Can a Texas child under 17 who is tried as an adult be held in a jail that does not separate them from adult inmates?

Plain-English summary

Jeri Yenne, the Brazoria County Criminal District Attorney, asked the Attorney General a narrow but important question about where juveniles can be held. When a child under seventeen is "certified" and moved out of juvenile court into adult criminal court to be prosecuted as an adult, can that child be detained in a facility that does not separate them from adult inmates?

The question arose from a 2011 law, Senate Bill 1209, which made several changes to juvenile law. One of those changes added article 4.19 to the Code of Criminal Procedure. Article 4.19 says that, notwithstanding a juvenile court's order to detain a child in a certified juvenile detention facility, the criminal court judge handling the case may order the child "transferred to another facility and treated as an adult as provided by this code." The District Attorney's office read that language as possibly overriding Family Code subsection 51.12(f), which requires that a detained child be "separated by sight and sound from adults detained in the same building."

The Attorney General disagreed with that reading. The opinion explained that article 4.19 authorizes treating a juvenile as an adult only "as provided by [the Code of Criminal Procedure]," and the Code of Criminal Procedure governs how prosecutions and trials are conducted, not the physical conditions of detention. The conditions under which a juvenile is held are governed by a different statute, section 51.12 of the Family Code. The same Senate Bill 1209 that created article 4.19 also amended section 51.12 to say that, for purposes of the separation requirement, a person under seventeen who is transferred to criminal court is still considered a child. Reading the two statutes together, the opinion concluded that a juvenile under seventeen who is certified as an adult may be moved to a different facility and tried as an adult, but must still be detained separately from adult inmates as subsection 51.12(f) requires.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Brazoria County Criminal District Attorney (as the opinion described it): The opinion answered the District Attorney's question directly. Article 4.19 did not give a criminal court the power to place an under-seventeen defendant in a facility that mixes them with adult detainees; the sight-and-sound separation rule in Family Code subsection 51.12(f) still applied.

County jails and juvenile detention facilities (as the opinion held for them): The opinion treated the separation requirement in subsection 51.12(f) as mandatory for any detainee under seventeen, even one certified to be tried as an adult. A "transfer to another facility" ordered under article 4.19 did not relieve a facility of the duty to keep that child separated by sight and sound from adults.

Juvenile boards (as the opinion described it): The opinion noted that Senate Bill 1209 separately required a juvenile board to set a policy on whether certain juveniles certified for adult prosecution may be held in a juvenile facility pending trial, under Human Resources Code section 152.0015. That policy choice was distinct from the separation duty the opinion addressed.

Common questions

If a teenager is tried as an adult in Texas, does that mean they can be put in an adult jail?
According to this opinion, not if they are under seventeen. The opinion concluded that such a child must still be held separately, by sight and sound, from adult detainees under Family Code subsection 51.12(f), even after being certified to stand trial as an adult.

What does "treated as an adult as provided by this code" actually cover?
The opinion read that phrase narrowly. It meant the juvenile could be subjected to the parts of the Code of Criminal Procedure that normally apply to adults, which govern how a prosecution and trial are conducted. The opinion stressed that the Code of Criminal Procedure does not generally govern the conditions of detention, so the phrase did not reach where or how the child is held.

Which law controls how a juvenile is housed?
The opinion identified section 51.12 of the Family Code, titled "Place and Conditions of Detention," as the controlling statute, with subsection (f) requiring sight-and-sound separation from adults.

Did Senate Bill 1209 change who counts as a "child" for this rule?
Yes, as the opinion described it. The 2011 law specified that a person under seventeen transferred to criminal court is still considered a child for the separation requirement, and it narrowed the old exception in subsection (h) so it applied only to people at least seventeen.

Background and statutory framework

Senate Bill 1209, enacted by the Eighty-second Legislature, restructured several pieces of juvenile law. See Act of May 27, 2011, 82d Leg., R.S., ch. 1087, §§ 1, 5, 2011 Tex. Gen. Laws 2822, 2823-24. It added article 4.19 to the Code of Criminal Procedure, allowing a criminal court judge with jurisdiction over a certified juvenile to order the child "transferred to another facility and treated as an adult as provided by this code," notwithstanding a juvenile court's detention order under Family Code section 54.02(h).

The same act amended Family Code section 51.12, which sets the place and conditions of detention for juveniles. Subsection (f) requires that a detained child "shall be separated by sight and sound from adults detained in the same building." Tex. Fam. Code Ann. § 51.12(f) (West Supp. 2011). The act specified that, for that separation requirement, a person under seventeen transferred to criminal court is considered a child, and it narrowed the exception in subsection (h) to people at least seventeen. The act also added Human Resources Code section 152.0015, requiring juvenile boards to set a policy on pretrial detention of certain certified juveniles.

The opinion applied the rule that statutory construction seeks the Legislature's intent drawn "from the entire act and not just isolated portions," 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008), and that the word "shall" is generally mandatory, City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002). Construing article 4.19 together with subsection 51.12(f), it concluded that the conduct-of-trial authority in article 4.19 did not displace the conditions-of-detention rule for a child under seventeen.

Citations

Cases:

• 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008)
• City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 4.19 (West Supp. 2011)
• Tex. Fam. Code Ann. § 51.12(f) (West Supp. 2011)
• Tex. Fam. Code Ann. § 51.12(h) (West Supp. 2011)
• Tex. Fam. Code Ann. § 54.02(h) (West Supp. 2011)
• Tex. Hum. Res. Code Ann. § 152.0015

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0927
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0927.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 7, 2012

The Honorable Jeri Yenne Opinion No. GA-0927
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Whether article 4.19 of the Code of Criminal
Angleton, Texas 77515 Procedure permits a child under the age of seventeen
who has been transferred to criminal court for
prosecution to be detained in a facility that does not
comply with subsection 51.12(f) of the Family Code
(RQ-1012-GA)

Dear Ms. Yenne:

You ask whether, under article 4.19 of the Code of Criminal Procedure, a child under the age of seventeen who has been transferred to criminal court for prosecution may be detained in a facility that does not comply with Family Code subsection 51.12(f).[1]

Article 4.19 of the Code of Criminal Procedure, which we will discuss in more detail below, was added during the regular session of the Eighty-second Legislature by Senate Bill 1209. See Act of May 27, 2011, 82d Leg., R.S., ch. 1087, §§ 1, 5, 2011 Tex. Gen. Laws 2822, 2823-24 ("Senate Bill 1209"). Among several changes to juvenile law, Senate Bill 1209 added a section to the Human Resources Code requiring a juvenile board to establish a policy specifying whether certain juveniles certified to be prosecuted as an adult may be detained in a juvenile facility pending trial. Senate Bill 1209, § 3, at 2823 (codified at TEX. HUM. RES. CODE ANN. § 152.0015).

Senate Bill 1209 also amended section 51.12 of the Family Code, concerning the place and conditions of detention of juveniles. Subsection 51.12(f) of the Family Code provides that a child detained in certain buildings "shall be separated by sight and sound from adults detained in the same building." TEX. FAM. CODE ANN. § 51.12(f) (West Supp. 2011). Senate Bill 1209 added a provision that, for purposes of the separation requirements in subsection (f), a juvenile under the age of seventeen who is transferred to criminal court for trial as an adult is to be considered a child. Senate Bill 1209, § 1, at 2822 (codified at TEX. FAM. CODE ANN. § 51.12(f)). Before it was amended by the Legislature, subsection (h) provided that section 51.12 did not apply after a juvenile is transferred to criminal court for prosecution.[2] Senate Bill 1209 narrowed the exception in subsection (h) to juveniles who are at least seventeen years of age. Senate Bill 1209, § 1, at 2822 (codified at TEX. FAM. CODE ANN. § 51.12(h)).

Further, Senate Bill 1209 added article 4.19 to the Code of Criminal Procedure:

Notwithstanding the order of a juvenile court to detain a child in a certified juvenile detention facility under section 54.02(h), Family Code, the judge of the criminal court having jurisdiction over the child may order the child to be transferred to another facility and treated as an adult as provided by this code.

Senate Bill 1209, § 5, at 2823 (codified at TEX. CODE CRIM. PROC. ANN. art. 4.19). This provision specifically governs juveniles who are being tried as adults in state criminal courts, rather than juvenile courts. TEX. CODE CRIM. PROC. ANN. art. 4.19 (West Supp. 2011); TEX. FAM. CODE ANN. § 54.02(h) (West Supp. 2011). Your request letter suggests that the authority to order that a child be "transferred to another facility and treated as an adult" overrides subsection 51.12(f) of the Family Code, which requires that a child be detained separately from adult detainees. Requestor's Brief at 1.

As the Texas Supreme Court has held, the purpose of statutory construction is to discern and give effect to the Legislature's intent. 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). Legislative intent must be derived "from the entire act and not just isolated portions," and a statute should be interpreted to give effect to all of its provisions. Id. Article 4.19 of the Code of Criminal Procedure broadly authorizes a court to order a child "to be transferred to another facility and treated as an adult as provided by this code." TEX. CODE CRIM. PROC. ANN. art. 4.19 (West Supp. 2011) (emphasis added). The statute expressly authorizes treating a juvenile as an adult only "as provided by [the Code of Criminal Procedure]." Id. The Code of Criminal Procedure generally addresses matters related to the conduct of criminal prosecutions and trials. By authorizing a court to order that a juvenile be "treated as an adult as provided by this code," article 4.19 provides for juveniles, on court order, to be subjected to the provisions of the Code of Criminal Procedure that are normally applicable to adults. Significantly, however, the Code of Criminal Procedure does not generally govern the conditions of detention.

Instead, other statutes govern the condition of confinement for individuals who are detained for criminal conduct. For juveniles, the relevant statute is section 51.12 of the Family Code. See TEX. FAM. CODE ANN. § 51.12 (West Supp. 2011) (entitled "Place and Conditions of Detention"). That statute prescribes conditions for the detention of juveniles, including a juvenile who has been certified to stand trial as an adult. Id. Subsection (f) provides that a child "shall" be detained in specified buildings separately from adult detainees. Id. § 51.12(f). Generally, courts construe the word "shall" as mandatory. City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002). As noted above, the Legislature amended subsection (f) during the Eighty-second legislative session to specify that a person under age seventeen who is transferred to criminal court for prosecution is considered a child for purposes of the separate-confinement requirement. Senate Bill 1209, § 1, at 2822. Further, subsection (h) was amended to restrict the exception so that it only applies to persons who are at least seventeen years of age. Id. Therefore, subsection (f)'s separation requirements apply to a juvenile who is not seventeen years of age who is certified as an adult for prosecution in criminal court. TEX. FAM. CODE ANN. § 51.12(f), (h) (West Supp. 2011). When we construe Code of Criminal Procedure article 4.19 with subsection 51.12(f) of the Family Code, a juvenile certified as an adult may be transferred to a facility and treated as an adult under the Code of Criminal Procedure, but if the juvenile is not at least seventeen years of age, the juvenile is considered a child who must be detained according to the separation requirements of subsection 51.12(f) of the Family Code. Consequently, we conclude that article 4.19 of the Code of Criminal Procedure does not authorize the detention of a child under the age of seventeen who has been transferred to criminal court for prosecution in a facility that does not comply with subsection 51.12(f) of the Family Code.

SUMMARY

Article 4.19 of the Code of Criminal Procedure does not authorize the detention of a child under the age of seventeen who has been transferred to criminal court for prosecution in a facility that does not comply with Family Code subsection 51.12(f).

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] Brief from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 31, 2011), http://www.texasattorneygeneral.gov/opin ("Requestor's Brief").

[2] Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 12, 1995 Tex. Gen. Laws 2517, 2524.