Sadly, so much of what I have read in the media regarding Ethan Couch, the notorious “affluenza teen,” is just legally wrong.
Now, I am not advocating for more or less punishment or trying to guess the merits of the State’s case or the defense. But, I do know juvenile law, and many things quoted in the media do not add up.
According to a NPR report today quoting The Dallas Morning News, the teen faces 120 days to 180 days in jail in addition to other probation conditions such as and ankle monitor and curfew. It is reported that because the teen’s case is being transferred to adult probation, the new district court judge can set/add conditions of probation for the teen.
It will be up to a state district judge in adult court to determine what the terms of his probation will be, such as an ankle monitor or curfew. A judge can decide if he will spend a minimum of 120 days in jail, but the maximum that he could get is 180 days in jail, Couch’s attorney Scott Brown said.”
When a juvenile determinate sentence probation is transferred to adult probation, the case is literally transferred from the juvenile court to a district court. And while it is true that the district court sets the conditions of probation, the district court is limited to those conditions consistent with the previously set juvenile conditions. So, unless the juvenile court had already ordered an ankle monitor, the district court cannot simply add this new condition. Similarly, the district court cannot simply assign jail as a condition, even though such jail time would be required for an adult placed on probation for intoxication assault and manslaughter.
Here’s the legal reason:
Under Family Code §54.051(e), the district court exercising jurisdiction over a child transferred under §54.051(d) shall place the child on community supervision under Code of Criminal Procedure Art. 42.12 for the remainder of the child’s probationary period and under conditions consistent with those ordered by the juvenile court. None of the restrictions of CCP Art. 42.12 apply to a case transferred from juvenile court.
So, one of the requirements of CCP 42.12 (for adults placed on probation for intoxication manslaughter) is that the defendant serve a minimum of 120 days in jail with a maximum of 180 days in jail. This is where the criminal practitioner usually errs. The requirements of CCP 42.12 do not apply to the juvenile being transferred.
Whether or not the teen deserves or needs jail time or an ankle monitor or even other conditions, his own attorney should be making the judge follow the law instead of telling the media the kid will do at least 120 days.
Now, if the teen violates one or more conditions of his probation, then after a hearing, the judge would be justified in either revoking his probation and assessing prison time or modifying the conditions of his probation to include jail time or an ankle monitor among other modifications.
Sadly, throughout this case, lawyers and the media just keep getting it wrong. Next time, consult a board certified juvenile lawyer!
Since posting, an additional question has come up – so I thought I should amend and add this question and explanation.
Many have asked if Couch could be facing a “violation/modification” of his probation for the alleged violations of probation that occurred previously. In short, I believe the answer is no.
Under the juvenile code which authorizes transfer of a determinate sentence probation to adult court and probation, the receiving district court can proceed on a violation of a condition of probation under 2 circumstances:
- the violation occurs after transfer
- the violation occurred prior to transfer BUT the violation was NOT KNOWN to the State prior to the transfer.
The rationale is that if the violation was discovered while still in juvenile, then the juvenile court should address it. If the State knew of the violation but choose not to proceed on it, then the State is thereafter barred from proceeding on that violation. In other words, the State should have availed itself of the remedies in juvenile court rather than ignoring it until the juvenile reached adult court.
Family Code 54.051 (e-2)
If a person who is placed on community supervision under this section violates a condition of that supervision or if the person violated a condition of probation ordered under Section 54.04(q) and that probation violation was not discovered by the state before the person’s 19th birthday, the district court shall dispose of the violation of community supervision or probation, as appropriate, in the same manner as if the court had originally exercised jurisdiction over the case. If the judge revokes community supervision, the judge may reduce the prison sentence to any length without regard to the minimum term imposed by Section 23(a), Article 42.12, Code of Criminal Procedure.