THE .fiT’PORNEY GENERAL OF TEXAS


### PRICE DANIEL ATTORNEY GENERAL

Mr. Maxwell Weloh, Distriot ,&ttorn6y, %tfhJudicial UiPtrict, NewBoatcm, Texae Opinion No. V-193
x0: L6gQlity of holding 8 minor aoousad of r&k bery until ho r6a6&8 17years 

### 0rageae

bsar Sir: 

### that be maybe 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, andwhowas armsted inmediately **after** the offemss ooourred, be Q%diot~od

### andheld. 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 

### 17thbirthdate, Art. 1, 980- tien 10 oi the Te&o Coutltutlon, aad Arto 3, Co&P, prop **vlda :**  %Inall oriniorl **proseoutione** the aooussd &all hay96 6p66dy **publAo** tdal O,'o ** This same rfght is 

### &aranteed by the 0th A-' &6ndmentof 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 pOatp6Lt6th6 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 theCourt 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 madethat bia 

### trial hadbeenln~ntlomlly&la* Imfdl h0ke 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 ?wiaral86 

### rorrehrarhg 

### thatthetrial of t&ednm he&8rw11&&M= tionally 

### delayeduntil &a~coabd L'po f$ nu &a&dt&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

thatit 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 OSthe off4!~#6) 

### whloh ISOontrollinB

with~lcr~~~Wt0 whothor ho**ohm&id**

### botried

48a 

### (a%~wiml?)

1

S66tien 

### la of hrt, 2338-l **mmed tn.**  194S iollowr the **abwe** 

### ru&a**bf** 

### etatif.qf **td** a youbl, 4nt&l **oOarto ehould** 

### b6**dellvemd** to' t should be amobrtain6d that the the age of serenteon (17) yeare &,

~Bmpha~l~our81Mr. 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 May6th and disolosed that the boy would not be 17 years old until May9th. all of the sameyear* 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 GrandJury on Nay 10th; and he followed suoh oourm of aotio& Onappeal, the oontention was madethat 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&ithe age 

### ofthe 

### 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 wa6reL versed by this court on that ground, the oourt holding that he should~h&vi been prooeeded a&net ~8 a 

### jnreaile. ~.BUponthe rerereal of this aaM) theaooused had reached the ago of aetenteen year.9,~and he was agaih put up40 hia trial for mu.rda& Qa 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 Wehave 80doubt 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#e4 (Y-192)

until May25, the month rollowlng; Thematter was set for a hearing onApril 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. Whenthe .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 wata17 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,- OnJuly 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 Mayor 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

### wella8 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 agefor 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 reachesylr. Manmll Welch - Page 5 (V-192)



### the a&o

### or 17 berore trial, heriar properly triable ab a felon. One who oommits a felony while under 17, maybs'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