## QEWice of the f4ttornep General iibtateofQexae September 141991

Mr. Ron Jackson Executive‘Director Texas Youth Commission P. 0. Box4260 Austin, Texas 78765 Opinion No. DM-38 Re: Whether persons between the ages of 18and 21,and under the supervision of the Texas Youth Commission, may be detained in local juvenile detention facilities (RQ-2147)

, Dear Mr. Jackson: You have requested our opinion as to whether an individual between the ages of 18 and 21, and under the supervision of the Texas Youth Commission (hereafter TYC). may be detained in localjuvenile detention facilities. In 1985,the legislature amended the statutes governing the TYC to increase the upper age limit for TYCjurisdiction from 18to 21. Acts 1985,69th Leg., ch. 45, 3 1, at 435. This extension of jurisdiction was accomplished by amending two portions ofwhat is now the Human Resources Code. Section 61.001now provides, inpart: In this chapter:

. . . . (6) ‘Child’means a person 10 years old or older and under 21 years old who is committed to the commission under Title 3, Family Code. Section 61.084(c)nowprovides:

(c) The commission shah discharge from its custody a person not already discharged or transferred on his or her 21st birthday. Aspart ofthe same bill, section 54.05(b) ofthe Family Code was amended to read:

P- 187Mr. Ron Jackson - Page 2 (DM-38)

(b) Except for a wnwnittnent ,to the Taus Youth Commiwion, all dispositions automatically terminate when the child reaches his 18thbirthday. Acts 1985,69th Leg.,ch.45,s 3, at 435 (emphasis added). Chapter 51 oftitle 3 ofthe Family Code wasnot, and has not been, amended, however, to conform to these 1985amendments. Section 51.02still defines “child”in a manner which is inconsistent with chapter 61ofthe Human Resources Code.

Inthistitle: (1) ‘Child’means aperson who is: (A) ten years of age or older and under 17years of age; or (B) seventeen years of age or older and under 18 years of age who is alleged or found to ‘have engaged in delinquent conduct or conduct indicating a need for supervision as a result ofacts committed before becoming 17years ofage. Section 51.12(a) ofthe Family Code, also unamended in 1985,provides:

Except after transfer to crimimd court for prosecution under Section 54.02 of this code, a child shah not be detained in or committed to a compartment of ajail or lockup in which adults arrested for, charged with, or convicted ofcrime are detained or wmmitted, nor be permuted contact with suchpersons. TYC is granted broad authority to contract with public or private agencies, including juvenile detention facilities operated by wunty juvenile boards, for the care and treatment of its wards. See Hum Res. Code 5 61.037. Pursuant to section 61.084(c) of the Human Resources Code, the TYC has jurisdiction over juveniles between the ages of 18 and 21. The Family Code, however, does not categorize persons between the ages of 18 and 21 as juveniles, and explicitly prohibits the detention ofjuveniles under the age of 18in the same compartment or lockup as adults. Thus, the problem arises whether the TYC can require juvenile detention facilities to care for itswards between the ages of 18and 21.

P. 188Mr. Ron Jackson - Page 3 (DM-38)

There Seems to be a dispute between the TYC and the Texas Juvenile Probation Commission as to what circumstances, ifany, would cause or permit TYC to detain a person between the ages of 18and 21 other than his arrest for a aiminal offense. We need not resolve those questions here. Roth because of the limited definition of “child”in the Family Code and the specific prohibition of section 51.12 thereof, persons under the age of 18may not be housed in the same compartment of a facility as, nor be permitted regular contact with, any individtnd between the ages of 18 and 21, whether or not they are TYC wards, if such individuals have been arrested for, charged with, or convicted of a crime. This does not mean that such individuals may not be housed~ in the same

### fe asjuveniles. It means merely that they may not be confined in the same cell or compartment of ,a facility, or be con&ted in such proximity as to permit regular contact withjuveniles. Thus, TYC wards between the ages of 18and 21 may not be, under any circumstances, housed in a compartment of a facility, or permitted regular contact, with any “child” as defined by section 51.02ofthe Family Code. If on the other hand, such TYC wards have not been arrested for, charged with, or convicted of any crime, they may be housed in ajuvenile detention facility in compartments withjuveniies and may have contact withjuveniles. SUMMARY

A ward ofthe Texas Youth Commission between the ages of 18and 21who has been arrested for, charged with, or convicted ofany crime may under no circumstances be housed in the same compartment of a facility as, or permitted regular contact with, any “child”as defined in section 51.02ofthe Family Code.

DAN MORALES Attorney General ofTexas

p. 189Mr. Ron Jackson - Page 4 (DM-38)

WILL PRYOR First Assistant Attorney General MARYKELJXR Executive Assistant Attorney General JUDGEZOLUE STEAKLEY.(Ret.) Special Assistant Attorney General RENEAHKKs Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General

p. 190