Can an 18-to-21-year-old under Texas Youth Commission supervision be held with younger juveniles in detention?

Texas AG Opinion DM-0038: Older TYC Wards Who Have Been Arrested Must Be Kept Apart From Juveniles

Plain-English summary

The Texas Youth Commission asked whether a person between 18 and 21 who is under TYC supervision may be detained in a local juvenile detention facility. The answer turned on a gap the legislature left when it raised the TYC's jurisdiction.

In 1985 the legislature raised the upper age limit of TYC jurisdiction from 18 to 21, amending the Human Resources Code so that a "child" committed to the commission can be up to 21, and the commission discharges a person on his or her 21st birthday. The Family Code was changed in the same bill only to say that a commitment to the TYC does not automatically terminate at 18. But chapter 51 of the Family Code was never conformed: it still defines a "child" as a person under 18, and section 51.12(a) still bars detaining or committing a child in a compartment of a jail or lockup where adults arrested for, charged with, or convicted of crime are detained, or permitting contact between them.

Reading these together, the Attorney General concluded that because of the Family Code's narrow definition of "child" and the separation rule in section 51.12, a person under 18 may not be housed in the same compartment as, or permitted regular contact with, anyone between 18 and 21 (whether or not a TYC ward) who has been arrested for, charged with, or convicted of a crime. The opinion was careful about what this did and did not mean. It did not mean the older individuals could never be in the same facility as juveniles; it meant they could not be confined in the same cell or compartment, or so close as to permit regular contact. So a TYC ward aged 18 to 21 who has been arrested, charged, or convicted may under no circumstances be housed with or in regular contact with an under-18 "child." A ward in that age range who has not been arrested, charged, or convicted may be housed in compartments with juveniles and may have contact with them. The opinion declined to resolve a separate dispute between the TYC and the Texas Juvenile Probation Commission about when, apart from arrest, the TYC could detain an 18-to-21-year-old.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Family Code and Human Resources Code provisions on juvenile jurisdiction and detention have been amended since, and the Texas Youth Commission was later reorganized into the Texas Juvenile Justice Department. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Why was there a conflict about older TYC wards at all?
Because in 1985 the legislature raised TYC jurisdiction to age 21 in the Human Resources Code but never updated the Family Code's definition of "child," which still stops at 18, leaving the two statutes inconsistent.

Who exactly has to be kept separate from under-18 juveniles?
Anyone between 18 and 21, TYC ward or not, who has been arrested for, charged with, or convicted of a crime. Under section 51.12, a "child" cannot be confined in the same compartment as, or in regular contact with, such a person.

Could an 18-to-21-year-old ward ever be housed with juveniles?
Yes, but only if the ward has not been arrested for, charged with, or convicted of any crime. Then the ward may be housed in compartments with juveniles and have contact with them.

Did the opinion settle when the TYC could detain an 18-to-21-year-old in the first place?
No. It noted a dispute between the TYC and the Texas Juvenile Probation Commission on that point but said it did not need to resolve those questions.

Background and statutory framework

The 1985 amendments (Acts 1985, 69th Leg., ch. 45) raised the TYC's upper age of jurisdiction from 18 to 21. Human Resources Code section 61.001(6) defines "child" for that chapter as a person 10 or older and under 21 committed to the commission under Title 3 of the Family Code, and section 61.084(c) requires the commission to discharge a person on his or her 21st birthday. The same bill amended Family Code section 54.05(b) so that, except for a commitment to the TYC, dispositions automatically terminate at 18. But Family Code chapter 51 was not conformed: section 51.02 still defines "child" as a person 10 or older and under 17, or 17 and under 18 for acts committed before turning 17, and section 51.12(a) prohibits detaining or committing a child in a jail or lockup compartment with adults arrested for, charged with, or convicted of crime, or permitting contact, except after transfer to criminal court under section 54.02. The TYC has broad authority under Human Resources Code section 61.037 to contract with public or private agencies, including county juvenile detention facilities, for the care of its wards. The opinion read the Family Code's definition and separation rule to control the housing of under-18 children relative to the older age group.

Citations

Statutory provisions:

• Human Resources Code § 61.001(6) (definition of "child" for the commission); § 61.084(c) (discharge at 21); § 61.037 (authority to contract for care)
• Family Code § 51.02 (definition of "child"); § 51.12(a) (separation from adults in detention); § 54.05(b) (termination of dispositions); § 54.02 (transfer to criminal court)
• Acts 1985, 69th Leg., ch. 45 (raising TYC jurisdiction to age 21)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0038
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0038.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

September 14, 1991

Mr. Ron Jackson
Executive Director
Texas Youth Commission
P.O. Box 4260
Austin, Texas 78765

Opinion No. DM-38

Re: Whether persons between the ages of 18 and 21, and under the supervision of the Texas Youth Commission, may be detained in local juvenile detention facilities (RQ-2147)

Dear Mr. Jackson:

You have requested our opinion as to whether an individual between the ages of 18 and 21, and under the supervision of the Texas Youth Commission (hereafter TYC), may be detained in local juvenile detention facilities.

In 1985, the legislature amended the statutes governing the TYC to increase the upper age limit for TYC jurisdiction from 18 to 21. Acts 1985, 69th Leg., ch. 45, § 1, at 435. This extension of jurisdiction was accomplished by amending two portions of what is now the Human Resources Code. Section 61.001 now provides, in part:

In this chapter:

. . . .

(6) "Child" means a person 10 years old or older and under 21 years old who is committed to the commission under Title 3, Family Code.

Section 61.084(c) now provides:

(c) The commission shall discharge from its custody a person not already discharged or transferred on his or her 21st birthday.

As part of the same bill, section 54.05(b) of the Family Code was amended to read:

(b) Except for a commitment to the Texas Youth Commission, all dispositions automatically terminate when the child reaches his 18th birthday.

Acts 1985, 69th Leg., ch. 45, § 3, at 435 (emphasis added).

Chapter 51 of title 3 of the Family Code was not, and has not been, amended, however, to conform to these 1985 amendments. Section 51.02 still defines "child" in a manner which is inconsistent with chapter 61 of the Human Resources Code.

In this title:

(1) "Child" means a person who is:

(A) ten years of age or older and under 17 years of age; or

(B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.

Section 51.12(a) of the Family Code, also unamended in 1985, provides:

Except after transfer to criminal court for prosecution under Section 54.02 of this code, a child shall not be detained in or committed to a compartment of a jail or lockup in which adults arrested for, charged with, or convicted of crime are detained or committed, nor be permitted contact with such persons.

TYC is granted broad authority to contract with public or private agencies, including juvenile detention facilities operated by county juvenile boards, for the care and treatment of its wards. See Hum. Res. Code § 61.037. Pursuant to section 61.084(c) of the Human Resources Code, the TYC has jurisdiction over juveniles between the ages of 18 and 21. The Family Code, however, does not categorize persons between the ages of 18 and 21 as juveniles, and explicitly prohibits the detention of juveniles under the age of 18 in the same compartment or lockup as adults. Thus, the problem arises whether the TYC can require juvenile detention facilities to care for its wards between the ages of 18 and 21.

There seems to be a dispute between the TYC and the Texas Juvenile Probation Commission as to what circumstances, if any, would cause or permit TYC to detain a person between the ages of 18 and 21 other than his arrest for a criminal offense. We need not resolve those questions here. Both because of the limited definition of "child" in the Family Code and the specific prohibition of section 51.12 thereof, persons under the age of 18 may not be housed in the same compartment of a facility as, nor be permitted regular contact with, any individual between the ages of 18 and 21, whether or not they are TYC wards, if such individuals have been arrested for, charged with, or convicted of a crime. This does not mean that such individuals may not be housed in the same facility as juveniles. It means merely that they may not be confined in the same cell or compartment of a facility, or be confined in such proximity as to permit regular contact with juveniles. Thus, TYC wards between the ages of 18 and 21 may not be, under any circumstances, housed in a compartment of a facility, or permitted regular contact, with any "child" as defined by section 51.02 of the Family Code. If on the other hand, such TYC wards have not been arrested for, charged with, or convicted of any crime, they may be housed in a juvenile detention facility in compartments with juveniles and may have contact with juveniles.

SUMMARY

A ward of the Texas Youth Commission between the ages of 18 and 21 who has been arrested for, charged with, or convicted of any crime may under no circumstances be housed in the same compartment of a facility as, or permitted regular contact with, any "child" as defined in section 51.02 of the Family Code.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General