Somehow this issue has just gotten around to us despite the fact that this briefing paper was written in January of this year. It appears that in order to comply with federal guidelines and continue to get federal funding, contempts can no longer be treated as delinquent conduct except in VERY limited circumstances (i.e. cannot detain as you would in a typical delinquent case). is this how other jurisdiction have interpreted this? I have pasted the briefing paper below.


BRIEFING PAPER


TEXAS CONTEMPT OF MAGISTRATE�S ORDER AND THE FEDERAL JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT OF 2002


The State of Texas participates in the federal Juvenile Justice and Delinquency Prevention Act of 2002 (JJDPA, or the Act). Simply stated, the Governor agrees to abide by the requirements of the Act and, in return, the State receives a variety of federal funds for justice system-related projects and activities. This funding continues as long as the State is determined to be in compliance with the requirements of the Act.


Maintaining compliance with the Act�s requirements is not difficult because most of the laws in Texas mirror these federal requirements. In effect, complying with Texas law results in compliance with the federal Act. There is one significant exception, however, that results in the opposite outcome, that is, compliance with Texas law results in non-compliance with one of the Act�s requirements.


The state�s definition of delinquent conduct includes conduct that violates a lawful order of a court under circumstances that would constitute contempt of court in a justice court. Justice courts have jurisdiction in certain circumstances over certain status offenders. If a status offender violates the order of the justice court, one of the options available to the court is to refer the juvenile to the Juvenile Court for delinquent conduct, i.e., alleged contempt of a justice court order. This is only a referral. It is not a finding of contempt.


The justice court referral may be handled in the same manner as any other referral or arrest for alleged delinquent conduct. One of the available options is to �deliver� the juvenile to a secure detention facility. If the juvenile is detained, the court must a hold a detention hearing and release the juvenile, unless the court finds that continued detention is warranted, i.e., the juvenile meets one or more of the statutory criteria.


This state statutory scheme conflicts with the federal Act in two respects. First, the Office of Juvenile Justice and Delinquency Prevention interprets the Act to prohibit upgrading a status offender to a delinquent offender for violating a valid court order imposed for a status offense, unless the violation, itself, is a delinquent act, as defined by federal law.


Second, the Act provides for an exception allowing states to detain an adjudicated status offender for violating a valid court order (VCO). In order to receive this exception the state must demonstrate that several mandatory criteria have been met. The most important criterion in this instance is that � the JJDP Act of 2002 defines a valid court order as a court order given by a juvenile court judge to a juvenile who was brought before the court and made subject to such order; and who received, before the issuance of the order, the full due process rights guaranteed to such juvenile by the Constitution of the United States.� And the most important of these rights is the right to legal counsel. In Texas juveniles do not have a right to appointed counsel when charged in a justice court. Thus, unless the juvenile retained counsel in the justice court proceeding that preceded his alleged contempt, the state cannot claim the VCO exception.


The state can claim the general 24-hour exception that is available in all status offender instances. Thus, a juvenile detained on a referral from a justice court for contempt can be securely detained for up to 24 hours (excluding weekends and holidays) and not be found in non-compliance with the Act.



Prepared by Peter Plant

Texas JJDPA Compliance Monitoring Project January 7, 2008

This is the first I've heard of it.

Please email me the original information and I will make inquiries. If federal grant rules require a change in state law, I will make sure the appropriate parties are put on notice.

I found out about this right before Thanksgiving, when I was questioned about detaining juvenile who had exhibited tremendous contempt toward her justice court probation terms.

One of the detention centers that we use will not take a child detained for contempt of the justice court any more. The other apparently still will.

Our juvenile probation department provided me with the brief you posted. It was the first I heard of it, despite its January origin.

It is my understanding that the detention centers are getting audited by the feds and being marked down for taking these types of detentions. On the other hand, we used to have the JP refer kids who were violating their truancy probation to our JJAEP program. The state people who audited the JJAEP program squawked about that.

We try to use the threat of being locked up for a few days to encourage compliance with truancy probation.

Basically, we need to work toward something that will allow us to have some teeth in truancy probations. I am not sure what that will be, but I will be happy to help figure it out.

Does anyone find it distressing that state sovereignty is so easily abandoned?

Next up for sale is our state decisions on how to apply sex offender registration restrictions. The feds want tighter application. Texas has shown some interest in leaving local officials some discretion in applying the restrictions in those cases where it might be argued that an offender is a juvenile or not a predatory pedophile. And the threat of lost grant dollars is the inducement to go along with federal guidelines.

I'm no expert, but after reading relevant portions of TDCAA's Juveniles book, it looks to me like Family Code Sections 54.011 and 54.04 prohibit a "contemptible" (ha ha) status offender from being detained for anything longer than 24 hours when the contempt occurs at the JP level. The provisions that allow longer periods of detention do not apply to contempt of a JP's order, which is not a "valid court order" for these purposes (see Section 51.02). And I imagine the law is written that way to comply with the federal JJDPA, as this memo (above) describes it, so it is unlikely the Legislature will change it.

I guess you'll have to find other creative ways to enforce those JP orders. Maybe someone has some good suggestions that they could share here ... ?

Cut off their texting. That would really hurt.

I have given so much thought to this one. Another day I will respond with the law and the AG's opinion and some legal sense response. Today I am just shaking my head.

So that you know where I'm coming from - Truancy is one of my big issues and we have a Stay-in-School program here that makes use of Contempt referrals for kids who are convicted in JP court for Failure to Attend and then continue to miss school after being ordered to attend - and this contempt delinquency referral sometimes includes a trip to the detention center when they are first referred under a theory of pre-adjudication detention for a delinquency offense. The AG's opinion supported this procedure.

This is the same Federal Government saying you-can't-do-anything to them when they don't go to school AND AT THE SAME TIME saying we will penalize the state by withholding federal educational assistance funding if you don't do something about truancy and dropout rates.

What are we supposed to do????