There are two potential punishment outcomes within the Texas juvenile justice system: determinate and indeterminate sentences. The kind of sentence imposed is determined by the D.A.’s office, the nature of the crime in question, and the juvenile’s age. Knowing the difference between these two sentences is essential if your child is facing juvenile charges, since these sentencing structures have different impacts on a juvenile's future. This blog explains all the differences you must know.

Determinate Sentence

In Texas, juvenile courts have jurisdiction over child offenders if they are under 17 when they committed the offense. Generally, the consequences for a crime can last only until a child's 19th birthday. So what happens when the child is convicted of a felony? In this case, the court can impose a sentence of incarceration that extends beyond the child's 19th birthday. This is called determinate sentencing.

A determinate sentence is often imposed on repeat child offenders or older child offenders with severe charges. This type of sentence only applies to specific felony-level crimes. A determinate sentence is a combination of juvenile and adult punishment. The sentence is split into 3 levels based on the severity of the alleged felony.

First-degree felonies are known as D-40 crimes, second-degree felonies are called D-20 violations, and third-degree felonies are categorized as D-10 crimes. The numbers 40, 20, and 10 signify the number of years in prison a child can be subject to after a conviction for that degree of the offense. That means a child offender can serve up to 40 years in adult court, depending on the severity of the crime.

A determinate sentence, whether incarceration or probation, will begin in juvenile court with the potential of transfer to adult court. Two primary factors determine whether a juvenile charge is transferable to adult court:

  • The severity of the charges in question
  • The juvenile’s conduct while in TJJD (Texas Juvenile Justice Department) custody or on probation

This hybrid legal system serves as an incentive for the child offender to complete probation or their incarceration. If they exhibit good behavior during their sentence, a child offender on probation can be released at age 19 without being transferred to the adult legal system to serve the remaining probationary period. A child placed in the custody of the Texas Juvenile Justice Department may be eligible for juvenile parole and may not be required to complete the remainder of their total incarceration period in adult court.

The district attorney has sole authority to decide whether to pursue determinate sentencing. If they decide to seek determinate sentencing, they must petition the court and prove that the minor was involved in delinquent behavior. Then, the D.A. must present the petition for approval to the grand jury. If the grand jury approves the petition, then it will become a determinate sentencing case. But if the jury denies the petition, the D.A.’s only resort is to prosecute the charges as normal.

When a child is subject to determinate sentencing, the jury or judge can determine an appropriate punishment or disposition within the range. The range is as follows:

  • A maximum of forty years in prison for any capital felony, aggravated regulated substance felony, or first-degree felony.
  • A maximum of twenty years in prison for any felony in the second degree
  • Up to ten years for any felony in the third degree

Under the Determinate Sentence Act, state jail felony offenses and misdemeanors do not qualify for determinate sentencing.

After the grand jury grants the D.A.’s request for determinate sentencing, the D.A. retains the discretion to waive the determinate sentence later, provided this happens before the child is adjudicated. This usually happens during plea negotiations, after the D.A. offers an indeterminate-sentencing deal in exchange for the child accepting the plea.

Indeterminate Sentence

An indeterminate sentence is one in which no fixed time is set on a conviction (adjudication). Instead, a child offender receives a sentence, for example, probation, that generally lasts until their 19th birthday. However, the Texas Juvenile Justice Department (TJJD) can release them earlier if their rehab progress warrants it. The child can also be placed in a facility, like a narcotics treatment facility or girls' or boys' ranch.

Under indeterminate sentencing, only the presiding judge may evaluate punishment. But in determinate-sentencing-related cases, the child may opt for a jury or a judge to determine the punishment. If the child chooses the jurors to determine punishment, they must submit a written petition to the judge before voir dire.

Offenses to Which Determinate Sentences Apply

Texas Family Code Sec. 53.045 lists the types of crimes that qualify for a determinate sentence. These crimes include the following:

  • Murder
  • Habitual felony conduct
  • Manslaughter
  • Capital murder
  • Attempted capital murder or attempted murder
  • Aggravated kidnapping
  • Aggravated sexual assault
  • Sexual assault
  • Aggravated robbery
  • Aggravated assault
  • Injury to an elderly individual, a disabled individual, or a child
  • Criminal solicitation
  • Being indecent with a minor
  • Specific crimes involving regulated substances
  • Indecency with a minor
  • Child criminal solicitation
  • Felony, deadly conduct involving the discharge of a gun
  • Arson, if anyone dies or sustains physical injury as a result of the offense
  • Criminal conspiracy
  • Intoxication manslaughter

When determining whether or not to seek determinate sentencing, the prosecution considers the severity and nature of the crime, the child's age, criminal record, degree of guilt, progress, risk of reoffending, and conduct in detention.

How Determinate Sentencing Can Affect a Child

A child offender subject to determinate sentencing can be either placed on probation or in the Texas Juvenile Justice Department. Either way, the juvenile court has authority over the child until the child turns 18 or 19. For offenses committed before 1st Sept. 2011, the child remains in the Texas juvenile justice system until their 18th birthday.

Children sentenced to probation can serve their sentence for no more than 10 years, which may extend beyond the period during which the child becomes an adult. When a child offender facing a determinate sentencing probation attains adulthood, the probation sentence will automatically expire unless the district attorney seeks a transfer proceeding before the child's 19th birthday.

Should the D.A. request a transfer proceeding and it be granted, the juvenile court judge decides whether to move the child to the adult court system. If the judge grants the transfer request, the county's adult probation division would have jurisdiction over the child for the remainder of the probation period.

An alternative to a probation sentence is for the child to be placed in TJJD custody with the potential of being transferred to the Texas Department of Criminal Justice (TDCJ). Here, the jury or judge will impose a prison sentence for a definite period, which might extend beyond the period when the child becomes an adult.

A child must complete the minimum period of staying at the Texas Juvenile Justice Department. After they have completed the minimum stay, the department can parole them if it chooses to. For children unable to serve their minimum period of stay before becoming adults or who are not progressing adequately towards rehab or engaging in TJJD programs, TJJD may seek a transfer proceeding.

If requested, this transfer hearing must be presided over by the same juvenile court judge who presided over the case. Also, the hearing must occur before the child turns 19. After hearing the evidence during the proceeding, the judge then decides if the juvenile should be incarcerated in an adult prison to finish their sentence or if it is safe to release them on parole without placing the safety of the public at risk.

Differences Between Indeterminate and Determinate Sentences

One key difference between indeterminate and determinate sentences concerns the child’s right to a jury disposition and the party that may oversee the case.

Any child facing a determinate sentencing charge has the right to a jury of twelve individuals for the disposition and adjudication hearing. Since jury selection must occur according to the criminal case requirements, each side has the right to ten peremptory strikes. The child and their attorney must submit a written request to the jury for disposition before voir dire begins.

A child facing indefinite sentencing is not entitled to a jury trial for disposition proceedings. Also, unlike in adult court, where the prosecution is entitled to a trial by a jury, it lacks that legal right for both indeterminate and determinate sentences. Additionally, an associate referee or judge might not preside over a determinate sentencing case. Actually, only the judge of the juvenile court may hear the disposition proceedings, adjudication hearing, probation violation hearing (disposition modification hearing), and probation transfer or TJJD hearings on a determinate sentencing case. These primary differences between an indeterminate and a determinate sentence highlight the importance that the lawmakers accorded to a determinate sentence.

Another difference between indeterminate and determinate sentences is the transfer of a child to adult court. Before a child’s 19th birthday and after they have already been placed on child probation or TJJD custody for determinate charges, they can be transferred to adult parole, adult probation, or adult prison to serve the remainder of their sentence. Actually, any child offender placed in TJJD custody can be transferred to adult custody as early as age sixteen if their conduct shows that the community's welfare requires it.

A transfer hearing may be presided over only by a juvenile judge. An associate judge has no jurisdiction over these hearings. On a transfer or release hearing from TJJD custody, the court will notify the child, their parents, the prosecutor, the legal guardian, all the involved victims or their family members, and other parties who have requested to be informed of the proceedings.

If the child is sentenced to probation, it will be the D.A.’s duty to request the transfer hearing before the child turns 19. Unless the law of incomplete proceedings applies, the transfer proceedings for the child's determinate probation sentence must be completed before the child turns 19. It seems nothing would prevent a juvenile court judge from scheduling this hearing before the child turns 19. For example, they can hold the hearing 3 to 6 months prior. However, a real transfer to adult custody cannot occur until the child turns 19.

Prosecutors have sought early hearings so they can attempt to prevent scenarios where the child refuses to appear in court and attains 19 years before the transfer hearing is scheduled. However, after the proceeding, the juvenile judge may terminate the child's probation. This might happen before or on the child's 19th birthday.

Should a situation arise in which a child flees while serving a determinate sentence on probation, the court might schedule the transfer proceedings after age nineteen per the Texas Family Code, which addresses incomplete court proceedings. The judge must rule that the D.A. exercised due diligence in trying to hold the hearing before age nineteen. In any proceeding that occurs after the child reaches 19 years of age, it would be essential for the D.A. to submit evidence that they made routine attempts to locate the minor to prove due diligence.

After a child is placed in TJJD custody, a prosecutor cannot seek a transfer proceeding to convert the minor's determinate sentence to adult custody. TJJD must file the request to transfer by referring the case to the juvenile court that committed the child.

Why Determinate Sentencing is an Ideal Choice

There are several scenarios in which determinate sentencing may be the most appropriate choice in a juvenile case. In certain instances, a case might not merit being certified to adult court. For example, a child who commits a serious felony but has no juvenile record may be more appropriately tried under a determinate-sentencing scheme. That would permit the juvenile to receive extensive rehabilitative resources available within the Texas juvenile system while retaining the option to transfer their sentence to adult court.

One primary reason for using determinate sentencing is the range of available sentences. A juvenile sentenced for burglarizing a habitation (a crime that does not qualify for a determinate sentence) who faces an indeterminate sentence in TJJD can stay in TJJD custody until they turn 19.

Though the child offender will be allocated a minimum period of stay before they qualify for release, contingent on the seriousness of the crime and the threat they pose to the public, other factors will determine when an offender facing an indeterminate sentence might be released. Thus, the period they may remain in TJJD custody before being paroled is less definite than under determinate sentencing.

The difference between a TJJD sentence (or commitment) on indeterminate cases versus determinate cases is that for indeterminate sentences, the child offender is placed in TJJD custody indefinitely. For determinate sentencing, the child is subject to a definite sentence, for example, ten years in TJJD custody.

That said, the plea deal offer in a determinate sentence is equivalent to the plea deal negotiations in the adult court system. For example, a child accused of aggravated robbery may have a plea deal recommendation of a maximum of forty years in a determinate sentencing setup.

Determinate Sentencing Cannot be Altered to Indeterminate Sentencing and Vice Versa.

After a judge imposes a sentence, they cannot alter it to a different kind of sentence. But the prosecution has the discretion to waive a determinate sentence before the child is adjudicated. That happens at times during plea deal negotiations, when a prosecutor offers indeterminate sentencing in return for the child admitting guilt.

In extremely severe cases, prosecuting attorneys might forgo indeterminate or determinate sentencing and instead seek to have a child certified as a grown-up. A juvenile court judge must grant the request to certify a minor to undergo trial in adult court after a proceeding.

Should the judge agree to certify the child, the case is moved to the adult court system. The child is prosecuted as an adult and subject to the maximum adult punishment for the crime they are charged with. Should the judge disagree to certify the minor, the juvenile court will retain jurisdiction over the minor, and the prosecution can proceed with indeterminate and determinate sentencing.

A Child's Record Cannot Be Sealed After They Face Determinate Sentencing

If a child offender is subject to determinate sentencing, their criminal record is unsealable. Unfortunately, the crime can affect them for the rest of their lives. That is why it is crucial to have an experienced juvenile lawyer advocating for your child throughout the process to obtain the most favorable outcome.

Find a Juvenile Defense Attorney Near Me

If your child is accused of an offense in Texas, you should consult an attorney promptly. The lawyer can explain what type of sentence your child is likely to face and what you can expect. At Andrew Deegan Criminal Attorney at Law, we have in-depth experience handling indeterminate and determinate juvenile cases. We are committed to helping child offenders achieve a clean slate, improving their chances of leading bright, successful futures. That said, we always strive to obtain the best possible outcome for our juvenile clients. Feel free to contact us at 817-689-7002 if your minor has been charged in Fort Worth.