Untitled Texas Attorney General Opinion ( 1991 )

QEWiceof the f4ttornep General
iibtate of Qexae
September 141991
Mr. Ron Jackson Opinion No. DM-38
Executive‘Director
Texas Youth Commission Re: Whether persons between the ages
P. 0. Box 4260 of 18 and 21, and under the supervision of
Austin, Texas 78765 the Texas Youth Commission, may be
detained in local juvenile detention
facilities (RQ-2147)
,
Dear Mr. Jackson:
You have requested our opinion as to whether an individual between the
ages of 18 and 21, and under the supervision of the Texas Youth Commission
(hereafter TYC). may be detained in local juvenile detention facilities.
In 1985, the legislature amended the statutes governing the TYC to increase
the upper age limit for TYC jurisdiction from 18 to 21. Acts 1985,69th Leg., ch. 45,
3 1, at 435. This extension of jurisdiction was accomplished by amending two
portions of what is now the Human Resources Code. Section 61.001 now provides,
in part:
In this chapter:
. . . .
(6) ‘Child’means a person 10 years old or older and
under 21 years old who is committed to the commission under
Title 3, Family Code.
Section 61.084(c) now provides:
(c) The commission shah discharge from its custody a
person not already discharged or transferred on his or her 21st
birthday.
As part of the same bill, section 54.05(b) of the Family Code was amended to read:
P- 187
Mr. Ron Jackson - Page 2 (DM-38)
(b) Except for a wnwnittnent ,to the Taus Youth
Commiwion, all dispositions automatically terminate when the
child reaches his 18th birthday.
Acts 1985,69th Leg., ch. 45,s 3, at 435 (emphasis added).
Chapter 51 of title 3 of the Family Code was not, and has not been, amended,
however, to conform to these 1985 amendments. Section 51.02 still defines “child”in
a manner which is inconsistent with chapter 61 of the Human Resources Code.
In this title:
(1) ‘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.
Section 51.12(a) of the Family Code, also unamended in 1985, provides:
Except after transfer to crimimd court for prosecution under
Section 54.02 of this code, a child shah not be detained in or
committed to a compartment of a jail or lockup in which adults
arrested for, charged with, or convicted of crime are detained or
wmmitted, nor be permuted contact with such persons.
TYC is granted broad authority to contract with public or private agencies,
including juvenile detention facilities operated by wunty juvenile boards, for the
care and treatment of its wards. See Hum Res. Code 5 61.037. Pursuant to section
61.084(c) of the Human Resources Code, the TYC has jurisdiction over juveniles
between the ages of 18 and 21. The Family Code, however, does not categorize
persons between the ages of 18 and 21 as juveniles, and explicitly prohibits the
detention of juveniles under the age of 18 in the same compartment or lockup as
adults. Thus, the problem arises whether the TYC can require juvenile detention
facilities to care for its wards between the ages of 18 and 21.
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Mr. Ron Jackson - Page 3 (DM-38)
There Seems to be a dispute between the TYC and the Texas Juvenile
Probation Commission as to what circumstances, if any, would cause or permit TYC
to detain a person between the ages of 18 and 21 other than his arrest for a aiminal
offense. We need not resolve those questions here. Roth because of the limited
definition of “child”in the Family Code and the specific prohibition of section 51.12
thereof, persons under the age of 18 may not be housed in the same compartment of
a facility as, nor be permitted regular contact with, any individtnd between the ages
of 18 and 21, whether or not they are TYC wards, if such individuals have been
arrested for, charged with, or convicted of a crime. This does not mean that such
individuals may not be housed~in the same fe as juveniles. It means merely that
they may not be confined in the same cell or compartment of ,a facility, or be
con&ted in such proximity as to permit regular contact with juveniles. Thus, TYC
wards between the ages of 18 and 21 may not be, under any circumstances, housed
in a compartment of a facility, or permitted regular contact, with any “child” as
defined by section 51.02 of the Family Code. If on the other hand, such TYC wards
have not been arrested for, charged with, or convicted of any crime, they may be
housed in a juvenile detention facility in compartments with juveniies and may have
contact with juveniles.
SUMMARY
A ward of the Texas Youth Commission between the ages of
18 and 21 who has been arrested for, charged with, or convicted
of any crime may under no circumstances be housed in the same
compartment of a facility as, or permitted regular contact with,
any “child”as defined in section 51.02 of the Family Code.
DAN MORALES
Attorney General of Texas
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Mr. Ron Jackson - Page 4 (DM-38)
WILL PRYOR
First Assistant Attorney General
MARYKELJXR
Executive Assistant Attorney General
JUDGEZOLUE STEAKLEY.(Ret.)
Special Assistant Attorney General
RENEAHKKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 190