I'm working on a juvenile appeal where a 17-year-old juvenile absconded while on probation. He was apprehended about 12 days before his 18th birthday, and the modification-of-disposition hearing wasn't held until almost two weeks after his 18th birthday.
A couple of courts of appeals say Family Code sec. 54.05(a)is jurisdictional. See, e.g., In re A.B., No. 01-03-00700-CV, 2003 WL 22909318 (Tex. App.--Houston [1st Dist.] December 5, 2003, no pet. h.) (per curiam; memorandum op.), and In re D.C., 49 S.W.3d 26, 28 (Tex. App.--San Antonio, no pet.); see also In re N.J.A.,997 S.W.2d 554, 556 (Tex. 1999). Are we just out of luck?
This just seems wrong to me. What if we hadn't caught the kid before his 18th birthday? (Note: while I'm not convinced sec. 54.05(l) would help us, it isn't applicable to my case.)
I think that it comes down to a race to the courthouse. Perhaps the law could be modified to give the juvenile court jurisdiction in situations where the state has shown due diligence and the person is a danger to himself or others. However, the juvenile system is not for eighteen-year-olds. I doubt that TYC would want us to send them a first-time offender who is eighteen years old. Like the rest of the juvenile system, that is not what they are designed for. If the juvenile is that bad, he will probably get into more trouble for which he can be prosecuted as an adult. Then, as often happens with gaps in the juvenile system, there will be another crime victim when the juvenile gets into trouble again. If the situation is extreme enough, the state could pursue civil commitment proceedings. If I think a juvenile is going to run, but I cannot show the reasonable efforts findings necessary to send him to TYC, I seek a determinate sentence, even if it is determinate probation. If a determinate sentence is not available, we try to act early, but this has its limits, especially is the juvenile is not TYC-eligible.
I don't know if it would apply to your case, but in the 2004 Case Summaries on the Juvenile Law Section of the SBOT web page there is a case that is close, if not on point. See www.juvenilelaw.org/CaseSummaries2004/04-1-05.HTM. The headline is "Juvenile court lost jurisdiction to revoke probation when respondent became 18". (the case is UNPUBLISHED)
The interesting part is the "Editor's Comments" at the end which says "this opinion is correct only if the motion to modify was not filed until after the respondent became 18, which seems unlikely in this case. The legislature in 2001 added Family Code Section 51.0412 to abrogate N.J.A. as to cases in which the motion was filed before the respondent became 18 and the State used due diligence to have the modification hearing but it could not be conducted until the respondent became 18."
Look at Sec. 51.0412 and see if it applies in your case and that might be your answer.
Thanks for all your replies.
Juvenile law is too challenging to practice alone.
Here is what we ended up arguing -- TFC � 51.0412 controlled in court of appeals' brief: "Appellant�s probation may have ended when we turned 18, but the juvenile court had the authority to modify the previous disposition pursuant to � 51.0412." In further support, cited to the Editor's Comment following the synopsis to A.B. on the TJPC web site.
In addition, argued that the juvenile court was authorized to hold a modification hearing after Appellant�s 18th birthday and commit Appellant to TYC because Appellant never made an age-related objection at trial to the court�s jurisdiction. TEX. FAM. CODE ANN. � 51.042 (Vernon Supp. 2003); In re J.C.M., No. 08-02-00303-CV, 2003 WL 22455287 at *3 (Tex.App. � El Paso October 29, 2003, no pet. h.) (mem. op.).
Filed brief in late December 2003 and no decision yet. Fingers crossed.
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