By Kathleen Takamine
Assistant Criminal District Attorney in Bexar County
In 2017 and 2018, The Texas Prosecutor journal ran a series of helpful articles on the juvenile justice system, covering topics from apprehension through trial.[1] On the whole, not much has changed in juvenile procedure since then. The only significant change is in the article dealing with juvenile certifications.[2] The article talks about Moon v. State, which was handed down by the Court of Criminal Appeals in 2014. It has been overruled by the CCA in 2021 in a subsequent case, Ex parte Thomas.[3] Despite this change, the 2017 articles on juvenile law are an excellent resource for attorneys to learn the basics. I highly recommend them.
However, as you can tell by this article and the rather dramatic title, there are a few additional juvenile matters that can be explored a little more deeply. One area of the juvenile system that seems to take attorneys by surprise involves detention hearings. In this article, I will fall back on a lot of juvenile practices that occur in Bexar County which, on the whole, is similar to other jurisdictions. However, it is imperative that attorneys get very familiar with the juvenile courts in their counties. Each jurisdiction has its own idiosyncrasies, and it pays to know them well to effectively represent your office or client.
The law
The laws governing juvenile detention hearings can be found in the Texas Family Code under Title 3, the Juvenile Justice Code (Family Code Chapters 51–61). One important part of the Juvenile Justice Code in relation to detention hearings is ensuring that juveniles will be kept separate and away from adult offenders. We are, after all, dealing with an individual whom the code defines as a “child.”[4]
The Family Code also makes clear the purpose of a separate justice system for juveniles. Not only does the code provide for the safely and protection of the public, but there is also huge consideration for the welfare of the child.[5] I often use the language of §51.01 during voir dire to emphasize the purpose of the juvenile justice system: the rehabilitation of the child. This is an extremely important factor to keep in mind when working within this system.
So without further ado, let’s talk detention hearings. It all begins when a person is taken into custody and taken to a juvenile detention center. Let’s consider this scenario.[6]
A hypothetical detention
At about 2:00 o’clock on a Tuesday morning, law enforcement officers were called to the residence of Wendy Smith. She informed officers that her 15-year-old son, Peter, was missing from the home. She also reported that her vehicle was missing and she suspected Peter had taken it without permission. A description of the vehicle and of Peter is then sent out.
Hours later, Officer Jane Barrie stops a vehicle for running through a stop sign. She finds Peter in the driver’s seat of the stolen vehicle and takes him into custody for theft of the vehicle and unauthorized use of a motor vehicle.[7] She takes him to the Juvenile Processing Office.[8] The officer contacts Peter’s mother to let her know that Peter is in custody for criminal offenses and that she will transport him to the Juvenile Detention Center.[9]
Upon arriving at the detention center, Officer Barrie brings the case before the intake officer.[10] The intake officer acts as the gatekeeper of the detention center and has the authority to detain or release Peter. This officer must first make two determinations: whether Peter is a child as defined by the Family Code and whether there is probable cause to believe that he has engaged in delinquent conduct or conduct indicating a need for supervision.[11]
As to age, the Family Code defines “child” as those who are 10 years of age or older and under 17 years of age, or persons 17 years of age or older and under 18 years of age who are alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision, as a result of acts committed before turning 17 years old.[12] The law enforcement officer should include this information in her offense report.
To determine probable cause,[13] the intake officer will consider offense reports and any other supporting documents submitted by the law enforcement officer. If there is a directive to apprehend (essentially, an arrest warrant[14]), probable cause has already been established through the directive. I often advise officers to obtain an arrest warrant if they are taking into custody a child who is alleged to have committed an offense in the past. With an arrest warrant,[15] there is less chance that intake officers will refuse to detain a child brought before them.
If the intake officer finds that Peter is not a child or that there is no probable cause, Peter will not be detained any further. Of course, a “no probable cause” finding does not preclude the law enforcement agency from filing the case later on a non-arrest basis. It would depend on whether more evidence can be submitted that will establish probable cause as well as prove the case beyond a reasonable doubt. If the agency cannot establish the age of the child as within the jurisdiction of the juvenile courts (10–16 years old), the case cannot be filed in juvenile court. Cases with suspects 17 and older can be filed in the adult system.
In our scenario, the intake officer finds that Peter is a child and that there is probable cause for the offenses charged.
The decision to detain or release Peter does not end there. The intake officer will have to find if other factors are present to detain him. If the intake officer determines that none of these particular factors are present, Peter must be released because there is a presumption for release in the Texas Family Code.[16] If released, the intake officer can place Peter on conditions of release to insure his appearance in court at later proceedings.[17]
These additional factors are found in Family Code §53.02(b), which states that a child in custody may be detained only if:
1) he is likely to abscond or be removed,
2) there is no adequate supervision of, care for, or protection for the child if released,
3) there is no parent, guardian, custodian, or other person able to bring the child to court,
4) he is a danger to himself or the public,
5) he has been previously found to be delinquent or previously convicted of an offense and sentenced to jail or prison, and is likely to reoffend, or
6) he is being charged with an offense involving the use, exhibition, or possession of a firearm.
With regard to the last factor, the intake officer does not have discretion in the matter. If the offense involves a firearm, only a judicial official can decide to release a child from detention.[18]
In our hypothetical, the intake officer finds that Peter is likely to abscond and that he has no adequate supervision. He is thus detained in the juvenile detention center.
A hearing before a judge
The case is then set for a detention hearing before a juvenile court judge; it must be set no later than the second working day after Peter was taken into custody.[19] If Peter had not been detained in a certified juvenile detention facility and was instead being held in a county jail or other authorized facility, the detention hearing must be held within 24 hours of him being taken into custody.[20]
Peter’s parent, guardian, or custodian must be notified of the detention and told when and where to appear for the detention hearing.[21] If possible, an attorney is appointed to represent him during the detention hearing[22] and he is taken before the juvenile judge or an associate judge.[23] This attorney may or may not end up being the attorney of record in the criminal case once it is filed. If it was not possible to appoint an attorney for the detention hearing, the judge will still conduct the hearing so as to not delay the proceedings. Once an attorney is appointed or hired, if the child had been detained at the initial detention hearing, the attorney is entitled to request a de novo detention hearing within 10 days of being appointed or hired.[24]
At the detention hearing, the presiding judge must ensure that all necessary parties are present. If Peter’s parent, guardian, or custodian is not present, the judge will appoint a guardian ad litem to act as guardian.[25] At this hearing, the judge will make another determination of probable cause, usually by considering the same documents submitted at the detention intake. If the judge does not find probable cause, the judge will order Peter’s release. Again, like the findings from the detention intake, a finding of no probable cause does not preclude the case being filed on a non-arrest basis by the law enforcement agency.
If the judge finds probable cause, the judge will go over the five other factors in §53.02(b) that were considered by the detention intake officer:
1) the child is likely to abscond or be removed,
2) there is no adequate supervision of, care for, or protection of the child if released,
3) there are no parent, guardian, custodian, or other person able to bring the child to court,
4) he is a danger to himself or the public, or
5) he has been previously found to be delinquent or previously convicted of an offense and sentenced to jail or prison and is likely to reoffend.
Note that the judge has authority to release a child who is accused of possession, use, or exhibition of a firearm and is not subject to a mandatory requirement of detention.[26]
As with the detention intake officer, the judge must find that one or more of the conditions in §53.02(b) is true to keep Peter detained, or the judge will have to release him. If he is released, the judge is authorized by the Family Code to place conditions on his release.[27] To make this determination, the judge may consider written and oral reports and statements and testimony from anyone in the hearing, including reports on Peter’s behavior while he was detained. The judge may ask for recommendations from the juvenile probation officer, State’s attorney, and defense attorney.
These hearings tend to be informal with a lot of discretion given to the judge to hear any testimony, including hearsay.[28] A court reporter is not required but may be requested for a detention hearing.[29] In some instances, when the defense attorney is unable to make the hearing, judges have allowed the hearing to continue—this is based on the understanding that it’s better to hold a hearing than postpone it for the attorney to appear or the judge to appoint an attorney.[30] However, in this current age of video conferencing, some judges have allowed defense counsel and other parties (including parents and Child Protective Services [CPS] caseworkers) to appear remotely. Or the judge may appoint another attorney to sit in for the missing attorney.
As a prosecutor in these hearings, I pay close attention to the probation officer’s reports and testimony. Any reports of Peter running away from home or being disruptive at school can be used to show a history of absconding, that he is not letting himself be adequately supervised, or even that, by running away, he is a danger to himself. If the case is a particularly violent or disturbing one, I will argue that the facts of the case require continued detention. Ultimately, it will be up to the judge to decide the result.
In these hearings, Peter will also be given a chance to speak if he wishes. If he says anything during the hearing, those statements are not admissible in any subsequent hearing.[31] Usually in this circumstance, the judge will tell him to talk to his attorney first before making any kind of statement to the court.
Notice that there has been no mention of bail or bond during detention hearings. In Texas, a juvenile does not have a constitutional right to a bond.[32] The Family Code itself is completely silent on this matter. Courts have stated that juveniles do not have this right, basing their reasoning on the basic purposes of the Juvenile Justice Code, that the system was created for the welfare of the child.[33] I find a more compelling argument in Robert Dawson’s Texas Juvenile Law publication, which points out that a Family Code’s protective procedural and substantive provisions (i.e., presumption for release) tend to give a juvenile more protection than what is available through the bail system.[34] Needless to say, Peter will not get a bond.
Going back to the hearing, the judge has made the same determination that the intake officer found, that Peter is likely to abscond and does not have the adequate supervision[35] to be released. So what happens next? There are several factors that come into play.
Subsequent hearings
Peter is entitled to subsequent detention hearings every 10 working days while he is detained.[36] Peter can waive his subsequent detention hearings, but the waiver is valid only if it is voluntary, in writing, and signed by Peter and his attorney. Peter also must be fully informed of and understand the consequences of waiving this right.[37]
If the juvenile does not waive subsequent detention hearings, the judge must consider all the same factors as during the initial detention hearing, with the exception of a finding of probable cause (which is done only during the initial detention hearing). The hearings will continue every 10 days until Peter is released, his case is resolved, or the petition that charges him with a criminal offense has not been timely filed.[38] If a petition has been timely filed, the detention hearings continue every 10 days so long as the judge decides to continue detention.
Simple and complex at the same time
Detention hearings are frequently held in every jurisdiction. It is easy to learn the process by simply being a party to them. I would consider them one of the easier hearings due to their informal nature, but they also have complexity, as all parties must consider the big picture, not only what is in the case. I have found this to be true in every aspect of practicing in the juvenile system, something you too will see when you delve deeper into each case and your practice.
[1] Five articles on juvenile law were written by Sarah Bruchmiller and Hans Nielsen, and they cover the basics of juvenile law, determinate sentencing, certifications, statements, and specialty courts; one additional article on specialty courts in small counties was written by Kristy Armstrong and Tracy Franklin Squires.
[2] www.tdcaa.com/journal/juvenile-certifications.
[3] This was discussed in another article, “Reaching the Moon and the Meaning of a Pivotal Juvenile Law Case” written by Joshua Luke Sandoval, which is here: www.tdcaa.com/journal/reaching-the-moon-and-the-meaning-of-a-pivotal-juvenile-law-case. See also the article on the Moon retrial on page 16 in this issue.
[4] For our purposes, “child” and “juvenile” will be used interchangeably. See Fam. Code §51.01(2), where “child” means a person who is:
(A) 10 years of age or older and under 17 years of age; or
(B) 17 years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.
[5] Fam. Code §51.01.
[6] Any person or situation mentioned in this scenario is fictional and not based on any actual case.
[7] Fam. Code §52.01(3), which allows law enforcement officers to take a child into custody if they have probable cause to believe that the child has engaged in conduct that violates a penal law or ordinance of any political subdivision.
[8] A Juvenile Processing Office, or JPO, is an office designated and approved by the county’s juvenile board to be used for temporary detention of a child taken into custody. See Fam. Code §52.025. This is one of the places that a law enforcement officer is allowed to bring a child in custody. See Fam. Code §52.02 for a list of all the places where a child in custody may be taken.
[9] Fam. Code §52.012(b) states that “a person taking a child into custody shall promptly give notice of the person’s action and statement of the reason for a taking the child into custody.”
[10] In Bexar County the juvenile board placed the responsibility of supervising the detention center with the Juvenile Probation Department, so the intake officer in Bexar County will be a probation officer who has to be on duty 24 hours a day, seven days a week. See Human Resources Code §152.0212.
[11] Fam. Code 53.01. Juvenile law does not charge a child with a crime. It alleges that the child engaged in delinquent conduct, the conduct being the criminal offense.
[12] Fam. Code §51.02(2).
[13] Fam. Code §53.01(a) requires that the determination of probable cause be done by the office or official designated by the juvenile board, the intake officer, probation officer, or other person authorized by the board.
[14] Fam. Code §52.015: an order issued by a juvenile court on the request of law enforcement or a probation officer. It must be based on probable cause.
[15] The phrase can be used interchangeably with Directive to Apprehend. Just because it’s titled as “arrest warrant” or “affidavit for arrest warrant” will not deem it invalid in juvenile court.
[16] Robert O. Dawson, Texas Juvenile Law, p. 98 (Texas Juvenile Probation Commission, 9th ed., 2008).
[17] Fam. Code §53.02(a).
[18] Tex. Fam. Code §53.02(f): In fact, even law enforcement does not have discretion regarding firearms cases. Officers are required, under this section, to bring the child to the detention center and not simply issue a warning notice or release the child to parents or guardians.
[19] Tex. Fam. Code §54.01(a).
[20] Tex. Fam. Code §54.01(q). This happens in a case where there is not an available juvenile facility in the area.
[21] Tex. Fam. Code §54.01(b). Reasonable notice, oral or written, must be given to the parent, guardian, or custodian of the child.
[22] Tex. Fam. Code §54.01(b-1).
[23] The parties may object to the hearing being before an associate judge. If one party objects, then the hearing must be held before the juvenile judge.
[24] Fam. Code §54.01(n).
[25] Fam. Code §54.01(d).
[26] Fam. Code §53.02(f),
[27] Fam. Code §54.01(e). Remember, the preferred outcome is release. The code section is clear that the child must be released unless these factors are found.
[28] Dawson, Texas Juvenile Law, pp. 101–102.
[29] Fam. Code §54.09 excludes juvenile detention hearings from the requirement of having a record made. As a rule, any party may request that a record be made.
[30] Dawson, Texas Juvenile Law, p. 101. If the child is detained, the defense attorney can request another detention hearing.
[31] Fam. Code §54.01(g).
[32] Ex parte D.W.C., 1 S.W.3d 896 (Tex.App.—Beaumont 1999, pet. denied).
[33] See S.D.G. v. State, 936 S.W.2d 371 (Tex.App.—Houston [14th Dist.] 1996, writ denied), Ex parte D.W.C., 1 S.W.3d 896 (Tex.App.—Beaumont 1999, pet. denied).
[34] Dawson, Texas Juvenile Law, p. 105.
[35] In regard to arguing about the lack of adequate supervision, we have found it better to argue that the child is not letting him or herself be adequately supervised as opposed to arguing that the household does not have adequate supervision. It prevents parents from becoming really defensive during these hearings.
[36] Fam. Code §54.01(h).
[37] Fam. Code §54.01 (h); Tex. Fam. Code §51.09.
[38] Fam. Code §54.01(p). See also “The Basics of Juvenile Law” from the January–February 2017 edition of The Texas Prosecutor. In a nutshell: The State has 15 working days to file a case alleging a misdemeanor, state jail felonies, and third- and second-degree felonies. The State has 30 working days to file a petition for first-degree felonies, capital felonies and aggravated controlled substance felonies. If these deadlines are not met, the judge must release the child from detention. This does not preclude the State from ever filing a case, but a good practice is for prosecutors to keep a close eye on filing deadlines.