Juvenile Indigent Defense Delivery System
Texas provides counsel to indigent youth through a county-based system that includes contract attorneys, assigned panel attorneys, and public defender offices. The Texas Indigent Defense Commission was established by statute and provides funding to counties that meet the Commission’s standards for indigent defense, which are ratified by the Texas Judicial Counsel. In addition, the Commission monitors adherence to these standards and provides “financial and technical support to counties to develop and maintain” their indigent defense systems.
Some counties, such as Travis County and Dallas County, have a separate juvenile unit at the trial level. However, each county has a juvenile Board that develops a plan specifying qualifications for juvenile defenders and establishes procedures for appointing counsel. Tex. Fam. Code § 51.102. Attorneys who meet the county plan requirements can only represent youth “accused of engaging in delinquent conduct or conduct indicating a need for supervision” if the attorney completes at least “six hours of continuing legal education pertaining to juvenile law during each 12-month reporting period…. or is currently certified in juvenile law by the Texas Board of Legal Specialization.” 1 Tex. Admin. Code § 174.2.
Texas youth have a right to a trial by jury, which he or she may waive. Tex. Fam. Code § 54.03(c).
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Texas does not have specific juvenile court rules at the statewide level, but court rules for other proceedings (such as the Rules of Appellate Procedure) may apply in juvenile court proceedings. In addition, local court rules may apply depending on the district.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitutional or statutory provisions further expanding upon or delineating that right.
In Texas, youth in juvenile court have the right to counsel at every stage of delinquency proceedings, , specifically the following proceedings under under Tex. Fam. Code § 51.10:
- Detention hearing;
- Hearing to consider transfer to criminal court;
- Adjudication hearing;
- Disposition hearing;
- Hearing prior to commitment to the Texas Youth Commission;
- Hearings required by Chapter 55 (for children with mental illness or intellectual disabilities);
- Habeas corpus proceedings challenging the legality of detention;
- Appellate proceedings. Tex. Fam. Code § 51.10; and
- Probation revocation hearings, pursuant to Franks v. State, 498 S.W.2d 516 (Ct. Civ. App. Tx. 1973).
If a child is not represented at a detention hearing and the child is detained following that hearing, “the child shall immediately be entitled to representation by an attorney” and shall either appoint counsel or order the child’s parent to hire an attorney. Tex. Fam. Code § 51.10(c). Counsel must be appointed at least ten days in advance of an adjudication or transfer hearing. Tex. Fam. Code § 51.10(h). Regardless of indigence, a court may appoint counsel “in any case in which it deems representation necessary to protect the interests of the child.” Tex. Fam. Code § 51.10(g).
Determination of Indigence
Texas has no presumption of indigence in juvenile court proceedings. If a child appears in court without counsel, the court will determine whether “the parent or other person responsible for support of the child is financially able to employ an attorney to represent the child,” and if the parent is not able to afford counsel, the court will appoint counsel unless that right has been appropriately waived. Tex. Fam. Code § 51.10(e), (f). If the parent or other responsible adult can afford an attorney for the child, the court will order that person to hire an attorney. Tex. Fam. Code § 51.10(d). If the parent does not hire a lawyer for the child, the court will appoint counsel for the child and order the parent to pay some or all of the costs of counsel and related legal fees. Tex. Fam. Code § 51.10(e), (k), (l).
Waiver of Counsel
A juvenile in Texas may waive his or her right to counsel if:
(1) The waiver is made by the child and the attorney for the child;
(2) The child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) The waiver is voluntary; and
(4) The waiver is made in writing or in court proceedings that are recorded.”
Tex. Fam. Code § 51.09.
A child may not waive his or her right to counsel in:
(1) A hearing to consider transfer to criminal court;
(2) An adjudication hearing;
(3) A disposition hearing;
(4) A hearing prior to commitment to the Texas Youth Commission as a modified disposition;
(5) Hearings required by Chapter 55 (proceedings concerning children with mental illness).
Tex. Fam. Code § 51.10(b).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Texas, a detention hearing must occur no later than the second working day after the child is taken into custody. However, when the juvenile is detained on a Friday or Saturday, the hearing must be held on the first working day following the child’s detention. Tex. Fam. Code § 54.01. Other provisions regarding the detention of juveniles can be found in Tex. Fam. Code §§ 51.12, 52.01, 53.02, 54.011, and 54.012.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Texas statutes list four post-disposition proceedings at which youth have a right to counsel.
In Texas, youth have a right to counsel in the following post-disposition proceedings:
- Hearing prior to modified commitment to the Texas Youth Commission. Tex. Fam. Code § 51.10;
- Habeas corpus proceedings challenging the legality of detention. Tex. Fam. Code § 51.10;
- Probation revocation hearing. Franks v. State, 498 S.W.2d 516 (Ct. Civ. App. Tx. 1973); and
- Appellate proceedings. Tex. Fam. Code § 51.10.
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Texas:
- The youngest age at which a juvenile can be adjudicated delinquent is 10. Tex. Fam. Code. § 51.02(2)(A);
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 17th birthday; after age 17, the youth is charged in adult court. Tex. Fam. Code § 51.02(2)(A);
- Juvenile court has jurisdiction over a youth until age 18 for offenses alleged to have been committed prior to a child’s 17th birthday. Tex. Fam. Code § 51.02(2)(B);
- Juvenile court can retain jurisdiction over a youth who committed a delinquent act prior to his or her 17th birthday, without regard to age, in order to decide any issue remanded to the court from an appellate court. Tex. Fam. Code § 51.041.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Texas has two ways that juveniles can be prosecuted as adults:
- Discretionary waiver: for youth age 14 and older that meet the offense criteria. Tex. Fam. Code § 54.02.
- Once an Adult, Always an Adult: when a child has previously been charged in adult court they will be prosecuted in adult court for any future felony offenses, given that other criteria are also met. Tex Fam. Code § 54.02(m)(1).
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
The Texas Assessment was completed in 2000.