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The Case to Repeal § 12.42(f) of the Texas Penal Code

I first became acquainted with §12.42(f) of the Texas Penal Code1 when I reviewed an indictment with a repeat offender paragraph. As I read the repeater paragraph, I could not believe the State could enhance an adult charge by using a juvenile case. I went to the code and saw this provision became effective January 1, 1996. Why should this law be permitted to exist?

Juvenile law is rooted in civil law. The Texas Juvenile Justice Code is found in Title 3 of the Texas Family Code. Despite its civil roots, due process protections have been extended to juveniles by the United States Supreme Court over the years. In Kent, the Supreme Court deter‑ mined that children in juvenile proceedings “should not be denied procedural rights given to adult criminal defendants merely because juvenile proceedings are characterized as civil.” Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) (quoting Kent v. United States, 383 U.S. 541 (1966)).

Furthermore, in In re Gault, 387 U.S. 1 (1967), the Supreme Court held that the Fourteenth Amendment’s Due Process clause applied to juvenile proceedings “entitling children to notice of charges, defense counsel, the privilege against self‑incrimination, confrontation of and cross examination of witnesses.” Hidalgo at 750–51 (quoting In re Gault at 49); see also In re Gault at 13 (“[N] either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”).

The Supreme Court has also determined that, as opposed to adults, children under eighteen (18) years of age lack maturity, have “an underdeveloped sense of responsibility,” and are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Roper v. Simmons, 543 U.S. 551, 569 (2005).. In the Roper majority opinion, Justice Kennedy further noted that “|t]hese qualities often result in impetuous and ill‑considered actions and decisions” by a child. Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Moreover, the Court explained that children “have less control, or less experience with control, over their own environment” and their character is not as well formed as that of an adult. Id. Their personality traits are “more transitory, less fixed.” Id. at 570. Based on these differences, the Court found suspect any conclusion that a child falls among the worst offenders because a child’s “irresponsible conduct is [simply] not as morally reprehensible as that of an adult.” ld. at 570; see also Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (“[T]he Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult . . . [i]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of . . . her conduct while at the same time . . . she is much more apt to be motivated by mere motion or peer pressure than as an adult.”).

Furthermore, because proceedings in juvenile court are quasi-criminal in nature, they are subject to numerous due process restrictions mirroring those at play in an adult criminal trial. In re A.J.S., 442 S.W.3d 562, 565 (Tex. App.- EI Paso 2014, no pet.); see also In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); Smith v. Rankin, 661 S.W.2d 152, 153 (Tex. App.- Houston [1st Dist.] 1983). A child “is guaranteed the same constitutional rights as an adult in a criminal proceeding because a juvenile‑delinquency proceeding seeks to deprive [him] of his liberty.” State v. C.J.F., 183 S.W.3d 841, 847 (Tex. App.- Houston [1st Dist.] 2005, pet. denied); see also Matter Of, M.S., 940 S.W.2d 789, 790 (Tex. App.- Austin 1997) (“A juvenile proceeding, which may deprive a child of his liberty for a number of years, is comparable in seriousness to a criminal prosecution [F]or that reason, many of the due process protections applicable to criminal proceedings apply also to juvenile proceedings, such as the right to appeal and the right to assistance of counsel.”); see, e.g., Tex. Fam. Code §§ 51.10, 56.01.

Texas courts have also recognized that children are different from adult criminal defendants and warrant additional protections. See In re Hall, 286 S.W.3d 925, 927 (Tex. 2009) (“The Legislature enacted the Juvenile Justice Code as a separate system for the prosecution, adjudication, sentencing, and detention of juvenile offenders to protect the public and provide for the wholesome moral, mental, and physical development of delinquent children. This separate system often provides enhanced procedural protections to juvenile offenders, who, be‑ cause of youth, ordinarily lack the mental and emotional maturity needed to maintain an adequate defense.”); Henderson v. State, 962 S.W.2d 544, 562 (Tex. Crim. App. 1997) (“[The] state has a legitimate, and in fact compelling, interest in protecting the well‑being of its children… Children are deemed to warrant protection because of their inexperience, lack of social and intellectual development, innocence, and vulnerability.”); Lanes v. State, 767 S.W.2d 789, 791–800 (Tex. Crim. App. 1989) (providing historical discussion of juvenile justice policy and noting “rehabilitation and child protection remain as the pervasive and uniform themes of the Texas juvenile system”); In re S.G.R., 496 S.W.3d 235, 238 (Tex. App.- Houston [1st Dist.] 2016, no pet.) (“Children ordinarily are not subject to criminal proceedings like adults.”); Matter of J.G., 905 S.W.2d 676, 680 (Tex. App.- Texarkana 1995), writ denied, 916 S.W.2d 949 (Tex. 1995) (“[A] juvenile is not similarly situated to an adult    [T]he juvenile justice system is arranged with a special emphasis on the welfare of the child   ”); Matter of E.Q., 839 S.W.2d 144, 145-146 (Tex. App.- Austin 1992, no writ) (“The [S]tate has an interest in providing for the care, protection, and development of its children . . . The civil juvenile justice system was established in part to insulate minors from the harshness of criminal prosecutions, to promote rehabilitation over punishment, and to eliminate the taint of criminal conviction after incarceration by characterizing such actions as delinquent rather than criminal.”); see also Tex. Fam. Code § 51.01 (establishing purposes of Texas’ Juvenile Justice Code, including “provid[ing] treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child’s conduct” and “provid[ing] for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions”). Thus, “[t]he transfer of a [child] from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule; the operative principle is that, whenever feasible, children and adolescents below a certain age should be protected and rehabilitated rather than subjected to the harshness of the criminal system[.]” Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)); see also Lanes at 796 (“The Texas juvenile system . . . seeks to avoid the taint of criminality in order to prevent recidivism and promote rehabilitation. The best method of avoiding attachment of a criminal taint is keeping the child completely out of the [criminal] system.”).

If we want to keep children out of the criminal justice system, why do we use a juvenile restorative process at Texas Juvenile Justice Department [TJJD] as an adult punishment factor? As a matter of course, I never agree to send a child to TJJD because of this unspoken collateral consequence. If the legislature truly believes that its juvenile system should not be attached to the criminal system, then § 12.42(f) of the Texas Penal Code should be repealed.


  1. Tex. Penal Code § 12.42 (f) reads as follows: (f) For the purposes of Subsections (a), (b), and (c)(1), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Section 54.04 (d) (2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post-adjudication secure correctional facility under Section 54.04011, Family Code, is a final felony conviction.
Warren Wolf
Warren Wolf
Warren Wolf earned his juris doctorate from St. Mary’s University in 1975. He’s been a member of TCDLA since 1983, and served as a board member from 2005 to 2013. He is a member of the TCDLA juvenile, mental health, and memo bank committees. Wolf is also a member of the San Antonio Criminal Defense Lawyers Association, where he served as president in 2015.

Warren Wolf earned his juris doctorate from St. Mary’s University in 1975. He’s been a member of TCDLA since 1983, and served as a board member from 2005 to 2013. He is a member of the TCDLA juvenile, mental health, and memo bank committees. Wolf is also a member of the San Antonio Criminal Defense Lawyers Association, where he served as president in 2015.

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