NCJ Number
104910
Journal
Houston Law Review Volume: 23 Issue: 5 Dated: (October 1986) Pages: 1067-1112
Date Published
1986
Length
46 pages
Annotation
The examining trial in adult criminal prosecutions in Texas provides a means for discovery and result in an advisory opinion on probable cause that can be ignored with impunity. This contrasts sharply with its role in cases involving criminal prosecutions of transferred juveniles.
Abstract
For the transferred juvenile a finding of probable cause in an examining trial or a valid wiaver of an examining trial is is a prerequisite to indictment. Moreover, it is a prerequisite for the trail court's acquiring jurisdiction over the case. Failure to satisfy this prerequisite can be shown in any forum, from a pretrial writ of habeus corpus through a postconviction proceeding many years later. Further, if failure is shown, then any conviction obtained is declared null and set aside without inquiry into whether the failure was harmful to the accused. If an examining trial finds an absence of probable cause, the case is returned to the juvenile court and the juvenile can never again be criminally prosecuted in that case. It is argued that, under current provisions, the probable cause requirement comes too late: it ought to be one of the requirements for the transfer from juvenile to criminal court. It is further suggested that the requirement ought not be jurisdictional. Changes in Section 54.02 (Waiver of Jurisdiction and Discretionary Transfer to Criminal Court) of the Texas Family Code are suggested to accomplish these reforms. 169 footnotes.