If My Child is Underage and Arrested, How Will They Be Charged?

If my child is underage and arrested, what does the Prosecutor’s office use to determine if he/she will be charged as an adult?

Typically, crimes involving juveniles, a child (age 10-17), are family law matters and government by Chapter 54 of the Texas Family Code. However, a juvenile court has the ability to transfer a child to a criminal court if:
1)      if the child is 14 years of age or older and allegedly committed a capital felony, an aggravated controlled substance felony, or a first degree felony.
2)      if the child is 15 years of age or older and allegedly committed a second degree felony, a third degree felony or a state jail felony.

The process of transferring a child to an adult criminal court is known as certifying.

In order to certify a child, the court must conduct a hearing to determine if there is probable cause to believe that due to the seriousness of the offense or the background of the child, that the welfare of the community requires criminal proceedings. In other words, the court determines whether it is in society’s best interest that the juvenile be punished in the criminal justice system rather than rehabilitated in the juvenile justice system.

Before conducting this hearing, the court must order a complete diagnostic study, social evaluation and full investigation of the child, his circumstances, and the circumstances of the alleged offense.  This evaluation is to provide insight on the child’s sophistication, maturity, potential for rehabilitation, decision-making ability, psychological factors, sociological factors and cultural factors.

There is an exception to the hearing requirement, known as once an adult, always an adult. If a child has previously been transferred to adult court, the juvenile court must waive jurisdiction over any subsequent felony offense unless the child was acquitted or not indicted, won a dismissal with prejudice, or had his conviction reversed on a final appeal in the previous case.

The Texas Court of Criminal Appeals stated that the transfer of a juvenile offender from a juvenile court to a criminal court for prosecution as an adult should be regarded as the exception, not the rule; Children should be protected and rehabilitated rather than subjected to the harshness of the criminal justice system. In 2010, 229 children were certified as adults in Texas.

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