Ex parte Trahan

• Decision Date: 28 November 1979
• Docket Number: No. 62647,62647
• Citation: 591 S.W.2d 837
• Court: Texas Court of Criminal Appeals
• Parties: Ex parte Wesley J. TRAHAN.

Page 837

591 S.W.2d 837

Ex parte Wesley J. TRAHAN.

No. 62647.

Court of Criminal Appeals of Texas, En Banc.

Nov. 28, 1979.

Rehearing Denied Jan. 9, 1980.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PHILLIPS, Judge.

This is a post-conviction habeas corpus proceeding brought pursuant to Article 11.07, V.A.C.C.P.

Petitioner was convicted of committing the offense of rape on December 28, 1968. Petitioner was 16 years old when he committed the offense. Petitioner was still 16 when he was indicted; however, by the time he pleaded guilty to the offense he had turned 17. Citing Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), petitioner urges that the indictment in the cause is void because he was not granted an examining trial prior to the indictment issuing.

In Menefee we held that an indictment which issues against a juvenile after a discretionary transfer from a juvenile court is void if the district court to which the cause is transferred fails to conduct an examining trial prior to the issuing of the indictment. See also Watson v. State, 587 S.W.2d 161 (Tex.Cr.App.1979); White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979). Menefee was decided under the provisions of Title 3 of the Family Code, which was passed in 1973. At the time petitioner was prosecuted the predecessor to Title 3 of the Family Code, Article 2338-1, V.A.C.S. as amended in 1967, was in effect. The question is whether petitioner is entitled to relief under the provisions of this prior statute.

Article 2338-1, supra, established juvenile courts and gave them exclusive original jurisdiction in proceedings involving delinquent children. See Section 5(a) of the statute. "Delinquent child" was defined in Section 3 of the statute as females over the age of 10 years and under the age of 18 years, and males over the age of 10 years and under the age of 17 years.

In Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973), this Court found this seventeen/eighteen-year-old classification to be a denial of equal protection of the law. It found the seventeen/eighteen-year-old classification in Article 30, Section 2, V.A.P.C., to be unconstitutional for the same reason. ¹ The Court excised the seventeen/eighteen-year-old classification from Article 2338-1 and Article 30, and concluded that all persons were amenable to punishment for offenses under the Penal Code except persons under the age of 15. The petitioner in that case was denied relief because he was 17 years of age at the time of the offense, thus was amenable to prosecution under the Penal Code.

Interpretations of the effect of Ex parte Matthews supra, on Article 2338-1 have differed. This Court in Chase v. State, 508 S.W.2d 605 (Tex.Cr.App.1974), and Hill v. State, 504 S.W.2d 484 (Tex.Cr.App.1974), interpreted Matthews, to strike out both the 17- and 18-year-old age limits and make all persons amenable to adult proceedings except persons under the age of 15. In effect this eliminated the exclusive original jurisdiction of the juvenile courts over persons between the ages of 15 and 17. The transfer procedures set out in Section 6 of the statute were rendered unnecessary to effect the jurisdiction of the district court over such juveniles.

The civil courts read Matthews differently. In Miguel v. State, 500 S.W.2d 680 (Tex.Civ.App. Beaumont 1973, no writ), it was held that Matthews simply confined the jurisdiction of the juvenile courts to those persons over the age of 10 years and under the age of 17 years. Under this interpretation Matthews eliminated the discriminatory age classification by striking only the 18-year-old classification for females. Upon consideration, we think this is the better position.

In Ex parte Tullos, 541 S.W.2d 167 (Tex.Cr.App.1976), we faced a decision similar to that faced in Matthews. Article 6701L -4, V.A.C.S., provided that males under 17 years of age and females under 18 years of age who committed the offense of driving while intoxicated were guilty of a misdemeanor punishable only by fine. The same offense committed by persons above those ages was punishable by imprisonment and a fine under Article 6701L -1, V.A.C.S. Relying on Matthews, we held the age discrimination to be unconstitutional. We then concluded, after an examination of the legislative history of the statute in question, that in amending the original statute to provide for the discriminatory age limits, the Legislature impermissibly exempted females from the harsher standard of punishment. As a result we struck the 18-year-old classification, rendering the age limit 17 years of age for all persons. The remainder of the statute was left intact.

This Court's position in Matthews was that the inclusion of 17-year-old females within the jurisdiction of the juvenile court, rather than the exclusion of 17-year-old males from the jurisdiction of that court, violated the equal protection of the law. We stated at 488 S.W.2d 438:

Patently, the result of Article 2338-1, V.A.C.S., and Article 30, § 2, V.A.P.C., is to impose a different standard of responsibility for members of one sex, irrespective of the nature of the offense. Further, we are unable to find any rational objective or logical constitutional justification for the disparity in the age classification between seventeen-eighteen year old males and seventeen-eighteen year old females. We conclude that the portion of Article 2338-1, V.A.C.S., which provides for the inclusion of females of age seventeen within the definition of the word "child," is violative of the equal protection clause. Likewise, the exclusion of seventeen year old females from persons who can be convicted under Article 30, § 2, V.A.P.C., is repugnant to the equal protection clause. (Emphasis added)

This same conclusion had been reached by the Legislature prior to the decision in Matthews. Anticipating a constitutional attack on the discriminatory age classification, the 62nd Legislature amended Article 2338-1, Section 3 in 1972 to provide that the upper age limit for a juvenile would be Seventeen years for all persons. Acts 1972, 62nd Leg., 4th C.S., ch. 20, § 1, p. 43, eff. November 1, 1972. See Dawson, Commentary to Title 3 of the Texas Family Code, 5 Tex.Tech.L.R. 509, 513 (1974). Article 30 of the former Penal Code was amended by the same act to provide that no person under 17 years of age could be convicted of an offense except perjury unless the juvenile court waived jurisdiction and certified the person for criminal proceedings. Matthews was decided on January 3, 1973.

It was unnecessary for the Court to go so far as to strike both the 17- and 18-year-old age classifications in Article 2338-1 and Article 30. Such drastic action would have been necessary had we not decided whether 17-year-old females should have been excluded from, or 17-year-old males included within, the jurisdiction of the juvenile courts. In fact we did decide that question. Moreover, the decision reached was virtually mandated by the Legislature's expression of its intention in 1972.

The 1967 amendments to Article 2338-1 and Article 30 contained a severability clause providing that if any provision or the application of any provision of the act to any person or circumstance was held invalid, that invalidity would not affect other provisions or application of the act which could be given effect without the invalid provision or application. See Matthews at 438. Clearly the striking of the 18-year-old age classification in Article 2338-1 and Article 30 need not have affected the validity of the 17-year-old classification. The severability clause in this case is identical to the one that we applied in Ex parte Tullos, supra, to save the 17-year-old classification in Article 6701L -4. See also Article 2338-1, Section 23, V.A.C.S.

Statutes should not be struck down or rendered ineffective unless absolutely necessary. We expressly approve of the analysis used in Ex parte Tullos, and find it applicable here. Accordingly, to the extent Matthews struck down both the 17- and 18-year-old age classifications, it is overruled. We hold that Article 2338-1, Section 3 was fully effective prior to November 1, 1972, to the extent it defined "delinquent child" as a person over the age of 10 years and under the age of 17 years. ² Article 30 was effective to the extent it provided that no one under 17 years of age could be convicted of an offense other than perjury unless the juvenile court waived jurisdiction and certified him for criminal proceedings. ³ To the extent that they conflict with this holding, Chase, supra, and Hill, supra, are overruled.

We turn now to the merits of petitioner's contention. Section 5(a) of Article 2338-1 as amended in 1967 set forth the jurisdiction of the juvenile courts. It provided:

The juvenile court has exclusive original jurisdiction in proceedings governing any delinquent child. However, in those cases specified in Section 6 of this Act, the juvenile court may waive jurisdiction to the appropriate district court or criminal district court. The juvenile court is considered in session at all times.

If an indictment issues against a juvenile, adult criminal proceedings have been instituted against him. This directly conflicts with the first sentence of Article 2338-1, providing that the juvenile court has exclusive original jurisdiction in proceedings governing any delinquent child. The second sentence of Section 5(a) resolves the conflict, however, by providing that in those cases specified in Section 6 of the Act, the juvenile court may waive its jurisdiction to the district court. Section 6 is the discretionary transfer provision of Article 2338-1, analogous to Section 54.02 of the present Family Code.

Section 6(b) of Article 2338-1 as amended in 1967 provided:

If a child is charged with the violation of a penal law of the grade of felony and was fifteen years of age or older at the time of the commission of the alleged...