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In re S.B.

Court of Appeals of Texas, Second District, Fort Worth

July 25, 2019

In the Matter of S.B.

          On Appeal from County Court Young County, Texas Trial Court No. J00765

          Before Sudderth, C.J.; Gabriel and Kerr, JJ.

          MEMORANDUM OPINION

          Bonnie Sudderth, Chief Justice.

         I. Introduction

         Appellant S.B. was 19 years old when the State alleged that she had sexually assaulted three children when she was 14 years old and sought a transfer from the juvenile court to the district court for S.B. to be tried as an adult. After a hearing, the juvenile court ordered S.B.'s case transferred to a criminal district court. See Tex. Fam. Code Ann. § 54.02(j). In one issue comprising four sub-issues, S.B. appeals the juvenile court's decision. We affirm in part and reverse and dismiss in part.

         II. Procedural Background

         In its live pleadings, the State alleged that S.B. had engaged in delinquent conduct from on or about her fourteenth birthday in the latter part of February 2013 through December 31, 2015-when she would have been almost 16 years old-by committing the aggravated sexual assault of L.V., J.M., and J.Z., each younger than 14 at the time. Specifically, in three paragraphs under section II of the first amended adjudication petition, the State alleged that S.B. had caused each child to penetrate her sexual organ with their respective sexual organs as follows:

II.
[S.B.] engaged in delinquent conduct, to-wit:
. . . [S.B.] did then and there intentionally and/or knowingly sexually assault [L.V.] by causing the sexual organ of [L.V.] . . . to penetrate the sexual organ of [S.B.]
. . . [S.B.] did then and there intentionally and/or knowingly sexually assault [J.M.] by causing the sexual organ of [J.M.] . . . to penetrate the sexual organ of [S.B.]
. . . [S.B.] did then and there intentionally and/or knowingly sexually assault [J.Z.] by causing the sexual organ of [J.Z.] . . . to penetrate the sexual organ of [S.B.]

         At the transfer hearing, the State relied upon family code section 54.02(j) to argue that there was sufficient cause to have the matter transferred to the district court and for S.B. to be certified to stand trial as an adult. And the State's amended transfer petition paralleled the statutory language, claiming impracticability as the basis for the State's failure to proceed in juvenile court prior to S.B.'s eighteenth birthday:

that for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before the 18th birthday of [S.B.] or after due diligence of the State it was not practicable to proceed in juvenile court before the 18th birthday of [S.B.] because the State did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of [S.B.].

Id. § 54.02(j)(4)(A)-(B). S.B. argued that the juvenile court had no jurisdiction to transfer the case and had to dismiss it.

         Each party called one witness. At the hearing's conclusion, the juvenile court granted the State's petition and signed a waiver of jurisdiction and order of transfer.

         III. Discussion

         A juvenile court has exclusive, original jurisdiction over all proceedings involving a person who has engaged in delinquent conduct as a result of acts committed before age 17. Moore v. State (Moore I), 446 S.W.3d 47, 50 (Tex. App.- Houston [1st Dist.] 2014) (citing Tex. Fam. Code Ann. §§ 51.02(2), 51.04), aff'd, Moore v. State (Moore II), 532 S.W.3d 400 (Tex. Crim. App. 2017) (op. on reh'g). While a juvenile court does not lose jurisdiction when a juvenile turns 18, its jurisdiction becomes limited to either transferring the case to an appropriate court or dismissing the case. Id. As applicable here, under family code section 54.02(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:
(B) 14 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 first degree other than an offense under Section 19.02, Penal Code; . . .
(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 ...

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