102 [81 Op. Att’y

JUVENILE CAUSES

COURTS AND JUDGES ) JURISDICTION AND PROCEDURE ) USE OF

“WRITS OF ATTACHMENT”

November 12, 1996

Stephen E. Harris, Esquire

State Public Defender

You have requested our opinion whetherthe issuance of certain

“writs of attachment” by the Circuit Court for Howard County,

sitting as the juvenile court, is authorized by law. Our opinion is that

a “writ of attachment” would be a lawful means by which a child is

taken into custody only if the writ is issued after the juvenile court

has obtained jurisdiction over the child through the filing of a

petition under §3-812 of the Courts and Judicial Proceedings (“CJ”)

Article, Maryland Code. 

I

Use of Writs of Attachment

As we understand the practice in Howard County, officers of

the Howard County Police Department occasionally seek “writs of

attachment” for the questioning and processing of children who are

suspected of committing delinquent acts. The police officer appears

before a juvenile master and submits an “affidavit of probable

cause.” The affidavit sets forth the facts that, in the officer’s

judgment, establish probable cause to believe that the juvenile

committed delinquent acts. 

The master, after reviewing the affidavit and hearing any

additional facts from the officer, recommends the issuance of a writ

of attachment. A circuit court judge then reviews and signs an

“order for writ of attachment.” In the examples provided to us, this

order commands the police to take the juvenile into custody, “giving

notice to the child’s parents, guardian, or custodian, and the on-duty

intake officer of the Department of Juvenile Justice of such action,

and to process the respondent following normal police procedures.”
Gen. 102] 103

1

 Rule 1-202(c) defines “body attachment” as follows:

“‘Body attachment’ means a written order issued by a court directing

a sheriff or peace officer to take custody of and bring before the

court (1) a witness who fails to comply with a subpoena, (2) a

material witness in a criminal action, or (3) a party in a civil action

who fails to comply with an order of court.”

The order then describes what is to happen to the child next. One

order that we have seen directs the release of the child to his or her

parents, guardian, or custodian. Another directs that the child be

“delivered forthwith to the Charles H. Hickey School for detention

at that facility pending hearings upon a petition for continued

detention not later than the [next] court day ....”

The writ of attachment itself is issued by the Clerk of the

Circuit Court, addressed to the Sheriff of Howard County or any law

enforcement officer. The writ recites that probable cause has been

established for taking the child into custody, commands the law

enforcement officer to take the child into custody for “processing

following normal police procedures,” and directs any interim

disposition of the child after the end of police processing. 

II

Authority for Use

The only reference to use of a “writ of attachment” in juvenile

causes is in a form appended to the Maryland Rules. Form 904-WA,

“Writ of Attachment,” directs a sheriff “to take the [child] into

custody and deliver him before the Court.” This writ is limited to

the situation in which the child is already a “Respondent, was

released in the custody of his parent, guardian or custodian on

recognizance pending further proceedings, and his parent, guardian

or custodian has failed to produce the Respondent at a hearing before

the Court....” The writ of attachment in Form 904-WA is akin to a

“body attachment” under Rule 1-202(c), which is used under

specified conditions to obtain custody of witnesses and parties after

a proceeding begins.1 It is unlike the writ of attachment in Howard
104 [81 Op. Att’y

2

 Thus, the writ of attachment in question more resembles an

arrest warrant. See Rule 4-212(d). This rule, like the rest of Title 4

of the Maryland Rules, does not apply to juvenile causes. In re

Victor B., 336 Md. 85, 646 A.2d 1012 (1994). 

County, however, which is used to obtain custody of a child before

a proceeding begins.2

The Juvenile Causes Act, CJ Title 3, Subtitle 8, contains a

provision describing the mechanism for taking a child into custody.

CJ §3-814(a) authorizes a child to be taken into custody “by any of

the following methods”:

(1) Pursuant to an order of the court; 

(2) By a law enforcement officer

pursuant to the law of arrest; 

(3) By a law enforcement officer or

other person authorized by the court if he has

reasonable grounds to believe that the child is

in immediate danger from his surroundings

and that his removal is necessary for his

protection; or 

(4) By a law enforcement officer of

other person authorized by the court if he has

reasonable grounds to believe that the child

has run away from his parents, guardian, or

legal custodian.

In 60 Opinions of the Attorney General 419 (1975), Attorney

General Burch concluded that a mechanism for taking a child into

custody was improper if it was outside the four methods identified

in CJ §3-814(a). The particular method addressed in that opinion )

the issuance of arrest warrants by District Court Commissioners )

was not authorized by CJ §3-814(a) and was inconsistent with the

procedural requirements of the Juvenile Causes Act. 60 Opinions of

the Attorney General 422-24.
Gen. 102] 105

Of the four grounds stated in CJ §3-814(a) for taking a child

into custody, the last three are wholly independent of a writ of

attachment or other court action. Under the law of arrest, for

example, a police officer “may arrest a person without a warrant if

the officer has probable cause to believe a felony has been

committed or attempted and that such person has committed or

attempted to commit a felony whether or not in the officer’s

presence or view.” Article 27, §594B(c). If an officer may take a

child into custody under the law of arrest, a writ of attachment, if

valid, would merely give the officer additional authority; a writ of

attachment, if invalid, would be immaterial. 

Thus, the validity of a writ of attachment matters only if the

exclusive basis for taking a child into custody is CJ §3-814(a)(1),

“[p]ursuant to an order of the court.” A writ of attachment is indeed

issued by the clerk pursuant to an order of the court ) namely, an

order for writ of attachment. This observation, however, cannot end

the analysis, because the term “order of the court” must be

understood to mean an order that the court has jurisdiction to issue.

An action of the juvenile court is invalid if that court has no

jurisdiction. See, e.g., Franklin v. State, 264 Md. 62, 285 A.2d 616

(1972). “It is well established principle of law,” wrote the Court of

Appeals in 1820, “that the proceedings of any tribunal, not having

jurisdiction over the subject matter which it professes to decide, are

void ....” Wickes’ Lessee v. Caulk, 5 H. & J. 36, 42 (1820).

Hence, in our opinion, the determinative question is whether

the juvenile court has jurisdiction over the child at the time that the

order for writ of attachment is issued. Under CJ §3-804(a), the court

has jurisdiction “over a child alleged to be delinquent.” See In re

Valerie H., 310 Md. 113, 117, 527 A.2d 42 (1987) (juvenile court

jurisdiction is “acquired” pursuant to CJ §3-804(a)). Under CJ §3-

812(a), a petition filed in juvenile court is the means by which a

child is alleged to have committed a delinquent act. See also CJ §3-

808(b) (“If delinquency is alleged ..., the petition ... shall be filed in

the county where the alleged act occurred ....”). 

“[U]nder the juvenile subtitle,” wrote the Court of Special

Appeals, “we believe that an allegation of delinquency is made by

the filing of a petition.” In re Appeal No. 1038, 32 Md. App. 239,
106 [81 Op. Att’y

3

 Revised rules for juvenile proceedings, recently published

at 23:14 Md. Reg. P-37 (July 5, 1996), would not change any aspect

of this analysis.

243, 360 A.2d 18 (1976). Therefore, as Attorney General Burch

concluded, “a petition must be filed in the juvenile court by

authorized persons in order for the court to gain jurisdiction over an

individual.” 60 Opinions of the Attorney General at 422-23. See,

e.g., In re Johanna F., 284 Md. 643, 399 A.2d 245 (1979).

This conclusion is consistent with the elaborate intake process

set out in CJ §3-810. Significantly, CJ §3-810(c)(1) gives the intake

officer the duty to “make an inquiry ... as to whether the court has

jurisdiction ....” Rule 902a authorizes those “having knowledge of

facts which may cause a person to be subject to the jurisdiction of

the court [to] file a complaint with the ... intake officer ....” In

general, “[t]he role of the intake officer is to review fully the case so

as to determine whether it would be more appropriately handled

through informal adjustment or even to recommend that no further

action be taken.” In re Steven B., 84 Md. App. 1, 8, 578 A. 2d 223

(1990). To paraphrase the Court of Special Appeals, a juvenile court

“may not adopt a policy which ignores, limits, or restricts the intake

officer’s role in the juvenile cause process.” Id. 

Under the Howard County practice, the writ of attachment is

issued prior to the filing of a petition and prior to any inquiry by the

intake officer about jurisdiction. Under these circumstances, the

juvenile court’s order for writ of attachment is not “an order of the

court” under CJ §3-814(a)(1), because the court lacks jurisdiction

over the child at that time.3 

III

Conclusion

In summary, it is our opinion that a writ of attachment serves

as a lawful basis for taking a child into custody only after the

juvenile court has obtained jurisdiction of the child through the filing

of a petition. Prior to that time, a police officer may take a child into
Gen. 102] 107

custody pursuant to the law of arrest, as authorized in CJ §3-

814(a)(2), or under the circumstances identified in CJ §3-814(a)(3)

and (4).

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice