Certification: An Overview

By Helen Jackson

What are the possible consequences in Texas for a 16-year-old who commits a serious felony such as murder or armed robbery? What about if a 13-year-old commits those same offenses? What about a 14-year-old who has never been in trouble before or a 15-year-old with a lengthy history of juvenile referrals for criminal offrnses? One possibility of dealing with serious crimes committed by juveniles is certification, as it is called in Harris County. Certification or judicial waiver is the process in which a juvenile court makes the decision after a hearing to transfer a juvenile to adult criminal court upon petition by the prosecutor.

The transfer of juvenile offenders to criminal court for serious offenses has been used since the 1920’s in some states.1 The discretionary transfer to criminal court allows a juvenile judge to make the determination whether a juvenile respondent is transferred from the juvenile system to the adult criminal system. Other states use one of three procedures for transfer of juveniles to criminal court: by judicial waiver, as in Texas; automatic waiver, where certain offenses are statutorily excluded from juvenile court and original jurisdiction exists in the criminal court; or direct file by the prosecutor, where the prosecutor has the discretion to determine whether to proceed in juvenile or criminal court.2 Juvenile certifications account for a relatively small percentage of proceedings in juvenile court in Texas, about one percent of total referrals to the juvenile justice system.3 They are among the most important decisions by a juvenile court because the ruling removes a juvenile to the adult criminal court. Certifications are usually limited to the most serious offenses, older juveniles with multiple juvenile adjudications for criminal offenses, or individuals over 18 who are accused of committing an offense when they were under 17 but who were not prosecuted for that offense prior to turning 18. The number of certification proceedings has shown a decrease over the past fifteen years according to the Texas Juvenile Probation Commission. Statistics show that 596 certifications occurred in 1994, compared to 268 certifications in 2008.

The Texas Penal Code §8.07 (b) states, “unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age...” In Section 54.02, Family Code, Texas law establishes three types of certification or waiver of jurisdiction proceedings: hearings where the juvenile respondent is under the age of 18 at the time of the hearing; hearings where the juvenile respondent is over the age of 18 at the time of the hearing; and mandatory certification where a juvenile respondent previously certified for an offense commits a new eligible offense while still a juvenile. Certification eligibility is based on the age of the juvenile respondent and the offense alleged. A juvenile 14 years old may only be certified for the most serious criminal offenses, a juvenile under the age of 14 may not be certified except in one circumstance to be addressed later in this article. In Texas, the minimum age a young person may be held accountable for criminal offenses begins at 10. A young person under the age of 10 may not appear for a criminal offense in a juvenile court.4 The requirements listed under Section 54.02(a) are:

1. the child is alleged to have violated a penal law of the grade of felony;

2. the child was:

i. 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substances felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or

ii. 15 years of age or older at the time he is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted concerning that offense; and

3. after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal proceedings.

If an individual is now over the age of 18 but is accused of a criminal offense that was committed before he turned 17 years of age, Section 54.02(j) addresses the requirements for certification.

The juvenile court may waive its exclusive original jurisdiction and transfer a person to the appropriate district court or criminal district court for criminal proceedings if:

(1) the person is 18 years of age or older;

(2) the person was:

(A) 10 years of age or older and under 17 years of age at the time the person is alleged to have committed a capital felony or an offense under Section 19.02, Penal Code;

(B) 14 years of age or older and under 17 years of age at the time the person is alleged to have committed an aggravated controlled substances felony or a felony of the first degree other than an offense under Section 19.02, Penal Code; or

(C) 15 years of age or older and under 17 years of age at the time the person is alleged to have committed a felony of the second or third degree or a state jail felony;

(3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted;

(4) the juvenile court finds from a preponderance of the evidence that:

(A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person; or

(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person because:

(i) the state did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person;

(ii) the person could not be found; or

(iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and

(5) the juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged.

One of the primary issues of the State’s burden in certification hearings involving respondents over the age of 18 is providing justification for the delay. The certification provisions establish four justifications for the delay by the State in not proceeding before the respondent becomes 18:

1. not practicable to proceed before age 18 for a reason beyond the control of the State; or

2. unable to proceed because

a. new evidence discovered;

b. respondent could not be found; or

c. appellate reversal of certification order.

In these types of certification hearings the State has an additional element of proof—due diligence.5 Situations where the State has been found to have used due diligence include where new technology, such as DNA testing of blood evidence, becomes available after the respondent turned 18; a witness agrees to cooperate after refusing cooperation with the investigation; and where there has been a documented ongoing attempt to locate the juvenile.6 If the State cannot justify the delay in proceeding prior to the juvenile turning 18, the juvenile court has no jurisdiction to transfer.7

If the offense the respondent is alleged to have committed is capital murder or murder and the respondent is now over the age of 18, that respondent may be certified for the offense if it was committed while he was between the ages of 10 and 14.8 Only in this circumstance may a juvenile be held accountable through certification for an offense committed before he was 14. This provision in the certification statute was added in 1999 under the rationale that capital murder and murder have no statute of limitations, but prosecution of those offenses was limited by the strictures of the certification statute. If the State was not able to proceed with the case before the respondent turned 18, the juvenile system could not handle the case because the juvenile was now over the age of 18. The adult criminal court system would have no jurisdiction either since the offense has original jurisdiction with the juvenile court.9

In certifications for respondents under the age of 18 and over the age of 18, there are few differences. Certification proceedings in both instances are initiated by the State filing a petition or motion for discretionary transfer and the issuance of summons. A hearing is held by a juvenile court and the court must find probable cause to believe the juvenile committed the offense in both types of proceedings to transfer or waive jurisdiction to a criminal court. In a proceeding where the juvenile is under the age of 18, the court must find probable cause and must consider “... because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.” In a proceeding where the juvenile is over the age of 18, the court must only find due diligence by the State, in addition to finding probable cause.

In the 1966 Supreme Court case, Kent v. United States,10 the Supreme Court articulated minimum levels of constitutional protections and due process necessary in juvenile certification proceedings. In Kent the Supreme Court stated, “The waiver hearing must measure up to the essentials of due process and fair treatment.” Title III of the Texas Family Code has adopted the constitutional mandates in affording procedural protections to respondents in certification hearings. Under Section 54.02 of the Texas Family Code, respondents are entitled to due process in the required notice of the charges or allegations; the unwaivable right to counsel; the right of confrontation; and the privilege against self-incrimination.

Initiation of a certification proceeding is accomplished by the State filing a motion or petition for discretionary transfer to criminal court. The petition must state the hearing is for the purpose of considering transfer to criminal court. The petition must also include the requirements from Family Code Section 53.04 which state with reasonable particularity the time, place, and manner of the acts alleged, the name, age, and residence address, if known, of the juvenile who is the subject of the petition, and the names and residence addresses, if known, of the parent, guardian, or custodian of the juvenile or if the parent, guardian, or custodian cannot be found, the name and residence address of any known adult relative. Notice to the juvenile is mandatory and personal service upon him is required to give the juvenile court jurisdiction over the case.11

Certification hearings are conducted by the court without a jury once jurisdiction is acquired by the juvenile court. A certification hearing is not a trial on the merits but a hearing to determine whether the juvenile court will waive its original jurisdiction and transfer the case to criminal court.12 An attorney cannot be waived in a certification proceeding. In Kent, the court stated, “The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.”13 The Texas Family Code echoes the Kent court sentiment, as has Texas case law.14

The court in Kent articulated factors for a juvenile court to address in determining whether to waive jurisdiction. The factors enumerated by the court were codified by Texas statute in Family Code Section 54.02. These factors are promulgated to provide constitutional safeguards to juveniles in certification hearings. The juvenile court shall consider in making the transfer decision:

1. whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

2. the sophistication and maturity of the juvenile;

3. the record and previous history of the juvenile; and

4. the prospects of adequate protection of the public and the likelihood of the rehabilitation of the juvenile by use of procedures, services, and facilities currently available to the juvenile court.15

These are not the only criteria the court may consider and it is not an exhaustive list of other factors which may be appropriate in determining whether to transfer a juvenile, but these criteria must be considered by the court. A finding on each criterion is not required, but it is customary for juvenile courts to make findings of fact concerning the criteria. A court is required to make five findings to authorize the transfer of the juvenile to criminal court. Those findings are that: the juvenile is alleged to have committed a felony; the juvenile was 14 or older at the time of the offense and the offense was a capital felony, an aggravated controlled substances felony, or a first degree felony, or was 15 or older at the time of the offense and the offense was a felony; no adjudication hearing has been conducted concerning the offense; there is probable cause to believe the juvenile committed the alleged offense; and because of the seriousness of the offense or the background of the juvenile, the welfare of the community requires criminal proceedings.16 If the certification proceeding involves a respondent now over the age of 18, the court must also find the State used due diligence.

A juvenile has a right to appeal the decision of a juvenile court transferring jurisdiction to criminal court. This appeal may be taken only after a conviction and direct appeal in criminal court. This joint appeal may include claims of error which occurred in the certification hearing, along with any errors from the criminal conviction.17

Helen Jackson is certified by the Texas Board of Legal Specialization in Juvenile Law and formerly served as Chairman of the Texas Board of Legal Specialization Juvenile Law Exam Commission. Jackson is a former Assistant District Attorney with the Harris County District Attorney’s Office, serving as Deputy Chief of the Juvenile Division before retiring in 2008. She is a graduate of Trinity University and South Texas College of Law.

Endnotes
1. Juveniles in Court, OJJDP National Report Series Bulletin, June 2003. 2. Patrick Griffin, National Center for Juvenile Justice “National Overviews”, State Juvenile Justice Profiles, 2004. 3. Texas Juvenile Probation Commission Statistical Report. 4. TEXAS FAMILY CODE §51.02. 5. See generally, In the Matter of N.M.P., 969 SW2d 95 (Tex. App. – Amarillo, 1998)(new DNA testing became available after the respondent turned 18); In the Matter of J.C.C., 952 SW2d 47(Tex. App. – San Antonio, 1997) (State unable to provide justification for not proceeding against respondent before turning 18 when it proceeded against his twin brother for the same offense prior to the twin brother turning 18). 6. See generally, In the Matter of N.M.P., 969 SW2d 95 (Tex. App. – Amarillo, 1998)(new DNA testing became available after the respondent turned 18); In the Matter of J.E.V., UNPUBLISHED, No. 04-96-00213-CV, 1996 WL 591928, 1996 Tex. App. Lexis 4519, Juvenile Law Newsletter §96-4-33 (Tex. App. – San Antonio 1996, no writ); In the Matter of F.A.A., UNPUBLISHED, No. 04-97-00091-CV, 1998 WL 11966, 1998 Tex. App.Lexis 134, Juvenile Law Newsletter §98-1-11 (Tex. App. – San Antonio 1998, no pet.) but see In the Matter of J.C.C., 952 SW2d 47(Tex. App. – San Antonio, 1997)(State unable to provide justification for not proceeding against respondent before turning 18 when it proceeded against his twin brother for the same offense prior to the twin brother turning 18); Webb v. State, UNPUBLISHED, No. 08-00-00161-CR, 2001 WL 1326894, Juvenile Law Newsletter §01-4-45 (Tex. App. – El Paso 2001, pet. ref’d)(Failure of juvenile court officers to set a certification petition for hearing for six weeks did not excuse the State’s delay when there was no evidence the State informed the officials of the respondent’s impending 18th birthday). 7. TEXAS PENAL CODE §8.07; TEXAS FAMILY CODE §51.02; TEXAS FAMILY CODE §54.02. 8. TEXAS FAMILY CODE §54.02(j)(2)(A). 9. Robert O. Dawson, TEXAS JUVENILE LAW §10 (6th Ed. 2004). 10. Kent v. United States, 383 U.S. 541 (1966). 11. In the Matter of T.T.W., 532 SW2d 418 (Tex.Civ.App. – Texarkana 1976, no writ); Johnson v. State, 551 SW2d 379 (Tex.Crim.App. 1977). 12. M.A.V, Jr. v. Webb County Court at Law, 842 SW2d 739 (Tex. App. – San Antonio 1992, writ denied). 13. Kent v. United States, 383 U.S. 541, 561 (1966). 14. TEXAS FAMILY CODE §51.10; In the Matter of D.L.J., 981 SW2d 815 (Tex.App. – Houston[1st Dist.] 1998, no writ); In re K.J.O., 27 SW3d 340 (Tex.App. – Dallas 2000, pet. denied). 15. TEXAS FAMILY CODE §54.02(f). 16. TEXAS FAMILY CODE §54.02(a). 17. TEXAS CODE OF CRIMINAL PROCEDURE §44.47.

< BACK TO TOP >