A new law that overhauled the Texas Youth Commission has created confusion in the juvenile justice system about what judges can do with certain youthful juvenile offenders 19 and older who are still confined in TYC facilities.

“They have created a black hole for these children between the ages of 19 and 21,” says Laura Angelini, attorney and administrator for the Bexar County juvenile courts.

Jim Hurley, TYC’s spokesman, says 158 youths in TYC custody fall into that age group. TYC has begun a comprehensive review of those offenders’ cases, Hurley says.

S.B. 103, which took effect when Gov. Rick Perry signed the bill on June 8, amended Chapter 61 of the Texas Human Resources Code to lower the age at which TYC must release or transfer a youth to incarceration in the Texas Department of Criminal Justice (TDCJ) from 21 to 19.

The problem with the new law involves youths who have passed their 19th birthday and are serving determinate sentences.

Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, says a determinate sentence sets a minimum and a maximum amount of time a juvenile must serve. Depending on the seriousness of the offense, a juvenile’s minimum length of stay on a determinate sentence is one, two or three years, or 10 years for a capital offense. In most cases, a juvenile spends the minimum period of confinement in TYC, where he goes through a rehabilitative program aimed at keeping him out of the adult prison system. If a juvenile fails to do well in the TYC program by the time the minimum sentence ends, the sentencing judge can transfer him to prison.

Under the old law, juveniles could remain in TYC’s rehabilitation programs until they were 22. But S.B. 103 changed the law.

In July letters, TYC officials notified juvenile judges around the state that the agency would be returning offenders who were 19-21 years of age to the sentencing courts to make a determination of whether to send those offenders to TDCJ or place them with the TDCJ parole division.

Judge Jeanne Meurer of Austin’s 98th District Court says the juvenile judges did not think they had jurisdiction to make that determination. “Our understanding is we lose jurisdiction when it comes to kids over 19,” Meurer says.

So TYC turned to the Texas Office of the Attorney General (OAG) for advice. That advice came in an Aug. 8 letter from Eric Nichols, deputy attorney general for criminal justice, to Dimitria Pope, TYC’s executive director.

Nichols advised Pope in the letter that TYC can refer youths who are serving determinate sentences and are in the 19- to 21-year-old age group to the juvenile courts that sentenced them. According to that letter, the courts must hold hearings to decide whether to transfer the youths to TDCJ for continued incarceration or to send them back to TYC for further action, including release on parole.

Laura Ward, general counsel for the Travis County Probation Department, says if the juvenile court agrees with TYC’s recommendation that an offender should go into the adult prison, the court can transfer the offender to TDCJ. But if the juvenile court disagrees with TYC on the prison transfer, the court can send the offender back to TYC, Ward says.

But state Sen. Juan “Chuy” Hinojosa, D-McAllen, author of S.B. 103, says the courts cannot send the 19 and older youths back to TYC.

“If you are on a determinate sentence and you’re 19, you either get released on parole or sent to TDCJ,” says Hinojosa, a solo practitioner.

Edmonds says �53 of S.B. 103 requires TYC to place an offender serving a determinate sentence on adult parole if the offender has not been discharged or transferred to the TDCJ before he or she turns 19.

“The Legislature screwed up unintentionally, and now the problem is coming home to roost,” Edmonds says.

Hinojosa and the OAG contend that previous law applies to youthful offenders on determinate sentences who were sentenced under that law and are now 19 or older.

According to Nichols’ Aug. 8 letter to Pope, the Legislature decided in S.B. 103 to limit for the future the maximum age of people incarcerated at TYC to 18.

“It did so in a way that places on TYC the continued responsibility to determine which members of its 19- to 21-year-old population warrant referral to the appropriate juvenile justice courts for continued incarceration in the Texas Department of Criminal Justice,” Nichols wrote.

Nichols wrote in an Aug. 9 letter to Lisa Capers, deputy executive director and general counsel for the Texas Juvenile Probation Commission, that S.B. 103 did not halt TYC’s responsibility to make appropriate referrals for transfer hearings for youths in the 19- to 21-year-old age group. In that letter, Nichols cited Texas Government Code �311.022, which provides, “A statute is presumed to be prospective in its operation unless expressly made retrospective.”

The Aug. 9 letter also cited ��67, 68 and 73 of S.B. 103, which according to Nichols, confirm that the provisions of the bill generally apply prospectively, not retrospectively. Those provisions address credit for time served, the Texas Penal Code and TYC’s administrative rule-making authority.

OAG spokesman Jerry Stricklin declines Texas Lawyer’s request to interview Nichols and says the attorney general’s office will not comment on the letters. Nichols’ Aug. 8 letter is not a formal opinion but represents the OAG’s advice to a client, Stricklin says.

Old Law, New Law

That advice has not satisfied some in the juvenile justice system. “Their answers leave questions,” Meurer says.

Capers says the juvenile probation commission will follow the OAG’s advice. But Capers says she can understand why some would disagree with the conclusions in Nichols’ letters.

Angelini, the Bexar County juvenile courts administrator, says Nichols cites Government Code �311.022. “But I don’t think you can use portions of Chapter 311 in a vacuum,” she says.

Government Code �311.011 requires words and phrases to be read in context and construed to follow the rules of grammar and common usage. “That part has to be read with some meaning as well,” Angelini says.

Angelini also says that while the Legislature specified the effective dates of most sections in the latter part of S.B. 103, state lawmakers did not do so for �50 of the bill, which amended Texas Human Resources Code �61.079. Before it was amended, Angelini says, �61.079 authorized TYC to refer a youth on a determinate sentence and between the ages of 16 and 21 to the sentencing court. She says the court then could transfer the youth to adult prison or return the youth to TYC, which could decide whether to keep the individual or release him under TYC’s supervision.

If the old law applies, Angelini says, TYC cannot ask the sentencing court to “weigh in” and determine that the youth should be placed on adult parole.

“And if the old law applies, then it should apply for all purposes, meaning these kids should be able to stay in TYC,” she says.

Hurley, the TYC’s spokesman, says TYC can hold a youth who is 19 or older and is performing well on the agency’s program. The youth can complete his minimum stay at TYC, he says.

“What we don’t want to do is penalize a youth,” Hurley says.

But Hinojosa says youths 19 or older “cannot go back to TYC, even though they haven’t served the minimum.”

Meurer, the juvenile judge in Travis County, says her concern is for youths who have passed their 19th birthday but have not completed their minimum stay at TYC. If TYC attempts to parole a youth in that situation, he will not complete TYC’s rehabilitation program, Meurer says. If the court transfers the youth to adult prison before he has had a chance to complete the TYC program, that youth won’t get the benefit of his plea bargain, she says.

Advocacy Inc. attorney Richard LaVallo of Austin is the co-counsel for a 19-year-old youth facing that possibility in In the Matter of T.L.S. II, pending in the 2nd District Court in Rusk. LaVallo says the youth received a determinate sentence, with a minimum three-year stay at TYC, in 2005 for aggravated sexual assault.

Judge Dwight Phifer, who presides over the case, had set the transfer hearing for Aug. 31 but granted the youth’s motion for a continuance on Aug. 28. Phifer has not re-set the hearing, but LaVallo says his client will challenge the judge’s jurisdiction to consider transferring him to prison.

Notes LaVallo, “If he goes to prison to serve out the rest of his term, he’s not getting the rehabilitation he bargained for when he agreed to this sentence.”