I am preparing for a waiver/transfer hearing [54.02(j)] of a 22-year-old who committed aggravated sexual assault on 9-year-old when he was 15. The victim just told the police about this 7-year-old offense.

Before the hearing, does the law require a "complete diagnostic study, social evaluation, and full investifation of the child, his circumstances, and the circumstances of the alleged offense" [TFC 54.02(d)] when the person is not a "child" at the time of the hearing? It seems it should only be required when certifying a child to be tried as an adult [54.02(a)]. But the law seems to require it (absent a proper waiver under ?51.09). In the Matter of J.C.C., 952 S.W.2d 47, 49 (Tex.App. - San Antonio, 1997). In that case, the court found that the trial court erred by not doing written findings and conclusions as required under subsection (h)- the same subsection that requires this diagnostic study be done before the hearing (in that case the failure of the court was harmless because the finding and conclusions were evident from the record).

In addition, in Texas Juvenile Law, 5th Edition, Dr. Dawson says that it applies to persons over 18 on page 128 - without any discussion, that I could find, on why this would be necessary for an adult who committed a crime as a child. Sec. 54.02(d) uses the word "child" and it seems that this provision should not apply in my circumstance - how would psychological and social evaluations of the respondent matter in the ultimate decision? Anyone know of an exception for a situation such as mine?

While it is necessary when certifying a child to stand trial as an adult, under 54.02(f), I think the Juvenile department and assorted experts would be wasting their time on an issue that would not even be considered by the juvenile court under 54.02(j).

I have not encountered such a case. However, just looking at the construction of 54.02, it seems you may be correct.

(a) starts one section: discretionary transfer of a CHILD

(j) starts another section: discretionary transfer of a PERSON

(m) starts the third section: mandatory waiver & transfer.

See that language in (a) is similar to that in (j) and (m); (a)(2)(B) language is similar to (j) (2)(3); (b) is similar to (k); (c) is similar to (l)

because the section seems to be divided into 3 parts, and some of the langugage is repeated from part to part BUT NOT ALL OF IT.

In the Matter of M.A.V., 954 SW2d 117, 118:
"The required elements of proof for a certification order depend upon the age of the individal. See TEX.FAM.CODE ANN. 54.02 (Vernon 1996). As noted, section 54.02(a)-(i) applies when the individual is under the age of eighteen and subsection (j) is triggered when the individual is over the age of eighteen."

Hope this helps you.

Thanks -- you've affirmed what I believed. That is why, at first, I ignored the requirement under (d). It followed the under-18 provisions following (a) and preceeded those of the over-18 provisions in (j).

But look at (n): it specifically exempts the proceeding under (m) from having to do a diagnostic study under (d). There is no similar exception following (j).

Also, subsection (h)'s mandatory language includes requiring the court to "cause the results of the diagnostic study of the person under Subsection (d)..." to be transfered. J.C.C., 952 S.W.2d 47, applied this provision directly to hearings under (j). In addition, (h) uses the word "person" instead of "child" when referencing the diagnostic study.

Despite this confusing morass, I am tempted (if the respondent doesn't waive it) to ask the Judge not to order the study simply because there is no similar requirement under (j) as in (a)(3): "after a full investigation and a hearing ... because of ... the background of the child the welfare of the community requires criminal proceedings." What the study looks for is not relevant at a hearing under (j).

Is this an issue worth fighting on appeal?

What happened in your case? I have an adult defendant on sex offender probation that has confessed to another sexual offense that he committed as a juvenile. Law enforcement has spoken to the victim and he confirmed it is true that he was sexually assault by defendant but he never told anyone until now. I am considering filing a juvenile petition and certifying him as an adult.