November 9, 1953

Hon. William H,~Scott DistrictAttorney OpinionNo. S-112 Criminal Courts Bldg. Houston 2, Texas

Dear Mr, Scott: Rer 1. Authority of a county detentionhome to continue as custodian of dependent and neglected children after such children reach the age of sixteenyears. 2. Authority of one other than the DistrictAttorney ofHarris County to sign and file a petition to have a child declared a delinquent child.
You have requested our opinion in regard to certainmatters concerningdependent,neglected and delinquent children. Your first question is in substance as follows:

Does a county detentionhomewhich has been appointed custodianby a court of competent jurisdictionhave 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 'dependentchild' or 'neglected child' includes any child under sixteen years of agewho is dependentupon the public for support orwho 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 orHon. William H. Scott - Page 2 (S-112)

neglected child, as definedherein, it shall be adjudged a 'dependentchild'; and an ordermay be enteredmaking disposition of such child as to the court seems best for itsmoral and physicalwelfare. 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,'andwhich 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 institutionshall have the right to the custody of said child, and shall be at all times responsible for its education andmaintenance, subject at all times to the order of the court." Article 2336,V.C.S., provides thatupon such adjudicationand award "the child, unless otherwise ordered, shall become a ward andbe subject to the guardianship of the institution or individualtowhose care it is committed," and furtherprovides that the courtmay for the best interest of the child change Its guardianship from time to time.

Itwill 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 theward of the State, and the State occupies the position ofparens patriae towardsuch child.

The statutes above referred to provide that the child once adjudged a dependent and neglected child becomes award of the court and the courtmay turn its custody over to any suitableperson or institution,and such person or institutionshall "have the right Taothe custody of said child

. . . subject at all times to the order of the court,'!The court furtherhas the right to change the

. guardianship of the child from time to time andmay make such orders in relation thereto as in its discretionmay be for the best interest of such child, including a discharge from custody.

Therefore, a countyhome 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 alteredby the court or until such child reaches the age of twenty-one.

Your s,econd

question is in effect as follows: Is the DistrictA'ttorneyof Harris County the onlyperson or officialwho 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 forHarris County. Such Act makes it the primary duty of the DistrictAttorney,to represent theState of Texas in criminal cases pending in the district and inferior courts of Harris County.

Chapter 316 created the constitutionaloffice of CountyAttorney 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 civilmatters 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 inwhich the ProbationOfficer, Child Welfare Board, County Welfare Office,~County Health Officeror any otherwelfare agency is interested.

A proceeding in delinquency is a civil not a criminalproceeding. Dends v. Wilson, 142 Tex. 464, 179 S.W.2d 269 (1944). ~Seotion7 of Article 2338-l outlines the procedure to be followed in the institutionof 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 Attorneymay prepare and file in the Court, or any attorneymay prepare and file in the court, a petition allegingbriefly the factswhich bring said childwithin theprovisions 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,ArticleV, Sec. 12. The only issue to be determined at the trial iswhether the juvenile is a delinquent childwithin the meaning ofArticle'2338-l. It is not to convictand 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 involvingdependent,neglected or delinquent Ghildrenwhenever any of thenamed 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 courtpetitions alleging a child to be delinquent is not exclusive with the DistrictAttorney.
SUMMARY
A person or institutiongiven custodial care and control over a dependent and neglected child retains such custody, subject to the orders of the court,until terminatedor alteredby the court or until such Child reaches the age of twenty-one. The District Attorney of,HarrisCounty 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 AttorneyGeneral EB:bt