Texas Family Code - Section 54.02. Waiver Of Jurisdiction And Discretionary Transfer To Criminal Court

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§ 54.02. WAIVER OF JURISDICTION AND DISCRETIONARY 
TRANSFER TO CRIMINAL COURT.  (a) The juvenile court may waive its 
exclusive original jurisdiction and transfer a child to the 
appropriate district court or criminal district court for criminal 
proceedings if:
		(1)  the child is alleged to have violated a penal law 
of the grade of felony;
		(2)  the child was:                                                           
			(A)  14 years of age or older at the time he is 
alleged to have committed the offense, if the offense is a capital 
felony, an aggravated controlled substance felony, or a felony of 
the first degree, and no adjudication hearing has been conducted 
concerning that offense;  or
			(B)  15 years of age or older at the time the child 
is alleged to have committed the offense, if the offense is a felony 
of the second or third degree or a state jail felony, and no 
adjudication hearing has been conducted concerning that offense;  
and
		(3)  after a full investigation and a hearing, the 
juvenile court determines that there is probable cause to believe 
that the child before the court committed the offense alleged and 
that because of the seriousness of the offense alleged or the 
background of the child the welfare of the community requires 
criminal proceedings.
	(b)  The petition and notice requirements of Sections 53.04, 
53.05, 53.06, and 53.07 of this code must be satisfied, and the 
summons must state that the hearing is for the purpose of 
considering discretionary transfer to criminal court.
	(c)  The juvenile court shall conduct a hearing without a 
jury to consider transfer of the child for criminal proceedings.
	(d)  Prior to the hearing, the juvenile court shall order and 
obtain a complete diagnostic study, social evaluation, and full 
investigation of the child, his circumstances, and the 
circumstances of the alleged offense.
	(e)  At the transfer hearing the court may consider written 
reports from probation officers, professional court employees, or 
professional consultants in addition to the testimony of witnesses.  
At least one day prior to the transfer hearing, the court shall 
provide the attorney for the child with access to all written matter 
to be considered by the court in making the transfer decision.  The 
court may order counsel not to reveal items to the child or his 
parent, guardian, or guardian ad litem if such disclosure would 
materially harm the treatment and rehabilitation of the child or 
would substantially decrease the likelihood of receiving 
information from the same or similar sources in the future.
	(f)  In making the determination required by Subsection (a) 
of this section, the court shall consider, among other matters:
		(1)  whether the alleged offense was against person or 
property, with greater weight in favor of transfer given to 
offenses against the person;
		(2)  the sophistication and maturity of the child;                            
		(3)  the record and previous history of the child;  and                       
		(4)  the prospects of adequate protection of the public 
and the likelihood of the rehabilitation of the child by use of 
procedures, services, and facilities currently available to the 
juvenile court.
	(g)  If the petition alleges multiple offenses that 
constitute more than one criminal transaction, the juvenile court 
shall either retain or transfer all offenses relating to a single 
transaction.  A child is not subject to criminal prosecution at any 
time for any offense arising out of a criminal transaction for which 
the juvenile court retains jurisdiction.
	(h)  If the juvenile court waives jurisdiction, it shall 
state specifically in the order its reasons for waiver and certify 
its action, including the written order and findings of the court, 
and shall transfer the person to the appropriate court for criminal 
proceedings and cause the results of the diagnostic study of the 
person ordered under Subsection (d), including psychological 
information, to be transferred to the appropriate criminal 
prosecutor.  On transfer of the person for criminal proceedings, 
the person shall be dealt with as an adult and in accordance with 
the Code of Criminal Procedure.  The transfer of custody is an 
arrest.
	(i)  A waiver under this section is a waiver of jurisdiction 
over the child and the criminal court may not remand the child to 
the jurisdiction of the juvenile court.
	(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:
		(1)  the person is 18 years of age or older;                                  
		(2)  the person was:                                                          
			(A)  10 years of age or older and under 17 years of 
age at the time the person is alleged to have committed a capital 
felony or an offense under Section 19.02, Penal Code;
			(B)  14 years of age or older and under 17 years of 
age at the time the person is alleged to have committed an 
aggravated controlled substance felony or a felony of the first 
degree other than an offense under Section 19.02, Penal Code;  or
			(C)  15 years of age or older and under 17 years of 
age at the time the person is alleged to have committed a felony of 
the second or third degree or a state jail felony;
		(3)  no adjudication concerning the alleged offense has 
been made or no adjudication hearing concerning the offense has 
been conducted;
		(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;  or
			(B)  after due diligence of the state it was not 
practicable to proceed in juvenile court before the 18th birthday 
of the person because:
				(i)  the state did not have probable cause to 
proceed in juvenile court and new evidence has been found since the 
18th birthday of the person;
				(ii)  the person could not be found;  or                                    
				(iii)  a previous transfer order was 
reversed by an appellate court or set aside by a district court;  
and
		(5)  the juvenile court determines that there is 
probable cause to believe that the child before the court committed 
the offense alleged.
	(k)  The petition and notice requirements of Sections 53.04, 
53.05, 53.06, and 53.07 of this code must be satisfied, and the 
summons must state that the hearing is for the purpose of 
considering waiver of jurisdiction under Subsection (j) of this 
section.
	(l)  The juvenile court shall conduct a hearing without a 
jury to consider waiver of jurisdiction under Subsection (j) of 
this section.
	(m)  Notwithstanding any other provision of this section, 
the juvenile court shall waive its exclusive original jurisdiction 
and transfer a child to the appropriate district court or criminal 
court for criminal proceedings if:
		(1)  the child has previously been transferred to a 
district court or criminal district court for criminal proceedings 
under this section, unless:
			(A)  the child was not indicted in the matter 
transferred by the grand jury;
			(B)  the child was found not guilty in the matter 
transferred;             
			(C)  the matter transferred was dismissed with 
prejudice;  or              
			(D)  the child was convicted in the matter 
transferred, the conviction was reversed on appeal, and the appeal 
is final;  and
		(2)  the child is alleged to have violated a penal law 
of the grade of felony.
	(n)  A mandatory transfer under Subsection (m) may be made 
without conducting the study required in discretionary transfer 
proceedings by Subsection (d).  The requirements of Subsection (b) 
that the summons state that the purpose of the hearing is to 
consider discretionary transfer to criminal court does not apply to 
a transfer proceeding under Subsection (m).  In a proceeding under 
Subsection (m), it is sufficient that the summons provide fair 
notice that the purpose of the hearing is to consider mandatory 
transfer to criminal court.
	(o)  If a respondent is taken into custody for possible 
discretionary transfer proceedings under Subsection (j), the 
juvenile court shall hold a detention hearing in the same manner as 
provided by Section 54.01, except that the court shall order the 
respondent released unless it finds that the respondent:
		(1)  is likely to abscond or be removed from the 
jurisdiction of the court; 
		(2)  may be dangerous to himself or herself or may 
threaten the safety of the public if released;  or
		(3)  has previously been found to be a delinquent child 
or has previously been convicted of a penal offense punishable by a 
term of jail or prison and is likely to commit an offense if 
released.
	(p)  If the juvenile court does not order a respondent 
released under Subsection (o), the court shall, pending the 
conclusion of the discretionary transfer hearing, order that the 
respondent be detained in:
		(1)  a certified juvenile detention facility as 
provided by Subsection (q);  or
		(2)  an appropriate county facility for the detention 
of adults accused of criminal offenses.
	(q)  The detention of a respondent in a certified juvenile 
detention facility must comply with the detention requirements 
under this title, except that, to the extent practicable, the 
person shall be kept separate from children detained in the same 
facility.
	(r)  If the juvenile court orders a respondent detained in a 
county facility under Subsection (p), the county sheriff shall take 
custody of the respondent under the juvenile court's order.  The 
juvenile court shall set or deny bond for the respondent as required 
by the Code of Criminal Procedure and other law applicable to the 
pretrial detention of adults accused of criminal offenses.

Acts 1973, 63rd Leg., p. 1460, ch. 544, § 1, eff. Sept. 1, 1973.  
Amended by Acts 1975, 64th Leg., p. 2156, ch. 693, § 16, eff. 
Sept. 1, 1975;  Acts 1987, 70th Leg., ch. 140, § 1 to 3, eff. 
Sept. 1, 1987;  Acts 1995, 74th Leg., ch. 262, § 34, eff. Jan. 1, 
1996;  Acts 1999, 76th Leg., ch. 1477, § 8, eff. Sept. 1, 1999.

Last modified: August 10, 2007