Texas Attorney General Opinion: JC-242 Page: 2 of 4
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The Honorable Richard J. Miller - Page 2
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court
proceedings that are recorded.
Id. 51.09. As you indicate, there is "no provision in the Juvenile Code [Title 3 of the Family Code]
that addresses the right or authority of the State with respect to such waiver." Letter from Honorable
Richard J. Miller, Bell County Attorney, to Honorable John Cornyn, Texas Attorney General, at I
(Jan. 28, 2000) (on file with Opinion Committee) [hereinafter "Request Letter"].
Section 51.17 of the Family Code provides:
(a) Except for the burden of proof to be borne by the state in
adjudicating a child to be delinquent or in need of supervision under
Section 54.03(f) or otherwise when in conflict with a provision ofthis
title, the Texas Rules of Civil Procedure govern proceedings under
this title.
(b) Discovery in a proceeding under this title is governed by
the Code of Criminal Procedure and by case decisions in criminal
cases.
(c) Except as otherwise provided by this title, the Texas Rules
of Evidence applicable to criminal cases and Chapter 38, Code of
Criminal Procedure, apply in a judicial proceeding under this title.
TEX. FAM. CODE ANN. 51.17 (Vernon Supp. 2000). You suggest that, since the right of the state
to require a jury trial in a juvenile proceeding is not mentioned in the Family Code, we must,
pursuant to subsection 51.17(a), look to the Texas Rules of Civil Procedure for guidance,
specifically, Rule 216. See Request Letter, supra, at 2. That rule states, in relevant part:
(a) Request. No jury trial shall be had in any civil suit, unless a
written request for a jury trial is filed with the clerk of the court a
reasonable time before the date set for trial of the cause on the non-
jury docket, but not less than thirty days in advance.
TEX. R. CIV. P. 216. Rule 216, albeit indirectly, grants to either party to a civil suit the right of trial
by jury.
In our opinion, Rule 216 does not apply to ajuvenile proceeding. Subsection 51.17(a) of the
Family Code specifically states that the Rules ofCivil Procedure are not applicable "when in conflict
with a provision" of Title 3 of the Family Code. As one commentator notes, in a treatise on Texas
Juvenile Law, "If Title 3speaks to an issue, it controls." See ROBERTO. DAWSON, TEXAS JUVENILE(JC-0242)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-242, text, June 29, 2000; (https://texashistory.unt.edu/ark:/67531/metapth274551/m1/2/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.