Determinate Petitions Hans Nielsen Attorney at Law HansNielsenAttorney@gmail.com

It’s the Offense, Not the Age Texas Family Code 53.045 Age is not a consideration Enumerated offenses and Habitual Conduct

Habitual Juvenile Offenders Underlying offense must be third degree or higher Prior adjudications must be consecutive, third degree felonies or higher and may be prior probated adjudications - does not have to be TJJD adjudications Sentencing range - underlying offense determines the range

Petition Filing Requirements Petition must be filed before age 18 Indeterminate petition filed before 18 and amended by filing determinate relates back Once juvenile turns 18 State must exercise due diligence Personal service on original indeterminate petition is sufficient Except if offense is changed or substantial change to the underlying petition

Jurisdiction - Age Issues Indeterminate - court jurisdiction ends age 18 Determinate - ends at age 19 Probation or TJJD transfer

Grand Jury Approval Probable cause finding Grants approval - not an indictment Vote of 9 members is required Waiving grand jury approval is allowed

Sentencing Ranges First degree felony - up to 40 year sentence Second degree felony - up to 20 year sentence Third degree felony - up to 10 year sentence Habitual Juvenile Offender - based on the underlying offense No minimum sentence - Capital Murder could be one day TDCJ sentence

Parole Eligibility Capital murder - 10 years 1st degree offenses - three years Second degree offenses - two years Third degree offenses - one year Credit for time served in detention facility

TJJD Parole Issues TJJD may not parole before minimum sentence has been served District court judge may parole before minimum sentence if requested by TJJD Indeterminate TJJD sentence parole determined by TJJD and no credit for time served

TJJD Transfer Hearings Only TJJD may request a transfer hearing Must be held before age 19 - no incomplete proceedings exception If transferred juvenile serves remainder of sentence in adult prison and is subject to adult parole release requirements If Judge does not transfer - juvenile is paroled at age 19 to adult parole

Factors the Court may consider before transfer from TJJD to TDC or TDC Parole Juvenile’s experiences before and after confinement in TJJD Facts of the underlying offense Ability of the juvenile to contribute to society. Protection of victims and society Recommendation of TJJD Best interests of the juvenile Any other relevant factors

Determinate Probations All offenses are probation eligible Prior history does not make a juvenile ineligible Sentence must be 10 years or less

Determinate probation ends at age 19 unless transferred by Juvenile District Court Judge Judicial hearing before age 19 - incomplete proceeding statute may be used if state shows due diligence Cannot appeal judges decision (New case 1st COA) Adult district court judge then determines conditions of probation in adult system Revocation by adult district judge - sentence may be less than the adult minimum but it may not be greater than the length of probation

Jury Trials Juvenile has right to jury on guilt innocence and disposition (sentencing) - State has no right to jury trial Must request jury disposition in writing before voir dire begins Jury of 12 and 10 peremptory strikes Trial must be heard by elected district court judge

Juveniles over 18 No over 18 determinate petitions - unless filed as indeterminate prior to age 18 Commit offense at age 13 and no determinate petition is filed and juvenile is now 18 state cannot prosecute. Only exception is capital murder and murder - state may only seek certification and cannot file a determinate petition.

Unique Legal Issues Sexual offenses - if consensual and within three years State cannot seek determinate Cannot seal a determinate adjudication Can seal if not true verdict or nonsuit Determinate TJJD adjudication can only be used for enhancement paragraph in adult case - does not make one ineligible for probation or a convicted felon for certain adult offenses

That’s all Folks