Page 57 - Juvenile Practice is not Child's Play

The hearing is called a Transfer and Release Hearing and it is governed by TFC § 54.11. Notice of the hearing must be
given to the person to be transferred or released, the parents of that person, any legal custodian (including TJJD), the
office of the prosecuting attorney that represented the State in delinquency proceedings, the victim of the offense or a

member of the victim’s family, and any other person who has filed a request to be notified of the release hearing.
However, failure to give notice to any individual other than the person to be transferred or the prosecuting attorney
does not affect the validity of the proceedings. The hearing is a public hearing. TFC § 54.11(g). It is also a final, appealable
proceeding.

The youth has a right to counsel, and a guardian ad litem must be appointed if the youth’s parents are not present. The
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youth may also have the right to expert assistance. The youth does not have a right to a jury trial at this stage, and
there are no required admonitions. The court should consider the experiences and character of the person before and
after commitment to the Texas Juvenile Justice Department, the nature of the penal offense that the person was found
to have committed and the manner in which the offense was committed, the abilities of the person to contribute to
society, the protection of the victim of the offense or any member of the victim’s family, the recommendation of the

youth commission and prosecuting attorney, the best interests of the person, and any other factor relevant to the issue
to be decided. TFC § 54.11(k).

The court is not required to state its reasoning, and the evidentiary rules are relaxed. The court may consider any

written documents and hearsay. However, all documents must be disclosed to counsel at least one day before the
hearing. Reasonable requests to continue the hearing should be granted, especially if necessary to call all appropriate
witnesses.

A youth with a determinate sentence is eligible for parole. The minimum time depends on the offense for which the
youth was sentenced and where they are at the time of parole. A youth in TJJD must serve a minimum of 10 years for
capital murder, three years for a first-degree felony, two years for a second-degree felony, and one year for a third-

degree felony. If the youth has been transferred to TDCJ, then the adult rules of parole apply. If the youth was
transferred to TDCJ, it is important to remember that they may be up for mandatory release if calendar time served and
good conduct time equal the youth’s sentence. TJJD is allowed to petition for early parole of the youth. If it does so, the
prosecutor may not represent TJJD, as their interests may conflict. Either the youth’s attorney or TJJD’s attorney

represents the commission at the hearing for early parole.

51 See, e.g., Ake, 470 U.S. 68.