

boy wae mnt to the Gatearllle Sohool until he Should 

become 21. In May or 1946, after-the boy beoame 17, he 

was indicted ror the above murder, returned from Gatesville, tried aa a r+$:9n 

Following the oaWB ~.&%%&~pe~ rtg ~=&“o~““c~~- 

nal Appeals affirmed the fudgment,aholdlng the boy prop& 

erly triable au a felon aitor reaohlng 17. The opinion, 

a copy or which is enclosed, made la part: 

‘To hold that a male. child who committed an orrsnm two days, two we&~, or 

two months prior to the time that he be- 

~plb 17 ysars or age 00ula not be proasouted ror said erfease after he reaohee 

his 17th year. weuld be creating a haven 

91: fufnge rOr the ocfrinally inclined. o o 

Orderly uoefOlty La entitled to proteotion 

98 well a8 a aeiinqtmtt Ohiiaow .~ 

The’ trial of a youth 16 yeare and 11 

months or age oannot be fatentfonally a+ 

layed until he beoartse a7 yeare 0r age for 

the sole purpose 0r trying him as’s rel0a 

rather than a delinquent, Art, 1, See. 10, 

Texas ‘Constitution. Where, however, in the 

normal oou~p118 of evontu8 the youth reaches 
ylr. Manmll Welch - Page 5 (V-192) 

the a&o or 17 berore trial, her iar 

properly triable ab a felon. One 

who oommits a felony while under 17, 

may bs'indlctsd and tried artier reach* 

hg the age or 17* (Dearing v. State, ', 

~er~~Crlrn, App+, opinion of April 90, 

X947* mt yet repfmted,) 

Yours very away, 

ATTORNIIY-GlZNERALOF~ 

A!l'TORNEYGENERAL OP'l'EikS