November 9, 1953 

Hon. William H, ~Scott 

District Attorney 

Opinion No. S-112 

Criminal Courts Bldg. 

Houston 2, Texas 

Dear Mr, Scott: 

Rer 1. Authority of a county 

detention home to continue 

as custodian of dependent 

and neglected children after such children reach the 

age of sixteen years. 

2. Authority of one other 

than the District Attorney 

of Harris County to sign and 

file a petition to have a 

child declared a delinquent 

child. 

You have requested our opinion in regard to certain matters concerning dependent, neglected and delinquent 

children. Your first question is in substance as follows: 

Does a county detention home which has 

been appointed custodian by a court of competent jurisdiction have the right to retain 

custody of a dependent and neglected child 

after such child reaches the age of sixteen 

years? 

Article 2330, Vernon's Civil Statutes, provides 

in part: 

"The term 'dependent child' or 'neglected 

child' includes any child under sixteen years 

of age who is dependent upon the public for 

support or who is destitute, homeless or 

abandoned' 0 . .' 

Article 2335, V.C.S., provides: 

"Upon the hearing of such case, if the 

child shall be found to be a dependent or 
Hon. William H. Scott - Page 2 (S-112) 

neglected child, as defined herein, it 

shall be adjudged a 'dependent child'; 

and an order may be entered making disposition of such child as to the court 

seems best for its moral and physical welfare. It may be turned over to the care 

and custody of any suitable person or any 

suitable institution in the county or state 

organized for the purpose of caring for 'dependent children,' and which is able and 

willing to care for same. And when such 

child is so turned over to the custody of 

such person or institution, such person or 

institution shall have the right to the custody of said child, and shall be at all times 

responsible for its education and maintenance, 

subject at all times to the order of the court." 

Article 2336, V.C.S., provides that upon such adjudication and award "the child, unless otherwise ordered, 

shall become a ward and be subject to the guardianship of 

the institution or individual to whose care it is committed," and further provides that the court may for the 

best interest of the child change Its guardianship from 

time to time. 

It will be noted that a dependent and neglected 

child is in no way restrained for the purpose of the infliction of punishment for any wrong committed. Upon the 

adjudication the child becomes the ward of the State, 

and the State occupies the position of parens patriae 

toward such child. 

The statutes above referred to provide that the 

child once adjudged a dependent and neglected child becomes a ward of the court and the court may turn its custody over to any suitable person or institution, and such 

person or institution shall "have the right Tao the custody 

of said child . . . subject at all times to the order of 

the court,'! . The court further has the right to change the 

guardianship of the child from time to time and may make 

such orders in relation thereto as in its discretion may 

be for the best interest of such child, including a discharge from custody. 

Therefore, a county home rhlch has been given 

custodial care and control over such child retains such 

custody, subject to the further orders of the court, until 
. . , 

Hon. William H. Scott, Page 3 (S-112) 

terminated or altered by the court or until such child 

reaches the age of twenty-one. 

Your s,econd question is in effect as follows: 

Is the District A'ttorney of Harris County the onlyperson or official who may sign and file a petition in'such 

county to have a child declared a delinquent child? 

Chapter 315, Acts of the 53rd Legislature, 1953, 

created the constitutional office of District Attorney 

for Harris County. Such Act makes it the primary duty of 

the District Attorney,to represent the State of Texas in 

criminal cases pending in the district and inferior 

courts of Harris County. 

Chapter 316 created the constitutional office 

of County Attorney of Harris County. It provides that 

it shall be the primary duty of the County Attorney to 

represent the State of Texas, Harris County and the officials of such county in all civil matters in Harris 

County and elsewhere. 

Chapter 325,,in creating the Court of Domestic 

Relations for Harris County, provides that the District 

Attorney of Harris County shall prosecute or defend all 

cases involving children alleged to be dependent, neglected or delinquent, or in which the Probation Officer, 

Child Welfare Board, County Welfare Office,~County 

Health Officeror any other welfare agency is interested. 

A proceeding in delinquency is a civil not a 

criminal proceeding. Dends v. Wilson, 142 Tex. 464, 179 

S.W.2d 269 (1944). ~Seotion 7 of Article 2338-l outlines 

the procedure to be followed in the institution of proceedings against a delinquent child. It reads in part: 

"If either the Judge or the County 

Attorney shall determine that formal jurisdiction should be acquired, the County Attorney may prepare and file in the Court, or 

any attorney may prepare and file in the court, 

a petition alleging briefly the facts which 

bring said child within the provisions of this 

Act. . . ." 
Hon. William H. Scott, Page 4 (S-112) 

The proceeding is not a prosecution in the 

name of the State. See Constitution of Texas, Article V, 

Sec. 12. The only issue to be determined at the trial 

is whether the juvenile is a delinquent child within the 

meaning of Article' 2338-l. It is not to convict and 

punish a child for the commission of a crime. Dendy v. 

Wilson, supra. The proceeding is begun by the filing of 

a petition, not by complaint, information or indictment. 

Chapter 325 makes it the duty of the District 

Attorney to represent the interest of the State in all 

cases involving dependent, neglected or delinquent Ghildren whenever any of the named officers are interested 

in the case and to prosecute all criminal cases in said 

Domestic Relations Court. The right to prepare and file 

in the court petitions alleging a child to be delinquent 

is not exclusive with the District Attorney. 

SUMMARY 

A person or institution given custodial 

care and control over a dependent and neglected child retains such custody, subject to 

the orders of the court, until terminated or 

altered by the court or until such Child 

reaches the age of twenty-one. 

The District Attorney of,Harris County 

does not have the exclusive right or authority 

to file petitions alleging a child to be a 

delrinquent child. Art. 2338-1, V.C.S. 

Yours very truly, 

APPROVED: 

JOHN BEN SHEPPERD 

J. C. Davis, Jr. 

County Affairs Division 

Willis E. Gresham 

Reviewer 

Assistant 

Robert S, Trotti 

First Assistant 

John Ben Shepperd 

Attorney General 

EB:bt