I am not a prosecutor--I work for DPS--and my knowledge of juvenile law is sketchy at best. So I am posing this rather silly question to those of you are knowledgeable in juvenile law and procedure. Here is the scenario. X commits a serious felony at the age of 16, but is not implicated as a suspect until X is in his mid-20s. Can the police investigators ask for and get a DNA sample from X without involving his parents? What if Mom says 'no' while X says 'yes'? (I told you it was a silly question!)

I seems obvious that since X is legally an adult he can be handled as an adult for the purpose of the criminal investigation. The provisions in the Family Code come into play if X is charged with the offense. I know it has to be filed in juvenile court which will decide where X is to be detained (juvenile detention center or county jail) and then determine whether the case should be transferred to the appropriate criminal court or dismissed (since the juvenile court lost jurisdiction over X when he turned 18). However, it seems logical that for purposes of interrogation, taking statements, etc., those would be handled under the CCP, not the Family Code provisions. I appreciate any assistance from those of you who know this area of the law.

Janette Ansolabehere

If you're not a juvenile I don't think the juvenile confession provisions apply to you. See Griffin v. State, 765 S.W.2d 422, 427 (Tex.Crim.App.1989) (stating that Family Code applied because defendant was a juvenile when she made her statement); Dix & Dawson, 41 Texas Practice section 13.323. But see Ramos v. State
961 S.W.2d 637, 639 (Tex.App.-San Antonio 1998, no pet.). I think Ramos says that if you commit an offense as a juvenile 51.095 will apply to you until you are 18 -- based on 51.02(2)(B).

Thanks for the input David. I will check those two cases out. With the advent of DNA, I would think that there would be more murder and sexual assault cold cases being solved that involved persons who committed the crime as a child, but are now in their 20s or even 30s. This has got to be an issue.

Janette Ansolabehere

I think you are both wrong. HOW OLD WAS HE WHEN HE DID IT ?? That is always going to control. He has to be processed as a juvenile and the case has to be filed in the juvenile court. Since he is over 18, all you can do is ask the court to waive jurisdiction and you need to be able to prove up (1) the state did not have the evidence to proceed prior to his becoming 18; or (2) the state was unable to proceed because his whereabouts was unknown prior to his becoming 18(Look at 54.02(j)in the Family code). The investigation needs to conform to the juvenile law requirements as to confessions and gathering of evidence (DNA). The juvenile court can lock him up in an adult facility with an appropriate order (see 54.02(p)). We do it from time to time in this type of case and I have forms if you need them.

I didn't address the issue of how an adult, who commited a crime as a child, would be prosecuted since I don't believe that was the question asked.

With respect to the question that was asked, what is the legal authority underlying your opinion? If there is some contrary authority to the cases, statutes and treatise that I cited in my response, I'd appreciate the cites.

The investigation statutes that I have in mind, speak of "the statement of a child" TFC 51.095 and and "taking a child into custody." TFC 52.02. A person over 18 years of age in not "a child." TFC 51.02(2).