Can a Texas adult probation department refuse to supervise a teenager who was convicted of perjury in criminal court?

TX AG Opinion DM-0461: Can an adult probation department refuse to supervise a teenage perjury defendant?

Plain-English summary

The Frio County Attorney laid out an unusual situation. A 16-year-old was tried in a regular criminal court, not juvenile court, convicted of perjury, sentenced to jail, given a suspended sentence, and placed on community supervision (the formal name for adult probation in Texas). The county's community supervision and corrections department then refused to supervise the teenager, reasoning that he was a juvenile who had never been certified to stand trial as an adult, and that supervising him would expose him to misdemeanor and felony probationers when they reported each month. The county attorney asked the Attorney General whether the department could refuse.

The Attorney General said no. He started with how perjury fits into Texas's split system for handling young offenders. Most delinquent conduct by a person aged 10 to 17 is the exclusive business of the juvenile courts, but perjury is a deliberate exception. Family Code section 51.03(c) allows criminal proceedings against a child for perjury, section 51.08 excuses perjury from the rule that criminal courts must transfer a child's case to juvenile court, and Penal Code section 8.07(a)(1) permits prosecution for perjury even for conduct committed before age 15. The reason, as the opinion explained by quoting a leading juvenile-law treatise, traces to the Texas Constitution's requirement that a witness testify "subject to the pains and penalties of perjury": giving criminal courts concurrent jurisdiction over juvenile perjury removes any doubt that a young witness can be held to that oath.

Because a teen prosecuted for perjury in criminal court is, for that case, no less subject to the law than a child certified as an adult, the rest followed. The Attorney General found no statute letting a community supervision department turn away a defendant on account of age. He read Family Code section 51.12, the separation rule the county relied on, as applying only to children held in detention facilities, not to probation reporting. He pointed to Human Resources Code section 142.003, which expressly lets a small county contract with a community supervision department to provide juvenile probation services, as evidence the legislature did not see such supervision as against public policy. And he stressed that placing a defendant on community supervision is the court's decision alone; once the court orders it, the department cannot refuse the assignment in defiance of the order. The department could, however, take practical steps to limit the teen's contact with adult probationers.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Penal Code, Family Code, and community-supervision statutes this opinion construed (including Code of Criminal Procedure article 42.12, which was later recodified) have all changed since 1997. Confirm the current law before relying on any specific provision here.

Who this opinion affected (as of 1997)

Community supervision and corrections departments: The opinion held a department could not refuse to supervise a defendant the criminal court had placed on community supervision, even a juvenile, because the department lacks authority to override the court's order or to screen out defendants by age.

Criminal court judges: The opinion treated the decision to grant community supervision as belonging solely to the court, and found no statute barring a court from placing a convicted juvenile perjurer on community supervision because of age.

County attorneys and prosecutors: The opinion confirmed that perjury and aggravated perjury are among the narrow offenses for which a person aged 10 to 17 may be prosecuted in criminal court without a transfer order from the juvenile court.

Common questions

Why can a teenager be tried for perjury in adult criminal court at all?
The opinion explained that perjury is a deliberate exception to the usual rule that juvenile courts have exclusive jurisdiction over young offenders. Family Code section 51.03(c) allows criminal proceedings against a child for perjury, section 51.08 exempts perjury from mandatory transfer to juvenile court, and Penal Code section 8.07(a)(1) lets the state prosecute perjury even for conduct before age 15. The opinion noted the reason ties back to the constitutional requirement that witnesses testify under the penalties of perjury.

Could the probation department refuse the case because the defendant was a minor?
No. The opinion found no statute allowing a community supervision and corrections department to refuse a defendant because of age, and held that once the court ordered community supervision, the department had no discretion to decline it.

Doesn't the law require keeping juveniles separated from adults?
The opinion read Family Code section 51.12, the sight-and-sound separation rule, as applying only to children detained in a detention facility next to an adult jail, not to a teen reporting to a probation office. It added that the department could still minimize contact, for example by using a separate waiting area or a different meeting location.

Who decides whether someone gets community supervision?
The opinion stated that placing a defendant on community supervision is within the sole province of the judiciary. The department's role is to supervise, not to decide whether community supervision is appropriate in a particular case.

Background and statutory framework

Perjury is a Class A misdemeanor under Penal Code section 37.02, and aggravated perjury is a third-degree felony under section 37.03; conduct that constitutes either is delinquent conduct under Family Code section 51.03(a). A juvenile court generally has exclusive jurisdiction over delinquent conduct by a juvenile (Family Code section 51.04), but perjury is carved out: section 51.03(c) provides that nothing in title 3 of the Family Code prevents criminal proceedings against a child for perjury, and section 51.08, which otherwise requires a criminal court to transfer a child's case to juvenile court, excepts a proceeding charging perjury. Penal Code section 8.07(a)(1) likewise allows prosecution for perjury or aggravated perjury committed before age 15. The result, the opinion observed (quoting Robert O. Dawson, Texas Juvenile Law), is that perjury and aggravated perjury are the only offenses for which a juvenile court or a criminal court has jurisdiction without a prior transfer order, a unique status the treatise traced to the Texas Constitution's witness-oath provision (Tex. Const. art. I, § 5) and the concern, reflected in Santillian v. State, 182 S.W.2d 812 (Tex. Crim. App. 1944), that a witness subject only to juvenile proceedings might not be competent under that provision.

Against that backdrop, the county relied on Family Code section 51.12, which requires that a child detained in a juvenile detention facility be separated by sight and sound from adults detained in the same building, and on section 52.02. The opinion concluded that section 51.12 governs detention facilities only and does not bar a community supervision and corrections department from supervising a sixteen-year-old. It pointed to Human Resources Code section 142.003(a)(1), which lets a county without enough juvenile cases to justify a juvenile probation department contract with a community supervision and corrections department for juvenile probation services, as express legislative approval undercutting any public-policy objection.

Finally, the opinion grounded its conclusion in the separation of judicial and departmental roles. Under Code of Criminal Procedure article 42.12, sections 1 and 10, the decision to suspend a sentence and grant community supervision rests wholly with the court that tried the defendant; community supervision and corrections departments, established under Government Code chapter 76, exist to supervise community supervision, not to decide whether it is appropriate. A teen tried for perjury in criminal court, the opinion reasoned, is no less subject to the law than a child certified as an adult under Family Code section 54.02, and the department could not refuse a supervision assignment the court had ordered.

Citations

Statutes:

• Tex. Penal Code §§ 8.07(a)(1), 37.02, 37.03
• Tex. Fam. Code §§ 51.03, 51.04, 51.08, 51.12, 52.02, 54.02
• Tex. Hum. Res. Code § 142.003
• Tex. Code Crim. Proc. art. 42.12, §§ 1, 10
• Tex. Gov't Code ch. 76
• Tex. Const. art. I, § 5

Cases:

• Santillian v. State, 182 S.W.2d 812 (Tex. Crim. App. 1944)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0461
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0461.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

December 18, 1997

The Honorable James Warren Smith, Jr.
Frio County Attorney
500 East San Antonio, Box 1
Pearsall, Texas 78061-3100

Opinion No. DM-461

Re: Whether a community supervision and corrections department may refuse to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision by the criminal court (RQ-990)

Dear Mr. Smith:

You ask whether a community supervision and corrections department may refuse to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision by the criminal court. We conclude that a community supervision and corrections department must supervise a defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision by the criminal court, regardless of the defendant's age.

As you note, a person between the ages of ten and seventeen, who would generally be within the jurisdiction of the juvenile court system, may be tried for perjury or aggravated perjury in either juvenile court or in a regular criminal proceeding; thus, juvenile courts and criminal courts have concurrent jurisdiction over a person between the ages of ten and seventeen who commits perjury or aggravated perjury. You explain that in your county a sixteen-year-old defendant was tried in a criminal proceeding by a criminal court, convicted of perjury under Penal Code section 37.02, and sentenced to jail. The court suspended the jail sentence and placed the defendant on community supervision. You state that the county community supervision and corrections department then refused to supervise the defendant because the defendant is a juvenile and was not certified as an adult under Family Code section 54.02.

You suggest that a community supervision and corrections department is not authorized to supervise a sixteen-year-old defendant "because the juvenile would of necessity be exposed to misdemeanant and felonious probationers when they report monthly to the department." You rely on Family Code section 51.12, a provision mandating that a child detained in a juvenile detention facility adjacent to an adult jail, lockup, or other place of secure confinement "be separated by sight and sound from adults detained in the same building," and similar provisions in the Family Code.

We disagree with the conclusion that a community supervision and corrections department is not authorized to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision by the court. First, Family Code section 51.12 requires the separation of children and adults in detention facilities; it does not require the separation of children and adults in any other context. We are not aware of any provision that precludes a community supervision and corrections department from supervising a sixteen-year-old defendant. Indeed, we have found one statute that expressly authorizes a community supervision and corrections department to supervise juveniles, Human Resources Code section 142.003, which permits a county that does not have a sufficient number of juvenile probation cases to justify a juvenile probation department to contract with a community supervision and corrections department to provide juvenile probation services. This express legislative approval of such an arrangement undermines any contention that supervision of a sixteen-year-old defendant by a community supervision and corrections department is somehow contrary to public policy.

Second, as explained above, the laws of this state provide that a child may be prosecuted for perjury in a criminal proceeding. See supra notes 1-3 and accompanying text. Given those provisions, we believe that a sixteen-year-old defendant who is tried for perjury in a criminal proceeding is no less an adult in the eyes of the law than a child certified as an adult under Family Code section 54.02. We are aware of no statute that would preclude a criminal court from placing a convicted perjurer on community supervision because of his age. Furthermore, once a court has placed such a defendant on community supervision, we do not believe the community supervision and corrections department has the discretion to refuse to supervise the defendant in defiance of the court's order.

In sum, we do not believe that a community supervision and corrections department is authorized to refuse to supervise a sixteen-year-old defendant under the circumstances you describe. If the community supervision and corrections department is concerned about exposing the sixteen-year-old defendant to adult defendants on its premises, the department may take steps to minimize such contacts, such as providing a separate waiting area or arranging for the defendant to meet with his community supervision officer at a different location.

SUMMARY

A community supervision and corrections department must supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision by a criminal court, regardless of the defendant's age.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes

1. Perjury is punishable as a class A misdemeanor, Penal Code § 37.02, and aggravated perjury is punishable as a third degree felony, id. § 37.03. Therefore, conduct that constitutes either perjury or aggravated perjury constitutes delinquent conduct for purposes of Family Code section 51.03(a) (delinquent conduct is conduct that violates penal law of this state and is punishable by imprisonment or confinement in jail).

2. A juvenile court generally has exclusive jurisdiction over cases involving delinquent conduct by a juvenile. See Fam. Code § 51.04. Family Code section 51.03(c) makes an exception for perjury, however, by providing that nothing in title 3 of the Family Code prevents criminal proceedings against a child for perjury. Family Code section 51.08, which requires a criminal court to transfer a case involving a child to the juvenile court, excepts a proceeding in which a child is charged with perjury. In addition, Penal Code section 8.07(a)(1) provides that a person may not be prosecuted for any penal offense that he committed when younger than 15 years of age except, among other offenses, perjury or aggravated perjury.

3. See Robert O. Dawson, Texas Juvenile Law 35 (4th ed. 1996). As Professor Dawson observes, "[p]erjury and aggravated perjury are the only criminal offenses for which either a juvenile court or a criminal court has jurisdiction without a prior transfer order from the other court." Id. He explains the reason for the unique status of these offenses as follows: "Article 1, Section 5 of the Texas Constitution provides that the oath required of a witness testifying in any judicial proceeding, civil or criminal, must be taken 'subject to the pains and penalties of perjury.' There is case law that suggests that since juvenile proceedings are nominally civil, not criminal, a witness who would be subject only to juvenile proceedings for lying under oath might not be a competent witness under that constitutional provision. See Santillian v. State, 182 S.W.2d 812 (Tex. Crim. App. 1944). That, in turn, might mean that a juvenile could not testify in any court proceedings. Rather than incur such a catastrophic risk, the Family Code gives the criminal courts concurrent jurisdiction over those offenses in order to leave no doubt that persons of juvenile court age, if otherwise competent witnesses, may testify under the constitutional qualifying provision." Id. (emphasis in original).

4. Fam. Code § 51.12(f).

5. You also cite Family Code section 52.02.

6. See Hum. Res. Code § 142.003(a)(1).

7. Placing defendants on community supervision is within the sole province of the judiciary. See Code Crim. Proc. art. 42.12 §§ 1 (purpose of article 42.12 is to place wholly within state courts responsibility for determining when imposition of sentence in certain cases shall be suspended), 10 (only court in which defendant tried may grant or revoke community supervision). Community supervision and corrections departments exist, in part, to supervise community supervision; departments have no authority to ultimately determine whether community supervision is appropriate in a particular case. See generally Code Crim. Proc. art. 42.12; Gov't Code ch. 76 (establishing community supervision and corrections departments).

8. We do not address whether a community supervision and corrections department is authorized to contract with a juvenile probation department to supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding and placed on community supervision, nor do we address whether a criminal court is authorized to order a juvenile probation department to supervise such a defendant.