Page 32 - Juvenile Practice is not Child's Play

4. Competence to Confess/Waiver of Miranda Rights
If your client made a confession, you may want to request an evaluation to determine whether your client was

competent to do so. Factors that might suggest referral for an evaluation are:
• Age or immaturity;
• Limited intellectual functioning;
• Poor verbal skills;

• Difficulty communicating;
• History of poor academic achievement
• Under the influence of substances at the time of interrogation;
• History of emotional and/or behavioral problems;

• Length of interrogation; and
• Interrogation in absence of parents if one or more of the above factors existed.
If you decide to ask for an evaluation, you may want to ask the evaluator if they are familiar with Thomas

Grisso’s Miranda Waiver Measures. This is a widely accepted instrument for testing whether children
understand their Miranda rights.

5. Transfer to Adult Court
If your child is transferred to adult court, they will be facing adult punishments. If transfer is an issue in your
client’s case, you should carefully read and review TFC § 55.19 and the other Family Code provisions and Texas
Code of Criminal Procedure provisions to which TFC § 55.19 cites. If your client is incompetent, you may

want to oppose any effort by the court or prosecutor to transfer the case to adult court.

6. Fitness to proceed (Competence to Proceed)
The relevant inquiry to determine fitness to proceed is: Does the child, as a result of mental health illness or
intellectual disability, lack the capacity to understand the proceedings in juvenile court and to assist in their

own defense? TFC § 55.31(a). If your client is unfit to proceed (incompetent to proceed), you should request
an evaluation. Texas Family Code requires that the expert is qualified under subchapter B, Chapter 46B, of the
Texas Code of Criminal Procedure. Factors that might suggest referral for an evaluation are:
• Difficulty communicating with client about case;
• Age, in particular for younger adolescents;

• Limited intellectual functioning;
• History of poor academic achievement;
• History of emotional/behavioral problems; and

• Being tried in adult court.
You should carefully read and review TFC §§ 55.31-55.45 and the other Family Code provisions and Texas
Health & Safety Code provisions to which the Family Code cites. There are some differences between how