Probation Eligibility when a Defendant Has Been Adjudicated as Juvenile for a Felony Offense

Issue:

Is a defendant convicted of a felony offense eligible for community supervision even though he has been adjudicated for a felony offense as a juvenile?

Short Answer:

Yes. Juvenile adjudications are not convictions in the context of considering whether a person convicted of a felony offense as an adult is eligible for community supervision.

Discussion:

A defendant convicted of a felony offense is not eligible for community supervision if he has been convicted of a prior felony offense. Texas Code Crim. Pro. Ann. art. 42.12(e) (Vernon 2006). Juvenile adjudications are not convictions. Tex. Fam. Code Ann. § 51.13(a), (d) (Vernon 2002).[1] But there is one exception to this general rule: Juvenile adjudications are convictions for the purpose of enhancing the punishment range for a felony committed after a juvenile becomes an adult under Tex. Pen. Code Ann. § 12.42(a), (b), (c)(1), and (e). Tex. Fam. Code Ann. § 51.13(a), (d) (Vernon 2002). And juvenile adjudications are only convictions for enhancement purposes if the juvenile committed a felony offense after January 1, 1996 resulting in commitment to the Texas Youth Commission. Id. at § 51.13(a), (d).

Article 42.12 of the Texas Code of Criminal Procedure governs eligibility for community supervision not section 12.42 of the Texas Penal Code. Section 53.13 of the Texas Family Code exempts only sections 12.42(a), (b), (c)(1), and (e) of the Texas Penal Code from the general rule that juvenile adjudications are not convictions. Tex. Fam. Code Ann. § 51.13(a), (d). And section 51.13 of the Family Code does not exempt article 42.12 of the Code of Criminal Procedure from the general rule that juvenile adjudications are not convictions. Id. Therefore, juvenile adjudications are not convictions when considering whether a person convicted of a felony as an adult is eligible for probation.

Conclusion:

Because juvenile adjudications are not convictions when considering whether a person convicted of a felony offense after he becomes an adult is eligible for community supervision, any juvenile adjudications for felonies the person may have do not affect his eligibility for community supervision.

Procedural Requirements:

Defendants must follow specific procedures to ensure their eligibility for community supervision after having been adjudicated for felony offenses as a juvenile. Recently in Houston, one defendant appealed a trial court’s refusal to submit to the jury that the defendant was eligible for community supervision despite his prior juvenile adjudication, but the appellate court denied his claim because he failed to follow the proper procedure. Morris v. State, 2005 WL 3116433 *1, *1 (Tex. App.—Houston [14th Dist.] November 23, 2005) (not designated for publication).

If a defendant elects to have the jury sentence him, prior to trial, he must submit a written, sworn motion that the defendant has not been convicted of any prior felonies. Tex. Code Crim. Proc. Ann. art. 42.12(e) (Vernon 2006). But if the defendant will be sentenced by the judge, then he need not submit a pretrial sworn motion that he has not been convicted of any prior felonies. Flores v. State, 487 S.W.2d 122, 127 n.5 (Tex. Crim. App. 1972). However, it is always best to submit a written, sworn, pretrial motion that the defendant has not been convicted of prior felonies inasmuch as some courts require one whether or not the Judge will impose sentence. Id.

But a sworn, written, pretrial motion that the defendant has not been convicted of a felony is not sufficient. The defendant bears the burden to prove he is eligible for probation and must offer proof that he has not been convicted of any prior felony convictions. Tenery v. State, 680 S.W.2d 629, 640-41 (Tex. App.—Corpus Christi 1984, pet. ref’d). If the defendant does not prove he was not convicted of prior felonies, then the court does not need to submit the issue to the jury. Id.

Endnote:

[1]Section 51.13(a) states, “Except as provided by Subsection (d), an order of adjudication or disposition in a proceeding under this title is not a conviction of crime. . . .” And § 51.13(d) states:

An adjudication under Section 54.03 that a child engaged in conduct that occurred on or after January 1, 1996, and that constitutes a felony offense resulting in commitment to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m) or 54.05(f) is a prior felony conviction only for the purposes of Sections 12.42(a), (b), (c)(1), and (e), Penal Code. [Section 12.42 of the Texas Penal Code contains the punishments for repeat and habitual offenders.]