Proceedings

Juvenile Justice Code: A “child” may become engaged in the Juvenile Justice system when the “child’s” behavior comes within the statutory definition of “delinquent conduct” or is in need of “supervision”. See public purpose of the Juvenile Justice Code.

Child: Who is a “child”? Well, it depends upon the Legislative context. For purposes of the Juvenile Justice Code, a “child” is: a person who is (A) 10 years of age or older and under 17 years of age OR (B) 17 years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicting a need for supervision as a result of acts committed before becoming 17 years of age. For purposes of the parent-child relationship, a “child” or “minor” means: a person who is (A) under 18 years of age AND not been married OR not had disabilities or minority removed for general purposes; and, in the contest of child support (B) over 18 years of age from whom a person may be obligated to pay child support; and, (C) an “adult” means a person who is not a child (everybody else). For purposes of support of a disabled child, “child” means a son or daughter of any age who is determined to have a physical or mental disability and will not be capable of self-support if the disability or cause of the disability is known to exist on or before the child’s 18th birthday.

Delinquent Conduct or Conduct Indicating A Need for Supervision:

“Delinquent Conduct” is defined in four categories:

(1)  violation of a penal law – other than a traffic offense – ofTexasor theUnited Statesthat is “punishment by imprisonment or by confinement in jail”;

(2)  violation of a court order “under circumstances that would constitute contempt of that court…”;

(3)  violation of certain Texas Penal Code provisions that deal with intoxication in certain circumstances, such as, while driving, boating, flying, committing an assault or manslaughter; and,

(4)  violation of provisions of the Alcoholic Beverage Code relating to a 3rd or subsequent offense by a minor driving while under the influence of alcohol.

“Conduct Indicating A Need for Supervision” is defined in seven categories:

(1)  violation of penal law – other than a traffic offense – of Texas that is a misdemeanor punishable by fine only or violation of any penal ordinance of any Texas political subdivision;

(2)  truancy – unexcused absences from school for a certain number of days during the school year;

(3)  voluntary absence of the child from the child’s home without consent of the child’s parent or guardian “for a substantial length or time or without intent to return”;

(4)  “glue or paint sniffing” meaning inhalation of the fumes or vapors of paint or other substances prohibited by city ordinance or state law;

(5)  violation of standards of student conduct resulting in expulsion;

(6)  violation of a “reasonable and lawful order” that requires an “at-risk” child or parent or other care-takers to participate in services provided by the Texas Department of Family and Protective Services;

(7)  violates provisions of the Penal Code prohibiting prostitution or electronic transmission of visual materials of a minor engaging in sexual conduct.

Right to Assistance of an Attorney: A child may be represented by an attorney at every stage of proceedings under the Juvenile Justice Code [Tex. Family Code, Title 3]. The right to representation by an attorney may be waived [hot link]; however, the child’s right to representation by an attorney shall not be waived in certain proceedings, including: (1) hearing to consider transfer to a criminal court, (2) adjudication hearing, (3) a disposition hearing, (4) a hearing for modification of a disposition, prior to commitment to the Texas Youth Commission, or (5) hearings required concerning children with mental illness or mental retardation.

Waiver of Rights or Privileges: “Waiver” is a legal concept that comes from English Law. Essentially, a person who “waives” a right or a privilege does something to communicate that the person is abandoning or giving up a legal right or privilege. Frequently, a “waiver” of a right or privilege is accomplished by making a declaration – a statement – verbally or in writing.  A person who is “waiving” a right or privilege usually must do so in circumstance that make it clear that the person acting voluntarily and is “informed of and understand the right and the possible consequences …” of making the “waiver”. A person usually will “waive” a right or a privilege because that person sees some benefit from making the “waiver”. A common “waiver” in family law is the “waiver” of the right to be served in person with a petition for divorce. A judge under certain circumstances may “waive” a prohibition from a person taking some action, such as a prohibition against remarriage to a 3rd person before the 31st day after a divorce.

Court Order Requiring Employment of an Attorney: The court shall (mandatory) require the parent or other person responsible for support of the child to employ an attorney if: (1) the child is not represented, (2) the court determined that the parent or other person is financially able to employ an attorney, and (3) the child’s right to representation (A) has not bee waived or (B) may not be waived.

Appointment of Attorney to Represent Child: The court is required to appoint an attorney to represent the child under certain circumstances, namely, if: (1) the child is not represented by an attorney, (2) the court determines that the child’s parent or other person responsible for support of the child is financially unable to employ an attorney, and (3) the child’s right to representation by an attorney (A) has not been waived or (B) may not be waived. Also, the juvenile court may appoint an attorney in any case in which “… it deems representation necessary to protect the interests of the child.”

Payment for an Attorney Appointee by the Court: An attorney appointed by the court “…shall be paid from the general fund of the county in which the proceedings were instituted …” The juvenile board of a county is required to “…make available to the public the list of attorneys eligible for appointment to represent children in proceedings under …” the Juvenile Justice Code. The juvenile court may (permissive) order the parent or other person responsible for support of the child to reimburse the county for payments the county makes to appointed legal counsel and for expert witness costs. The payment requirement may be full or partial reimbursement. However, the court may not order payments that exceed the financial ability of order the parent or other person responsible for support of the child to meet the payment schedule ordered by the court. A person ordered to make reimbursement payments who fails to pay may defend against enforcement. The person making a defense of inability to pay must prove that they “…could not have reasonably paid …” after paying for their “…other important financial obligations, including payments for housing, food, utilities, necessary clothing, education, and preexisting debts.”

 

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