By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
The State of Texas has no right to a jury
trial in juvenile proceedings (00-3-14)
On June 29, 2000, the Texas Attorney General stated the opinion that unlike
in criminal cases, in juvenile proceedings the State has no right to trial by
jury. Therefore, the State cannot "veto" a juvenile’s waiver of
trial by jury.
00-3-14. Attorney General Opinion No. JC-0242, 2000 WL ____, 2000 Tex.Ag.Lexis
___ (6/29/00)[Texas Juvenile Law 165 (4th Edition 1996)].
The Honorable Richard J. Miller
Bell County Attorney
P.O. Box 1127
Belton, Texas 76513 Opinion No. JC-0242
Re: Whether the state has a right to a jury trial in a juvenile proceeding
(RQ-0180-JC)
Dear Mr. Miller:
You have requested our opinion as to whether the state may require a jury trial
in a juvenile proceeding by withholding its approval of a waiver of jury trial
filed by the attorney for the juvenile. For the reasons that appear below, we
conclude that the state may not do so.
A juvenile may be found to have engaged in delinquent conduct, or conduct
indicating a need for supervision, only after an adjudication hearing conducted
in accordance with section 54.03 of the Family Code. Tex. Fam. Code Ann. §
54.03(a) (Vernon Supp. 2000). The terms "delinquent conduct" and
"conduct indicating a need for supervision" are defined in section
51.03 of the Family Code. At the beginning of an adjudication hearing, the
juvenile court is directed to explain to the child and his parent, guardian, or
guardian ad litem, the allegations made against the child, the nature and
possible consequences of the proceeding, the child's protection against
self-incrimination, the child's right to trial and to confrontation of
witnesses, the child's right to representation by an attorney, and the child's
right to trial by jury. Id. § 54.03(b). Section 54.03(c) requires that "[t]rial
shall be by jury unless jury is waived in accordance with Section 51.09 of this
code." Section 51.09 provides:
Unless a contrary intent clearly appears elsewhere in this title, any right
granted to a child by this title or by the constitution or laws of this state or
the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand
the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded.
Id. § 51.09. As you indicate, there is "no provision in the Juvenile Code
[Title 3 of the Family Code] that addresses the right or authority of the State
with respect to such waiver." Letter from
Honorable Richard J. Miller, Bell County Attorney, to Honorable John Cornyn,
Texas Attorney General, at 1 (Jan. 28, 2000) (on file with Opinion Committee)
[hereinafter "Request Letter"]. Section 51.17 of the Family Code
provides:
(a) Except for the burden of proof to be borne by the state in adjudicating a
child to be delinquent or in need of supervision under Section 54.03(f) or
otherwise when in conflict with a provision of this title, the Texas Rules of
Civil Procedure govern proceedings under this title.
(b) Discovery in a proceeding under this title is governed by the Code of
Criminal Procedure and by case decisions in criminal cases.
(c) Except as otherwise provided by this title, the Texas Rules of Evidence
applicable to criminal cases and Chapter 38, Code of Criminal Procedure, apply
in a judicial proceeding under this title.
Tex. Fam. Code Ann. § 51.17 (Vernon Supp. 2000). You suggest that, since the
right of the state to require a jury trial in a juvenile proceeding is not
mentioned in the Family Code, we must, pursuant to subsection 51.17(a), look to
the Texas Rules of Civil Procedure for guidance, specifically, Rule 216. See
Request Letter, supra, at 2. That rule states, in relevant part:
(a) Request. No jury trial shall be had in any civil suit, unless a written
request for a jury trial is filed with the clerk of the court a reasonable time
before the date set for trial of the cause on the non-jury docket, but not less
than thirty days in advance.
Tex. R. Civ. P. 216. Rule 216, albeit indirectly, grants to either party to a
civil suit the right of trial by jury.
In our opinion, Rule 216 does not apply to a juvenile proceeding. Subsection
51.17(a) of the Family Code specifically states that the Rules of Civil
Procedure are not applicable "when in conflict with a provision" of
Title 3 of the Family Code. As one commentator notes, in a treatise on Texas
Juvenile Law, "If Title 3speaks to an issue, it controls." See Robert
O. Dawson, Texas Juvenile Probation Commission, Texas Juvenile Law 330 (4th ed.
1996). Section 54.03 guarantees to the child the right of trial by jury in a
juvenile proceeding. Section 51.09 sets forth the specific conditions that must
be met in order for waiver to take place. The first of those conditions is that
"the waiver is made by the child and the attorney for the child."
Nothing in section 51.09 states or implies that the state has any role in this
decision, and it does not suggest that the state should have veto power over the
decision. Rule 216 conflicts with sections 54.03 and 51.09 by affording to
either party the right to demand a jury trial. Because of this conflict, we
decline to engraft Rule 216 onto sections 54.03 and 51.09 of the Family Code.
The state is entitled neither to demand a jury trial nor to preclude a waiver of
a jury trial in a juvenile proceeding.
We conclude that Rule 216 of the Texas Rules of Civil Procedure is not
applicable to the determination of whether a jury trial is available in a
juvenile proceeding. Accordingly, the state has no right to a jury trial in such
a proceeding.
S U M M A R Y
The state has no right to a jury trial in a juvenile proceeding.
Yours very truly,
J O H N C O R N Y N
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee