One of the most important undertakings for a criminal defense lawyer is to fight to keep a juvenile client in the juvenile system. See Miller v. Alabama, 567 U.S. 460, 471 (2012). This article addresses the question of where juvenile certification stands post-Moon and post-Thomas.
I. Background
On June 16, 1944, the State of South Carolina executed fourteen-year-old George Stinney, Jr., in the electric chair. Tragically, he was too short for the electrodes to reach his head, so he had to sit on books. Stinney was tried as an adult because, prior to the 1950s and 1960s, there were no laws on how to handle a murder trial for a juvenile in South Carolina.
Although Texas had reform schools in the nineteenth century, a juvenile justice system started to develop around 1949 with the funding of the precursor to the Texas Department of Juvenile Justice. Juvenile law became widespread across the country in the 1960s. In 1973, the Legislature passed the Family Code with what we now call the Juvenile Justice Code. Further, for nearly all of the history of juvenile justice in Texas, the Court of Criminal Appeals has exercised final jurisdiction.
II. Basics
Generally, jurisdiction exists to prosecute a juvenile under the Juvenile Justice Code if the child is alleged to have “engaged in delinquent conduct.” Normally, the child is between the ages of nine and seventeen at the time of the offense.
III. Certifications: The Beginning, Kent v. United States
The aim of this article is not to provide the history of Juvenile Law in Texas but is, instead, a look at the current position of juvenile certifications beginning with the 1966 Supreme Court decision Kent v. United States, 383 U.S. 541 (1966). As set out by the Supreme Court, Kent, who was already on probation for burglary, was arrested and charged with breaking into a home in Washington, D.C., stealing a wallet, and raping the homeowner. Id. at 543. The police had used fingerprints to identify the then sixteen-year-old Kent. Id. The provision for the juvenile court to waive jurisdiction read:
If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.
Id. at 547-548 .
Kent’s lawyer filed a motion for a hearing on the question of waiver of Juvenile Court jurisdiction with an affidavit of a psychiatrist certifying that Kent ‘is a victim of severe psychopathology’ and recommending hospitalization for psychiatric observation. Kent’s lawyer also requested access to the Social Service file relating to Kent during his probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. The Juvenile Court did not rule on these motions, did not conduct a hearing, and did not confer with Kent, his parents, or his counsel. Id. at 545.
Instead, the Juvenile Court entered an order reciting that a full investigation had been completed, waived jurisdiction, and allowed Kent to be tried as an adult. Id. at 550. There were no findings or reasons for the wavier listed in the order. After his trial, the court sentenced Kent to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison (the jury convicted Kent on six counts of burglary and acquitted him of rape). Id.
The Supreme Court determined there was not a sufficient investigation prior to the juvenile court waiver of jurisdiction. Kent did not receive a hearing, access to counsel, or access to his record prior to the waiver. The Court remanded the case to the district court to determine whether the waiver was proper. Because Kent was 21 years old at the time of this decision, the juvenile court no longer had jurisdiction if the waiver was proper.
The Supreme Court reasoned: The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the ‘critically important’ question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act. It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide—as in this case—that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence instead of treatment for a maximum, in Kent’s case, of five years, until he is 21.
Id. at 553-554.
The Supreme Court further explained: Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.
Id. at 561.
To this day, Kent remains the cornerstone of juvenile certifications. However, its meaning and requirements are the subjects of meaningful dispute in Texas courts.
IV. Juvenile Certification in Texas Until 2021
A. Juvenile Justice Code and Moon The post-Kent process of developing procedures and standards to certify a juvenile was troublesome and uneven, but came to relative equilibrium in December 2014 with Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)). Moon addressed to Sections 54.02(f) and 54.02(h) of the Family Code, which provide the general guidelines a certifying court should consider in evaluating whether to certify a juvenile.
Section 54.02(f) requires the court to consider the following factors when making a determination about certification:
(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) sophistication and maturity of the child;
(3) the record and previous history of the child; and
(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedure, services, and facilities currently available to the juvenile court. See Tex. Fam. Code § 54.02(f).
If the juvenile court waives jurisdiction, section 54.02(h) requires a juvenile court to “state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02(h).
In Moon, the Court of Criminal Appeals held that in evaluating a transfer order, an appellate court reviews specific findings of fact regarding statutory transfer factors under traditional sufficiency of the evidence review but then reviews the ultimate waiver decision under an abuse of discretion standard. Importantly, they further ruled that when conducting a review of the sufficiency of the evidence to establish the facts relevant to the statutory transfer factors and any other relevant historical facts, the appellate court must limit its review to the facts that the juvenile court expressly relied upon. Moon, 451 S.W.3d at 49-50. The Moon Court reasoned that the Legislature meant for juvenile courts should “show their work” when certifying a juvenile as an adult.
Then, in 2015, the Legislature divested the Court of Criminal Appeals of jurisdiction over juvenile cases and entrusted final jurisdiction with the Texas Supreme Court. See Act of May 12, 2015, 84th Leg., R.S., ch. 74 § 3, 2015 Tex. Gen. Laws 1065, 1065–66. Most recently in 2021, the Court of Criminal Appeals expressly overruled Moon calling it “unworkable” and stating “[n]either the statute’s text nor the Supreme Court’s holding in Kent” required a court to “show its work.” Ex parte Thomas, 623 S.W.3d at 382.
V. Where are we now?
Ex parte Thomas was a writ case brought for a certification entered before Moon. The Applicant argued “the order waiving juvenile jurisdiction did not contain factually-supported, case-specific findings, it was invalid, and thus the district court never acquired jurisdiction.” Ex parte Thomas, 623 S.W.3d at 372–73. But because Thomas was a writ case and Thomas was simply denied relief, Thomas did not need to “fill the space” left when the court vacated Moon.
In the absence of Moon, defendants are left with Kent and the Juvenile Justice Code. As mentioned above, Section 54.02(f) sets out the broad parameters of what the certifying court must consider and Section 54.02(h) provides the certifying court must “state specifically in the [certifying] order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02.
The question that remains, however, is what must a trial court do to comply with Section 54.02(h)? Generally, the State reads Section 54.02(h) to mean the certifying court must only list the factors weighing in favor of certification. This argument comes from the language the court must state “specifically in the order its reasons for waiver and certify its action.” (emphasis added). For the State, the word “for” generally means factors weighing in favor of certification. But for the defense, Section 54.02(h) and the word “for” mean the certifying court must explain its reasons for certifying the juvenile, including evaluating factors that weigh against certification. This specific question is before the Texas Supreme Court right now in In re J.R. (docket no, 21-0446) and In re A.K. (docket no. 21-0511). As of the date of this writing, the Supreme Court ordered the State to file a response in In re J.R., which was filed by the State and replied to by the Petitioner. Concerning In re A.K., the Petition for review was denied and a Motion for Rehearing has been filed.
VI. In re J.R.
In re J.R. is the author’s case out of the Fifth Court of Appeals in Dallas. In re J.R., 05-20-00920-CV, 2021 WL 777090, at *1 (Tex. App.—Dallas Mar. 1, 2021). The appellant lost. But in losing, the appellant secured a three-judge dissent from the denial of the motion for en banc reconsideration. In re J.R., 05-20-00920-CV, 2021 WL 1976460, at *1 (Tex. App.—Dallas May 18, 2021, no pet. h.).
The court issued J.R. before the Court of Criminal Appeals overturned Moon and the appellant filed for en banc reconsideration after Thomas. In light of Thomas, the dissenting justices on the Dallas Court of Appeals asked to hear In re J.R. en banc.
Justice Schenck, on behalf of the three-dissenting justices, dissented to ask the Texas Supreme Court how, with the end of Moon, intermediate-appellate courts should “acquit themselves of the serious task laid out before them in an appeal [that challenges the sufficiency of the evidence for a certification].” Id. at *2.
Initially, it is essential to recognize in a sufficiency review of a decision to certify a juvenile, an appellant court is limited to a review of the facts/evidence/conclusions the juvenile court expressly relied on in its transfer order. In re S.G.R., 496 S.W.3d at 239.
For Justice Schenck, the problem is how an intermediate-appellate court should conduct a sufficiency review under City of Keller (the defining civil case on sufficiency review). Id. at *5. Under City of Keller, the reviewing court must look to all of the evidence to decide whether it supports the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005). Justice Schenck contrasted the reasoning from Thomas with the review of a low-damages-car-accident case. In re J.R., 2021 WL 1976460, at *7. He asked why a party in a low-damages-car-accident case would be entitled to a review of all of the evidence, but a defendant in a juvenile certification would only be entitled to a review of the factors weighing in favor of certification? Id. He concluded “the better practice would seem to be to provide a broad review on direct appeal allowing the reviewing court to insist on a record that affords a meaningful appellate review and requiring the juvenile court to explain how it got to the conclusion it did, not just cite the facts in support of its ultimate determination.” Id. at *9.
Justice Schenck’s question asking what belongs in a statement of reasons under Section 54.02(h), is a question we expect the Texas Supreme Court to answer soon.
VII. So What Now?
An attorney facing a certification hearing should proceed as he or she always would, by presenting evidence that weighs against certification. If, however, the certifying court rules in favor of the state, certifies the juvenile, and does not list the factors that weigh against certification, then the attorney should object in writing and secure an order. The objection would be to specifically list the factors supporting certification on the basis this precludes an adequate review on appeal.
VIII. Conclusion
The law on juvenile certifications is uncertain. This uncertainty, however, can create opportunities for you and for your clients. The Texas Supreme Court is not likely to resolve this issue for at least a calendar year. During that time you should have leverage to use an appeal of a certification without reasons for and against certification as a tool to secure a good plea agreement for an appropriate client.
