Have a 18 year old that committed a burglary when was 16. Do I understand Art.45.060 in that we can not issue a DTA for him at this time? We need to first issue a summons ordering the person to appear. If he fails to do so, then a FTA can be issued. Which lead to the Q, if an FTA is issued, is it issued as if the person is an adult and can be taken to Jail, or is it as if the person is still a juvi and has to be taken before a mag. etc.?
IMHO, Chapter 45 (CCP)only deals with JP and Muni courts and therefore does not apply to your Juvi Court.
My belief is that you can issue a DTA, but then the question becomes what are you going to do with this "child" ?
Since the "child" is not a violent offender and the case is 2+ years old (provided of course you are going to be able to prove to the court why it wasn't practicle to get it filed before he turned 18), I would file the petition for waiver and then have him summoned to court. It will save you a lot of headaches.
As far as procedure, he needs to be treated as if he were a juvenile for confessions, etc despite the fact that he is now an adult.
My 2 cents re: the confession comments...
� 51.02 FC. DEFINITIONS. In this title (ie 51.095):
(2) "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.
Thus, the over 18 yr old adult is NOT a child for confession purposes if interrogated after 18 yrs of age. See also Dawson, 6th ed. p.330.
We're back to the Gaither/Dawson argument from past posts. How safe do you want to be ? Do you want a belt and suspenders ?
I'm just overly cautious in a county that may/may not be familiar with the family code and I certainly don't want to be the prosecutor whose name is in the case law for having gone out on the limb and had it cut off behind me.
And what if your confession is ruled inadmissible at the trial level because the Judge believes you should have gone the juvi route, gonna appeal that ruling ?
I say better safe than sorry.
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Williamson County, Texas
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