United States: JUVENILE JUSTICE - A Look At How One Case Changed The Certification Process

Last Updated: December 30 2015
Article by Jack Carnegie

Imagine if your child were arrested and interrogated without your knowledge, without being read his or her rights, or without being taken before a magistrate. Then imagine if your child were certified for trial as an adult and sentenced to 30 years in prison. You're probably thinking, Not my child; only the worst of the worst—violent gang members, repeat offenders, or hardened criminals— are certified as adults.

That's what I thought. Then I got a call from a former colleague, Christene Wood, that began six years of pro bono work culminating in a decision by the Texas Court of Criminal Appeals and significant legislative reforms to the juvenile certification system.1

The call concerned a 16-year-old boy named Cameron Moon, a friend of Wood's daughter. Wood had known Moon for a number of years and described him as "a really nice kid." Unfortunately, he had gotten in "some trouble," and a few days earlier the juvenile court had certified him to be tried as an adult. The "trouble" turned out to be an alleged shooting during a drug deal. Moon, however, was not known as the type of child one would expect to be involved in that kind of incident. He was in school, passing his classes, and had no history of gang activity, violence, or disciplinary problems at school.

Moon was unable to afford bail. Like other children deemed "adults," he was now in jail, being kept in solitary confinement 23 hours a day until he turned 17 to "protect" him from the other prisoners. He had no right to appeal the certification order until after his criminal trial.2 Moon was tried as an adult, convicted, and sentenced to 30 years in prison.

As lawyers, we should all want the judicial process to be applied fairly and with integrity; as parents, it is the minimum expectation we should have for our children. When I saw the realities of certification as applied by the juvenile courts in this case, it was clear the process was broken.


Juvenile proceedings are civil matters generally governed by the Family Code and the Rules of Civil Procedure.3 The process commonly referred to as certification involves the juvenile court waiving its exclusive original jurisdiction and transferring the child to criminal court.4 It has been characterized as "the single most serious act the juvenile court can perform ... because once waiver of jurisdiction occurs, the child loses all protective and rehabilitative possibilities available."5 Certification is intended to be reserved for "exceptional cases"; the legislative philosophy is that "whenever possible, 'children should be protected and rehabilitated rather than subjected to the harshness of the criminal system. ...' "6

The Family Code is therefore designed to "limit the juvenile court's discretion in making the transfer determination."7 It prohibits courts from certifying children as adults based on the category of the crime alone. Instead, if the state seeks certification, certain objective factors concerning the child's age and type of crime alleged must first be met.8 The juvenile court must then "order and obtain a complete diagnostic study, social evaluation, and full investigation of the child"9 and assess a list of statutory factors specific to the individual child to determine whether "the welfare of the community requires criminal proceedings."10 Those include:

  • whether the offense was against person or property;
  • the sophistication and maturity of the child;
  • the record and previous history of the child; and
  • the prospects for adequate protection of the public and the likelihood of rehabilitation of the child.11

If the juvenile court waives jurisdiction, the statute directs it to "state specifically" in a written order "its reasons for waiver ... and findings of the court."12

That was the theory. The reality proved different. Between 1997 and 2008, juvenile courts in Harris County certified 1,524 children as adults and denied the state's certification requests only 83 times—a certification rate of 95 percent. Courts typically held only abbreviated hearings and used form orders making the same stock findings in every case. Some of those findings had no apparent relation to the ultimate question of whether the welfare of the community required criminal proceedings. Far from being reserved for exceptional cases, certification—when requested by the state—was virtually automatic.

Despite this, appellate courts almost never reversed certifications. Children who had IQs in the 70s with an "overall maturity of a nine to 11-year-old child" had been held sufficiently "sophisticated and mature" based on nothing more than "some evidence" that they were capable of assisting counsel in their defense.13 Findings like these confuse bare competency to stand trial14 with the kind of sophistication and maturity that suggests this is the rare type of child for which the welfare of the community requires criminal proceedings rather than rehabilitation.


In Moon's case, the state never obtained the statutorily required diagnostic study and evaluation to assess factors like maturity and rehabilitation. During the certification hearing, it presented only one witness who testified solely about the circumstances of the alleged crime. The juvenile court made no finding that Moon's "record and previous history" supported certification.

The remainder of the court's order was much like the forms used many times before. It recited that Moon was "of sufficient sophistication and maturity to have ... waived all constitutional rights heretofore waived," never mind that he had waived no rights and that, by statute, juveniles lack the capacity to waive rights regardless of their supposed sophistication.15

It also found Moon to be sophisticated and mature enough "to have aided in the preparation of HIS defense." The state, however, introduced no such evidence. Even if it had, it is difficult to fathom why the welfare of the community requires adult criminal proceedings simply because a child can help his lawyer.

Parroting the language of the statute, it also found "little, if any, prospect of adequate protection of the public and likelihood of reasonable rehabilitation. ..." This was despite ample uncontroverted testimony that Moon presented no danger and was a prime candidate for rehabilitation. Officers who had supervised him in juvenile detention voluntarily came forward to testify on his behalf, stating that he was "one of the best kids" they had seen and that he was never "aggressive" or "mean-spirited."16 Finally, the juvenile court said certification was more "convenient."17

After Moon was convicted, we appealed the certification ruling. We had substantial amicus support from a number of juvenile justice organizations. The Court of Appeals held that the juvenile court had abused its discretion and reversed Moon's certification—the first juvenile certification reversal in Texas in more than 25 years, according to the Houston Chronicle.18 It found that the state had presented no evidence of Moon's sophistication and maturity and insufficient evidence on the protection of the public and rehabilitation issue.19

After granting the State's Petition for Discretionary Review, the Court of Criminal Appeals went further. In addition to affirming the appeals court's rulings, it rejected the use of printed form orders and required juvenile courts to "show their work" by making individualized fact findings to allow appellate courts to determine whether the juvenile court's "decision was in fact appropriately guided by the statutory criteria, principled, and reasonable. ..."20

It also held that the stock "sophistication and maturity" finding regarding "the juvenile's capacity to waive his constitutional rights and help a lawyer to effectively represent him" was legally wrong and "almost as misguided as the juvenile court's logic ... when it orally pronounced that [Moon] should be transferred ... merely for the sake of judicial economy. ..." It characterized this as "the very antithesis of the kind of individualized assessment ... expect[ed] of the juvenile court in the exercise of its transfer discretion."21

In part because of the Moon case, the Legislature, in a law that became effective September 1, 2015, has restored the right to immediately appeal certification orders.22 In conjunction with that law, the Texas Supreme Court has issued an order requiring juvenile courts to inform juveniles and their attorneys of the right to appeal and specifying that the appeal is governed by the rules applicable to accelerated appeals.23 This means the notice of appeal must be filed within 20 days of the certification order.24

The Court of Criminal Appeals decision, and the Legislature's restoration of the right to appeal a certification order immediately, is real progress in ensuring that the certification statute is properly and fairly applied. Yet much remains to be done. Is a child who was wrongly certified subject to being recertified on remand and, if so, under what standard? As the statute is written, when a child turns 18, the same statutory certification requirements described above do not apply.25 If subjected to those different procedures, a child who was wrongly certified will never receive the procedural and substantive protections that were originally due. Whether the state, on remand, can constitutionally change the certification rules after being unable to meet its original burden remains to be seen.

The author would like to acknowledge the great contributions of Christene Wood and John Hagan who worked with him on the Moon appeal.


1. Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014).

2. Tex. Code Crim. Proc. art. 44.47(b) (repealed eff. Sept. 1, 2015).

3. See Tex. Fam. Code § 51.17(a).

4. See Tex. Fam. Code § 54.02.

5. Hidalgo v. State of Texas, 983 S.W.2d 746, 755 (Tex. Crim. App. 1999).

6. Hidalgo, 983 S.W.2d at 754 (emphasis added). See Lanes v. State, 767 S.W.2d 789, 795 (Tex. Crim. App. 1989). There is a great deal of science on juvenile brain development that demonstrates why juveniles are more disposed to impulsive acts and more amenable to rehabilitation than adults. This is why the U.S. Supreme Court has held that the Eighth Amendment bars capital punishment and mandatory life sentences without parole for juveniles. See Roper v. Simmons, 125 S. Ct. 1183 (2005); Miller v. Alabama, 132 S. Ct. 2455 (2012).

7. Hidalgo, 983 S.W.2d at 754.

8. Tex. Fam. Code § 54.02(a)(1), (2).

9. Tex. Fam. Code § 54.02(d). See Hidalgo, 983 S.W.2d at 754. Accord In re B.T., 323 S.W.3d 158 (Tex. 2010).

10. Tex. Fam. Code § 54.02(a)(3).

11. Tex. Fam. Code § 54.02(f).

12. Tex. Fam. Code § 54.02(h).

13. See, e.g., In the Matter of K.D.S., 808 S.W.2d 299, 300-303 (Tex. App.—Houston [1st Dist.] 1991, no writ).

14. See Drope v. Missouri, 420 U.S. 162 (1975).

15. Tex. Fam. Code § 51.09, § 53.06(e). See In the Matter of D.W.M., 562 S.W.2d 851, 853 (Tex. 1978) (per curiam).

16. See Moon v. State, 410 S.W.3d 366, 376 (Tex. App.—Houston [1st Dist.] 2013).

17. Cause #2008-06648J; Cert. Hearing Tr. at 128-132.

18. Lauren McGaughy, Reversals of teens' move to adult court raise questions about process, Houston Chronicle (January 2, 2015), available at http://www.houstonchronicle.com/news/politics/texas/article/Reversals-of-teens-move-to-adult-court-raise-5990878.php.

19. Moon v. State, 410 S.W.3d at 375-378.

20. Moon v. State, 451 S.W.3d 28, 49 (Tex. Crim. App. 2014).

21. Moon v. State, 451 S.W.3d at 50 n.87.

22. See 2015 Tex. Sess. Law Serv. ch. 74 (S.B. 888) (Vernon's); Tex. Fam. Code § 56.01(c)(1)(A).

23. See Misc. Docket No. 15-9156 (Tex. Aug. 28, 2015).

24. Tex. R. App. P. 26.1(b).

25. See Tex. Fam. Code § 54.02(j).

Previously published in the Texas Bar Journal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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