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CERTIFICATION PROCEEDINGS: ETHICS OF REPRESENTATION

CERTIFICATION PROCEEDINGS: ETHICS OF REPRESENTATION. Terrance Windham Attorney at Law Houston, Texas. JUVENILE COURT WAIVER OF JURISDICTION AND DISCRETIONARY TRANSFER TO CRIMINAL COURT. a.k.a. DISCRETIONARY TRANSFER. a.k.a. CERTIFICATION TO CRIMINAL COURT. CERTIFICATION.

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CERTIFICATION PROCEEDINGS: ETHICS OF REPRESENTATION

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  1. CERTIFICATION PROCEEDINGS: ETHICS OF REPRESENTATION Terrance Windham Attorney at Law Houston, Texas

  2. JUVENILE COURT WAIVER OF JURISDICTION AND DISCRETIONARY TRANSFER TO CRIMINAL COURT a.k.a.DISCRETIONARY TRANSFER a.k.a.CERTIFICATION TO CRIMINAL COURT

  3. CERTIFICATION

  4. MAJOR ACKNOWLEDGEMENT TOKAMERON JOHNSONJuvenile Public DefenderTravis County, Texas HE’S THE MAN WHO WROTE THE CERTIFICATION PAPER AND GRACIOUSLY CONSENTED TO IT’S USE AT THIS CONFERENCE.

  5. DISCUSSION TOPICS • Juvenile Court Jurisdiction • Age Affecting Criminal Responsibility • Certification: What is it? • IV. Certification Eligibility • Juvenile’s Rights During Certification Proceeding • Diagnostic Study, Social Evaluation, and Investigation of Juvenile • VII. The Transfer (Certification) Hearing • VIII. Transfer (Certification) Hearing Findings • Transfer (Certification) Hearing Order • Mandatory Certifications • Criminal Transaction • XII. Juvenile’s Right to Appeal Transfer (Certification) Order

  6. FIRST THINGS FIRSTJUVENILE COURT JURISDICTION§51.04 Texas Family Code • The juvenile court has exclusive original jurisdiction over all proceedings involving a child under Title 3 of the Family Code – the Juvenile Justice Code. • Child is a person • 10 years of age or older and under 17 years of age; or • 17 years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or CINS as a result of acts committed before becoming 17 years of age.

  7. Age Affecting Criminal Responsibility Texas Penal Code §8.07(b) Unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age… Age Affecting Criminal Responsibility In Plain English A person cannot be prosecuted or convicted of an offense committed before age 17 unless the juvenile court waives jurisdiction and transfers the person to criminal court under §54.02 of the Family Code.

  8. Certification: What is it? • The process that a Juvenile Court uses to waive its jurisdictional power to try a juvenile offender’s case and transfer the case to the proper adult criminal court. • Different Processes used by different jurisdictions (States). • The Texas Process • TEX. FAM. CODE §54.02 • Judicial Waiver

  9. CERTIFICATION ELIGIBILITY • Certification is not automatic in Texas. • The Family Code sets out the strict guidelines that the juvenile courts must comply with in order to waive jurisdiction and transfer a juvenile to adult court. • The State must file a petition seeking certification (transfer) to adult court. Certification (transfer) is AGE based.

  10. CERTIFICATION ELIGIBILITY • A juvenile’s transfer eligibility to an adult criminal court depends on two main factors: • the age of the juvenile at the time of the offense, and Must be a Felony. • the offense the juvenile is alleged to have committed. • Age at the time of the certification (transfer) hearing determines the procedures that must be followed in the certification process.

  11. CERTIFICATION ELIGIBILITY • The Family Code establishes different procedures and requirements based on these 3 classifications: • a juvenile who commits certain felony offenses at age 14 • a juvenile who commits any felony at age 15, and • a juvenile who is 18 years old at the time of the certification proceeding and before the certification order.

  12. FIRST CERTIFICATION AGE CLASSIFICATION: JUVENILES OFFENDERS 14 YEARS OLD AND OVER • Under the Family Code, 14 is the minimum age for certification of a juvenile to an adult criminal court. • However, certification for a 14 year old applies only to certain violent crimes – namely • a capital felony, • an aggravated controlled substance felony, or • a first degree felony • TEX. FAM. CODE §54.02(a)(2)(A) • A juvenile that is 14 who commits a second degree, third degree or state jail felony cannot be certified.

  13. SECOND CERTIFICATION AGE CLASSIFICATION: JUVENILES OFFENDERS 15 YEARS OLD AND OVER • A juvenile who is 15 or 16 years of age is eligible to be certified and transferred to adult criminal court for any felonyhe/she commits – including a 2nd or 3rd degree, or a state jail felony. • TEX. FAM. CODE §54.02(a)(2)(B)

  14. THIRD CERTIFICATION AGE CLASSIFICATION: JUVENILES OFFENDERS 18 YEARS OLD AND OVER • A juvenile court may certify and transfer an offender who is 18 years or older, as long as he or she committed the offense as a juvenile. • Family Code Sections 54.02 (j) through (l) outlines the specific requirements the State must meet if it wants to file a petition seeking certification of a person who is age 18 or older, but was a juvenile at the time of the offense.

  15. THIRD CERTIFICATION AGE CLASSIFICATION: JUVENILES OFFENDERS 18 YEARS OLD AND OVER • The requirements for certification and transfer a juvenile offender who is now age 18 or over are different than those required for the juvenile who is between the age of 14 and 17. • Whether the State can even file a petition when a juvenile offender is now age 18 is based on two factors: • the type of offensethe juvenile is alleged to have committed; and • the age of the juvenile at the time of its commission There are 3 categories for Post-18 Certifications

  16. POST- EIGHTEEN CERTIFICATION: FIRST CATEGORY • The juvenile offender is now age 18 and was over the age of 10 and under 17 years old at the time he/she is alleged to have committed a capital felony or murder. • TEX. FAM. CODE §54.02(j)(2)(A) • This provision became a part of the juvenile system when the Code was amended by the legislature in 1999. • The purpose was to coincide with the statutory law which provides that there is no statute of limitations for murder.

  17. POST- EIGHTEEN CERTIFICATION: SECOND CATEGORY • The juvenile offender is now age 18 and was between the age of 14 or older and under 17 years old at the time of the offense, and the offense is: • an aggravated controlled substance felony or • a first degree felony other than murder. TEX. FAM. CODE §54.02(j)(2)(B)

  18. POST- EIGHTEEN CERTIFICATION: THIRD CATEGORY • The juvenile offender is now age 18 and was between the age of 15 years of age or older and under 17 at the time he/she commits an offense, that is: • a 2nd degree felony • a 3rd degree felony, or • a state jail felony. • TEX. FAM. CODE §54.02(j)(2)(C) • Essentially, a juvenile in this category may be certified for ANY felony offense – including, capital and first degree felony offenses.

  19. Post-18 certification: the due diligence requirement • Following the age qualifications, the Family Code requires that the State show that it had justifiable reasons for not filing for certification before a juvenile offender reached the age of 18. • This is known as the due diligence requirement. • This requirement is the main distinction between the procedures for certification for juveniles 17 and under and juveniles 18 and over. • The Family Code outlines the 3 justifications of due diligencethe State can show for not filing for certification before the juvenile reached the age of 18.

  20. Post-18 certification: the due diligence requirement • The 3 ways the State can show due diligence for not filing a petition for certification before the juvenile reached the age of 18; (1) the State did not have probable cause to proceed in Juvenile Court and new evidence was found since the juvenile became 18 years old, (2) the juvenile could not be found, (3) the previous transfer order was reversed by an appellate court or set aside by a district court. TEX. FAM. CODE §54.02(j)(4)(B)

  21. Post-18 certification: the due diligence requirement • The State’s burden is to show one of the 3 justifications for delay by a preponderance of the evidence. • If the State is unable to do so then the juvenile court does not have jurisdiction to transfer the case to adult criminal court.

  22. What the state must next show • Once the State establishes proper age qualifications and due diligence (if necessary), then it must show that: • No adjudication in regard to the alleged offense has been made . • or • No adjudication hearing concerning the offense has been conducted. • TEX. FAM. CODE §54.02(j)(3) • and • There is probable cause to believe that the juvenile committed the offense alleged. • TEX. FAM. CODE §54.02(j)(5) • If the State establishes these matters, then the certification (transfer) hearing can proceed.

  23. WHAT RIGHTS DOES A JUVENILE OFFENDER HAVE DURING THE CERTIFICATION PROCESS? • One of the leading United States Supreme Court cases on juvenile rights is Kent v. United States, 383 U.S. 541 (U.S. 1966). It held that: • A juvenile court’s waiver of jurisdiction is a ‘critically important’ action determining vitally important statutory rights of the juvenile. • A juvenile has due process rights when a juvenile court proceeds with a waiver of jurisdiction. • These holdings established important safeguards regarding procedures relating to juvenile courts waiving their jurisdiction and transferring juvenile offenders to criminal court to be tried as adults.

  24. THE RIGHTS ESTABLISHED BY SCOTUS IN KENT • Kent established due process requirementsthat must be followed regarding transferring juvenile offenders to adult court for criminal prosecution, including: • The right to receive proper notice of the certification petition filed by the State • The right of confrontation • The privilege against self-incrimination • The right to assistance of defense counsel • That juvenile defense counsel is entitled to access the Juvenile Respondent’s social records

  25. DUE PROCESS: NOTICE REQUIREMENTS • In order to meet the notice requirements, the certification petition must contain certain elements, to wit: • the time, place, and manner of the alleged acts, • the penal law or standard of conduct allegedly violated by the child’s acts, • the name, age, and residence address, if known, of the child who is the subject of the petition, • the name and residence address, if known, of the child’s parent, guardian, or custodian, and • the name and address of the child’s spouse, if any. • TEX. FAM. CODE §53.04(d) • The service provisions of Sections 53.04, 53.05, 53.06, and 53.07 of the Family Code must be complied with.

  26. DUE PROCESS: NOTICE REQUIREMENTS • The summons must be served on: • to the child, (PERSONAL SERVICE REQUIRED & CANNOT BE WAIVED) • the child’s parent, • the child’s guardian ad litem, or • any other person who appears to be a proper party to the proceeding. • A copy of the petition must accompany the summons. TEX. FAM. CODE §53.06 • Failure to comply with the Family Code notice requirements for Certification (discretionary transfer) deprives the juvenile court of its jurisdiction to even consider the transfer. • See, Johnson v. State, 594 S.W. 2d 83, 84 (Tex. Crim. App. 1980)

  27. DUE PROCESS: NOTICE REQUIREMENTS • The NOTICE requirement is an important step for the juvenile court to properly waive jurisdiction. • The Family Code provides that the juvenile court must set a time for the hearing within 10 days of the filing of State’s certification petition. • TEX. FAM. CODE 53.05 • There is often an issue with this 10 day requirement because the diagnostic study often takes longer than 10 days to conduct • Courts have interpreted the 10-day rule to mean that the juvenile court must set a hearing date that is within 10 days. • Courts have also held that it's not required that the court complete the hearing within 10 days .

  28. DUE PROCESS: PETITION REQUIREMENTS • The certification petition must state the purpose of the hearing. • If the juvenile is under age 18, the petition must state that the purpose of the hearing is to consider the discretionary transfer • of the child to criminal court. • TEX. FAM. CODE §54.02(b) • If the juvenile is age 18 or older, the petition must state that the purpose of the hearing is to waive jurisdiction and transfer to criminal court. • TEX. FAM. CODE §54.02 (j) (k)

  29. DUE PROCESS: PETITION REQUIREMENTS • The petition should be styled “In the Matter of ____,” and the State may file based on information and belief. • TEX. FAM. CODE §53.04(b) • If the juvenile does not answer the petition then the court assumes that the child generally denies the conduct alleged in the State’s petition. • TEX. FAM. CODE §53.04(e)

  30. DUE PROCESS REQUIREMENTS: RIGHT TO COUNSEL • Due process demands the right to counsel in juvenile certification proceedings. • The Supreme Court in Kent explained that the right to counsel is “of the essence of justice.” See Kent, 383 U.S. at 561. • A child’s right to counsel cannot be waived for a hearing to consider transfer to criminal court. TEX. FAM. CODE §51.10(b)(1). • A transfer proceeding conducted without the presence of counsel is reversible error. See, In the Matter of D.L.J., 981 S.W.2d 815 (Texas. App. – Houston [1st Dist.] 1998, no writ).

  31. DIAGNOSTIC STUDY, SOCIAL EVALUATION & INVESTIGATION OF JUVENILE • Once the State files the certification petition the juvenile court must conduct a • complete diagnostic study, • social evaluation, and • investigation of the juvenile. • This must take place before the certification hearing can take place • TEX. FAM. CODE §54.02(d)

  32. DIAGNOSTIC STUDY, SOCIAL EVALUATION & INVESTIGATION OF JUVENILE • The diagnostic study, social evaluation, and investigation of the juvenile are mandatory for transfer hearings whether the juvenile is under or over age 18. HOWEVER, THERE IS ONE EXCEPTION • They are not required for mandatory certification hearings,. • TEX. FAM. CODE §54.02(n)

  33. DIAGNOSTIC STUDY, SOCIAL EVALUATION & INVESTIGATION OF JUVENILE • The juvenile court may not refuse to order the study. • See, Moreno v. State, 510 S.W. 2d 116, 118 (Civ. App., Tyler 1974, ref. n.r.e.). • Failure by the juvenile court to order the diagnostic study, evaluation and investigation will result in reversal of the discretionary transfer hearing. • See R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App. – San Antonio 1975, no writ and ref’d denied).

  34. DIAGNOSTIC STUDY, SOCIAL EVALUATION & INVESTIGATION OF JUVENILE • The purpose of a full investigation is • to help determine the circumstances of the juvenile, and • to give the court enough information to make an informed decision about the certification. • The diagnostic study usually includes a physiological examination, a psychiatric evaluation, and a report from the probation caseworker. • The Family Code requires a complete diagnostic study, but if the juvenile or his/her family refuses to cooperate, the report may be incomplete.

  35. DIAGNOSTIC STUDY, SOCIAL EVALUATION & INVESTIGATION OF JUVENILE • The Family Code does not define what must be included in the diagnostic study or what merits a full investigation of the circumstances of the offense, • Hence, the juvenile court has discretion to decide when a study and investigation are complete. • See In re I.B., 619 S.W.2d 584 (Tex. Civ. App. – Amarillo 1981, no writ)

  36. THE CERTIFICATION (TRANSFER ) HEARING • The juvenile court is required to conduct a certification (transfer) hearing • to determine whether to certify and transfer the juvenile to adult criminal court, or • to retain jurisdiction and try the case in juvenile court. • The certification (transfer) hearing is before the juvenile court (no jury). • The State must prove by a preponderance of the evidence that the proposed transfer best serves the interests of the child and society. TEX. FAM. CODE §54.02(c) In the Matter of P.B.C., 538 S.W.2d 448, 453 (Civ. App., El Paso 1976, no writ).

  37. THE RULES OF EVIDENCE IN CERTIFICATION (TRANSFER) HEARINGS • The Texas Rules of Evidence apply to certification proceedings. • Nevertheless, the juvenile court may consider evidence that would be inadmissible in other proceedings. • Reason: The Family Code does not state the specific type of evidence that is permitted in a certification (transfer) hearing. • Hearsay evidence is admissible and may be considered by the juvenile court in a certification (transfer) hearing. • See In the Matter of E.D.M., 916 S.W.2d 9, 11-12 (Tex. App., Houston [1st Dist.] 1995).

  38. FACTORS CONSIDERED BY THE COURT DURING THE CERTIFICATION (TRANSFER) HEARINGS • The juvenile court is required to consider 4 primary factors at the hearing in making its decision on whether to transfer the child to adult criminal court. These include: • whether the alleged offense was against a person or property, with greater weight in favor of the transfer given to offenses against the person; • the sophistication and maturity of the child; • the record and previous history of the child; and • the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. • TEX. FAM. CODE § 54.02(f)

  39. CERTIFICATION (TRANSFER) HEARING: REQUIRED FINDINGS • There are 5 basic prerequisites that the juvenile court should find before it may waive its jurisdiction. They are: • that the child is alleged to have committed a felony; • the child’s agewhen alleged offense was committed • - 14 or older at the time a capital felony, an aggravated controlled substance • felony, or a first degree felony was committed; • - 15 or older at the time any felony was committed; • there has not been an adjudication hearingconcerning the offense; • there is probable cause to believe that the child committed the offense; and • due to the seriousness of the offense ORbackground of the childit is best • for the welfare of the community to pursue criminal proceedings. • TEX. FAM. CODE §54.02(a) • If the juvenile is age 18 or older, the court must make an additional findings of due diligence. • TEX. FAM. CODE §54.02(j)(4)

  40. CERTIFICATION FINDINGS: THE COMMUNITY WELFARE PROVISION • One of the most important factors in the juvenile court’s decision to certify a juvenile to be tried as an adult is whether the evidence dictates that the welfare of the community requires transfer to adult criminal court. • On appeal, this finding will be reviewed by the appellate court on both legal and factual sufficiency grounds. • Finding of legal insufficiency means the respondent may not be certified (transferred) to adult court • certification (transfer) petition dismissed with prejudice. • If the juvenile prevails on an appellate claim of factual insufficiency • he/she is subject to re-certification if the State produces new evidence at a new certification (transfer) hearing. • TEX.FAM. CODE 54.02(a)(3) • In the Matter of A.T.S., 694 S.W.2d 252 (Tex.App. – Fort Worth, 1985)

  41. CERTIFICATION FINDINGS: THE COMMUNITY WELFARE PROVISION • One of the most important factors in the juvenile court’s decision to certify a juvenile to be tried as an adult is whether the evidence dictates that the welfare of the community requires transfer to adult criminal court. • On appeal, this finding will be reviewed by the appellate court on both legal and factual sufficiency grounds. • If the appellate court finds the evidence on this factor to be legally insufficient then the respondent may not be transferred to adult court since judgment should be rendered for the respondent and the certification (transfer) petition dismissed with prejudice. • If the juvenile prevails on an appellate claim of factual insufficiency, then he/she is subject to re-certification in the event the State can produce new evidence at a new certification (transfer) hearing. • TEX.FAM. CODE 54.02(a)(3) • In the Matter of A.T.S., 694 S.W.2d 252 (Tex.App. – Fort Worth, 1985)

  42. THE CERTIFICATION (TRANSFER) ORDER • If the juvenile court waives its jurisdiction it must enter a transfer order that specifically states the reason for its decision and certify why it has reached that conclusion. • TEX. FAM. CODE §54.02(h) • The reason listed must be specific enough to give an appellate court the ability to review appropriately. • Kent v. United States, 383 U.S. 541 (1966) • Moon v. State, 451 S.W.3d 28, Tex.Crim.App. – 2014) • The order should show that the court considered the 4 factors required by the Family Code, but it is not required to make specific findings of fact for each of the factors.

  43. CERTIFICATION OF CRIMINAL TRANSACTIONS • A certification petition can allege multiple felony offenses that constitute more than one criminal transaction. • If that occurs, the juvenile court may either retain or transfer all offenses relating to each transaction. • It’s important to understand that the juvenile court waives jurisdiction over a transaction, not a specific statutory offense. • - Hence, upon certification, the State may seek prosecution not only of the • offense transferred, but also for any lesser included offenses and any other • conduct that resulted from the criminal transaction transferred. • If the juvenile court retains jurisdiction of a criminal transaction, the child cannot be criminally prosecuted for any offense arising that transaction. • TEX. FAM. CODE §54.02(g)

  44. CERTIFICATION OF CRIMINAL TRANSACTIONS Quick Summary • Juvenile court certifies criminal transactions, not a specific offenses. • Court must retain or transfer all offenses related to any transaction(s). • Court may retain or transfer multiple transactions. • Can be indicted for any offense from criminal transaction…even lesser included offenses.

  45. MANDATORY CERTIFICATIONS • Family Code §54.02(m) provides for a third type of certification for a juvenile known as Mandatory Certification. • The juvenile court “shall waive its exclusive original jurisdiction and transfer a child” to the appropriate adult criminal court for criminal proceedings if: • the juvenile has previously been transferred to adult criminal court through certification, and • has allegedly committed a new felony offense before age 17. TEX. FAM. CODE §54.02(m)

  46. MANDATORY CERTIFICATIONS • In spite of the “shall waive its exclusive original jurisdiction …” language in §54.02(m), Mandatory Certification is not automaticand does not include all offenses committed by the juvenile; • rather it is the prosecuting authority who determines whether to seek a mandatory transfer. • If the prosecutor doesn’t file a petition seeking Mandatory Certification, then the juvenile court cannot act under §54.02(m). • In a mandatory transfer proceeding is initiated, there is no requirement for the diagnostic study, investigation, or social evaluation of the juvenile prior to the certification (transfer) hearing. • Also, the summons requirements for the petition are relaxed in a mandatory certification (transfer) proceeding. • TEX. FAM. CODE §54.02(n)

  47. MANDATORY CERTIFICATIONS • There are four conditions that would prevent a mandatory certification: • if the juvenile was not indicted by the grand jury in the previously transferred case • the juvenile was found not guilty of the previously transferred case • the previously transferred case was dismissed with prejudice, or • the juvenile was convicted in the previously transferred case, but the conviction • was reversed on a final appeal. • TEX. FAM. CODE §54.02(m) • In order to obtain a mandatory certification (transfer), the State must: • prove the existence of the prior transfer order; and • that none of the above four conditions are present. • TEX. FAM. CODE §54.02(m)(1)

  48. CERTIFICATION: THE JUVENILE’S RIGHT TO APPEAL • Immediate appeal to Court of Appeals with possible review by the Texas Supreme Court. • Appeal does not prevent criminal prosecution. • Appellate court will not order criminal court to await outcome of appeal. • If transfer is reversed on appeal, any conviction is set aside and case returned to juvenile court.

  49. THE ENDTHANKS FOR LISTENING!

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