CHAPTER 53. PROCEEDINGS PRIOR TO JUDICIAL PROCEEDINGS
FAMILY CODE
TITLE 3. JUVENILE JUSTICE CODE
CHAPTER 53. PROCEEDINGS PRIOR TO JUDICIAL PROCEEDINGS
Sec. 53.01. PRELIMINARY INVESTIGATION AND DETERMINATIONS; NOTICE
TO PARENTS. (a) On referral of a person believed to be a child
or on referral of the person's case to the office or official
designated by the juvenile board, the intake officer, probation
officer, or other person authorized by the board shall conduct a
preliminary investigation to determine whether:
(1) the person referred to juvenile court is a child within the
meaning of this title; and
(2) there is probable cause to believe the person:
(A) engaged in delinquent conduct or conduct indicating a need
for supervision; or
(B) is a nonoffender who has been taken into custody and is
being held solely for deportation out of the United States.
(b) If it is determined that the person is not a child or there
is no probable cause, the person shall immediately be released.
(c) When custody of a child is given to the office or official
designated by the juvenile board, the intake officer, probation
officer, or other person authorized by the board shall promptly
give notice of the whereabouts of the child and a statement of
the reason the child was taken into custody to the child's
parent, guardian, or custodian unless the notice given under
Section 52.02(b) provided fair notice of the child's present
whereabouts.
(d) Unless the juvenile board approves a written procedure
proposed by the office of prosecuting attorney and chief juvenile
probation officer which provides otherwise, if it is determined
that the person is a child and, regardless of a finding of
probable cause, or a lack thereof, there is an allegation that
the child engaged in delinquent conduct of the grade of felony,
or conduct constituting a misdemeanor offense involving violence
to a person or the use or possession of a firearm, illegal knife,
or club, as those terms are defined by Section 46.01, Penal Code,
or prohibited weapon, as described by Section 46.05, Penal Code,
the case shall be promptly forwarded to the office of the
prosecuting attorney, accompanied by:
(1) all documents that accompanied the current referral; and
(2) a summary of all prior referrals of the child to the
juvenile court, juvenile probation department, or a detention
facility.
(e) If a juvenile board adopts an alternative referral plan
under Subsection (d), the board shall register the plan with the
Texas Juvenile Probation Commission.
(f) A juvenile board may not adopt an alternate referral plan
that does not require the forwarding of a child's case to the
prosecuting attorney as provided by Subsection (d) if probable
cause exists to believe that the child engaged in delinquent
conduct that violates Section 19.03, Penal Code (capital murder),
or Section 19.02, Penal Code (murder).
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 21, eff.
Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1374, Sec. 5, eff. Sept.
1, 1997; Acts 2001, 77th Leg., ch. 1297, Sec. 18, eff. Sept. 1,
2001; Acts 2003, 78th Leg., ch. 283, Sec. 12, eff. Sept. 1, 2003.
Sec. 53.012. REVIEW BY PROSECUTOR. (a) The prosecuting
attorney shall promptly review the circumstances and allegations
of a referral made under Section 53.01 for legal sufficiency and
the desirability of prosecution and may file a petition without
regard to whether probable cause was found under Section 53.01.
(b) If the prosecuting attorney does not file a petition
requesting the adjudication of the child referred to the
prosecuting attorney, the prosecuting attorney shall:
(1) terminate all proceedings, if the reason is for lack of
probable cause; or
(2) return the referral to the juvenile probation department for
further proceedings.
(c) The juvenile probation department shall promptly refer a
child who has been returned to the department under Subsection
(b)(2) and who fails or refuses to participate in a program of
the department to the prosecuting attorney for review of the
child's case and determination of whether to file a petition.
Added by Acts 1995, 74th Leg., ch. 262, Sec. 22, eff. Jan. 1,
1996.
Sec. 53.013. PROGRESSIVE SANCTIONS PROGRAM. Each juvenile board
may adopt a progressive sanctions program using the model for
progressive sanctions in Chapter 59.
Added by Acts 1995, 74th Leg., ch. 262, Sec. 22, eff. Jan. 1,
1996. Amended by Acts 1997, 75th Leg., ch. 1086, Sec. 7, eff.
Sept. 1, 1997; Acts 2003, 78th Leg., ch. 479, Sec. 1, eff. Sept.
1, 2003.
Sec. 53.02. RELEASE FROM DETENTION. (a) If a child is brought
before the court or delivered to a detention facility as
authorized by Sections 51.12(a)(3) and (4), the intake or other
authorized officer of the court shall immediately make an
investigation and shall release the child unless it appears that
his detention is warranted under Subsection (b). The release may
be conditioned upon requirements reasonably necessary to insure
the child's appearance at later proceedings, but the conditions
of the release must be in writing and filed with the office or
official designated by the court and a copy furnished to the
child.
(b) A child taken into custody may be detained prior to hearing
on the petition only if:
(1) the child is likely to abscond or be removed from the
jurisdiction of the court;
(2) suitable supervision, care, or protection for the child is
not being provided by a parent, guardian, custodian, or other
person;
(3) the child has no parent, guardian, custodian, or other
person able to return the child to the court when required;
(4) the child may be dangerous to himself or herself or the
child may threaten the safety of the public if released;
(5) the child has previously been found to be a delinquent child
or has previously been convicted of a penal offense punishable by
a term in jail or prison and is likely to commit an offense if
released; or
(6) the child's detention is required under Subsection (f).
(c) If the child is not released, a request for detention
hearing shall be made and promptly presented to the court, and an
informal detention hearing as provided in Section 54.01 of this
code shall be held promptly, but not later than the time required
by Section 54.01 of this code.
(d) A release of a child to an adult under Subsection (a) must
be conditioned on the agreement of the adult to be subject to the
jurisdiction of the juvenile court and to an order of contempt by
the court if the adult, after notification, is unable to produce
the child at later proceedings.
(e) Unless otherwise agreed in the memorandum of understanding
under Section 37.011, Education Code, in a county with a
population greater than 125,000, if a child being released under
this section is expelled under Section 37.007, Education Code,
the release shall be conditioned on the child's attending a
juvenile justice alternative education program pending a deferred
prosecution or formal court disposition of the child's case.
(f) A child who is alleged to have engaged in delinquent conduct
and to have used, possessed, or exhibited a firearm, as defined
by Section 46.01, Penal Code, in the commission of the offense
shall be detained until the child is released at the direction of
the judge of the juvenile court, a substitute judge authorized by
Section 51.04(f), or a referee appointed under Section 51.04(g),
including an oral direction by telephone, or until a detention
hearing is held as required by Section 54.01.
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973. Amended by Acts 1979, 66th Leg., p. 1102, ch. 518, Sec. 1,
eff. June 11, 1979; Acts 1981, 67th Leg., p. 291, ch. 115, Sec.
1, eff. Aug. 31, 1981; Acts 1995, 74th Leg., ch. 262, Sec. 23,
eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1015, Sec. 17, eff.
June 19, 1997; Acts 1997, 75th Leg., ch. 1374, Sec. 6, eff. Sept.
1, 1997; Acts 1999, 76th Leg., ch. 232, Sec. 1, eff. Sept. 1,
1999.
Sec. 53.03. DEFERRED PROSECUTION. (a) Subject to Subsections
(e) and (g), if the preliminary investigation required by Section
53.01 of this code results in a determination that further
proceedings in the case are authorized, the probation officer or
other designated officer of the court, subject to the direction
of the juvenile court, may advise the parties for a reasonable
period of time not to exceed six months concerning deferred
prosecution and rehabilitation of a child if:
(1) deferred prosecution would be in the interest of the public
and the child;
(2) the child and his parent, guardian, or custodian consent
with knowledge that consent is not obligatory; and
(3) the child and his parent, guardian, or custodian are
informed that they may terminate the deferred prosecution at any
point and petition the court for a court hearing in the case.
(b) Except as otherwise permitted by this title, the child may
not be detained during or as a result of the deferred prosecution
process.
(c) An incriminating statement made by a participant to the
person giving advice and in the discussions or conferences
incident thereto may not be used against the declarant in any
court hearing.
(d) The juvenile board may adopt a fee schedule for deferred
prosecution services and rules for the waiver of a fee for
financial hardship in accordance with guidelines that the Texas
Juvenile Probation Commission shall provide. The maximum fee is
$15 a month. If the board adopts a schedule and rules for waiver,
the probation officer or other designated officer of the court
shall collect the fee authorized by the schedule from the parent,
guardian, or custodian of a child for whom a deferred prosecution
is authorized under this section or waive the fee in accordance
with the rules adopted by the board. The officer shall deposit
the fees received under this section in the county treasury to
the credit of a special fund that may be used only for juvenile
probation or community-based juvenile corrections services or
facilities in which a juvenile may be required to live while
under court supervision. If the board does not adopt a schedule
and rules for waiver, a fee for deferred prosecution services may
not be imposed.
(e) A prosecuting attorney may defer prosecution for any child.
A probation officer or other designated officer of the court:
(1) may not defer prosecution for a child for a case that is
required to be forwarded to the prosecuting attorney under
Section 53.01(d); and
(2) may defer prosecution for a child who has previously been
adjudicated for conduct that constitutes a felony only if the
prosecuting attorney consents in writing.
(f) The probation officer or other officer designated by the
court supervising a program of deferred prosecution for a child
under this section shall report to the juvenile court any
violation by the child of the program.
(g) Prosecution may not be deferred for a child alleged to have
engaged in conduct that:
(1) is an offense under Section 49.04, 49.05, 49.06, 49.07, or
49.08, Penal Code; or
(2) is a third or subsequent offense under Section 106.04 or
106.041, Alcoholic Beverage Code.
(h) If the child is alleged to have engaged in delinquent
conduct or conduct indicating a need for supervision that
violates Section 28.08, Penal Code, deferred prosecution under
this section may include:
(1) voluntary attendance in a class with instruction in
self-responsibility and empathy for a victim of an offense
conducted by a local juvenile probation department, if the class
is available; and
(2) voluntary restoration of the property damaged by the child
by removing or painting over any markings made by the child, if
the owner of the property consents to the restoration.
(i) The court may defer prosecution for a child at any time:
(1) for an adjudication that is to be decided by a jury trial,
before the jury is sworn;
(2) for an adjudication before the court, before the first
witness is sworn; or
(3) for an uncontested adjudication, before the child pleads to
the petition or agrees to a stipulation of evidence.
(j) The court may add the period of deferred prosecution under
Subsection (i) to a previous order of deferred prosecution,
except that the court may not place the child on deferred
prosecution for a combined period longer than one year.
(k) In deciding whether to grant deferred prosecution under
Subsection (i), the court may consider professional
representations by the parties concerning the nature of the case
and the background of the respondent. The representations made
under this subsection by the child or counsel for the child are
not admissible against the child at trial should the court reject
the application for deferred prosecution.
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973. Amended by Acts 1983, 68th Leg., p. 3261, ch. 565, Sec. 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1040, Sec. 22, eff.
Sept. 1, 1987; Acts 1995, 74th Leg., ch. 262, Sec. 24, eff. Jan.
1, 1996; Acts 1997, 75th Leg., ch. 593, Sec. 6, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1013, Sec. 16, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 62, Sec. 19.01(17), eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 283, Sec. 13, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch.
949, Sec. 11, eff. September 1, 2005.
Sec. 53.035. GRAND JURY REFERRAL. (a) The prosecuting attorney
may, before filing a petition under Section 53.04, refer an
offense to a grand jury in the county in which the offense is
alleged to have been committed.
(b) The grand jury has the same jurisdiction and powers to
investigate the facts and circumstances concerning an offense
referred to the grand jury under this section as it has to
investigate other criminal activity.
(c) If the grand jury votes to take no action on an offense
referred to the grand jury under this section, the prosecuting
attorney may not file a petition under Section 53.04 concerning
the offense unless the same or a successor grand jury approves
the filing of the petition.
(d) If the grand jury votes for approval of the prosecution of
an offense referred to the grand jury under this section, the
prosecuting attorney may file a petition under Section 53.04.
(e) The approval of the prosecution of an offense by a grand
jury under this section does not constitute approval of a
petition by a grand jury for purposes of Section 53.045.
Added by Acts 1999, 76th Leg., ch. 1477, Sec. 6, eff. Sept. 1,
1999.
Sec. 53.04. COURT PETITION; ANSWER. (a) If the preliminary
investigation, required by Section 53.01 of this code results in
a determination that further proceedings are authorized and
warranted, a petition for an adjudication or transfer hearing of
a child alleged to have engaged in delinquent conduct or conduct
indicating a need for supervision may be made as promptly as
practicable by a prosecuting attorney who has knowledge of the
facts alleged or is informed and believes that they are true.
(b) The proceedings shall be styled "In the matter of
______________."
(c) The petition may be on information and belief.
(d) The petition must state:
(1) with reasonable particularity the time, place, and manner of
the acts alleged and the penal law or standard of conduct
allegedly violated by the acts;
(2) the name, age, and residence address, if known, of the child
who is the subject of the petition;
(3) the names and residence addresses, if known, of the parent,
guardian, or custodian of the child and of the child's spouse, if
any;
(4) if the child's parent, guardian, or custodian does not
reside or cannot be found in the state, or if their places of
residence are unknown, the name and residence address of any
known adult relative residing in the county or, if there is none,
the name and residence address of the known adult relative
residing nearest to the location of the court; and
(5) if the child is alleged to have engaged in habitual felony
conduct, the previous adjudications in which the child was found
to have engaged in conduct violating penal laws of the grade of
felony.
(e) An oral or written answer to the petition may be made at or
before the commencement of the hearing. If there is no answer, a
general denial of the alleged conduct is assumed.
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 25, eff.
Jan. 1, 1996.
Sec. 53.045. VIOLENT OR HABITUAL OFFENDERS. (a) Except as
provided by Subsection (e), the prosecuting attorney may refer
the petition to the grand jury of the county in which the court
in which the petition is filed presides if the petition alleges
that the child engaged in delinquent conduct that constitutes
habitual felony conduct as described by Section 51.031 or that
included the violation of any of the following provisions:
(1) Section 19.02, Penal Code (murder);
(2) Section 19.03, Penal Code (capital murder);
(3) Section 19.04, Penal Code (manslaughter);
(4) Section 20.04, Penal Code (aggravated kidnapping);
(5) Section 22.011, Penal Code (sexual assault) or Section
22.021, Penal Code (aggravated sexual assault);
(6) Section 22.02, Penal Code (aggravated assault);
(7) Section 29.03, Penal Code (aggravated robbery);
(8) Section 22.04, Penal Code (injury to a child, elderly
individual, or disabled individual), if the offense is punishable
as a felony, other than a state jail felony;
(9) Section 22.05(b), Penal Code (felony deadly conduct
involving discharging a firearm);
(10) Subchapter D, Chapter 481, Health and Safety Code, if the
conduct constitutes a felony of the first degree or an aggravated
controlled substance felony (certain offenses involving
controlled substances);
(11) Section 15.03, Penal Code (criminal solicitation);
(12) Section 21.11(a)(1), Penal Code (indecency with a child);
(13) Section 15.031, Penal Code (criminal solicitation of a
minor);
(14) Section 15.01, Penal Code (criminal attempt), if the
offense attempted was an offense under Section 19.02, Penal Code
(murder), or Section 19.03, Penal Code (capital murder), or an
offense listed by Section 3g(a)(1), Article 42.12, Code of
Criminal Procedure;
(15) Section 28.02, Penal Code (arson), if bodily injury or
death is suffered by any person by reason of the commission of
the conduct;
(16) Section 49.08, Penal Code (intoxication manslaughter); or
(17) Section 15.02, Penal Code (criminal conspiracy), if the
offense made the subject of the criminal conspiracy includes a
violation of any of the provisions referenced in Subdivisions (1)
through (16).
(b) A grand jury may approve a petition submitted to it under
this section by a vote of nine members of the grand jury in the
same manner that the grand jury votes on the presentment of an
indictment.
(c) The grand jury has all the powers to investigate the facts
and circumstances relating to a petition submitted under this
section as it has to investigate other criminal activity but may
not issue an indictment unless the child is transferred to a
criminal court as provided by Section 54.02 of this code.
(d) If the grand jury approves of the petition, the fact of
approval shall be certified to the juvenile court, and the
certification shall be entered in the record of the case. For
the purpose of the transfer of a child to the Texas Department of
Criminal Justice as provided by Section 61.084(c), Human
Resources Code, a juvenile court petition approved by a grand
jury under this section is an indictment presented by the grand
jury.
(e) The prosecuting attorney may not refer a petition that
alleges the child engaged in conduct that violated Section
22.011(a)(2), Penal Code, or Sections 22.021(a)(1)(B) and (2)(B),
Penal Code, unless the child is more than three years older than
the victim of the conduct.
Added by Acts 1987, 70th Leg., ch. 385, Sec. 7, eff. Sept. 1,
1987. Amended by Acts 1991, 72nd Leg., ch. 574, Sec. 1, eff.
Sept. 1, 1991; Acts 1995, 74th Leg., ch. 262, Sec. 26, 27, eff.
Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1086, Sec. 8, eff. Sept.
1, 1997; Acts 2001, 77th Leg., ch. 1297, Sec. 19, eff. Sept. 1,
2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
908, Sec. 10, eff. September 1, 2007.
Sec. 53.05. TIME SET FOR HEARING. (a) After the petition has
been filed, the juvenile court shall set a time for the hearing.
(b) The time set for the hearing shall not be later than 10
working days after the day the petition was filed if:
(1) the child is in detention; or
(2) the child will be taken into custody under Section 53.06(d)
of this code.
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 28, eff.
Jan. 1, 1996.
Sec. 53.06. SUMMONS. (a) The juvenile court shall direct
issuance of a summons to:
(1) the child named in the petition;
(2) the child's parent, guardian, or custodian;
(3) the child's guardian ad litem; and
(4) any other person who appears to the court to be a proper or
necessary party to the proceeding.
(b) The summons must require the persons served to appear before
the court at the time set to answer the allegations of the
petition. A copy of the petition must accompany the summons.
(c) The court may endorse on the summons an order directing the
person having the physical custody or control of the child to
bring the child to the hearing. A person who violates an order
entered under this subsection may be proceeded against under
Section 53.08 or 54.07 of this code.
(d) If it appears from an affidavit filed or from sworn
testimony before the court that immediate detention of the child
is warranted under Section 53.02(b) of this code, the court may
endorse on the summons an order that a law-enforcement officer
shall serve the summons and shall immediately take the child into
custody and bring him before the court.
(e) A party, other than the child, may waive service of summons
by written stipulation or by voluntary appearance at the hearing.
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 29, eff.
Jan. 1, 1996.
Sec. 53.07. SERVICE OF SUMMONS. (a) If a person to be served
with a summons is in this state and can be found, the summons
shall be served upon him personally at least two days before the
day of the adjudication hearing. If he is in this state and
cannot be found, but his address is known or can with reasonable
diligence be ascertained, the summons may be served on him by
mailing a copy by registered or certified mail, return receipt
requested, at least five days before the day of the hearing. If
he is outside this state but he can be found or his address is
known, or his whereabouts or address can with reasonable
diligence be ascertained, service of the summons may be made
either by delivering a copy to him personally or mailing a copy
to him by registered or certified mail, return receipt requested,
at least five days before the day of the hearing.
(b) The juvenile court has jurisdiction of the case if after
reasonable effort a person other than the child cannot be found
nor his post-office address ascertained, whether he is in or
outside this state.
(c) Service of the summons may be made by any suitable person
under the direction of the court.
(d) The court may authorize payment from the general funds of
the county of the costs of service and of necessary travel
expenses incurred by persons summoned or otherwise required to
appear at the hearing.
(e) Witnesses may be subpoenaed in accordance with the Texas
Code of Criminal Procedure, 1965.
Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,
1973.
Sec. 53.08. WRIT OF ATTACHMENT. (a) The juvenile court may
issue a writ of attachment for a person who violates an order
entered under Section 53.06(c).
(b) A writ of attachment issued under this section is executed
in the same manner as in a criminal proceeding as provided by
Chapter 24, Code of Criminal Procedure.
Added by Acts 1995, 74th Leg., ch. 262, Sec. 30, eff. Jan. 1,
1996.