CHAPTER 53. PROCEEDINGS PRIOR TO JUDICIAL PROCEEDINGS

FAMILY CODE

TITLE 3. JUVENILE JUSTICE CODE

CHAPTER 53. PROCEEDINGS PRIOR TO JUDICIAL PROCEEDINGS

Sec. 53.01. PRELIMINARY INVESTIGATION AND DETERMINATIONS; NOTICE

TO PARENTS. (a) On referral of a person believed to be a child

or on referral of the person's case to the office or official

designated by the juvenile board, the intake officer, probation

officer, or other person authorized by the board shall conduct a

preliminary investigation to determine whether:

(1) the person referred to juvenile court is a child within the

meaning of this title; and

(2) there is probable cause to believe the person:

(A) engaged in delinquent conduct or conduct indicating a need

for supervision; or

(B) is a nonoffender who has been taken into custody and is

being held solely for deportation out of the United States.

(b) If it is determined that the person is not a child or there

is no probable cause, the person shall immediately be released.

(c) When custody of a child is given to the office or official

designated by the juvenile board, the intake officer, probation

officer, or other person authorized by the board shall promptly

give notice of the whereabouts of the child and a statement of

the reason the child was taken into custody to the child's

parent, guardian, or custodian unless the notice given under

Section 52.02(b) provided fair notice of the child's present

whereabouts.

(d) Unless the juvenile board approves a written procedure

proposed by the office of prosecuting attorney and chief juvenile

probation officer which provides otherwise, if it is determined

that the person is a child and, regardless of a finding of

probable cause, or a lack thereof, there is an allegation that

the child engaged in delinquent conduct of the grade of felony,

or conduct constituting a misdemeanor offense involving violence

to a person or the use or possession of a firearm, illegal knife,

or club, as those terms are defined by Section 46.01, Penal Code,

or prohibited weapon, as described by Section 46.05, Penal Code,

the case shall be promptly forwarded to the office of the

prosecuting attorney, accompanied by:

(1) all documents that accompanied the current referral; and

(2) a summary of all prior referrals of the child to the

juvenile court, juvenile probation department, or a detention

facility.

(e) If a juvenile board adopts an alternative referral plan

under Subsection (d), the board shall register the plan with the

Texas Juvenile Probation Commission.

(f) A juvenile board may not adopt an alternate referral plan

that does not require the forwarding of a child's case to the

prosecuting attorney as provided by Subsection (d) if probable

cause exists to believe that the child engaged in delinquent

conduct that violates Section 19.03, Penal Code (capital murder),

or Section 19.02, Penal Code (murder).

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 21, eff.

Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1374, Sec. 5, eff. Sept.

1, 1997; Acts 2001, 77th Leg., ch. 1297, Sec. 18, eff. Sept. 1,

2001; Acts 2003, 78th Leg., ch. 283, Sec. 12, eff. Sept. 1, 2003.

Sec. 53.012. REVIEW BY PROSECUTOR. (a) The prosecuting

attorney shall promptly review the circumstances and allegations

of a referral made under Section 53.01 for legal sufficiency and

the desirability of prosecution and may file a petition without

regard to whether probable cause was found under Section 53.01.

(b) If the prosecuting attorney does not file a petition

requesting the adjudication of the child referred to the

prosecuting attorney, the prosecuting attorney shall:

(1) terminate all proceedings, if the reason is for lack of

probable cause; or

(2) return the referral to the juvenile probation department for

further proceedings.

(c) The juvenile probation department shall promptly refer a

child who has been returned to the department under Subsection

(b)(2) and who fails or refuses to participate in a program of

the department to the prosecuting attorney for review of the

child's case and determination of whether to file a petition.

Added by Acts 1995, 74th Leg., ch. 262, Sec. 22, eff. Jan. 1,

1996.

Sec. 53.013. PROGRESSIVE SANCTIONS PROGRAM. Each juvenile board

may adopt a progressive sanctions program using the model for

progressive sanctions in Chapter 59.

Added by Acts 1995, 74th Leg., ch. 262, Sec. 22, eff. Jan. 1,

1996. Amended by Acts 1997, 75th Leg., ch. 1086, Sec. 7, eff.

Sept. 1, 1997; Acts 2003, 78th Leg., ch. 479, Sec. 1, eff. Sept.

1, 2003.

Sec. 53.02. RELEASE FROM DETENTION. (a) If a child is brought

before the court or delivered to a detention facility as

authorized by Sections 51.12(a)(3) and (4), the intake or other

authorized officer of the court shall immediately make an

investigation and shall release the child unless it appears that

his detention is warranted under Subsection (b). The release may

be conditioned upon requirements reasonably necessary to insure

the child's appearance at later proceedings, but the conditions

of the release must be in writing and filed with the office or

official designated by the court and a copy furnished to the

child.

(b) A child taken into custody may be detained prior to hearing

on the petition only if:

(1) the child is likely to abscond or be removed from the

jurisdiction of the court;

(2) suitable supervision, care, or protection for the child is

not being provided by a parent, guardian, custodian, or other

person;

(3) the child has no parent, guardian, custodian, or other

person able to return the child to the court when required;

(4) the child may be dangerous to himself or herself or the

child may threaten the safety of the public if released;

(5) the child has previously been found to be a delinquent child

or has previously been convicted of a penal offense punishable by

a term in jail or prison and is likely to commit an offense if

released; or

(6) the child's detention is required under Subsection (f).

(c) If the child is not released, a request for detention

hearing shall be made and promptly presented to the court, and an

informal detention hearing as provided in Section 54.01 of this

code shall be held promptly, but not later than the time required

by Section 54.01 of this code.

(d) A release of a child to an adult under Subsection (a) must

be conditioned on the agreement of the adult to be subject to the

jurisdiction of the juvenile court and to an order of contempt by

the court if the adult, after notification, is unable to produce

the child at later proceedings.

(e) Unless otherwise agreed in the memorandum of understanding

under Section 37.011, Education Code, in a county with a

population greater than 125,000, if a child being released under

this section is expelled under Section 37.007, Education Code,

the release shall be conditioned on the child's attending a

juvenile justice alternative education program pending a deferred

prosecution or formal court disposition of the child's case.

(f) A child who is alleged to have engaged in delinquent conduct

and to have used, possessed, or exhibited a firearm, as defined

by Section 46.01, Penal Code, in the commission of the offense

shall be detained until the child is released at the direction of

the judge of the juvenile court, a substitute judge authorized by

Section 51.04(f), or a referee appointed under Section 51.04(g),

including an oral direction by telephone, or until a detention

hearing is held as required by Section 54.01.

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973. Amended by Acts 1979, 66th Leg., p. 1102, ch. 518, Sec. 1,

eff. June 11, 1979; Acts 1981, 67th Leg., p. 291, ch. 115, Sec.

1, eff. Aug. 31, 1981; Acts 1995, 74th Leg., ch. 262, Sec. 23,

eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1015, Sec. 17, eff.

June 19, 1997; Acts 1997, 75th Leg., ch. 1374, Sec. 6, eff. Sept.

1, 1997; Acts 1999, 76th Leg., ch. 232, Sec. 1, eff. Sept. 1,

1999.

Sec. 53.03. DEFERRED PROSECUTION. (a) Subject to Subsections

(e) and (g), if the preliminary investigation required by Section

53.01 of this code results in a determination that further

proceedings in the case are authorized, the probation officer or

other designated officer of the court, subject to the direction

of the juvenile court, may advise the parties for a reasonable

period of time not to exceed six months concerning deferred

prosecution and rehabilitation of a child if:

(1) deferred prosecution would be in the interest of the public

and the child;

(2) the child and his parent, guardian, or custodian consent

with knowledge that consent is not obligatory; and

(3) the child and his parent, guardian, or custodian are

informed that they may terminate the deferred prosecution at any

point and petition the court for a court hearing in the case.

(b) Except as otherwise permitted by this title, the child may

not be detained during or as a result of the deferred prosecution

process.

(c) An incriminating statement made by a participant to the

person giving advice and in the discussions or conferences

incident thereto may not be used against the declarant in any

court hearing.

(d) The juvenile board may adopt a fee schedule for deferred

prosecution services and rules for the waiver of a fee for

financial hardship in accordance with guidelines that the Texas

Juvenile Probation Commission shall provide. The maximum fee is

$15 a month. If the board adopts a schedule and rules for waiver,

the probation officer or other designated officer of the court

shall collect the fee authorized by the schedule from the parent,

guardian, or custodian of a child for whom a deferred prosecution

is authorized under this section or waive the fee in accordance

with the rules adopted by the board. The officer shall deposit

the fees received under this section in the county treasury to

the credit of a special fund that may be used only for juvenile

probation or community-based juvenile corrections services or

facilities in which a juvenile may be required to live while

under court supervision. If the board does not adopt a schedule

and rules for waiver, a fee for deferred prosecution services may

not be imposed.

(e) A prosecuting attorney may defer prosecution for any child.

A probation officer or other designated officer of the court:

(1) may not defer prosecution for a child for a case that is

required to be forwarded to the prosecuting attorney under

Section 53.01(d); and

(2) may defer prosecution for a child who has previously been

adjudicated for conduct that constitutes a felony only if the

prosecuting attorney consents in writing.

(f) The probation officer or other officer designated by the

court supervising a program of deferred prosecution for a child

under this section shall report to the juvenile court any

violation by the child of the program.

(g) Prosecution may not be deferred for a child alleged to have

engaged in conduct that:

(1) is an offense under Section 49.04, 49.05, 49.06, 49.07, or

49.08, Penal Code; or

(2) is a third or subsequent offense under Section 106.04 or

106.041, Alcoholic Beverage Code.

(h) If the child is alleged to have engaged in delinquent

conduct or conduct indicating a need for supervision that

violates Section 28.08, Penal Code, deferred prosecution under

this section may include:

(1) voluntary attendance in a class with instruction in

self-responsibility and empathy for a victim of an offense

conducted by a local juvenile probation department, if the class

is available; and

(2) voluntary restoration of the property damaged by the child

by removing or painting over any markings made by the child, if

the owner of the property consents to the restoration.

(i) The court may defer prosecution for a child at any time:

(1) for an adjudication that is to be decided by a jury trial,

before the jury is sworn;

(2) for an adjudication before the court, before the first

witness is sworn; or

(3) for an uncontested adjudication, before the child pleads to

the petition or agrees to a stipulation of evidence.

(j) The court may add the period of deferred prosecution under

Subsection (i) to a previous order of deferred prosecution,

except that the court may not place the child on deferred

prosecution for a combined period longer than one year.

(k) In deciding whether to grant deferred prosecution under

Subsection (i), the court may consider professional

representations by the parties concerning the nature of the case

and the background of the respondent. The representations made

under this subsection by the child or counsel for the child are

not admissible against the child at trial should the court reject

the application for deferred prosecution.

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973. Amended by Acts 1983, 68th Leg., p. 3261, ch. 565, Sec. 1,

eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1040, Sec. 22, eff.

Sept. 1, 1987; Acts 1995, 74th Leg., ch. 262, Sec. 24, eff. Jan.

1, 1996; Acts 1997, 75th Leg., ch. 593, Sec. 6, eff. Sept. 1,

1997; Acts 1997, 75th Leg., ch. 1013, Sec. 16, eff. Sept. 1,

1997; Acts 1999, 76th Leg., ch. 62, Sec. 19.01(17), eff. Sept. 1,

1999; Acts 2003, 78th Leg., ch. 283, Sec. 13, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

949, Sec. 11, eff. September 1, 2005.

Sec. 53.035. GRAND JURY REFERRAL. (a) The prosecuting attorney

may, before filing a petition under Section 53.04, refer an

offense to a grand jury in the county in which the offense is

alleged to have been committed.

(b) The grand jury has the same jurisdiction and powers to

investigate the facts and circumstances concerning an offense

referred to the grand jury under this section as it has to

investigate other criminal activity.

(c) If the grand jury votes to take no action on an offense

referred to the grand jury under this section, the prosecuting

attorney may not file a petition under Section 53.04 concerning

the offense unless the same or a successor grand jury approves

the filing of the petition.

(d) If the grand jury votes for approval of the prosecution of

an offense referred to the grand jury under this section, the

prosecuting attorney may file a petition under Section 53.04.

(e) The approval of the prosecution of an offense by a grand

jury under this section does not constitute approval of a

petition by a grand jury for purposes of Section 53.045.

Added by Acts 1999, 76th Leg., ch. 1477, Sec. 6, eff. Sept. 1,

1999.

Sec. 53.04. COURT PETITION; ANSWER. (a) If the preliminary

investigation, required by Section 53.01 of this code results in

a determination that further proceedings are authorized and

warranted, a petition for an adjudication or transfer hearing of

a child alleged to have engaged in delinquent conduct or conduct

indicating a need for supervision may be made as promptly as

practicable by a prosecuting attorney who has knowledge of the

facts alleged or is informed and believes that they are true.

(b) The proceedings shall be styled "In the matter of

______________."

(c) The petition may be on information and belief.

(d) The petition must state:

(1) with reasonable particularity the time, place, and manner of

the acts alleged and the penal law or standard of conduct

allegedly violated by the acts;

(2) the name, age, and residence address, if known, of the child

who is the subject of the petition;

(3) the names and residence addresses, if known, of the parent,

guardian, or custodian of the child and of the child's spouse, if

any;

(4) if the child's parent, guardian, or custodian does not

reside or cannot be found in the state, or if their places of

residence are unknown, the name and residence address of any

known adult relative residing in the county or, if there is none,

the name and residence address of the known adult relative

residing nearest to the location of the court; and

(5) if the child is alleged to have engaged in habitual felony

conduct, the previous adjudications in which the child was found

to have engaged in conduct violating penal laws of the grade of

felony.

(e) An oral or written answer to the petition may be made at or

before the commencement of the hearing. If there is no answer, a

general denial of the alleged conduct is assumed.

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 25, eff.

Jan. 1, 1996.

Sec. 53.045. VIOLENT OR HABITUAL OFFENDERS. (a) Except as

provided by Subsection (e), the prosecuting attorney may refer

the petition to the grand jury of the county in which the court

in which the petition is filed presides if the petition alleges

that the child engaged in delinquent conduct that constitutes

habitual felony conduct as described by Section 51.031 or that

included the violation of any of the following provisions:

(1) Section 19.02, Penal Code (murder);

(2) Section 19.03, Penal Code (capital murder);

(3) Section 19.04, Penal Code (manslaughter);

(4) Section 20.04, Penal Code (aggravated kidnapping);

(5) Section 22.011, Penal Code (sexual assault) or Section

22.021, Penal Code (aggravated sexual assault);

(6) Section 22.02, Penal Code (aggravated assault);

(7) Section 29.03, Penal Code (aggravated robbery);

(8) Section 22.04, Penal Code (injury to a child, elderly

individual, or disabled individual), if the offense is punishable

as a felony, other than a state jail felony;

(9) Section 22.05(b), Penal Code (felony deadly conduct

involving discharging a firearm);

(10) Subchapter D, Chapter 481, Health and Safety Code, if the

conduct constitutes a felony of the first degree or an aggravated

controlled substance felony (certain offenses involving

controlled substances);

(11) Section 15.03, Penal Code (criminal solicitation);

(12) Section 21.11(a)(1), Penal Code (indecency with a child);

(13) Section 15.031, Penal Code (criminal solicitation of a

minor);

(14) Section 15.01, Penal Code (criminal attempt), if the

offense attempted was an offense under Section 19.02, Penal Code

(murder), or Section 19.03, Penal Code (capital murder), or an

offense listed by Section 3g(a)(1), Article 42.12, Code of

Criminal Procedure;

(15) Section 28.02, Penal Code (arson), if bodily injury or

death is suffered by any person by reason of the commission of

the conduct;

(16) Section 49.08, Penal Code (intoxication manslaughter); or

(17) Section 15.02, Penal Code (criminal conspiracy), if the

offense made the subject of the criminal conspiracy includes a

violation of any of the provisions referenced in Subdivisions (1)

through (16).

(b) A grand jury may approve a petition submitted to it under

this section by a vote of nine members of the grand jury in the

same manner that the grand jury votes on the presentment of an

indictment.

(c) The grand jury has all the powers to investigate the facts

and circumstances relating to a petition submitted under this

section as it has to investigate other criminal activity but may

not issue an indictment unless the child is transferred to a

criminal court as provided by Section 54.02 of this code.

(d) If the grand jury approves of the petition, the fact of

approval shall be certified to the juvenile court, and the

certification shall be entered in the record of the case. For

the purpose of the transfer of a child to the Texas Department of

Criminal Justice as provided by Section 61.084(c), Human

Resources Code, a juvenile court petition approved by a grand

jury under this section is an indictment presented by the grand

jury.

(e) The prosecuting attorney may not refer a petition that

alleges the child engaged in conduct that violated Section

22.011(a)(2), Penal Code, or Sections 22.021(a)(1)(B) and (2)(B),

Penal Code, unless the child is more than three years older than

the victim of the conduct.

Added by Acts 1987, 70th Leg., ch. 385, Sec. 7, eff. Sept. 1,

1987. Amended by Acts 1991, 72nd Leg., ch. 574, Sec. 1, eff.

Sept. 1, 1991; Acts 1995, 74th Leg., ch. 262, Sec. 26, 27, eff.

Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1086, Sec. 8, eff. Sept.

1, 1997; Acts 2001, 77th Leg., ch. 1297, Sec. 19, eff. Sept. 1,

2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

908, Sec. 10, eff. September 1, 2007.

Sec. 53.05. TIME SET FOR HEARING. (a) After the petition has

been filed, the juvenile court shall set a time for the hearing.

(b) The time set for the hearing shall not be later than 10

working days after the day the petition was filed if:

(1) the child is in detention; or

(2) the child will be taken into custody under Section 53.06(d)

of this code.

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 28, eff.

Jan. 1, 1996.

Sec. 53.06. SUMMONS. (a) The juvenile court shall direct

issuance of a summons to:

(1) the child named in the petition;

(2) the child's parent, guardian, or custodian;

(3) the child's guardian ad litem; and

(4) any other person who appears to the court to be a proper or

necessary party to the proceeding.

(b) The summons must require the persons served to appear before

the court at the time set to answer the allegations of the

petition. A copy of the petition must accompany the summons.

(c) The court may endorse on the summons an order directing the

person having the physical custody or control of the child to

bring the child to the hearing. A person who violates an order

entered under this subsection may be proceeded against under

Section 53.08 or 54.07 of this code.

(d) If it appears from an affidavit filed or from sworn

testimony before the court that immediate detention of the child

is warranted under Section 53.02(b) of this code, the court may

endorse on the summons an order that a law-enforcement officer

shall serve the summons and shall immediately take the child into

custody and bring him before the court.

(e) A party, other than the child, may waive service of summons

by written stipulation or by voluntary appearance at the hearing.

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973. Amended by Acts 1995, 74th Leg., ch. 262, Sec. 29, eff.

Jan. 1, 1996.

Sec. 53.07. SERVICE OF SUMMONS. (a) If a person to be served

with a summons is in this state and can be found, the summons

shall be served upon him personally at least two days before the

day of the adjudication hearing. If he is in this state and

cannot be found, but his address is known or can with reasonable

diligence be ascertained, the summons may be served on him by

mailing a copy by registered or certified mail, return receipt

requested, at least five days before the day of the hearing. If

he is outside this state but he can be found or his address is

known, or his whereabouts or address can with reasonable

diligence be ascertained, service of the summons may be made

either by delivering a copy to him personally or mailing a copy

to him by registered or certified mail, return receipt requested,

at least five days before the day of the hearing.

(b) The juvenile court has jurisdiction of the case if after

reasonable effort a person other than the child cannot be found

nor his post-office address ascertained, whether he is in or

outside this state.

(c) Service of the summons may be made by any suitable person

under the direction of the court.

(d) The court may authorize payment from the general funds of

the county of the costs of service and of necessary travel

expenses incurred by persons summoned or otherwise required to

appear at the hearing.

(e) Witnesses may be subpoenaed in accordance with the Texas

Code of Criminal Procedure, 1965.

Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 1, eff. Sept. 1,

1973.

Sec. 53.08. WRIT OF ATTACHMENT. (a) The juvenile court may

issue a writ of attachment for a person who violates an order

entered under Section 53.06(c).

(b) A writ of attachment issued under this section is executed

in the same manner as in a criminal proceeding as provided by

Chapter 24, Code of Criminal Procedure.

Added by Acts 1995, 74th Leg., ch. 262, Sec. 30, eff. Jan. 1,

1996.