1

NO. PD-1634-14

IN THE COURT OF CRIMINAL APPEALS

STATE OF TEXAS

AARON JACOB MOORE

Appellant,

VS. 

THE STATE OF TEXAS

Appellee.

ON APPEAL FROM:

N0. 01-13-00663-CR

IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

CAUSE N0. 12-DCR-059791

IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS

APPELLANT’S REPLY BRIEF ON THE MERITS

CARMEN ROE

CARMEN ROE LAW FIRM

440 Louisiana, Suite 900

Houston, Texas 77002

713.236.755

713.236.7756 Fax

TBN: 24048773

carmen@carmenroe.com

www.carmenroe.com

ATTORNEY FOR APPELLANT

[ON APPEAL ONLY]

PD-1634-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/24/2015 6:06:10 PM

Accepted 7/27/2015 8:16:26 AM

ABEL ACOSTA

CLERK
2

IDENTIFICATION OF INTERESTED PARTIES

Pursuant to TEX.R.APP.P. 38.1(a), a complete list of the names and 

addresses of all interested parties is provided below so the members of this 

Honorable Court may at once determine whether they are disqualified to serve or 

should recuse themselves from participating in the decision of this case.

Trial Counsel for the Defendant:

Kirby Taylor

4810 Caroline Street

Houston, Texas 77004

Tommy Stickler, Jr. 

235 Sealy Street

Alvin, TX 77511

Counsel on Appeal for the Appellant:

Carmen M. Roe

The Lyric Centre

440 Louisiana, Suite 900

Houston, Texas 77002

Trial Counsel for the State:

Alex Foley

Fort Bend County District Attorney’s Office

301 Jackson Street

Richmond, Texas 77469

Alexandra Foley

301 Jackson Street

Richmond, TX 77469

Counsel on Appeal for the State:

Gail Kikawa McConnell

301 Jackson Street, Room 101

Richmond, Texas 77469
3

Trial Judge:

Honorable Jeffrey A. McMeans

Presiding Judge

County Court at Law No. 2

Fort Bend County, Texas 77469

Honorable Jeffrey McMeans

County Court at Law No. 2

Fort Bend County, Texas
4

TABLE OF CONTENTS

 Page

IDENTIFICATION OF INTERESTED PARTIES...................................................2

INDEX OF AUTHORITIES.....................................................................................6

STATEMENT OF THE CASE.................................................................................9

STATEMENT REGARDING ORAL ARGUMENT ............................................10

GRANTED QUESTION FOR REVIEW................................................................10

DOES THE COURT OF APPEAL’S CONSTRUCTION OF “THE STATE” IN 

SECTION 54.02(J)(4)(A), FAMILY CODE REQUIRE DISMISSAL OF A CASE 

WITH PREJUDICE WITHOUT CONSIDERATION OF THE FACTORS FOR 

OPPRESSIVE DELAY IN VIOLATION OF THE SEPARATION OF POWERS 

DOCTRINE?

I. STATEMENT OF THE FACTS..............................................................10

 II. SUMMARY OF THE ARGUMENT..........................................13

 III. ARGUMENT AND AUTHORITIES........................................15

A. Standard of Review.....................................................................15

B. Whether the separation of powers clause protects a district attorney’s

 duties.................................................................................15

 C. Whether the legislative enactment is constitutionally authorized............17

 D. Whether the statutorily imposed duty to represent the state in criminal 

Cases requires, first, the existence of a criminal case..........................17

 E. In the alternative, whether Section 54.02(j)(4)(A) is a contractual 

 arrangement and the separation of powers concerns clearly outweigh 

 it’s enforcement.....................................................................20
5

1. Section 54.02(j)(4)(A) is contractual in nature...............................20

2. The separation of powers clause concerns do not clearly outweigh

 the interests underlying Section 54.02(j)(4)(A)’s enforcement............21

i. Those interests favoring enforcement..................................21

ii. Those interest disfavoring enforcement...............................22

PRAYER.................................................................................................................23

CERTIFICATE OF SERVICE ..............................................................................24

CERTIFICATE OF COMPLIANCE .....................................................................25
6

INDEX OF AUTHORITIES

CASES PAGE

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)................................17

Commr’s v. Guardian Life Ins Co., 180 S.W.2d 906 (Tex. 1988)....................22

Daimler Chrysler Corp v. Inman, 252 S.W.3d 299 (Tex. 2008).....................18

Dendy v. Wilson, 179 S.W.2d 269 (Tex. 1944).........................................19

Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978).........................15

Gibson v. State, 803 S.W.2d 316 (Tex. Crim. App. 1991).............................21

Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996)......................................17

In Matter of D.W.M., 562 S.W.2d 851 (Tex. 1978).....................................20

In re M.N., 262 S.W.3d 799 (Tex. 2008)................................................13

In re N.J.A., 997 S.W.2d 554 (Tex. 1999)...............................................20

Kent v. United States, 381 U.S. 541 (1967).............................................22

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).............................17

Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987).......................16,17

Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014)....................19,20,21,22

Rushing v. State, 85 S.W.3d 283 (Tex. Crim. App. 2002)............................17

State v. Salavea, 86 P.3d 126 (Wash. 2004)...........................................20
7

Texas Ass’n of Bus. v. Tex. Air Control Bd., 

852 S.W.2d 440 (Tex. 1993)...................................................18

Toussie v. United States, 397 U.S. 112 (1970)......................................23

State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997)............16,19,20,21

STATUTES

TEX. FAM. CODE § 51.02..........................................................................................11

TEX. FAM. CODE § 51.02(a).....................................................................................19

TEX. FAM. CODE § 51.04..........................................................................................10

TEX. FAM. CODE § 51.0412(3)............................................................................11,12

TEX. FAM. CODE § 51.17.........................................................................................19

TEX. FAM. CODE § 51.19(c).....................................................................................18

TEX. FAM. CODE § 53.01 (d)....................................................................................19

TEX. FAM. CODE § 54.02(j)......................................................................................20

TEX. FAM. CODE § 54.02(j)(4)(A)....................................................................Passim

TEX. FAM. CODE § 54.02(j)(4)(B)............................................................................15

TEX. CODE. CRIM. PROC. 2.01................................................................................18

TEX. CODE. CRIM. PROC. 12.01(7).........................................................................19

TEX. CODE. CRIM. PROC. 12.02..............................................................................18
8

TEX. CONST. ART. V § 1..........................................................................................16

TEX. CONST. ART. V § 31(a)....................................................................................17
9

STATEMENT OF THE CASE

 This appeal concerns the constitutionality of Section 54.02(j)(4)(A) of the 

Juvenile Justice Code in the Texas Family Code, as construed by the First Court of 

Appeals in Moore v. State, 446 S.W.3d 47 (Tex. App.—Houston [1st Dist.] 2014, 

pet. granted). 

Section 54.02(j)(4)(A) applies to proceedings in juvenile court that begin

after an accused’s 18th birthday, and affords to the juvenile court the limited 

jurisdiction to determine if the alleged delinquent conduct should be transferred to 

district court for criminal proceedings. Whether this jurisdictional inquiry is 

satisfied depends in part upon a prosecuting attorney demonstrating, by a 

preponderance of the evidence, that because of “a reason beyond the control of the 

state, it was not practicable to proceed in juvenile court before the person’s 18th

birthday.” TEX. FAM. CODE ANN. § 54.02(j)(4)(A) (West 2014).

The State’s Brief on the Merits1 argues that the burden of persuasion under 

Section 54.02(j)(4)(A) is actually fact-specific: When “the state” refers to 

prosecutorial delays, then the burden of persuasion at the discretionary waiver 

hearing is with the petitioner. However, when “the state” refers to investigatory 

delays, then the case must be transferred to criminal district court, unless the

 1 (“SB” refers to the State’s Brief on the Merits, followed by page number.)
10

respondent successfully demonstrates to the juvenile court an intentional 

oppressive delay.

2

STATEMENT REGARDING ORAL ARGUMENT

 This Court has denied oral argument in this case.

GRANTED QUESTION FOR REVIEW

DOES THE COURT OF APPEAL’S CONSTRUCTION OF “THE 

STATE” IN SECTION 54.02(J)(4)(A), FAMILY CODE 

REQUIRE DISMISSAL OF A CASE WITH PREJUDICE WITHOUT 

CONSIDERATION OF THE FACTORS FOR OPPRESSIVE DELAY 

IN VIOLATION OF THE SEPARATION OF POWERS DOCTRINE?

I. STATEMENT OF FACTS3

Two months after Moore’s sixteenth birthday,4 on September 21, 2008, 

Detective Cox began her investigation into a potential civil action5 alleged to have

occurred in the month before.

6 Nearly two weeks after Moore’s eighteenth

birthday,

7 Detective Cox forwarded her investigatory report to the district 

 2 Moore has been granted one time-extension, and timely submits this reply brief on 

the merits due on or before July 24, 2015. 

3 Moore challenges all factual assertions made by the State in both its petition for 

discretionary review and brief on the merits. 

4 Moore was born on July 11, 1992. [2 RR 22].

5 Because of Moore’s age, the alleged sexual assault fell within the exclusive original 

jurisdiction of the juvenile court. See TEX. FAM. CODE ANN. § 51.04 (West 2014).

6 That is, on or about August 29, 2008. [1 RR 72].

7 Or, July 22, 2010. [CR at 13-17, 83].
11

attorney’s office. One month after Moore’s nineteenth birthday,

8 the prosecuting 

attorney9 filed a petition with the juvenile court, requesting it waive its original

jurisdiction, and transfer the alleged delinquent conduct to district court for 

criminal proceedings. Six months later, on February 10, 2012, the juvenile court:

held a discretionary waiver hearing, granted the prosecuting attorney’s petition, 

and transferred Moore’s juvenile case to district court for the commencement of 

criminal charges. [CR at 28-32] [CR at 13-7, 83].

In juvenile court, discretionary waiver hearings are statutorily defined, and

in these circumstances, afford to a prosecuting attorney the choice to proceed under 

any one of the four alternatives made available by Sections 54.02(j)(4)(A) and (B).

See TEX. FAM. CODE. ANN. § 54.02(j)(4) (West 2014). Here, the prosecuting 

attorney selected the burden under Section 54.02(j)(4)(A), which provides the 

following:

(j) The juvenile court may waive its exclusive original 

jurisdiction and transfer a person to the appropriate 

district court or criminal district court for criminal 

proceedings if:

 

8 Or, August 17, 2011. [CR at 22].

9 In juvenile court, the “’Prosecuting attorney’ means the county attorney, district 

attorney, or other attorney who regularly serves in a prosecutory capacity in a 

juvenile court.” TEX. FAM. CODE. ANN. § 51.02(11) (West 2014).
12

(4) the juvenile court finds from a preponderance 

of the evidence that:

(A) for a reason beyond the control of the 

state it was not practicable to proceed 

in juvenile court before the 18th

birthday of the person.

TEX. FAM CODE. ANN. § 54.02(j)(4)(A) (West 2014). Thus, the prosecuting 

attorney argued at Moore’s discretionary waiver hearing, as well as on appeal, that 

its 13-month delay in filing its petition to transfer was excused under Section 

54.02(j)(4)(A), because Detective Cox transferred her investigatory report to the 

district attorney’s office 11 days after Moore’s eighteenth birthday. This delay by 

Detective Cox, the prosecuting attorney urged, and juvenile court ultimately 

believed, was a sufficient reason “beyond the control of the state [that is, the 

prosecuting attorney]” to proceed in juvenile court before Moore’s 18th birthday.

One month before Moore’s twenty-first birthday, on June 11, 2013, Moore

pled guilty pursuant to a plea agreement; the criminal district court deferred 

adjudication and placed Moore on five years community supervision. [CR at 92-

115].

On appeal, Moore challenged the prosecuting attorney’s construction of “the 

state” under Section 54.02(j)(4)(A), arguing that the juvenile court abused its 

discretion, because: (1) “the state”, for purposes of Section 54.02(j)(4)(A),
13

included investigatory delays by law enforcement;

10 and, (2) Detective Cox’s 

reasons for the delay fell within—as opposed to beyond—her control, and 

therefore could not satisfy Section 54.02(j)(4)(A)’s jurisdictional inquiry. The First 

Court of Appeals agreed, vacating the district court’s judgment, and dismissing the 

case.

The State subsequently filed its Motion to Reconsider En Banc, arguing, as 

it does here, that unless the burden of persuasion under Section 54.02(j)(4)(A) flips

to the respondent whenever “the state” refers to investigatory delays, and the Court 

also write-in the requirement that the respondent demonstrate intentional 

oppressive delay, then the jurisdictional inquiry in juvenile court unduly interferes

with a district attorney’s exclusive prosecutorial discretion “to prosecute criminal 

cases,” and therefore violates the separation of powers provision of the Texas 

Constitution. After Moore’s response, the First Court of Appeals denied the 

motion. This Court’s grant of discretionary review concerning this matter of first 

impression now follows. 

 10 See TEX. FAM. CODE. ANN. §§ 51.0412(3) (West 2014) (Showcasing the 

Legislature’s ability to limit a statutory provision within the Juvenile Code to a 

prosecuting attorney’s efforts.); see In re M.N., 262 S.W.3d 799, 802 (Tex. 2008) 

(“We also presume the Legislature included each word in the statute for a purpose, 

and that words not included were purposefully omitted.”).
14

II. SUMMARY OF THE ARGUMENT

First,11 Moore challenges the State’s underlying assumption that a district 

attorney’s12 duties are entitled to the protection afforded by the separation of 

powers provision of the Texas Constitution. The Separation of Powers Clause

protects those duties constitutionally conferred, whereas a district attorney’s duty 

to prosecute criminal cases is imposed statutorily.

Second, Moore argues that the Legislature’s enactment of Section

54.02(j)(4)(A) is expressly authorized under Article 5, Section 1 of the Texas 

Constitution.

Third, and in the alternative, Moore argues that a district attorney’s duty to 

prosecute criminal cases, assuming protected by the separation of powers 

provision, requires—well, a criminal case. A case in juvenile court, however, is a 

civil matter, and only becomes a “criminal case” after a juvenile court properly 

transfers jurisdiction to the appropriate district court. Thus, Moore submits to this 

Court that any meaningful exercise of a district attorney’s duty to prosecute 

criminal cases should coincide with a district court’s jurisdiction over the matter, 

 11 The State’s Brief on the Merits divides its argument into five sections, labeled “A” 

through “E”. Moore’s Reply Brief responds primarily to section “D”, because the

persuasiveness underlying sections “A”, “B”, and “C” depend upon the

presupposition that section “D” is sound. 

12 For the first time in this Court, the State attempts to include “county attorneys.” 

Compare State’s Brief on the Merits at 4 with State’s Petition for Discretionary 

Review at 13.
15

which in this case is triggered after—as opposed to before—a juvenile court 

properly waives its jurisdiction at the discretionary waiver hearing.

Finally, fourth and also in the alternative, Moore argues Section 

54.02(j)(4)(A) is a contractual arrangement, and its enforcement is not clearly 

outweighed by separation of power concerns. A district attorney receives a

“benefit”—that is, the opportunity to criminally prosecute alleged acts committed 

by children that are otherwise outside its reach—and in exchange, agrees to submit 

to the juvenile court’s jurisdiction, “leaving at the door” those conflicting 

prosecutorial discretions applicable in criminal district court. 

Moreover, Section 54.02(j)(4)(A)’s particular burden of persuasion is nonobligatory at discretionary waiver hearings, applying only when a prosecuting 

attorney chooses it over the three alternatives made available under Section

54.02(j)(4)(B). Therefore, Section 54.02(j)(4)(A), similar to a plea bargain and the 

Interstate Agreement on Detainers Act (or, “IADA”) compact, is contractual in 

nature, and its enforcement, as will be demonstrated herein, is not clearly 

outweighed by separation of power concerns.

III. ARGUMENT AND AUTHORITIES

A. Standard of Review

A statute is presumed constitutional, and the burden rests with the challenger 

to demonstrate its unconstitutionality. Rodriguez v. State, 93 S.W.3d 60, 69 
16

(Tex. Crim. App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. 

App. 1978). 

B. Whether the Separation of Powers Clause Protects a District Attorney’s 

Duties

The State asserts, but does not demonstrate, its entitlement to the protection 

afforded by the separation of powers provision of the Texas Constitution. (SB at 

12, 16-7).13

In Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987), this Court 

determined that the separation of powers provision protected the Freestone County 

Attorney’s duties, because (1) the Legislature had not created a district attorney in 

Freestone County; and, (2) Article V, Section 21 of the Texas Constitution, 

assigned to a county attorney without a district attorney, “the constitutional duty 

‘to represent the State in all cases in the District and inferior courts.’” Id. at 253. 

Premised thereupon, this Court went on to find that the separation of powers 

provision, which protected the Freestone County Attorney’s constitutionally 

assigned function also, as a necessary corollary, protected its prosecutorial 

discretion “in the preparation of those cases for trial.” Id at 254.

 13 At the crux of this argument, the State contends that because a district attorney 

is constitutionally created, then it is constitutionally protected (by the Separation of 

Powers Clause). (SB at 12). Moore’s position, on the other hand, is that the 

Separation of Powers Clause protects constitutionally conferred duties, as opposed 

to constitutionally created entities, and the State has failed to identify a relevant 

constitutional duty conferred exclusively to a district attorney.
17

Unlike the Freestone County Attorney, a district attorney is not assigned the 

exclusive constitutional function14 to represent the State in all cases in the district 

and inferior courts.15 Rather, Article 5, Section 21, of the Texas Constitution, 

expressly provides that the Legislature—and therefore, not the Texas 

Constitution—shall regulate the duties of a district attorney.

16

C. Whether the Legislative Enactment is Constitutionally Authorized17

The Texas Constitution expressly authorizes the Legislature to “establish 

such other courts as it may deem necessary and prescribe the jurisdiction and 

organization thereof, and may conform the jurisdiction of the district and other 

inferior courts thereto.” TEX. CONST., ART. V, § 1. The Legislature, having

 14 See (SB at 12) (Suggesting that a district attorney’s “primary” function to 

prosecute criminal cases is akin to an “exclusive” constitutional function protected 

by the separation of powers clause.). 

15 To clarify, the State does not advocate an exclusive constitutional function to seek 

the adjudication of a juvenile’s delinquent conduct in juvenile court. Instead, its 

argument is premised upon an unidentified duty, protected by the Separation of 

Powers Clause, to criminally prosecute acts outside a district court’s jurisdiction. 

(SB at 4, 7, 12, 14, 17, 19).

16 See State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997) (Framing the 

issue as whether the statutory provisions “unduly interfere with the exercise of 

constitutionally assigned powers.”) (emphasis added); Holmes v. Morales, 924 

S.W.2d 920, 922 (Tex. 1996) (Determining that “the district attorney’s office is not 

included in the meaning of ‘judiciary’ because the Texas Constitution invests no 

judicial power in that office.”).

17 Meshell v. State, 739 S.W.2d 246, 254-55. (“[U]nder the separation of powers 

doctrine, the Legislature may not remove or abridge a district or county attorney’s 

exclusive prosecutorial function, unless authorized by an express constitutional 

provision.”) (emphasis added).
18

established the juvenile court system, is therefore constitutionally authorized18 to 

use Section 54.02(j)(4)(A) as its means for both regulating the procedures

prescribing a juvenile court’s jurisdiction, as well as conforming the jurisdictions 

of the district courts and inferior courts thereto.19

D. Whether the Statutorily Imposed Duty to Represent the State in 

Criminal Cases Requires, First, the Existence of a Criminal Case 

En arguendo that the Separation of Powers Clause protects a district 

attorney’s statutorily imposed duty 20 to prosecute criminal cases, a district 

attorney’s discretion to exercise this protected duty should not extend into a 

juvenile court’s discretionary waiver hearing, because an alleged act by a child is

neither a criminal case, nor a “first-degree felony.”21 (SB at 5, 7, 19). That is,

 18 See TEX. CONST., ART. V, § 31(a).

19 See Marin v. State, 851 S.W.2d 275, 277 (Tex. Crim. App. 1993) overruled on 

other ground by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (“And 

that which the Legislature may withhold altogether, it may withhold in part.”); 

Rushing v. State, 85 S.W.3d 283, 286-87 (Tex. Crim. App. 2002) (“It is the 

Legislature, after all, that established the juvenile court system, and ultimately it is 

up to that body to determine what procedures guide the movement of case from that 

system to the adult criminal court system.”).

20 See TEX. CODE. CRIM. PROC. ANN. art. 2.01 (West 2014) (“Each district attorney 

shall represent the state in all criminal cases in the district courts of his district and 

in appeals therefrom, except in cases where he has been, before his election, 

employed adversely.”). 

21 As a corollary, the limitations period appears to be two-years, because “it has no 

limitations period” under Chapter 12, Texas Code of Criminal Procedure. (SB at 5, 

7). See TEX. FAM. CODE ANN. § 51.19 (c) (West Supp. 2014) (Stating that the 

Juvenile Justice Code adopts Chapter 12’s limitations period, with the exception 

that: “The limitation period is two years for an offense or conduct that is not given a 
19

unless and until a juvenile court properly waives its jurisdiction over the matter, 

thereby conferring jurisdiction onto the district court, any ruling on the matter by 

the district court is merely an advisory opinion.

22 Therefore, a district attorney’s 

duty to prosecute criminal cases should not extend into a juvenile court’s

discretionary transfer proceeding, because the conduct at issue there relates to a 

civil matter,

23 not criminal, as evidenced by its classification as “delinquent 

conduct”, rather than a “first-degree felony.”

24

 

specific limitation period under Chapter 12, Code of Criminal Procedure, or other 

statutory law.”); see TEX.CODE CRIM. PROC. 12.01(7) (West Supp. 2014) (Providing 

residual three-years limitations period for all other felonies); see TEX.CODE CRIM.

PROC. 12.02 (West Supp. 2014) (Providing residual two-year limitations period for 

all misdemeanors); See TEX.CODE CRIM. PROC. art. 12.01(1) (West Supp. 2014) 

(Listing offenses under Chapter 12 that are not given specific limitation periods); 

see TEX. FAM. CODE ANN. § 53.01(d) (requiring law enforcement to promptly 

forward to a prosecuting attorney alleged delinquent conduct of the grade of felony, 

regardless of a finding of probable cause, or lack thereof.). Thus, Moore’s alleged 

delinquent conduct, an offense not given a specific limitations period under Chapter 

12, appears to be subject to a two-year limitations period in juvenile court. 

22 See Daimler Chrylser Corp v. Inman, 252 S.W.3d 299, 307 (Tex. 2008) (“The 

denial of a claim on the merits is not an alternative to dismissal for want of subject 

matter jurisdiction merely because the ultimate result is the same, because the 

assertion of jurisdiction carries the courts beyond the bounds of authorized judicial 

action and thus offends fundamental principles of separation of powers.”) (internal 

citation omitted); see generally Texas Ass’n of Bus. v. Tex. Air Control Bd., 852 

S.W.2d 440 (Tex. 1993) (Explaining that the separation of powers provision 

prohibits courts from rendering advisory opinions, which occurs when a court lacks 

jurisdiction over the matter.).

23 The civil nature of discretionary waiver hearings may also be gleaned from the 

lower burden of proof (i.e., “by a preponderance of the evidence”). See TEX. FAM.

CODE ANN. § 54.02(j) (West 2014); see also TEX. FAM. CODE. ANN § 51.17. 

24 See Moon v. State 451 S.W.3d 28, 45 (Tex. Crim. App. 2014) (“The juvenile 

transfer proceeding remains civil in character, governed by the Juvenile Justice 
20

Granted, “delinquent conduct” could be reclassified as a “felony offense,”

and in turn afford to a district attorney the meaningful opportunity to seek the 

commencement of criminal charges. But this “benefit” is conditioned upon a 

discretionary waiver hearing, that if satisfied, provides to a criminal district 

court—and by extension, a district attorney seeking criminal charges—jurisdiction 

otherwise unavailable.

25 Thus, a child’s alleged “delinquent conduct” could be 

redefined as a “felony offense,” but this does not entail that it must be redefined as 

a “felony offense.”26

Therefore, any conceivable duty a district attorney may have in criminally

prosecuting alleged acts committed by children should coincide with a district 

 

Code; the proceedings do not become criminal unless and until the juvenile court 

waives its exclusive jurisdiction and transfers the child to a criminal court for 

prosecution as an adult.”); see TEX. FAM. CODE. ANN. § 51.04(a) (West 2014) 

(defining “a child”, for jurisdictional purposes, by the accused’s age at the time of 

the alleged act.); see Dendy v. Wilson, 179 S.W.2d 269, 273 (Tex. 1944) (Explaining 

that a juvenile court “is not a criminal court... [but] is a special court created by 

statute, and the statute specifically provides what disposition may be made of a 

‘delinquent child.’”).

25 C.f. State v. Williams, 938 S.W.2d 456, 462 (Tex. Crim. App. 1997) (“Because the 

prosecutor has no extraterritorial power, he gains a benefit by using the provision of 

the IADA [or, the Interstate Agreement on Detainers Act]—access to a defendant 

whom he would otherwise have no power to reach. The Legislature was not obliged 

to give the prosecutor that benefit.”). 

26 C.f. In Matter of D.W.M 562 S.W.2d 851 (Tex. 1978) (Standing for the proposition 

that juvenile waiver hearings require strict adherence, and “the failure to comply 

with 54.02(b) will deprive the juvenile court jurisdiction to consider discretionary 

transfer.”); see Grayless v. State, 567 S.W.2d 216 (Tex. Crim. App. 1978) (same); In 

re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999) (same).
21

court’s jurisdiction over the matter, which begins after—as opposed to before—a 

juvenile court properly conducts its discretionary waiver proceeding.

27

E. In the Alternative, Whether Section 54.02(j)(4)(A) is a Contractual

Arrangement and the Separation of Powers Concerns Clearly Outweigh 

its Enforcement

1. Section 54.02(j)(4)(A) is Contractual-in-Nature

Similar to a plea bargain and the IADA compact, Section 54.02(j)(4)(A)’s 

arrangement is also contractual in nature. The jurisdictional provision at issue here 

affords to a district attorney the “benefit” of criminally prosecuting acts otherwise 

outside a district court’s jurisdiction; and in exchange for this opportunity, a 

prosecuting attorney agrees to “leave at the door” those prosecutorial discretions in 

criminal district court that may conflict with the juvenile court’s jurisdiction and 

discretion at its waiver proceeding. 28 Furthermore, Section 54.02(j)(4)(A)’s 

particular application at discretionary transfer hearings is an exercise of

prosecutorial discretion in itself, because the prosecuting attorney is neither 

 27 See Moon v. State, 451 S.W.3d 28, 52 n.90 (Tex. Crim. App. 2014) (Explaining the 

jurisdictional “chicken-and-egg paradox” within the context of Rule 44.4 of the 

Texas Rules of Appellate Procedure.).

28 See State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997) citing Gibson 

v. State, 803 S.W.2d 316, 318 (Tex. Crim. App. 1991) (Analogizing the discretionary 

nature of plea bargains, which are enforceable under specific performance, to the 

IADA compact, for the proposition that a prosecutor can relinquish at least some of 

its prosecutorial discretions in contractual arrangements.).
22

required to petition a juvenile court to transfer the matter to district court, nor is it 

required to satisfy Section 54.02(j)(4)(A)’s particular burden of persuasion.29

2. The Separation of Powers Clause Concerns do not Clearly Outweigh 

the interests underlying Section 54.02(j)(4)(A)’s Enforcement

The Separation of Powers Clause does not expressly state that jurisdictional 

procedures in juvenile court are unenforceable,

30 and those interest favoring

Section 54.02(j)(4)(A)’s enforcement are not outweighed—much less, clearly 

outweighed—by separation of powers concerns (if any) weighing in opposition. 

i. Those Interests Favoring Enforcement

“The transfer of a juvenile offender from juvenile court to criminal court for 

prosecution as an adult should be regarded as the exception, not the rule.” Moon v. 

State 451 S.W.3d 28, 33 (Tex. Crim. App. 2014). Under the State’s construction 

of Section 54.02(j)(4)(A), however, the Legislature’s statutorily created 

discretionary waiver hearings will transform into de facto automatic transfer

 29 As an alternative to Section 54.02(j)(4)(A), a prosecuting attorney seeking to 

persuade a juvenile court to waive its exclusive, original jurisdiction at a 

discretionary waiver hearing can instead choose one of the three alternative 

statutory provisions made available by Section 54.02(j)(4)(B). See TEX. FAM. CODE 

ANN. § 54.02(j) (West 2014).

30 State v. Williams, 938 S.W.2d 456, 461 (Tex. Crim. App. 1997) (“Obviously, the 

separation of powers clause does not expressly state that these types of provisions 

are unenforceable.”).
23

proceedings, 31 whereby a prosecutor will be granted the “bonanza right” to 

criminally prosecute adults in district court for acts alleged to have been committed 

while in adolescence.

32 Adopting the State’s construction, then, would seriously 

disrupt the bedrock of the juvenile court system—that “the State is parens partriae, 

rather than prosecuting attorney and judge.” Kent v. United States, 381 U.S. 541, 

555 (1967).33

ii. Those Interests Disfavoring Enforcement

Prohibiting Section 54.02(j)(4)(A)’s enforcement would not advance those 

interests underlying the separation of powers provision, because a district attorney 

is without a constitutional function to criminally prosecute acts outside a district 

 31 C.f. State v. Salavea, 86 P.3d 126, 128 (Wash. 2004) (Analyzing a due-process

challenge within the context of Washington State’s automatic—as opposed to 

discretionary—transfer proceeding.); see also Board of Ins. Commr’s v. Guardian 

Life Ins Co., 180 S.W.2d 906, 908 (Tex. 1988) (Standing for the proposition that a 

court should not write special exceptions into a statute so as to make it inapplicable 

under certain circumstances not mentioned therein.). 

32 Appellant’s circumstances are exemplary of this point. A detective’s “heavy 

workload”—or, some other readily available “non-oppressive” basis—will become a 

commonplace reason “beyond the control of the [prosecuting attorney] to proceed in 

juvenile court before the 18th birthday of the person.” This excuse will even exist 

when the detective’s delay exceeds the deadline—that is, the respondent’s 18th

birthday—by 11 days, and the prosecuting attorney then waits an additional 13-

months before filing its petition to transfer the alleged civil act to district court for 

the commencement of criminal proceedings. See Moore v. State, 446 S.W.3d 47 (Tex. 

App.—Houston [1st Dist.] 2014, pet. granted).

33See Moon v. State 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (Acknowledging “the 

goals between criminal justice system and juvenile justice system to be 

fundamentally different, describing the former as more ‘retributive’ than its 

‘rehabilitative’ juvenile counterpart.”).
24

court’s jurisdiction. Therefore, and similar to the IADA compact, “[t]he

Legislature was not obliged to give the prosecutor that benefit”, and it should not 

be unreasonable for the Legislature to place some restrictions on its discretion in 

these circumstances. State v. Williams, 938 S.W.2d 456, 462 (Tex. Crim. App. 

1997).

Finally, enforcement of Section 54.02(j)(4)(A) neither relates to, nor 

encourages misconduct. Rather, and similar to a statute of limitations, the 

jurisdictional inquiry at issue here has “the salutary effect of encouraging law 

enforcement officials to promptly investigate suspected” delinquent conduct before 

a juvenile court is deprived of its jurisdiction.

34

Accordingly, this Court should find that those interests favoring Section 

54.02(j)(4)(A)’s enforcement are not outweighed—much less clearly

outweighed—by those separation of powers’ concerns (if any) weighing in 

opposition. 

PRAYER

Moore prays that the Honorable Court of Criminal Appeals sustain these 

appellate contentions raised herein, and affirm the First Court of Appeals 

construction of Section 54.02(j)(4)(A) of the Juvenile Justice Code in the Texas 

Family Code.

 34 C.f. Toussie v. United States, 397 U.S. 112, 114-115 (1970) (Explaining that a 

similar effect is also achieved through a statute of limitations.). 
25

RESPECTFULLY SUBMITTED, 

 

 /s/ Carmen Roe 

 _____________________________

CARMEN ROE 

CARMEN ROE LAW FIRM

TBN:24048773

440 Louisiana, Suite 900

 Houston, Texas 77002 

 713.236.7755Phone

 713.236.7756Fax

carmen@carmenroe.com

www.carmenroe.com

ATTORNEY FOR APPELLANT 

 

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Appellant’s 

Brief was served the Fort Bend District Attorney, Appellate Division, 301 Jackson, 

Richmond, Texas 77469, on 24th day of July 2015.

/s/ Carmen Roe

___________________

CARMEN ROE
26

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with 

the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it 

contains 3,129 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ Carmen Roe

____________________

CARMEN ROE