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In re D.S.

Court of Appeals of Texas, Second District, Fort Worth

July 27, 2017

IN THE MATTER OF D.S.

         FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-103611-16.

          PANEL: GABRIEL, SUDDERTH, and KERR, JJ.

          MEMORANDUM OPINION [1]

          LEE GABRIEL JUSTICE

         On August 8, 2016, the State initiated in juvenile court a jurisdiction waiver and transfer proceeding against twenty-three-year-old D.S. under section 54.02(j) of the family code, alleging that when he was fifteen years old, he committed the offenses of aggravated sexual assault of a child and indecency with a child by contact. Following an evidentiary hearing, the juvenile court signed an order waiving its jurisdiction over D.S.'s case and transferring it to criminal district court. In two issues, D.S. appeals from that order. We affirm.

         I. THE STATUTORY SCHEME

         Title 3 of the Texas Family Code governs the proceedings in all cases involving the delinquent conduct engaged in by a person who was a child at the time the person engaged in the conduct. Tex. Fam. Code Ann. § 51.04(a) (West Supp. 2016). In such cases, the juvenile courts have exclusive original jurisdiction. Id. Relevant to this case, "delinquent conduct" includes "conduct, other than a traffic offense, that violates a penal law of this state . . . punishable by imprisonment or by confinement in jail." Id. § 51.03(a)(1) (West Supp. 2016). And the term "child" means a person who is

(A) ten years of age or older and under 17 years of age; or
(B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.

Id. § 51.02(2) (West Supp. 2016). Aggravated sexual assault of a child and indecency with a child by contact are both violations of a state penal law that is punishable by imprisonment. See Tex. Penal Code Ann. § 12.32(a) (West 2011) (providing that a first-degree felony is punishable by imprisonment), § 12.33 (West 2011) (providing that a second-degree felony is punishable by imprisonment), § 21.11(d) (West 2011) (providing that indecency with a child by contact is a second-degree felony), 22.021(e) (West Supp. 2016) (providing that aggravated sexual assault of a child is a first-degree felony). Thus, the juvenile courts have exclusive original jurisdiction over all proceedings in which a defendant allegedly committed the offense of aggravated sexual assault of a child or indecency with a child by contact when he was fifteen years of age. Tex. Fam. Code Ann. §§ 51.02(2), .03(a)(1), .04(a); see In re N.J.A., 997 S.W.2d 554, 555 (Tex. 1999) (stating that the juvenile court has exclusive, original jurisdiction over all proceedings involving a defendant who is a child when the alleged offense occurred).

         But while Title 3 vests the juvenile courts with exclusive original jurisdiction over all proceedings in such cases, it also provides that they generally have no jurisdiction to conduct a disposition hearing involving, or to adjudicate, a person who is eighteen years of age or older. See N.J.A., 997 S.W.2d at 555. Rather, after a person has turned eighteen, the authority of the juvenile courts is generally limited to doing one of two things: they can waive their exclusive original jurisdiction and transfer the person to the appropriate district court or criminal district court in accordance with the requirements of Texas Family Code section 54.02(j), or they can dismiss the case. Tex. Fam. Code Ann. § 54.02(j) (West 2014); see N.J.A., 997 S.W.2d at 556 (holding that juvenile court maintains jurisdiction over a person who is eighteen years of age or older and allegedly engaged in delinquent conduct when a child, but that "such jurisdiction is limited to transferring the case under section 54.02(j) if all criteria are satisfied or to dismissing the case").

          Section 54.02(j) provides as follows:

(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 17years of age at the time the person is alleged to havecommitted a capital felony or an offense under Section19.02, 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 ...

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