I have an adult defendant (19/20) committed a felony at 15/16. It was only reported after the defendant's 18th birthday. We have filed a transfer petition and really have no problem w/ proving the impracticability of prosecuting the case prior to the defendant's 18th birthday.

Question is, does the court have to do all the phychologicals, social studies, etc. or can the court as a matter of law just transfer the defendant since the juvenile court really has no ability to deal with this defendant. (Yes I know he is actually a respondent - but that is only a temporary condition.)

Since no one else responded, I'll take a shot. I think the whole 54.02(d) process is required. That view is supported by the fact that 54.02(n) specifically states that a study is not needed for a 54.02(m) transfer.

This requirement seems odd since it doesn't look relevant to any of the issues under 54.02(j).

In re V.L.G., 2007 WL 135974 (Tex.App.-Austin January 19, 2007) (defendant was 32; "the juvenile court ordered 'diagnostic study, social evaluation' and full investigation" required under section 54.02 of the family code,")

Webb v. State, 2001 WL 1326894 (Tex.App.-El Paso October 25, 2001) (diagnostic study done in case where defendant was 18)

In re N. B., 1999 WL 214881 (Tex.App.-Austin April 15, 1999) (diagnostic study done of 19 year old)

29 TX PRAC sec. 825 (Once these threshold questions have been resolved and the court has ruled that the prosecutor may proceed with the motion for discretionary transfer, the trial should be conducted in exactly the same manner as any other transfer hearing.)

http://www.juvenilelaw.org/Articles/2004/Certification.pdf
at II.B.("TFC 54.02(d) is mandatory for discretionary transfer whether the subject is a child under age 18 or a person 18 or older. Failure to order the study, evaluation, and investigation or to obtain and consider the report will result in reversal of any discretionary transfer order.")

I agree. I was hoping that I was wrong, but for some reason we have to prove that this adult is no longer a child and must be prosecuted as an adult. Rather strange because if he is not then I can't prosecute him at all!

Next question - my respondent is in jail on a warrant. What, if anything, should be done with him during this process? He is not a juv. so no detention hearings...bond process? This is such a murky area of the law, and there really is no reason for it to be.

http://www.juvenilelaw.org/Articles/2004/Certification.pdf
at PDF pg 23 (article pg 21)

DETENTION OF A PERSON 18 OR OLDER
The juvenile court may detain a person 18 or older in the juvenile detention facility or the county jail pending a certification hearing. TFC 54.02(o) - (r) and 51.041(b). A detention hearing must be conducted just as in the case for any person in custody in a juvenile proceeding, and the court must release the respondent unless certain findings are made. TFC 54.02(o)(1) – (3). The detention criteria in TFC 54.01(e) regarding parental presence and supervision were eliminated from TFC 54.02(o)(1)-(3) since it deals specifically with those 18 years of age or older. If the person is detained in the juvenile detention facility, “to the extent practicable, the person shall be kept separate from children detained in the same facility.” TFC 54.02(q). If the juvenile court orders detention in a county jail, the juvenile court must set or deny bond as required by the Code of Criminal Procedure (CCP). If the court sets bond, it should use the criteria set forth in CCP Art. 17.15 to fix the amount.

Yes the diagnostic study and social evaluation are still mandatory but they can be expressly waived in writing if the respondent and attorney are willing.