Do Texas police have to take a missing 17-year-old into custody if the teen does not want to go?

Plain-English summary

The Plano Police Department ran into a confusing gap in Texas law. A seventeen-year-old is treated as an adult for most criminal purposes, and running away from home at seventeen is not a juvenile offense, so the police cannot arrest a seventeen-year-old just for leaving. But chapter 63 of the Code of Criminal Procedure, the missing-children system, defines a "child" as anyone under eighteen and a "missing child" to include a child who voluntarily leaves home without a parent's consent and without intent to return. So can, or must, an officer take a seventeen-year-old reported missing into custody, even one who left on purpose and does not want to come back? Senator Florence Shapiro asked the question on the department's behalf.

The first puzzle was the wording of the statute. The Plano chief thought subsection (g) said an officer "shall" take possession of a located missing child. The published version of the statute showed "may" with a footnote noting a version with "shall." The opinion worked through three 1999 bills that touched the provision: two used "may," one (House Bill 668) changed it to "shall" and also amended article 2.13(c) to make it "the duty of every officer to take possession of a child under Article 62.009(g)." Applying the Code Construction Act's rule that the later-enacted bill prevails when bills conflict, the opinion concluded House Bill 668 controlled. So the statute requires an officer who locates a missing child to take possession and deliver the child to the person entitled to possession, or, if that person is not immediately available, to the Department of Protective and Regulatory Services.

From there the opinion answered the department's specific questions. Because chapter 63 defines a child as a person under eighteen, an officer must take a seventeen-year-old reported missing into custody, and it does not matter that the teen left voluntarily or does not want to be detained. The custody is protective, not penal, so it is not an arrest. Detaining an unemancipated seventeen-year-old to return the child to a parent or guardian does not violate the teen's constitutional rights, because under Texas law the age of majority is eighteen, a parent has a statutory right to physical possession of an unemancipated child, and the Supreme Court has recognized that minors' liberty interests are subject to parental and state control. An officer may use force, governed by section 9.61 of the Penal Code (which justifies non-deadly force by a parent or someone acting in loco parentis to safeguard or promote a child's welfare), but only to the degree reasonably believed necessary, and the officer must not place the child in jail or with arrestees. How much force is reasonable in any given case is a fact question the opinion said it could not resolve, and whether the Attorney General would bring an enforcement action under article 63.010 against an agency that refused to comply was likewise not a question for an opinion.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Plano Police Department (what the opinion held): The opinion told the department that subsection (g), read together with the 1999 amendments, imposed a mandatory duty: an officer who locates a seventeen-year-old reported as missing must take possession and deliver the child to the person entitled to possession or to the Department of Protective and Regulatory Services. The teen's age, voluntary departure, and unwillingness to be detained did not change that duty.

Law enforcement officers (what the opinion held for them): The opinion held that taking a missing seventeen-year-old into protective custody was not an arrest and did not violate the child's constitutional rights, that officers could use non-deadly force under Penal Code section 9.61 only to the degree reasonably necessary to safeguard the child, and that they could not hold the child in a jail or juvenile detention facility.

Parents and guardians (what the opinion held for them): The opinion held that a parent or guardian who reports a child missing has a statutory right to physical possession of an unemancipated child and, by making the report, is treated as consenting to the use of reasonable force to take the child into protective custody.

Common questions

Did the law require police to pick up a missing seventeen-year-old who ran away on purpose?
Yes. The opinion concluded that chapter 63 defines a child as anyone under eighteen and a missing child to include one who voluntarily left home without consent and without intent to return, so subsection (g) required an officer to take a missing seventeen-year-old into possession even if the teen left voluntarily.

Was it an arrest?
No. The opinion treated the custody as protective rather than penal. The officer's job was to safeguard the child and return the child to a parent, guardian, or the Department of Protective and Regulatory Services, not to charge the teen with anything.

Could the teen refuse to go?
The opinion concluded it was not relevant whether the seventeen-year-old wished to be taken into custody. The duty to take possession applied regardless of the child's wishes.

Could officers use force?
Yes, within limits. The opinion concluded an officer could use force (but not deadly force) under Penal Code section 9.61, and only to the degree the officer reasonably believed necessary to safeguard or promote the child's welfare. The opinion stressed the child was not under arrest and could not be placed in jail or with people arrested for crimes.

Did detaining the teen violate constitutional rights?
The opinion concluded it did not. It reasoned that the age of majority in Texas was eighteen, that a parent had a statutory right to possession of an unemancipated child, and that the Supreme Court had recognized minors' liberty interests are subject to parental and state control.

Background and statutory framework

Chapter 63 of the Code of Criminal Procedure creates a state clearinghouse for information on missing children and missing persons in the Department of Public Safety and sets requirements for state agencies, local law enforcement, and schools. Article 63.009(a) requires a local law enforcement agency that receives a missing-child or missing-person report to investigate the present location and file the information with the state clearinghouse and the national crime information center. The provisions originated in the Human Resources Code and were moved into the Code of Criminal Procedure; in 1999 three bills, Senate Bill 1368 (a nonsubstantive cleanup bill that also renumbered chapter 62 as chapter 63), House Bill 605, and House Bill 668, touched the relevant subsection. The first two kept "may"; House Bill 668 changed "may" to "shall" and amended article 2.13(c) so that "[i]t is the duty of every officer to take possession of a child under Article 62.009(g)." Under the Code Construction Act, conflicting same-session bills are harmonized if possible, and if irreconcilable the later-enacted bill prevails (Tex. Gov't Code § 311.025(b), (d)); the last vote on House Bill 668 (May 26, 1999) came after House Bill 605 (May 10, 1999), so House Bill 668's "shall" controlled.

The questions turned on competing definitions of "child." The Juvenile Justice Code (title 3 of the Family Code) treats running away as a juvenile matter only for conduct committed before age seventeen (Tex. Fam. Code § 51.02(2)), so a person who leaves home after turning seventeen commits no juvenile offense and cannot be taken into custody for that. But chapter 63 defines a child as a person under eighteen (art. 63.001(1)) and a missing child to include one who "voluntarily left the care and control of his legal custodian without the custodian's consent and without intent to return" (art. 63.001(3)). Texas sets the age of majority at eighteen (Tex. Civ. Prac. & Rem. Code § 129.001), and title 5 of the Family Code gives a parent a statutory right to physical possession of an unemancipated child (Tex. Fam. Code § 101.003(a), § 151.003(a)(1)). On the constitutional point, the opinion relied on Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Schall v. Martin, 467 U.S. 253 (1984), recognizing that unemancipated minors' liberty is subject to parental and state control and may be subordinated to the state's parens patriae interest. On force, the opinion applied Penal Code chapter 9, concluding sections governing arrest-related force (§§ 9.51-.53) did not apply, and that section 9.61, which justifies non-deadly force by a parent or person acting in loco parentis to discipline or safeguard a child, governed, with a parent's report of a missing child treated as express or implied consent to reasonable force. The reasonableness of any particular use of force, and whether the Attorney General would seek to enforce chapter 63 under article 63.010, were fact-bound questions outside the opinion process (citing Mackenzie v. Cartagena, 1999 WL 1201786 (N.D. Tex. 1999); Thompson v. City of Galveston, 979 F. Supp. 504 (S.D. Tex. 1997); and Hudson v. Vasquez, 941 S.W.2d 334 (Tex. App.-Corpus Christi 1997, no writ)).

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 63.009(g) (Vernon Supp. 2000)
• Tex. Code Crim. Proc. Ann. art. 63.001(3) (Vernon Supp. 2000)
• Tex. Code Crim. Proc. Ann. art. 63.010 (Vernon Supp. 2000)
• Tex. Fam. Code Ann. § 101.003(a) (Vernon 1996)
• Tex. Fam. Code Ann. § 51.02(2) (Vernon Supp. 2000)
• Tex. Fam. Code Ann. § 262.110(a) (Vernon Supp. 2000)
• Tex. Civ. Prac. & Rem. Code Ann. § 129.001 (Vernon 1997)
• Tex. Pen. Code Ann. § 9.61(a)(1), (2) (Vernon 1994)
• Tex. Pen. Code Ann. § 9.03
• Tex. Gov't Code Ann. § 311.025(b) (Vernon 1998)
• Tex. Gov't Code Ann. § 311.016(2) (Vernon 1998)

Cases:

• Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)
• Schall v. Martin, 467 U.S. 253 (1984)
• Mackenzie v. Cartagena, 1999 WL 1201786 (N.D. Tex. 1999)
• Thompson v. City of Galveston, 979 F. Supp. 504 (S.D. Tex. 1997)
• Hudson v. Vasquez, 941 S.W.2d 334 (Tex. App.-Corpus Christi 1997, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0229
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0229.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

June 7, 2000

The Honorable Florence Shapiro
Chair, Committee on State Affairs
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JC-0229

Re: Whether law enforcement officers are authorized to take a seventeen-year-old into custody simply because he or she has been reported as a missing child under chapter 63 of the Code of Criminal Procedure, and related questions (RQ-0169-JC)

Dear Senator Shapiro:

On behalf of the City of Plano Police Department (the "Police Department"), you ask whether police officers are authorized to take a seventeen-year-old into custody simply because he or she has been reported as a missing child under chapter 63 of the Code of Criminal Procedure. We conclude that article 63.009(g) requires a law enforcement officer who locates a seventeen-year-old who has been reported as a missing child to take possession of the child and to deliver the child to the person entitled to his or her possession or to the Department of Protective and Regulatory Services. See TEX. CODE CRIM. PROC. ANN. art. 63.009(g) (Vernon Supp. 2000). We also conclude that the detention of an unemancipated seventeen-year-old against his or her wishes for the purpose of returning the child to his or her parent or guardian does not violate the child's constitutional rights. In addition, we conclude that an officer may use force to take possession of a missing child, but only to the degree the officer reasonably believes is necessary to safeguard or promote the child's welfare consistent with the protective purpose of article 63.009(g).

Chapter 63 of the Code of Criminal Procedure creates a state clearinghouse for information on missing children and missing persons in the Department of Public Safety and establishes various requirements regarding missing children and missing persons for state agencies, local law enforcement agencies, and schools. See id. arts. 63.002, .003, .008, .009, .020. Article 63.009, among other things, requires a local law enforcement agency that receives a report of a missing child or missing person to investigate the present location of the child or person and to file the information with the state clearinghouse and the national crime information center. See id. art. 63.009(a). These requirements apply to municipal police departments and county sheriffs departments. See id. art. 63.001(5) (defining "law enforcement agency").

The Police Department's questions specifically pertain to the duties imposed on law enforcement officers by subsection (g) of article 63.009. For purposes of these questions, the pertinent subsections of article 63.009 are as follows:

(a) Local law enforcement agencies, on receiving a report of a missing child or a missing person, shall:

(1) if the subject of the report is a child and the well-being of the child is in danger or if the subject of the report is a person who is known by the agency to have or is reported to have chronic dementia, including Alzheimer's dementia, whether caused by illness, brain defect, or brain injury, immediately start an investigation in order to determine the present location of the child or person;

(2) if the subject of the report is a child or person other than a child or person described by Subdivision (1) start an investigation with due diligence in order to determine the present location of the child or person;

...

(g) On determining the location of a child under Subsection (a)(1) or (2), other than a child who is subject to the continuing jurisdiction of a district court, an officer may take possession of the child and shall deliver or arrange for the delivery of the child to a person entitled to possession of the child. If the person entitled to possession of the child is not immediately available, the law enforcement officer shall deliver the child to the Department of Protective and Regulatory Services.

Id. art. 63.009 (footnote omitted) (emphasis added). Subsection (g) governs the conduct of a law enforcement officer who determines the location of a missing child pursuant to an investigation into a report under subsection (a)(1) or (2). The version of subsection (g) published in Vernon's includes a footnote after the word "may," in the phrase "an officer may take possession of the child." The footnote indicates that one version of subsection (g) enacted by the Seventy-sixth Legislature used the word "shall" in place of the word "may." The Police Department's questions are premised on the belief that subsection (g) uses the word "shall" and imposes a mandatory duty on officers to take possession of a missing child. See Letter from Bruce D. Glasscock, Chief of Police, Plano Police Department, to Senator Florence Shapiro, at 1 (Dec. 3, 1999) (on file with Opinion Committee) [hereinafter "Police Department Letter"]. Therefore, we must address the proper wording of subsection (g) before turning to the Police Department's specific questions.

The missing children and persons provisions now in chapter 63 of the Code of Criminal Procedure were originally enacted as a chapter in the Human Resources Code.[1] In 1997, the Seventy-fifth Legislature enacted the precursor to subsection (g), which used the word "may," as section 79.008(a)(4) of the Human Resources Code.[2] The Seventy-fifth Legislature also moved the missing children and persons provisions from chapter 79 of the Human Resources Code to chapter 62 of the Code of Criminal Procedure.[3]

The Seventy-sixth Legislature enacted three bills affecting subsection (g): Senate Bill 1368, House Bill 605, and House Bill 668. While the first two bills used the word "may," House Bill 668 replaced "may" with "shall." Senate Bill 1368, a nonsubstantive cleanup bill,[4] moved section 79.008(a)(4) of the Human Resources Code to article 62.009(g) of the Code of Criminal Procedure[5] and renumbered the provisions of chapter 62 of the Code of Criminal Procedure in chapter 63.[6] House Bill 605 relocated section 79.008(a)(4) of the Human Resources Code to article 62.009(g) of the Code of Criminal Procedure without changing "may" to "shall."[7] House Bill 668, however, relocated section 79.008(a)(4) of the Human Resources Code to article 62.009(g) of the Code of Criminal Procedure and amended the provision to change "may" to "shall." See House Bill 668, enacted as Act of May 26, 1999, 76th Leg., R.S., ch. 685, § 5, 1999 Tex. Gen. Laws 3256, 3257 (purpose of act "to relocate and amend language" enacted in 1997) (emphasis added). Significantly, it also amended article 2.13 of the Code of Criminal Procedure, which establishes duties and powers of peace officers, to provide in subsection (c) that "[i]t is the duty of every officer to take possession of a child under Article 62.009(g)." Id. § 1. Thus, House Bill 668 imposes an affirmative duty on an officer to take possession of a missing child who he or she has located. See id. §§ 1, 5; see also TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 1998) (the term "shall" "imposes a duty" unless context in which it appears "necessarily requires a different construction").

The Code Construction Act provides that when amendments to the same statute are enacted in the same session without reference to each other, the statutes must be harmonized if possible. See TEX. GOV'T CODE ANN. § 311.025(b) (Vernon 1998). If the statutes are irreconcilable, the latest in date of enactment prevails. See id. The language of Senate Bill 1368, House Bill 605, and House Bill 668 conflict to the extent the first two bills provide that an officer "may" take possession of a missing child and the latter provides that an officer "shall" take possession of a missing child. Senate Bill 1368 provided that "[i]f any provision of this Act conflicts with a statute enacted by the 76th Legislature, Regular Session, 1999, the statute controls."[8] Therefore, Senate Bill 1368's version of subsection (g), which conflicts with the House Bill 668 version, does not control. Accordingly, only House Bills 605 and 668 must be reconciled.

For purposes of the Code Construction Act's provision relating to conflicting bills, "the date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute." Id. § 311.025(d). The last legislative vote was taken on House Bill 605 on May 10, 1999,[9] while the last legislative vote was taken on House Bill 668 on May 26, 1999.[10] Accordingly, House Bill 668, the later enacted provision, prevails. Therefore, the first sentence of subsection (g) of article 63.009 provides as follows:

On determining the location of a child under Subsection (a)(1) or (2), other than a child who is subject to the continuing jurisdiction of a district court, an officer shall take possession of the child and shall deliver or arrange for the delivery of the child to a person entitled to possession of the child.

We also note that the reference in article 2.13(c) of the Code of Criminal Procedure to article 62.009(g) must be construed as a reference to article 63.009(g), as Senate Bill 1368 renumbered the provisions of chapter 62 in chapter 63. See note 6 supra. Thus, subsection (c) of article 2.13 should be construed to provide that "[i]t is the duty of every officer to take possession of a child under Article 63.009(g)."

We now turn to the Police Department's specific questions. These questions turn on the different definitions of the term "child" in chapter 63 of the Code of Criminal Procedure and title 3 of the Family Code. Title 3 of the Family Code, the Juvenile Justice Code, defines the term "child" to mean a person who is "ten years of age or older and under 17 years of age" or "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." TEX. FAM. CODE ANN. § 51.02(2) (Vernon Supp. 2000). Both the terms "delinquent conduct" and "conduct indicating a need for supervision," the two categories of juvenile offenses, include "the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return." Id. §§ 51.03(a)(2)(C), (b)(3). The Juvenile Justice Code authorizes a law enforcement officer to take a child into custody if there is probable cause that the child has engaged in delinquent conduct or conduct indicating a need for supervision. See id. § 52.01(a)(3)(B). Under the Juvenile Justice Code, however, a person who voluntarily leaves home after reaching seventeen years of age does not commit a juvenile offense and may not be taken into custody for doing so. See id. §§ 51.02(2)(A), (B); 51.03(a)(2)(C), (b)(3).

On the other hand, subsection (g) of article 63.009 requires an officer to take possession of a seventeen-year-old who has been reported as missing, even a seventeen-year-old who has voluntarily left the care and control of his legal custodian without the custodian's consent and without intent to return. This is because the term "child" is defined for purposes of chapter 63 of the Code of Criminal Procedure as a person under eighteen years of age, see TEX. CODE CRIM. PROC. ANN. art. 63.001(1) (Vernon Supp. 2000), and a "missing child" is defined as:

a child whose whereabouts are unknown to the child's legal custodian, the circumstances of whose absence indicate that:

(A) the child did not voluntarily leave the care and control of the custodian, and the taking of the child was not authorized by law;

(B) the child voluntarily left the care and control of his legal custodian without the custodian's consent and without intent to return; or

(C) the child was taken or retained in violation of the terms of a court order for possession of or access to the child.

Id. art. 63.001(3) (emphasis added); see also id. art. 63.001(4)(C) ("Missing child" or "missing person" also includes a person of any age who is missing and "is unemancipated as defined by the law of this state.").

The Police Department asks five questions about an officer's duty with respect to a missing seventeen-year-old under chapter 63 of the Code of Criminal Procedure. These questions stem from the anomaly in the law that a seventeen-year-old is an adult for purposes of criminal statutes but, as we shall discuss in greater detail, a child for purposes of civil law. Compare TEX. FAM. CODE ANN. § 51.02(2) (Vernon Supp. 2000) (Juvenile Justice Code applicable only to conduct committed prior to age seventeen), and TEX. PEN. CODE ANN. § 8.07 (Vernon Supp. 2000) (age affecting criminal responsibility), with TEX. FAM. CODE ANN. § 101.003(a) (Vernon 1996) (defining child for purposes of provisions governing parent-child relationship to include person under eighteen years of age), and TEX. CIV. PRAC. & REM. CODE ANN. § 129.001 (Vernon 1997) (providing that age of majority is eighteen). We wish to preface our response to these questions with the following observations, which inform our analysis. Article 63.009(g) is not a penal statute nor is it related to juvenile misconduct; its purpose is to locate missing children, to ensure their safety, and to reunite them with their parents or guardians. Furthermore, taking possession of a child under article 63.009(g) is not tantamount to an arrest for criminal behavior. The custody the statute contemplates is protective rather than penal in nature.

The first question posed by the Police Department is whether "police officers [are] authorized to take a person who is over the age of seventeen, but not yet eighteen, into custody simply because the person has been listed as 'missing'?" Police Department Letter at 2. As we have explained, subsection (g) of article 63.009 affirmatively requires an officer to take possession of a child reported as missing. See supra discussion pp. 2-4. Under chapter 63, a child is defined as a person under eighteen years of age. See TEX. CODE CRIM. PROC. ANN. art. 63.001(1) (Vernon Supp. 2000). Thus, in answer to this question, a law enforcement officer must take a person who is over the age of seventeen, but not yet eighteen, into custody, simply because the person has been listed as "missing." The Police Department appears concerned that the seventeen-year-old may wish to remain "missing." In this regard, we note that a seventeen-year-old who has voluntarily left the care and control of his legal custodian without the custodian's consent and without intent to return may be reported as missing. See id. art. 63.001(3)(B). The fact that a child reported as missing is seventeen and has left home voluntarily does not mitigate the duty of an officer to take possession of the child.

In a related question, the Police Department asks: "What if the person does not want to be detained?" Police Department Letter at 2. It is not relevant under subsection (g) whether the seventeen-year-old wishes to be taken into protective custody. Again, under chapter 63 a child, including a seventeen-year-old, is "missing" even if the child "voluntarily left the care and control of his legal custodian without the custodian's consent and without intent to return." TEX. CODE CRIM. PROC. ANN. art. 63.001(3)(B) (Vernon Supp. 2000). An officer has a duty under article 63.009(g) to take possession of a seventeen-year-old who has been reported as missing even if the seventeen-year-old does not wish to be detained.

The Police Department expresses concern that detaining a seventeen-year-old against his or her wishes constitutes an arrest and may violate the seventeen-year-old's constitutional rights because running away from home at the age of seventeen is not an offense under the Juvenile Justice Code. The Police Department poses the following dilemma: "[D]o we 'arrest' a person who has committed no crime, or do we ignore what appears to be a statutory mandate in order to avoid an allegation of an unconstitutional seizure." Police Department Letter at 2. As explained below, in our view this concern is unfounded.

The Police Department describes the detention of a seventeen-year-old under article 63.009(g) as an arrest. As we believe that the custody the statute contemplates is protective rather than penal in nature, we do not agree with this characterization. Furthermore, we do not believe that a peace officer who takes possession of a seventeen-year-old under the authority of article 63.009(g) and detains the child against his or her will violates the child's constitutional rights. Chapter 63 provides a system for a parent or guardian to report to a law enforcement agency that a child is missing and to have this information included in a statewide database, thereby informing law enforcement agencies of the fact that the child is missing and of the parent or guardian's desire to have the child returned. It is entirely consistent with the laws of this state and constitutional law to include seventeen-year-olds who voluntarily leave the care and control of their parents or guardians in this system as missing children.

Under the laws of this state, the age of majority is eighteen years. See TEX. CIV. PRAC. & REM. CODE ANN. § 129.001 (Vernon 1997). Under title 5 of the Family Code, which governs the parent-child relationship, a "child" is defined as "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes," TEX. FAM. CODE ANN. § 101.003(a) (Vernon 1996), or, in other words, a person seventeen years of age or younger who has not been emancipated by marriage or by court order, see id. § 1.104 (Vernon 1998) (disabilities of minority removed by marriage); ch. 31 (Vernon 1996 & Supp. 2000) (procedures for child to petition court to remove disabilities of minority). A parent or legal guardian has a statutory right under the Family Code to have physical possession of his or her unemancipated child and to establish the child's residence. See id. § 151.003(a)(1) (Vernon 1996) (rights of parents); TEX. PROB. CODE ANN. § 767 (Vernon Supp. 2000) (powers and duties of legal guardians). Therefore, under the laws of this state, a parent or guardian has a right to physical possession of an unemancipated seventeen-year-old who has left home without the parent's or guardian's permission.

Furthermore, as the United States Supreme Court has recognized, unemancipated seventeen-year-olds' constitutional liberty rights are not as great as adults' and are subject to the control of their parents or guardians: "Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination -- including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995). Furthermore, a child's liberty interest may, in appropriate circumstances, be subordinated to the state's interest in preserving and promoting the welfare of the child. See Schall v. Martin, 467 U.S. 253, 265 (1984) ("[J]uveniles, unlike adults, are always in some form of custody. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. In this respect, the juvenile's liberty interest may, in appropriate circumstances, be subordinated to the State's 'parens patriae' interest in preserving and promoting the welfare of the child.") (citations omitted).

In sum, given the statutory right of a parent or guardian to physical possession of his or her child and that an unemancipated child's liberty rights are subject to parental and state control, we conclude that the involuntary detention of an unemancipated seventeen-year-old under article 63.009(g) for the purpose of returning the child to his or her parent or guardian does not amount to an unconstitutional deprivation of liberty. Furthermore, we note that a law enforcement officer who acts reasonably to take possession of a child under the authority of article 63.009(g) would be shielded from civil liability under the qualified immunity doctrine. A plaintiff complaining of the officer's conduct would have to establish that the officer was not entitled to qualified immunity, a difficult burden to bear. See, e.g., Mackenzie v. Cartagena, 1999 WL 1201786 (N.D. Tex. 1999) (granting summary judgment against plaintiff who claimed that officer violated her constitutional rights by taking possession of her child under precursor to article 63.009(g) on basis that officer was entitled to qualified immunity); see also TEX. FAM. CODE ANN. § 262.003 (Vernon 1996) ("A person who takes possession of a child without a court order is immune from civil liability if, at the time possession is taken, there is reasonable cause to believe there is an immediate danger to the physical health or safety of the child.").

With respect to detention, the Police Department also asks how long an officer may detain a seventeen-year-old. See Police Department Letter at 2. Article 63.009(g) requires an officer who takes possession of a child reported as missing "to deliver or arrange for the delivery of the child to a person entitled to possession of the child. If the person entitled to possession of the child is not immediately available, the law enforcement officer shall deliver the child to the Department of Protective and Regulatory Services." TEX. CODE CRIM. PROC. ANN. art. 63.009(g); see also TEX. FAM. CODE ANN. § 262.007 (Vernon Supp. 2000) (law enforcement officer "who, during a criminal investigation relating to a child's custody, discovers that a child is a missing child and believes that a person may flee with or conceal the child shall take possession of the child" and shall deliver child to person entitled to take possession of child or Department of Protective and Regulatory Services). Thus, an officer may detain a seventeen-year-old who has been reported as missing until the child has been reunited with his parent or guardian, if that person is immediately available. If that person is not immediately available, the officer should deliver the child to the Department of Protective and Regulatory Services. In this regard, we note that section 262.110 of the Family Code specifically authorizes an authorized representative of the Department of Protective and Regulatory Services or a law enforcement officer to take temporary possession of a child without a court order "on discovery of a child in a situation of danger to the child's physical health or safety when the sole purpose is to deliver the child without unnecessary delay to the [person] . . . who is presently entitled to possession of the child." TEX. FAM. CODE ANN. § 262.110(a) (Vernon Supp. 2000). For purposes of section 262.110, which is also located in title 5 of the Family Code, a "child" is defined as "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes." Id. § 101.003(a) (Vernon 1996).

The Police Department also asks if officers would be authorized to use force to take possession of a missing seventeen-year-old. We assume that this question pertains to use of force against the child rather than some third person who may have absconded with the child. We conclude that an officer may use force to detain a missing child who wishes to elude protective custody, but only to the degree the officer reasonably believes is necessary to safeguard or promote the child's welfare consistent with the protective purpose of article 63.009(g).

We believe that the use of force in this situation would be governed by section 9.61 of the Penal Code, a provision of chapter 9 of the Penal Code, which governs use of force for purposes of the criminal law. Section 9.02 of the Penal Code provides that "[i]t is a defense to prosecution [for use of force] that the conduct in question is justified under this chapter." TEX. PEN. CODE ANN. § 9.02 (Vernon 1994). Under chapter 9, confinement, i.e. detention of a person for purposes other than arrest, constitutes use of force. See id. § 9.03. Chapter 9 contains various provisions governing use of force by law enforcement officers. See, e.g., id. §§ 9.51-.53. As these provisions deal with use of force in the context of arrests, searches, custody following an arrest, and prisons, they are inapplicable here where we consider use of force to take a child into protective custody. Rather, section 9.61 of the Penal Code provides that the use of force, but not deadly force, against a child younger than eighteen years is justified under certain circumstances, specifically:

(1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and

(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

Id. § 9.61(a)(1), (2). For purposes of section 9.61, "in loco parentis" includes a "grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents." Id. § 9.61(b) (emphasis added); see also id. § 9.62 ("The use of force, but not deadly force, against a person is justified: (1) if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and (2) when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.").

Section 9.61 applies to use of force against a child (i) to discipline the child or to safeguard or promote the child's welfare, see id. § 9.61(a)(2), (ii) by the parent or person acting in loco parentis, which is broadly defined to include any person acting with the parent's implied or express consent, see id. § 9.61(a)(1), (b). Again, the purpose of chapter 63 of the Code of Criminal Procedure is to locate missing children, to ensure their safety, and to reunite them with their parents or guardians. Thus, we believe that an officer who takes possession of a child under article 63.009(g) does so to safeguard or promote the child's welfare within the meaning of section 9.61. See id. § 9.61(a)(2).

The more difficult question is whether an officer has parental consent to use force against the child for purposes of section 9.61. See id. § 9.61(a)(1), (b). Based on the statutory scheme, we conclude that a parent or guardian who reports a child as missing consents to use of reasonable force against the child. First, we believe it is clear from the statute that an officer who locates a child who has been reported as missing by a parent or guardian has the express consent of the parent or guardian to confine the child. The very act of reporting a child as missing triggers the mandatory duty in article 63.009(g) (and article 2.13(c)) that an officer who locates the child take possession of the child. This duty includes the duty to keep the child in the officer's possession until the person entitled to possession or the Department of Protective and Regulatory Services representative arrives. Again, if the child does not wish to stay with the officer, the detention will constitute confinement, a use of force. See id. § 9.03. Furthermore, we believe that a parent or guardian who reports a child as missing must reasonably anticipate that use of some force may be necessary to take physical possession of a child who does not wish to be taken into protective custody. For this reason, an officer who locates a child who has been reported as missing by a parent or guardian has the implied consent of the parent or guardian to use force to take physical possession of the child.

Accordingly, we conclude that section 9.61 would generally apply to an officer who takes possession of a child under article 63.009(g). Thus, such an officer is justified in using force "to the degree the [officer] reasonably believes is necessary to safeguard or promote [the child's] welfare." Id. § 9.61(a)(2). Clearly an officer who locates a child who has been reported as missing by a parent or guardian would be justified in confining the child until the person entitled to possession or the Department of Protective and Regulatory Services representative arrives. We caution, however, that although article 63.009(g) clearly contemplates confinement of an unwilling child, the child is not under arrest, and it would not be appropriate for a law enforcement officer to place a missing child in a jail or with persons under arrest for crimes or juvenile misconduct. Cf. TEX. FAM. CODE ANN. § 262.108 (Vernon Supp. 2000) ("When a child is taken into possession under [chapter 262 of the Family Code, which provides for taking children into protective custody in certain situations,] that child may not be held in isolation or in a jail, juvenile detention facility, or other secure detention facility.").

In addition, use of force greater than confinement may be justified in some circumstances to take physical possession of a child. We stress, however, that the purpose of taking possession of a child under article 63.009(g) is to protect the child, who, presumably, has not committed an offense and is not under arrest. We believe that a trier of fact would consider whether the degree of force was reasonable in light of the protective purpose of article 63.009(g). Moreover, while we have focused our analysis on criminal liability for use of force, the reasonableness of the use of force would also be an important factor in the context of a civil suit under state or federal law arising from the use of force under article 63.009(g) and would be considered in light of the protective purpose of the statute. Cf. Thompson v. City of Galveston, 979 F. Supp. 504 (S.D. Tex. 1997) (to sustain cause of action under Fourth Amendment that officers used excessive force to take child into custody under chapter 52 of the Family Code, plaintiff must establish that use of force was "objectively unreasonable"); Hudson v. Vasquez, 941 S.W.2d 334, 337 (Tex. App.-Corpus Christi 1997, no writ) (reasonableness of force used in making an arrest an element of determining whether law enforcement officer is entitled to official immunity under state law); id. at 338-39 (whether law enforcement officer is entitled to official immunity in action under 42 U.S.C. § 1983 for use of force in making an arrest depends in part upon reasonableness of force used). In the final analysis, however, the determination whether the degree of force used in a particular case is reasonable depends upon the circumstances and is beyond the purview of an attorney general opinion.[11]

Finally, the Police Department notes that article 63.010 of chapter 63 of the Code of Criminal Procedure provides that "[t]he Attorney General shall require each law enforcement agency to comply with this chapter and may seek writs of mandamus or other appropriate remedies to enforce this chapter." TEX. CODE CRIM. PROC. ANN. art. 63.010 (Vernon Supp. 2000). The Police Department asks: "Would [the Office of the Attorney General] pursue an action against an agency that refused to detain a seventeen-year-old who had committed no crime and did not voluntarily remain in police custody?" Police Department Letter at 2. Whether this office would undertake an enforcement action in any particular instance is an issue that is not amenable to an attorney general opinion.

[1] See Act of May 6, 1985, 69th Leg., R.S., ch. 132, § 1, 1985 Tex. Gen. Laws 614; Act of May 1, 1987, 70th Leg., R.S., ch. 167, § 5.01(a)(26), 1987 Tex. Gen. Laws 1338, 1358.

[2] See Act of Apr. 25, 1997, 75th Leg., R.S., ch. 51, § 2, 1997 Tex. Gen. Laws 120, 121.

[3] See Act of May 26, 1997, 75th Leg., R.S., ch. 1427, § 1, 1997 Tex. Gen. Laws 5487.

[4] See Senate Bill 1368, Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, §§ 1.01, .02, 1999 Tex. Gen. Laws 127.

[5] See id. § 3.12, at 133.

[6] See id. § 19.01(8)(A), at 412.

[7] See House Bill 605, Act of May 10, 1999, 76th Leg., R.S., ch. 200, § 2, 1999 Tex. Gen. Laws 677, 678.

[8] Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, § 1.02(b), 1999 Tex. Gen. Laws 127.

[9] See S.J. of Tex., 76th Leg., R.S. 1589 (1999).

[10] See S.J. of Tex., 76th Leg., R.S. 2906 (1999).

[11] See, e.g., Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process); M-187 (1968) at 3 ("[T]his office is without authority to make . . . factual determinations."); O-2911 (1940) at 2 ("[T]his presents a fact question which we are unable to answer.").

SUMMARY

Article 63.009(g) of the Code of Criminal Procedure requires a law enforcement officer who locates a seventeen-year-old who has been reported as a missing child to take possession of the child and to deliver the child to the person entitled to his or her possession or to the Department of Protective and Regulatory Services. The detention of an unemancipated seventeen-year-old against his or her wishes for the purpose of returning the child to his or her parent or guardian does not violate the child's constitutional rights. An officer may use force to take possession of a missing child, but only to the degree the officer reasonably believes is necessary to safeguard or promote the child's welfare consistent with the protective purpose of article 63.009(g).

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee