By Kathleen Takamine
Assistant Criminal District Attorney in Bexar County
As a prosecutor in the juvenile system, I have a duty to pursue the protection of the community, hold juvenile offenders accountable for their actions, and ensure that juveniles have an opportunity for rehabilitation. It is quite a balancing act. As such, the Family Code gives me a fairly wide range of ways to maintain accountability and rehabilitate juvenile offenders. One way is placing a juvenile on deferred prosecution.[1]
It should be noted that deferred prosecution in the juvenile system is very different from deferred adjudication in the adult system. In a nutshell, when an adult defendant pleads guilty or no contest, the judge makes a finding that the evidence supports the plea, defers entering an adjudication of guilt, and places the defendant on deferred adjudication. The defendant does not have a final conviction unless she violates the conditions of the deferred adjudication. At that point, the judge can enter an adjudication of guilt and consider the full range of punishment during sentencing.[2]
For juvenile respondents, the process is not quite as formal. Juveniles do not necessarily have to admit to, in juvenile parlance, “engaging in delinquent conduct.” Deferred prosecution falls under Texas Family Code §53.03 and is touched upon in Chapter 59 of the Family Code. Looking at the laws governing deferred prosecution, you can appreciate the differences. I’ll start with Chapter 59 as it is a fairly general discussion on punishment in juvenile.
Chapter 59: Progressive Sanctions Model
Section 53.013 of the Family Code allows each local Juvenile Board to develop a Progressive Sanctions Program based on Chapter 59. This program was created by the legislature to encourage uniformity in the disposition of juvenile cases and related terminology.[3] It is more advisory in nature, however, and the very language of §53.013 indicates the board “may adopt the program,” indicating that it is strictly within the Juvenile Board’s discretion and is not mandatory.
Basically, Chapter 59 outlines punishment in juvenile law. The punishments (also called sanctions) range from basic counseling (Sanction Level One) all the way to being sentenced to the Texas Department of Criminal Justice in a certify-and-transfer case (Sanction Level Seven).[4] Although it is not necessary to follow the model, it does give a sense of how the juvenile is treated within the criminal justice system. None of the individuals involved in the system (the court, prosecutor, defense attorney, probation officer, law enforcement officer, etc.) can be held to account for not following the sanction model,[5] nor can the failure to follow the model be a matter of an appeal.[6]
Deferred prosecution is in Sanction Level Two, sandwiched between simply counseling the juvenile and formal probation.[7] Under this model, the legislature is giving the juvenile court, juvenile probation officer, and prosecutor the general guidelines in recommending deferred prosecution.[8] The guidelines include:
• a length of supervision between three and six months;
• that the juvenile is to be released into the custody of his parents or guardians;
• granting community service hours and/or requiring restitution payments to the victim;
• including any restrictions that the parent or guardian will impose on the juvenile;
• letting the juvenile know the consequences of violating the deferred prosecution;[9]
• providing information and/or assistance to the parent or guardian about social services;
• requiring parents or guardians to participate in services and programs;
• referring the juvenile to a community-based citizen intervention program;
• requiring the juvenile to complete an approved educational program (such as GED); and
• discharging the juvenile once all the conditions have been completed.
As you can see, it’s a pretty basic outline of what is expected. It does not indicate how a deferred prosecution is implemented and what is required of all the parties involved. That falls under §53.03 of the Texas Family Code.
Section 53.03: Deferred Prosecution
First off, this section emphasizes the need for voluntary consent. The juvenile and parent or guardian must be told that a deferred prosecution recommendation is not obligatory.[10] They must also understand that they have the right to terminate the deferred at any time prior to the completion date and to petition that the case be set for a court hearing.[11] If the juvenile says anything incriminating during the discussion for deferred prosecution, such statement cannot be used against him.[12] If a court is relying on professional assessments and statements made while the court is considering granting deferred prosecution, such assessments and statements may not be used against the juvenile should the court refuse to grant deferred.[13]
This section also points out that a juvenile cannot be placed on a deferred prosecution unless there is probable cause to believe that he engaged in the delinquent conduct alleged.[14] Frankly, this makes sense because we shouldn’t hold anyone accountable for something that can’t be proven; this requirement is also important if a juvenile fails at deferred (which I’ll discuss later in this article).
For clarity, I will break down the remainder of this section into the following questions and later their individual answers:
• Who can recommend and implement deferred prosecution?
• What types of cases are eligible?
• When can deferred prosecution be recommended and implemented?
• What happens when the juvenile violates the conditions?
Who can recommend and implement deferred prosecution?
In the adult system, the judge ultimately grants deferred adjudication to the defendant.[15] In juvenile law, the judge grants a deferred prosecution to the juvenile,[16] but also the probation officer, prosecutor, and defense attorney may recommend and move toward implementing deferred prosecution.[17] For probation officers and prosecutors, what usually happens is that one or the other makes the recommendation and then gets an agreement from the juvenile, parent or guardian, and defense attorney, if there is one. For a defense attorney, he usually talks to the probation officer and prosecutor to see if they would agree to a deferred. If no agreement is reached, defense counsel can request deferred from the court.
What types of cases are eligible?
Prosecutors may recommend deferred prosecution on any case with the exception of certain ineligible offenses including:
• driving, flying, or boating while intoxicated,
• intoxicated assault,
• intoxicated manslaughter,[18] and
• a third or more subsequent offense under the Alcoholic Beverage Code (Consumption of Alcohol by a Minor and Driving or Operating a Watercraft while Under the Influence).[19]
Probation officers may recommend and place a juvenile on deferred prosecution in most cases, but doing so requires written approval from the prosecutor and chief probation officer in any felonies, misdemeanors involving violence or use/possession of a prohibited weapon,[20] and misdemeanors where a juvenile has been previously adjudicated on a felony offense.[21] For a deferred prosecution recommended by the probation officer and prosecutor, the term may not be more than six months.[22] The court may grant deferred prosecution once a case has been filed and can grant a period of up to a year.[23]
In practice, if the parties want a deferred prosecution longer than six months, they can get the court’s permission to extend it up to a year, or they may put language in the deferred contract[24] that the juvenile will sign another six-month deferred agreement. This usually happens when six months is not enough time to complete certain counseling or to give the offender more time to pay restitution. All deferred prosecutions can be terminated early, either by getting approval from all parties or if the court is successfully petitioned.
When can deferred prosecution be recommended and implemented?
A deferred prosecution can be recommended and implemented before or after a criminal case is filed and the juvenile is formally charged.[25]
I have worked as a juvenile intake prosecutor and have received recommendations from probation officers to place the accused juvenile on a deferred prosecution before the case is even filed. Or I may be evaluating a case that was referred to us and decide that the juvenile is a good candidate. If I make that determination, I will contact the victim and the juvenile’s probation officer and ask for their input. If we all agree the juvenile should be placed on deferred prosecution, then it is implemented without a petition being filed and sent to court. The juvenile, his parents or guardians, and the probation officer sign a deferred contract that lists all the conditions.
Even if a criminal case is filed, the probation officer, prosecutor, or defense attorney may still recommend deferred. If all three parties agree, then the juvenile can be placed on deferred without the necessity of the court’s input. The deferred contract is signed by the parties and the case is done—meaning, the case is basically dismissed, or in juvenile speak, it is non-suited.
If the parties do not agree, the defense attorney can still request that the court place the juvenile on a deferred prosecution. This would entail an open plea where there is no agreement. The Family Code gives the court a lot of discretion in granting deferred prosecution: If the case is set for a jury trial, the court may grant deferred up until the jury is sworn,[26] and if the case is set for a bench trial, the court has that discretion up until the first witness is sworn.[27] If there is an open plea, the court may grant deferred before the juvenile pleads to the allegation or agrees to stipulate to the evidence.[28] For that last option, I have been in situations where the court has granted a deferred after the juvenile pleads and the evidence is stipulated. The court will just defer a finding that the juvenile has engaged in delinquent conduct and place him on deferred. There is no specific recommendation in the Family Code that requires the court to grant a deferred only upon a request from one of the parties.
What happens when the juvenile violates the conditions?
The Family Code is quite clear that a juvenile probation officer, who is monitoring the youth on deferred prosecution, must inform the court if there are any violations of the deferred.[29] In Bexar County, probation officers inform the court through the prosecutor when they send a request to have the case reactivated.
Once a violation occurs, the case will proceed as if the deferred prosecution had not been granted. In Bexar County, the probation officer sends a memo for reactivation of a case and lists the reasons for reactivation. If the case had not been filed, our intake division would then file a petition and the case is sent to court. If the deferred had been granted after filing, the case is reactivated in the same manner, and the case is set on the court’s docket.
This is unlike the adult system where the defendant will have an adjudication of guilt after the violations are proven by preponderance of the evidence. The defendant will then face the full range of punishment.[30]
In juvenile, we go back to square one. This is why it is very important that we do not proceed on cases we can’t prove: Even if we place a juvenile on a deferred prosecution, there is the chance that we will have to start all over again if he violates the conditions. In the end, we have to non-suit the case—and what did the juvenile learn?
Miscellaneous factors
The questions above covered the main points of §53.03. However, there are a few bits of miscellaneous information in that section.
If a juvenile is charged with graffiti under Penal Code §28.08, he can be given a condition that he take a class that covers the crime’s impact on victims and a condition that requires the juvenile to clean up the graffiti.[31]
If a juvenile is charged with possession of a controlled substance in Penalty Groups 1, 1-A, 2, 2-A, 3, or 4 or possession of marijuana, he may be required to take a substance misuse program.[32]
Finally, if the juvenile is charged with an offense under the Alcoholic Beverage Code[33] or public intoxication under Penal Code §49.02, he may be required to complete an alcohol awareness program.[34]
In conclusion
As I wrote at the beginning of this article, prosecutors in juvenile law have quite a balancing act to maintain. We balance advocating for the community at large, the victim, the juvenile respondent, and our duties as laid out in the Code of Criminal Procedure. For those of us in juvenile law, deferred prosecution is one way to maintain that balance. After you’ve read this article, I hope you’ve come away with a better understanding of how it works. There is always so much to learn in the juvenile system, and I am always happy to take part in it.
[1] Note: I will sometimes refer to “deferred prosecution” as simply “deferred” for the sake of simplicity.
[2] See Tex. Code Crim. Proc. Ch. 42A.
[3] See Dawson, Texas Juvenile Law, p. 295. In general, the legislature created all of Chapter 59 for this reason.
[4] Chapter 59 outlines the various sanction levels with a number of conditions for each. The basic premise of each level is as follows: Sanction Level One consists of counseling with no referral to court. Level Two is deferred prosecution. Levels Three and Four are formal probation with Four having more strict conditions. Level Five is secured residential treatment, and Six involves sentencing to the Texas Juvenile Justice Department. Level Seven is certification and transfer to a criminal district court.
[5] Tex. Fam. Code §59.013.
[6] Tex. Fam. Code §59.014.
[7] Tex. Fam. Code §59.005.
[8] Tex. Fam. Code §59.005(a).
[9] This part refers back to a condition is found in Sanction Level One.
[10] Tex. Fam. Code §53.03(a)(2).
[11] Tex. Fam. Code §53.03(a)(3).
[12] Tex. Fam. Code §53.03(c).
[13] Tex. Fam. Code §53.03(k).
[14] Tex. Fam. Code §53.03(a); see also Tex. Fam. Code §53.01.
[15] Tex. Code Crim. Proc. Art. 42A.101.
[16] Tex. Fam. Code §53.03(i).
[17] Tex. Fam. Code §53.03(e).
[18] Tex. Fam. Code §53.03(g)(1).
[19] Tex. Fam. Code §53.03(g)(2).
[20] Tex. Fam. Code §53.03(e)(1).
[21] Tex. Fam. Code §53.03(e)(2).
[22] Tex. Fam. Code §53.03(a).
[23] Tex. Fam. Code §53.03.
[24] In Bexar County, we use the phrase “deferred contract” interchangeably with deferred prosecution. It is an informal agreement with the juveniles, their parents, and the juvenile probation department—hence the term “contract.”
[25] See Tex. Fam. Code §53.03.
[26] Tex. Fam. Code §53.03(i)(1).
[27] Tex. Fam. Code §53.03(i)(2).
[28] Tex. Fam. Code §53.03(i)(3).
[29] Tex. Fam. Code §53.03(f).
[30] See Tex. Code Crim. Proc. Ch. 42A.
[31] Tex. Fam. Code §53.03(h)(1) & (2).
[32] Tex. Fam. Code §53.03(h-1).
[33] This includes purchase, attempt to purchase, consumption, and possession of alcohol by a minor; operating or driving a watercraft while under the influence; and misrepresentation of age by a minor.
[34] Tex Fam. Code §53.03(h-2).