One consequence of this distinction was that juveniles were denied many fundamental constitutional and procedural rights:

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. 744-97



RAYMOND HIDALGO, JR., APPELLANT

v.

THE STATE OF TEXAS


ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY



Holland, J., delivered the opinion of the Court in which Mansfield, Price, Womack, and Keasler, J.J., joined. Keller, J., filed a concurring opinion, in which McCormick, P.J., and Johnson, J., joined. Meyers, J., dissented without opinion.

O P I N I O N

Appellant Raymond Hidalgo, Jr., a juvenile, challenges his criminal conviction due to error in his transfer from juvenile court. He contends he was denied his right to the assistance of counsel because his appointed attorney was not notified of the psychological examination, conducted pursuant to § 54.02(d) of the Juvenile Justice Code, until after the exam occurred.1 The Fourth Court of Appeals rejected this contention holding, inter alia, no Sixth Amendment violation arose from the failure to give his attorney prior notice of the exam. Hidalgo v. State, 945 S.W.2d 313 (Tex. App.-- San Antonio 1997). We granted appellant’s petition for discretionary review to address whether his attorney was entitled to prior notice of the exam.

I.

On December 25, 1997, while at a restaurant, appellant and a group of companions allegedly tried to initiate a fight with the victim, Charisma Perez, the victim’s boyfriend, Chris Garcia, and her friend, John Bernal. A security guard intervened and made them leave. Unaware appellant and his companions were following them, Perez, Garcia, and Bernal drove to Bernal’s apartment and parked. As Perez exited the car, she noticed a car coming towards her. As the car approached, Perez saw appellant leaning out of a car and pointing a hand gun towards her. Appellant fired the gun three or four times in Perez and Garcia’s direction. Perez was shot in her left arm and abdomen. Garcia was not hit.

At the time of his arrest, appellant was fifteen years old. He was initially charged as a juvenile.2 The State petitioned the juvenile court to transfer appellant to criminal court for prosecution as an adult.3 The State also filed a motion requesting a psychological exam, as mandated by § 54.02(d).4 The juvenile court granted the State’s motion for a psychological exam and on March 7th and 8th appellant was examined by a psychologist. The psychologist’s report was submitted to the juvenile court.5

The report from appellant’s psychological exam concerned his intellectual development, psychological maturity, personality dynamics, and mental abilities. The report listed appellant’s overall level of functioning, as measured on the Wechsler Scale, in the low-average (80-89) range of intelligence. The report indicated he was most proficient in logical reasoning, and least proficient in social judgment. The report also contained summaries of the psychologist’s conversations with appellant concerning performance at school; participation in special education programs; relationships with teachers, family, and friends; medical history; substance abuse; sexual promiscuity; and how he viewed his past and present emotional state. The report concluded, among other things, appellant had a "conduct disorder" and "dsythymic disorder."6

On March 28, 1995, the juvenile court waived jurisdiction and ordered appellant to be transferred to criminal court for prosecution as an adult. A jury found appellant guilty of attempted capital murder and sentenced him to fifty years imprisonment.

II.

On appeal, appellant relied on Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) and Satterwhite v. State, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988). Appellant claimed the failure to notify his attorney prior to the psychological examination violated his Sixth Amendment right to assistance of counsel. Specifically, he claimed that without advance notice his attorney could not advise him of the nature and purpose of the examination.

The Fourth Court of Appeals rejected appellant’s contention, distinguishing Estelle and Satterwhite on two grounds. First, Estelle and Satterwhite involved adjudicatory criminal proceedings, rather than non-adjudicatory juvenile transfer proceedings. Hidalgo, 945 S.W.2d at 319. Second, the rights at stake in Estelle and Satterwhite were "clearly of a greater magnitude" because the exams in those cases were used to determine eligibility for the death penalty.

The court of appeals recognized this Court has not addressed this issue. Relying on Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim. App. 1997) the court of appeals concluded the State’s failure to give notice did not violate appellant’s rights because this Court held a juvenile does not have a Sixth Amendment right to have counsel present during the psychological exam. Hidalgo, 945 S.W.2d at 319-20. The court reasoned that "if the Sixth Amendment is not violated when a juvenile’s attorney is excluded from the examination itself, it stands to reason that no constitutional violation occurs when an attorney is not notified of the examination until after it has taken place." Id. at 320. The court rejected appellant’s contention that he needed to consult with counsel to decide whether to submit to the exam on the basis that the exam is mandatory under section 54.02(d) of the Texas Family Code. The Court also noted that if appellant had such a right it was waived because the psychologist’s report noted appellant was informed of his rights and the purpose of the exam, and he indicated he understood and was willing to proceed.

Appellant urges this Court to reverse the court of appeals’ holding that lack of prior notice did not violate appellant’s Sixth Amendment right to assistance of counsel.

III.

Before this Court can address whether a juvenile’s attorney is constitutionally entitled to prior notice of a court-ordered psychological exam, we must first determine whether the Sixth Amendment’s right to assistance of counsel applies to juveniles. Though it has been long settled that the Bill of Rights applies to juvenile proceedings, to what extent remains undetermined, and this precise issue has not been decided by this Court or the U.S. Supreme Court.7 Initially, procedural safeguards provided by the Constitution and the Bill of Rights were inapplicable to juvenile proceedings. Lanes, 767 S.W.2d at 792-94.8 This was due to the philosophy underlying the creation of the juvenile court system which viewed juveniles as needing the state’s care and guidance. State legislatures created juvenile courts for treatment and rehabilitation of child offenders. Id. at 792-93. The rehabilitative approach examined problems affecting individual offenders and structured individual rehabilitation programs to resolving "the wayward juvenile’s family, social and personal problems and to prepare [the juvenile] to be [a] healthy, productive and law abiding adult[]." Jeffrey Fagan & Elizabeth P. Deschene, Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, 81 Crim. L & Criminology 314, 318 (1990). The focus on individual treatment set juvenile courts apart from regular criminal courts. Lanes.767 S.W.2d at 792-93. The juvenile court focused on the best interests of the child through treatment, and the adult criminal court directed its efforts at punishing the offender. One consequence of this distinction was that juveniles were denied many fundamental constitutional and procedural rights:

Juvenile proceedings were defined as civil rather than criminal, rendering inapplicable the rules of criminal evidence and their appropriate safeguards against admittance of prejudicial and inflammatory evidence. ... Thus, the juvenile system's protective rejection of the adult system came at the cost of the procedural and constitutional protections attendant thereto; a dubious tradeoff--to say the least--and, as was recognized early on, the results have been less than satisfactory.

Lanes, 767 S.W.2d at 792-93 [citations omitted].

The Supreme Court recognized the procedural injustice of the juvenile system in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). In Kent, the Supreme Court determined that children should not be denied procedural rights given adults merely because juvenile proceedings are characterized as civil. Kent, 383 U.S. at 560, 86 S. Ct. at 1063. Identifying the transfer determination as "critically important," the Court held a state juvenile transfer process must operate in accordance with traditional notions of fundamental fairness. Id. The process must include a hearing, effective assistance of counsel, and counsel’s access to the child’s social file.

The Supreme Court continued defining fundamental constitutional protections applicable to the juvenile justice system in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). The Court held the Fourteenth Amendment’s Due Process Clause applied to juvenile delinquency proceedings entitling children to notice of charges, defense counsel, the privilege against self-incrimination, confrontation of and cross examination of witnesses. Gault, 387 U.S. at 49, 87 S. Ct. at 1455. In subsequent cases, the Supreme Court continued its case by case approach for determining the applicability of constitutional protections to juveniles. Rather than grant juveniles the full array of protections under the Constitutions and Bill of Rights, the Court has chosen to examine each protection claimed and the effect it would have on the unique framework of the juvenile justice system.

In Lanes v. State, 767 S.W.2d 789 (Tex. Crim. App. 1989), this Court was called on to determine whether the probable cause requirement of the Fourth Amendment of the U.S. Constitution and Article I § 9 of the Texas Constitution applies to juvenile arrests. Relying on the Supreme Court’s eight foundation opinions on juvenile rights for guidance,9 this Court distilled a test for delineating which constitutional protections apply to juveniles in juvenile court proceedings. This Court observed the Supreme Court, in evaluating whether and to what degree each constitutional protection extends to juvenile proceedings, utilized an analysis comparing the purposes and goals of the juvenile system to the particular right asserted. This Court then examined the purposes of the Texas juvenile system and the probable cause requirement, concluding the two did not conflict or undermine one another.

In adopting this balancing test this Court also announced a desire to "dispel the antiquated and unrealistic resistance to procedural safeguards" in the juvenile court system. We observed that due to the scarcity of treatment programs, professional training, and financial resources the juvenile system had become more punitive than rehabilitative. Id. at 800. Rather than ignore these realities we chose to balance the "aspirations of the juvenile court and the grim realities of the system." Id.

Recent amendments to the Juvenile Justice Code change juvenile adjudication and punishment, causing the "grim realities" to be even more salient. As this Court recently recognized in Blake v. State, 971 S.W.2d 451, 460 (Tex. Crim. App. 1998), juveniles now face consequences similar to those faced by adults. Most apparent is the fact juveniles may now be subject to a forty-year term of imprisonment. Tex. Fam. Code § 54.04(d)(3)(A) (i)-(iii). Blake recognized some of the legislative changes making the juvenile system more punitive than rehabilitative:

[T]he legislature expanded the definitions of delinquent conduct, expanded the list of felony offenses that authorize criminal proceedings for juveniles over the age of fourteen, authorized confinement in the Texas Department of Criminal Justice for various grades of felony and habitual felony conduct, categorized certain adjudications as ‘final felony convictions’ that can be used as enhancements for repeat offenders, removed provisions forbidding the maintenance of centralized photograph and fingerprint records, repealed laws about sealing and destruction of juvenile records, and mandated the use of the Texas Rules of Criminal Evidence and the evidentiary provisions of Chapter 38 of the Code of Criminal Procedure instead of their civil counterparts for judicial proceedings involving juveniles.

Blake, 971 S.W.2d at n.28. These recent legislative changes continue to erode the original justifications for denying juveniles the same procedural protections as adults.10 Therefore, consistent with our holding in Lanes, we will examine the juvenile proceeding at issue to determine whether it is the type of proceeding the Sixth Amendment was designed to protect. If so, we must then examine the impact or degree of impairment the constitutional protection will have on our juvenile justice system.

IV.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Designed to remedy any imbalance in our adversary system, the Sixth Amendment promises that an accused is entitled to defense counsel in all criminal prosecutions. State v. Frye, 897 S.W.2d 324, 327 (Tex. Crim. App. 1995). Under the Federal Constitution, the Sixth Amendment right to counsel attaches upon the commencement of adversarial proceedings. Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S. Ct. 1877, 1881-83, 32 L. Ed. 2d 411 (1972). The right extends to all "critical stages" of the criminal proceeding, not just the actual trial. The Supreme Court, however, has not established a "bright line" rule to mark when adversarial proceedings begin. United States v. Gouveia, 467 U.S. 180, 187-89, 104 S. Ct. 2292, 2297-98, 81 L. Ed. 2d 146 (1984). Instead, the Supreme Court has left this determination to state courts.

This Court has also refused to declare a "bright line rule." See State v. Frye, 897 S.W.2d at 327-28; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994).11 Instead, this Court has recognized that determining whether a particular event is a critical stage - thus triggering a Sixth Amendment right to counsel - depends on whether the accused requires aid in coping with legal problems or assistance in meeting his adversary. Frye, supra; Green, 872 S.W.2d at 720-22.

Appellant relies on Estelle and Satterwhite for his contention that the failure to notify his attorney in advance of the examination violated his Sixth Amendment right to assistance of counsel. In Estelle, a capital murder prosecution, the trial court ordered a pre-trial psychiatric evaluation of the defendant to determine whether he was competent to stand trial. Estelle, 451 U.S. at 456-57, 108 S. Ct. at 1870. The defendant was determined competent and subsequently convicted of first degree murder. On appeal, the defendant complained his Fifth and Sixth Amendment rights were violated at the sentencing phase of the trial when the court permitted the State to present testimony of the psychiatrist who performed the evaluation. Affirming the order vacating the death sentence, the Supreme Court agreed. Estelle, 451 U.S. at 468-71, 108 S. Ct. at 1875-77.

The Court held that the psychological exam did not violate the defendant’s Fifth and Sixth Amendment rights when used strictly to determine competency, but did violate those rights when used against him at the punishment stage. Id. The Court explained that by using the evaluation to prove the defendant’s future dangerousness, the State had moved beyond the neutral purpose for which the exam was intended. Estelle, 451 U.S. at 464, 108 S. Ct. at 1874 The Court concluded that once the results of the exam were used for a "much broader objective that was plainly adverse" to the defendant the evaluation amounted to a custodial interrogation entitling the defendant to Fifth Amendment protections. Id. The Court also determined the defendant’s Sixth Amendment right to counsel was violated because the State’s later use of the examination at the sentencing proceeding caused the examination "to be a critical stage of the aggregate proceeding against the respondent." Estelle, 451 U.S. at 470, 108 S. Ct. at 1877.

Unlike Estelle, appellant is not complaining of the State’s use of the psychologist’s report against him at his criminal prosecution. Appellant is challenging the use of the report against him at the juvenile transfer hearing.12 A similar argument was made in United States v. A.R., 38 F.3d 699 (3rd Cir. 1994). The defendant, a juvenile, challenged the district court’s transfer order on the basis that his constitutional rights were violated. Id. at 700. Relying on Estelle, the defendant maintained the psychiatric examinations conducted for use in his transfer hearing violated his rights under the Fifth and Sixth Amendment. At the defendant’s transfer hearing, the government introduced several psychiatric and psychological reports. The evaluations, on which the reports were based, were conducted in preparation for a similar transfer motion then pending in state court regarding unrelated state charges. Id. at 700-701. The reports were admitted over the defendant’s objection that they violated his Fifth and Sixth Amendment rights because he was not Mirandized and his appointed counsel was not notified of the examinations.

On appeal to the United States Third Court of Appeals, the court determined the defendant’s reliance on Estelle was misplaced. United States v. A.R., 38 F.3d at 704. Estelle did not hold that a psychological exam is the sort of event to which the Sixth Amendment right to assistance of counsel attaches. Rather, Estelle held that if evidence acquired from the exam is used against the defendant during a criminal prosecution, the exam exceeds the neutral purpose for which it was intended and should be viewed as a critical stage. Id. at 704. As such, the Third Court of Appeals concluded that because evidence acquired from the exam was not used against the defendant in his criminal prosecution, but only in the juvenile transfer hearing, the defendant was not entitled to relief under Estelle. Id. at 705.

Rather than end its inquiry, the Third Court of Appeals went on to examine the applicability of the Fifth and Sixth Amendment to juvenile transfer proceedings. For guidance, the court looked to the reasoning in Estelle and conclude that, like a competency hearing, the proceeding is intended to serve an important neutral purpose. Id. The court emphasized that psychiatric and psychological reports obtained for purposes of transfer hearing, do not bear on the question of guilt or innocence; but only the manner in which the state proceeds against the accused. Citing the factors13 used to measure whether a given proceeding is a critical stage triggering the right to assistance of counsel, the Third Court of Appeals observed its reading of Estelle was consistent with established Sixth Amendment jurisprudence. The court of appeals also observed that its holding, in the language of Estelle, did not "derogate from the accused’s right to a fair trial." United States v. A.R., 38 F.3d at 705 (citing Estelle, 451 U.S. at 470).

V.

After exploring the purpose of the transfer mechanism, the judicial transfer process,14 and the trial court’s use of psychiatric and psychological reports, we conclude the Texas juvenile transfer proceeding serves a neutral purpose. State legislatures originally devised the process as a means of removing serious or persistent juvenile offenders generally not amenable to rehabilitation to the adult criminal system. The presence of such juveniles in the juvenile system was seen as a threat to the fundamental structure of the juvenile system and the less criminally sophisticated.15 Transfer was intended to be used only in exceptional cases. The philosophy was that, whenever possible, children "should be protected and rehabilitated rather than subjected to the harshness of the criminal system" because "children, all children are worth redeeming." President’s Commission on Law Enforcement and Administration of Justice (1967).

The Supreme Court acknowledged the critical importance of transfer in Kent. To limit the juvenile court’s discretion in making the transfer determination, the Supreme Court set out a series of factors for juvenile courts to consider. The Kent factors were classified according to the potential danger to the public, contrasted with the juvenile offender’s amenability to treatment. These factors are incorporated into Texas juvenile waiver law. See Tex. Fam. Code § 54.02(f).16 To assist the court in assessing these factors, the law requires a psychological examination by a doctor with specialized training in adolescent psychology and forensic assessment. Tex. Fam. Code § 54.02(d). The exam provides insight on the juvenile’s sophistication, maturity, potential for rehabilitation, decision-making ability, metacognitive skills, psychological development, and other sociological and cultural factors.

Appellant contends the tremendous consequences transfer had on him as a juvenile offender required that his attorney be given prior notice of the exam so that he could advise appellant as to the nature and purpose of the exam, as well as the consequences of transfer. Appellant rejects the court of appeals’ reliance on Lagrone v. State, contending this Court did not hold a juvenile is not entitled to confer with counsel before the examination.17 He also maintains the court of appeals erred in downplaying the significance of transfer because though transfer is not a life and death matter, the consequences may be similarly devastating. We agree. We join at least one other state court which found transfer to criminal district court for adult prosecution is "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." State v. R.G.D., 527 A.2d 834, 835 (N.J. 1987). Once transferred, a child will be subject to the retributive punishment of the criminal justice system instead of the rehabilitative goal of the juvenile justice system. Should the State’s transfer petition be granted, the juvenile will be subject to more stringent punishment.18 Additionally, loss of juvenile status results in "the personal degradation and restriction of legitimate opportunity that often follow a criminal conviction."19 Despite the tremendous consequences, however, we cannot say the psychological exam itself constitutes a critical stage triggering Sixth Amendment protection.

As previously discussed, whether a particular event is a critical stage depends on whether the accused requires aid in coping with legal problems or assistance in meeting his adversary. See State v. Frye, 897 S.W.2d at 327-28; Green, 872 S.W.2d at 720-22. In the psychological exam itself, the abuses the Sixth Amendment was devised to protect against are not present. In the transfer hearing, where determination is actually made, a juvenile is entitled to the assistance of counsel. Tex. Fam. Code § 51.10(a)(2); Kent v. United States, supra. Also in the transfer hearing, the juvenile has the opportunity to challenge the methods employed in the exam and the conclusions reached in the report.20 As for appellant’s contention that juveniles should be advised as to the nature and purpose of the exam, we agree. However, we cannot say the exam itself is the type of legal confrontation that can be understood only after consulting with counsel. As in the present case, the doctor administering the evaluation typically apprizes the juvenile of his or her rights with regard to psychological testing and the purpose of the examination. Furthermore, because the exam is mandated by statute, counsel is aware of the need to advise his client when the State files the transfer petition. Tex. Fam. Code § 54.02(d).

Our holding today protects the individualistic and rehabilitative philosophy of the juvenile system because it preserves the judicial transfer process which, unlike prosecutorial or legislative transfer, examines and considers those issues specific to the individual juvenile.21 Judicial transfer permits the interests of both society and the juvenile to weigh against each other in a neutral setting. Use of statements made in the exam the juvenile’s criminal prosecution disregards the rationale for the exam and effectively transforms the exam into a criminal investigation. Also, if juveniles can not be assured that their statements can not be used against them in future criminal prosecutions, they will not want to participate in the exam. As such, the juvenile court’s ability to obtain all available information and to gather reliable evidence would be frustrated.

VI.

Though this Court recognizes today that counsel serves no functional purpose in the psychological exam conducted for the neutral purpose of determining whether a juvenile should be transferred to criminal court, we are not blind to the potential for injustice. In light of the criteria a juvenile court is required to consider in making its determination on transfer, we recognize that it is all but inevitable, that in the course of any psychiatric or psychological examination, the doctor will inquire into the facts of the alleged offense and the juveniles’s prior criminal experiences. See Tex. Fam. Code §54.02(d) & (f). Such a query is permissible so long as it is not intended to force juveniles to supply incriminating evidence or investigative leads against themselves. Failure to limit the query to its permissible purpose could lead to a violation of a juvenile’s right against self-incrimination or right to counsel.

Though the psychological report in this case contained information concerning appellant’s previous delinquency and criminal conduct, as well as a summary of the doctor’s conversation with appellant regarding the offense alleged and his prior delinquent conduct, we cannot say the exam exceeded its intended purpose.22 Because appellant was forced to supply neither incriminating evidence nor investigative leads, we do not agree with appellant’s contention that the exam amounted to a custodial interrogation entitling him to Fifth and Sixth Amendment protections. Furthermore, because the State’s use of the information elicited from the exam was limited to the transfer determination, we find no constitutional violations consistent with Estelle or Satterwhite.

The decision of the court of appeals and the judgment of the trial court are affirmed.

HOLLAND, J.


Date Delivered: January 13, 1999

Publish

1

The Juvenile Justice Code is Titles 3 and 4 of the Texas Family Code. All statutory references, unless otherwise indicated, are to the current Texas Family Code.

2

Pursuant to § 51.02(2), juvenile court jurisdiction attaches to any child age ten or older and under eighteen who engages in "delinquent conduct or conduct indicating a need for supervision" as defined by the code. Some law violations, however, are under the exclusive jurisdiction of the criminal court even though the person was under eighteen at the time the alleged offense. These offenses include perjury, traffic violations, offenses punishable by fine only, and certain alcohol violations. Tex. Fam. Code § 51.03.

3

The transfer of a juvenile to criminal court is sometimes referred to as certification to criminal court or waiver of juvenile court jurisdiction. All of these terms refer to the process by which the court relinquishes its jurisdiction over a child and transfers the case to a court of criminal jurisdiction for prosecution as an adult. S. Davis, Rights of Juveniles: The Juvenile Justice System § 4.1, 4-1 (1990). The Texas Family Code refers to juvenile transfer as "waiver of jurisdiction and discretionary transfer to criminal court." Tex. Fam. Code § 54.02. For purposes of this opinion we will refer to this process as "transfer."

A juvenile court’s discretionary power to transfer a juvenile can be exercised only where the State files a petition or motion requesting waiver and transfer. Tex. Fam. Code § 53.04. When the State requests a transfer, the juvenile court is required to "conduct a hearing without a jury to consider transfer of the child for criminal proceedings." Tex. Fam. Code § 54.02. The question presented to the juvenile court is whether there is "probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal prosecution." Tex. Fam. Code § 54.02(a)(3). In making this determination the juvenile court is required to consider: whether the alleged offense was against a person or property, with offenses against the person weighing more in favor of transfer; whether the alleged offense was committed in an aggressive and premeditated manner; whether there is evidence on which a grand jury may be expected to return an indictment; the sophistication and maturity of the child; the record and previous history of the child; and the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities available to the juvenile court. Tex. Fam. Code § 54.02(f). For offenses committed on or after January 1, 1996, the legislature no longer requires a juvenile court to consider whether the alleged offense was committed in an aggressive and premeditated manner, or whether there is evidence on which a grand jury may be expected to return an indictment. Tex. Fam. Code § 54.02(f).

4

Section 54.02(d) requires that prior to a hearing on the State’s petition for transfer of a juvenile, the juvenile court "shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances and the circumstances of the alleged offense." Tex. Fam. Code § 54.02(d). This report is intended for use in the transfer proceeding.

5

Section 54.02(e) authorizes the juvenile court to consider the report mandated by § 54.02(d) in making a determination on transfer. A juvenile court may also consider at the transfer hearing written reports from probation officers, professional court employees, or professional consultants. The court may also hear the testimony of witnesses. Tex. Fam. Code § 54.02(e).

6

The report does not reflect that appellant’s attorney was notified as to when the exam was to occur. The record indicates that on March 6, 1995, the district attorney’s office sent appellant’s attorney, a copy of the motion and order for the psychological exam by certified mail, along with the State’s first amended petition for transfer. Noticeably absent from the record, however, is the return receipt documenting counsel’s receipt of these documents. At a pretrial hearing, appellant’s attorney testified he did not receive notice of the exam until the district attorney’s office sent him a facsimile on March 23, 1995. In light of these facts, and the State’s position that providing appellant’s attorney with advance notice of the exam is neither constitutional nor statutorily required, we will assume no notice was given.

7

See Lanes v. State, 767 S.W.2d 789, 791 (Tex. Crim. App. 1989). The Supreme Court in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) determined that "[n]either the Fourteenth Amendment nor the Bill of Rights is for adults alone." See also Haley v. Ohio, 332 U.S. 596, 601, 68 S. Ct. 302, 304, 92 L. Ed. 224 (1948) and Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962)).

8

In 1899, the Illinois Legislature enacted the first juvenile court act providing a system devoted entirely to the adjudication of juvenile offenders. See Act of April 21, 1899, Ill. Laws 131 §§ 1-21. By 1912, there were juvenile court systems in at least twenty-two states. All but two states had juvenile courts systems by 1925. Charles W. Thomas & Shay Bilchik, Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis, 76 Crim. L. & Criminology 439, 451 (1985). Texas established a separate court system for juveniles in 1907, with the adoption of the Juvenile Court Act. Bill Anderson & Ronny Gurley, The Juvenile Offender & Texas Law: A Handbook (1969). Texas’ first juvenile code was enacted in 1943 and included a provision for the prosecution of juvenile offenders in adult criminal courts. Act of 1943, 48th Leg., R.S. ch. 204, art. 2338-1 (Vernon 1971).

9

The eight Supreme Court opinions: (1) Haley v. Ohio, 332 U.S. 596, 601, 68 S. Ct. 302, 304, 92 L. Ed. 224 (1948) entitling juveniles to protections against coerced confessions. See Tex. Fam. Code § 51.09.; (2) Kent v. U.S., 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966) entitling juveniles to procedural protections in transfer hearings. See Tex. Fam. Code § 54.02.; (3) In re Gault, 387 U.S. 1, 49, 87 S. Ct. 1428, 1455, 18 L. Ed. 2d 527 (1967) entitling juveniles to rights of notice, counsel, confrontation, cross-examination and protection against self-incrimination. See Tex. Fam. Code § 51.10, § 53.01, § 5 3.04, § 53.06, and § 54.03.; (4) In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) entitling juveniles to proof beyond a reasonable doubt in delinquency determination. See Tex. Fam. Code. § 54.06.; (5) McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) refusing juveniles the right to jury in delinquency determination; But see, Tex. Fam. Code § 54.03.; (6) Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) entitling juveniles to double jeopardy protections. See Tex. Fam. Code § 54.02(a)(2) and (j)(3)).; (7) Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984) recognizing pre-trial detention of juveniles valid, (8) New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) entitling juveniles to a diminished Fourth Amendment standard in school searches. See Lanes, 767 S.W.2d at 794.

10

It is evident that this legislative trend towards punishment will continue in light of the public’s perception of, and anxiety about, an increase in violent juvenile crime. Violent juvenile crime, however, has continued to decline. FBI’s Annual Report, Crime in the United States 1996 & 1997. If this legislative trend continues and juveniles are subject to the similar punishment in juvenile court as in criminal court, the philosophy underlying the need for two separate court systems disappears.

11

Examples of actions which we have held to mark the initiation of formal adversarial proceedings include: filing an indictment, DeBlanc v. State, 799 S.W.2d 701 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991); filing an information and complaint, McCambridge v. State, 712 S.W.2d 499 (Tex. Crim. App. 1986); arraignment, Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct. 1404, 1407, 89 L. Ed. 2d 631 (1986); and an Article 15.17 "warning hearing," where an arrest warrant was present, Nehman v. State, 721 S.W.2d 319 (Tex. Crim. App. 1986). The right to assistance of counsel under the Sixth Amendment is not triggered by an arrest alone. Green, 872 S.W.2d at 720; Garcia v. State, 626 S.W.2d 46, 53 (Tex. Crim. App.1981); Kirby, 406 U.S. at 688-91, 92 S. Ct. at 1881-83, 32 L. Ed. 2d at 417-18; c.f. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

12

The record reflects that it was appellant’s counsel who admitted the report into evidence during the punishment phase of appellant’s criminal prosecution.

13

The court relied on the three factors extracted by the Ninth Circuit in Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989)):

First, if failure to pursue strategies or remedies results in a loss of significant rights, the Sixth Amendment protections attach. Second, where skilled counsel would be useful in helping the accused understand the legal confrontation ... a critical stage exists. Third, the right to counsel applies if the proceeding tests the merits of the accused’s case.

United States v. A.R., 38 F.3d at 704 (citing Menefield v. Borg, 881 F.2d at 698-99.)

14

Essentially, states have devised three means for transferring juveniles to criminal district court for adult prosecution: judicial transfer, prosecutorial transfer, and legislative transfer. The present case involves judicial transfer, a mechanism by which a juvenile court judge may exercise independent discretion in determining whether to transfer a particular juvenile. Under the prosecutorial transfer mechanism prosecutors have unilateral authority to determine the adjudicatory forum. Unlike judicial and prosecutorial transfer, legislative transfer is not discretionary. This mechanism excludes certain juveniles or certain offenses from juvenile court jurisdiction and places juveniles in the adult criminal court system regardless of independent circumstances indicative of the juvenile’s amenability rehabilitation. See Tex. Fam. Code § 54.02(m).

15

See e.g., Douglas Harris, Does the Texas Juvenile Waiver Statute Comport with the Requirement of Due Process?, 26 Tex. Tech L. Rev. 813 (1995); Gordon A. Martin, Jr., The Delinquent and the Juvenile Court: Is There Still a Place for Rehabilitation?, 25 Conn. L. Rev. 57, 62-63 (1992); Robert O. Dawson, Delinquent Children and Children in Need of Supervision: Draftsman's Comments to Title 3 of the Texas Family Code, 5 Tex. Tech L. Rev. 509 (1974); Barry C. Feld, Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions, 62 Minn. L. Rev. 515, 517-19 (1978).

16

The juvenile court is not required to find each criterion before it can a transfer a case to district court. The court may order a transfer on the strength of any combination of the criteria. Tex. Fam. Code § 54.02(f); see e.g., United States v. Doe, 871 F. 2d 1248, 1254-55 (5th Cir.), cert. denied, 493 U.S. 917, 110 S. Ct. 276, 107 L. Ed. 2d 257 (1989). Should the juvenile court decide to waive its exclusive jurisdiction, the court is required to state in its order the specific reasons for waiver. Tex. Fam. Code § 54.02(h).

17

The court of appeals’ reading of Lagrone is incorrect. This Court determined in Lagrone that a trial court may order a defendant to submit to a state-sponsored psychiatric exam on future dangerousness when a defendant demonstrates an intent to put on future dangerousness expert testimony without violating the defendant’s Fifth Amendment right against self-incrimination. Lagrone, 942 S.W.2d at 612. The Lagrone Court also conclude that excluding defense counsel from the future dangerous examination did not violate the defendant’s right to counsel. Id. at 612.

18

As one commentator succinctly summarized:

There is convincing evidence that most juvenile court personnel, and the judges themselves regard the waiver of jurisdiction as the most severe sanction that may be imposed by the juvenile court. Not only is the juvenile exposed to the probability of severe punishment, but the confidentiality and individuality of the juvenile proceeding is replaced by the publicity and the normative concepts of penal law; the child acquires a public arrest record which, even if he is acquitted, will inhibit his rehabilitation because of the opprobrium attached thereto by prospective employers; if convicted as an adult, the child may be detained well past his twenty-first birthday, he may lose certain civil rights and be disqualified for public employment. Moreover, if sent to a typical adult prison, he is likely to be subjected to physical, and even sexual abuse by older inmates, and his chances for rehabilitation are likely to decrease significantly.

F. Thomas Schornhurst, The Waiver of Juvenile Court Jurisdiction: Kent Revisted, 43 Ind. L. J. 583, 586-87 (1968).

19

Harris, supra note 14 at 830 (citing Donna M. Bishop et al., Prosecutorial Waiver: Case Study of Questionable Reform, 35 Crime & Delinq. 179, 181 (1989)).

20

Section 54.02(e) requires that the report, as well as all other written matter considered in the transfer determination, be disclosed and made available to the juvenile’s attorney at least one day prior to the transfer hearing.

21

Judicial transfer is the only method for transfer that provides for a hearing before a juvenile is sent to adult criminal court. See supra n.14. Prosecutorial and legislative transfer fail to take into account the juvenile’s life circumstances which may demonstrate a traumatic or problematic life history.

22

Regarding the alleged offense and appellant’s prior delinquency, the report simply stated:

Raymond reports that he is currently residing in the Bexar County Juvenile Detention Center because, "they’re trying to say I shot somebody." He went on to deny the allegation. He states that he has been previously referred to the Juvenile Department for auto theft, burglary of a habitation, possession of marijuana. He knows that such behavior is wrong, knows right from wrong, and understands the possible consequences of such behavior. He understands the possible consequences of the upcoming certification of transfer hearing as well as the roles of the participants therein.

..........if the child is voluntarily absent from school.

TEXAS JUVENILE LAW

In Texas, juveniles are defined as minors, older than 10 years of age and under the age of 17. Juveniles are treated differently than adult offenders and the general goal of the juvenile system is rehabilitation as opposed to punishment. However, the penalties in the juvenile system can still be severe. Some offenses, such as truancy and breaking curfew, are unique to juveniles, and would not be illegal if the accused were an adult. The juvenile justice system generally moves much more quickly than does the adult criminal justice system. Don't wait to hire a good juvenile defense lawyer to represent your child. Call Attorney David Finn at: 214-651-1121.

There are separate courts and rules that govern the juvenile process. The juvenile court system will generally make every effort to rehabilitate the child rather than simply incarcerate him. Only in extreme cases, such as serious felonies, usually involving allegations of violence or the use of a deadly weapon, will a juvenile be tried as an adult. The juvenile courts may hold a hearing to determine whether to transfer the juvenile to the adult court system. This is called a "transfer hearing." The court will base its decision to transfer on the following factors:

1. The seriousness of the offense
2. The child's criminal sophistication
3. Previous criminal record
4. Previous attempts to rehabilitate the juvenile offender
5. The court's belief that future attempts at rehabilitation will be unsuccessful

While many of the laws governing juveniles may differ from the adult system, the rights that juveniles enjoy are virtually identical to those enjoyed by adults.

1. A juvenile must be read his Miranda rights if placed under arrest.
2. A juvenile has the right to have an attorney present during interrogation.
3. A juvenile has the right to know the specific charges being brought by the State.
4. A juvenile has rights against self-incrimination.
5. A juvenile has the right to confront his accuser and examine witnesses.
6. A juvenile has the right to appeal the court's decision.
7. A juvenile does have the right to a jury trial during the adjudication phase

If a juvenile finds herself in a situation involving the police or other law enforcement, please remember the following information:

1. You do not have to submit to a search unless you have been placed under arrest.



Finally, do not attempt to represent yourself in court. Hire an experienced criminal defense attorney, preferably one who is board-certified in criminal law.

Texas Juvenile Justice: Overview

Taking Into Custody; Issuance of Warning Notice: Texas Family Code Section 52.01

A child may be taken into custody: pursuant to an order of the juvenile court; pursuant to the Texas laws for arrest; by a law enforcement officer if there is probable cause to believe that the child has engaged in conduct that violates the penal laws of Texas or any political subdivision or delinquent conduct or conduct indicating a need for supervision. It is the duty of the law enforcement officer who has taken a child into custody to transport the child to the appropriate detention facility if the child is not released to the parent, guardian, or custodian of the child. If the juvenile detention facility is located outside the county in which the child is taken into custody, it shall be the duty of the law enforcement officer who has taken the child into custody or, if authorized by the commissioners court of the county, the sheriff of that county, to transport the child to the appropriate juvenile detention facility unless the child is released to the parent, guardian, or custodian of the child.

Delinquent Conduct: Conduct Indicating a Need for Supervision:

Texas Family Code Section 51.03

(a) Delinquent conduct is defined as:

1. conduct, other than a traffic offense, that violates a penal law of Texas or of the United States punishable by imprisonment or by confinement in jail;
2. conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of that court;
3. conduct that constitutes: Driving While Intoxicated (DWI), Flying While Intoxicated, Boating While Intoxicated, Intoxication Assault, Intoxication Manslaughter, and Driving Under the Influence of Alcohol by a minor (DUI).

(b) Conduct indicating a need for supervision includes:

1. conduct, other than a traffic offense, that violates the penal laws of Texas of the grade of misdemeanor that are punishable by a fine only (class c-misdemeanors); the penal ordinances of any political subdivision of Texas; the absence of a child on 10 or more days or parts of days within a 6 month period in the same school year or on 3 or more days or parts of days within a 4 week period from school; the voluntary absence of a child from the child's home without the consent of the child's parents or guardian for a substantial length of time or without intent to return; conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint; or an act that violates a school district's previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Texas Education Code.

Release from Detention: Texas Family Code Section 53.02

(a) If a child is brought before the court or delivered to a detention facility, the intake or other authorized officer of the court shall immediately make an investigation and shall release the child unless it appears that his detention is warranted under subsection (b), below.

The release may be conditioned upon requirements reasonably necessary to insure the child's appearance at later proceedings, but the conditions of the release must be in writing and filed with the office or official designated by the court and a copy furnished to the child.

(b) A child taken into custody may be detained prior to hearing on the petition only if:

1. the child is likely to abscond or be removed from the court's jurisdiction;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return the child to the court when required;
4. the child may be dangerous to himself or herself or the child may threaten the safety of the public if released;
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released; or
6. the child's detention is required under subsection (f), below.

(c) If the child is not released, a request for detention hearing shall be made and promptly presented to the court, and an informal detention hearing shall be held promptly, but not later than the second working day after the child is taken into custody. If the child is taken into custody on a Friday or Saturday, then the detention hearing shall be held on the first working day after the child is taken into custody.

(d) A release of a child to an adult must be conditioned on the agreement of the adult to be subject to the jurisdiction of the juvenile court and to an order of contempt by the court if the adult, after notification, is unable to produce the child at later proceedings.

(e) If a child being released under this section is expelled from school in a county with a population greater than 125,000, the release shall be conditioned on the child's attending a juvenile justice alternative education program pending a deferred prosecution or formal court disposition of the child's case.

(f) A child who is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm in the commission of the offense shall be detained until the child is released at the direction of the judge of the juvenile court, a substitute judge, or a referee appointed, including an oral direction by telephone, or until a detention hearing is held.

Detention Hearing: Texas Family Code Section 54.01

(a) Generally speaking, a detention hearing without a jury shall be held promptly, but not later than the second working day after the child is taken into custody; provided, however, that when a child is detained on a Friday or Saturday, then such detention hearing shall be held on the first working day after the child is taken into custody.

(b) Reasonable notice of the detention hearing, either oral or written, shall be given, stating the time, place, and purpose of the hearing. Notice shall be given to the child and, if they can be found, to his parents, guardian, or custodian. Prior to the beginning of the hearing, the court shall inform the parties of the child's right to counsel and to appointed counsel if they are indigent and of the child's right to remain silent with respect to any allegations of delinquent conduct or conduct indicating a need for supervision.

(c) At the detention hearing, the court may consider written reports from probation officers, professional court employees, or by professional consultants in addition to the testimony of witnesses. Prior to the detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision. The court may order counsel not to reveal items to the child or his parents if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.

(d) A detention hearing may be held without the presence of the child's parents if the court has been unable to locate them. If no parent or guardian is present, the court shall appoint counsel or a guardian ad litem for the child.

(e) At the conclusion of the hearing the court shall order the child released from detention unless it appears that he is likely to abscond, suitable supervision is not being provided to the child, he has no parent or guardian able to return the child to court when required, he may be dangerous to himself or others, or he has previously been found to be a delinquent child or has been previously convicted of a penal offense higher than a Class C misdemeanor and is likely to commit an offense if released. If the judge concludes that the child should be detained, the detention order extends for no more than 10 working days. Further detention orders may be made following subsequent detention hearings. The initial detention hearing may not be waived, but subsequent detention hearing may be waived.

Note: No statement made by the child at the detention hearing shall be admissible against the child at any other hearing.

Preliminary Investigation & Determinations; Notice to Parents:

Texas Family Code Section 53.01

On referral of a child, the intake officer, probation officer, or other person authorized by the court shall conduct a preliminary investigation to determine whether the person referred is a child and whether there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released. The child's parents are to promptly receive notice of the whereabouts of the child and also a statement explaining why the child was taken into custody. If the child is alleged to have engaged in delinquent conduct of the grade of felony, or conduct constituting a misdemeanor offense involving violence to a person or the use or possession of a firearm, illegal knife, or club, then the case is immediately forwarded to the office of the prosecuting attorney.

Summons: Texas Family Code Section 53.06

The juvenile court shall direct issuance of a summons to the child named in the petition, the child's parents, guardian, or custodian, the child's guardian ad litem, and any other person who appears to the court to be a proper or necessary party to the proceeding. A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

Service of Summons: Texas Family Code Section 53.07

If a person to be served with a summons is in Texas and can be found, the summons shall be served upon him personally at least 2 days before the adjudication hearing. If he is in Texas but cannot be found, but his address is known or can be ascertained, the summons may be served on him by mailing a copy by registered or certified mail, return receipt requested, at least 5 days before the day of the hearing. If he is outside Texas but can be found or his address is known, service of the summons may be made either by delivering a copy to him personally or mailing a copy to him by registered mail, return receipt requested, at least 5 days before the day of the adjudication hearing.

Attendance at Hearing: Parent or Other Guardian: Texas Family Code Section 51.115

Parents or guardians of a child are required by law to attend each court hearing affecting a child held under: possible transfer to criminal district/adult court; adjudication hearing; disposition hearing; hearing to modify disposition; release or transfer hearing. If a parent or guardian receives notice of any of these proceedings and is a resident of Texas, failure to appear could result in a fine for contempt of court.

Photographs & Fingerprints of Children: Texas Family Code Sections 58.002-0021

With limited exceptions, a child may not be photographed or fingerprinted without the consent of the juvenile court unless the child is taken into custody or referred to the juvenile court for conduct that constitutes a felony or a misdemeanor punishable by confinement in jail (which means a Class A or Class B misdemeanor). However, this prohibition does not prohibit law enforcement from photographing or fingerprinting a child who is not in custody if the child's parent or guardian voluntarily consents in writing. Furthermore, this prohibition does not apply to fingerprints that are required or authorized to be submitted or obtained for an application for a driver's license or personal identification card.

Note/Exception to General Rule stated above: Law enforcement may take temporary custody of a child to take the child's fingerprints if the officer: has probable cause to believe that the child has engaged in delinquent conduct; the officer has investigated that conduct and found other fingerprints during the investigation; and the officer has probable cause to believe that the child's fingerprints will match the other fingerprints. Law enforcement may take temporary custody of a child to take the child's photograph if the officer: has probable cause to believe that the child has engaged in delinquent conduct; and the officer has probable cause to believe that the child's photograph will be of material assistance in the investigation of the conduct. However, in either instance, unless the child then placed under arrest, the child must be released from temporary custody as soon as the fingerprints or photographs are obtained.

Waiver of Rights: Texas Family Code Section 51.09

Unless a contrary intent clearly appears elsewhere in the Family Code, any right granted to a child by this Section or by the constitution or laws of Texas or the United States may be waived in proceedings under this section if:

1. the waiver is made by the child and the attorney for the child;
2. the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
3. the waiver is voluntary; and
4. the waiver is made in writing or in court proceedings that are recorded.

Polygraph Examination: Texas Family Code Section 51.151

If a child is taken into custody pursuant to an order of the juvenile court or pursuant to the laws of arrest by a law enforcement officer, a person may not administer a polygraph examination to the child without the consent of the child's attorney or the juvenile court unless the child is transferred to a criminal district court for prosecution in the adult system. Bottom line: Do not consent to a polygraph examination without consulting with your lawyer.

Physical or Mental Examination: Texas Family Code Section 51.20

(a) At any stage of the proceedings the juvenile court may order a child who is referred to the juvenile court or who is alleged by a petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision to be examined by the local mental health or mental retardation authority or another appropriate expert, including a physician, psychiatrist, or psychologist.

(b) If, after conducting an examination of a child and reviewing any other relevant information, there is reason to believe that the child has a mental illness or mental retardation, the probation department shall refer the child to the local mental health or mental retardation authority for evaluation and services, unless the prosecutor has filed a court petition against the child alleging delinquent conduct or conduct indicating a need for supervision.

Election Between Juvenile Court & Alternate Juvenile Court:

Texas Family Code Section 51.18

(a) This section applies only to a child who has a right to a trial before a juvenile court the judge of which is not an attorney licensed to practice in Texas.

(b) On any matter that may lead to an order appealable under Section 56.01 of the Family Code, a child may be tried before either the juvenile court or the alternate juvenile court.

(c) The child may elect to be tried before the alternate juvenile court only if the child files a written notice with that court not later than 10 days before the date of the trial. After the notice is filed, the child may be tried only in the alternate juvenile court. If the child does not file a notice as provided by this section, the child may be tried only in the juvenile court.

(d) If the child is tried before the juvenile court, the child is not entitled to a trial de novo before the alternate juvenile court.

Transfer/Waiver: Texas Family Code Section 54.02

The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate criminal district court to be tried as an adult if the child is alleged to have violated a penal law of the grade of felony if the child was 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree; or 15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony.

The juvenile court judge is not required to certify a child to stand trial as an adult. It's a judgment call. The juvenile court judge will investigate the matter and hold a hearing on the transfer request. The judge orders a complete diagnostic study, social evaluation, and a full investigation of the child, his circumstances, and the circumstances of the alleged offense. At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. In making her decision whether to transfer the case to the adult court, the judge considers: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against a person; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use or procedures, services, and facilities currently available to the juvenile court.

Determinate Sentencing: Texas Family Code Section 53.045

If a child is accused of a very serious criminal violation, or habitual felony conduct (see section below), the prosecutor can pursue what is called determinate sentencing. In order to pursue determinate sentencing the prosecutor files a petition with the grand jury, basically asking the grand jury to grant the prosecutor's request to pursue determinate sentencing if the child is convicted. If 9 members of the grand jury approve the petition, then determinate sentencing becomes a viable sentencing option for the judge/jury if the child is convicted of the offense. Determinate sentencing doesn't mean that the child will be tried as an adult in a criminal district court. The case remains in the juvenile court even if the grand jury grants the request for determinate sentencing. but the stakes for the child are raised dramatically if the grand jury grants the prosecutor's petition for determinate sentencing.

Eligibility: The prosecutor can pursue determinate sentencing if the child is charged with habitual felony conduct, or if the child is charged with any of the following offenses:

capital murder, murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, aggravated robbery, injury to a child, elderly, or disabled individual if punishable as a felony other than a state jail felony, felony deadly conduct involving the discharge of a firearm, aggravated controlled substance felony, criminal solicitation of a minor, indecency with a child, arson, if bodily injury or death is suffered by any person by reason of the commission of the arson, intoxication manslaughter, or attempted murder or attempted capital murder. If your child is charged with one of the offenses listed above, she is eligible for determinate sentencing even if this is her first offense.

Impact: If the grand jury grants the prosecutor's request to impose determinate sentencing, and the child is convicted of habitual felony conduct or any of the offenses listed above, then the court or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to the institutional division of the Texas Department of Criminal Justice (adult prison system) for a term of: up to 40 years if the conduct constitutes a capital felony, first-degree felony, or an aggravated controlled substance felony; up to 20 years if the conduct constitutes a second-degree felony; and up to 10 years if the conduct constitutes a third-degree felony. So instead of being sent to the Texas Youth Commission until the child turns 18, determinate sentencing would allow the child to be sentenced to up to 40 years in the adult prison system by a judge or jury.

Habitual Felony Conduct: Texas Family Code Section 51.031

(a) Habitual felony conduct is conduct violating a penal law of the grade of felony, other than a state jail felony, if:

1. the child who engaged in the conduct has at least 2 previous final adjudications as having engaged in delinquent conduct violating a penal law of the grade of felony; and,
2. the second previous final adjudication is for conduct that occurred after the date the first previous adjudication became final; and,
3. all appeals relating to the previous adjudications have been exhausted.

Review by Prosecutor: Texas Family Code Section 53.012

The prosecuting attorney shall promptly review the circumstances and allegations of a referral made to her for legal sufficiency and the desirability of prosecution and may file a petition without regard to whether probable cause was found during the court's preliminary investigation.

If the prosecutor does not file a petition requesting the adjudication of the child referred to the prosecutor, the prosecutor must terminate all proceedings, if the reason is for the lack of probable cause; or return the referral to the juvenile probation department for further proceedings.

The prosecutors have considerable discretion and control over your child's case.

Deferred Prosecution: Texas Family Code Section 53.03

(a) Subject to subsections (e) and (g) below, if the preliminary investigation results in a determination that further proceedings in the case are authorized, the probation officer or other designated officer of the court, subject to the direction of the juvenile court, may advise the parties for a reasonable period of time not to exceed 6 months concerning deferred prosecution and rehabilitation of a child if:

1. deferred prosecution would be in the best interest of the public and child;
2. the child and her parent, guardian, or custodian consent with knowledge that consent is not obligatory; and
3. the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

(b) Except as otherwise permitted, the child may not be detained during or as a result of the deferred prosecution process.

(c) An incriminating statement made by a participant to the person giving advice and in the discussion or conferences incident thereto may not be used against the declarant in any court hearing.

(d) The court may adopt a fee schedule for deferred prosecution services. The maximum fee is $15 per month.

(e) The prosecuting attorney may defer prosecution for any child. A probation officer or other designated officer of the court may defer prosecution for a child who has previously been adjudicated for conduct that constitutes a felony only if the prosecuting attorney consents in writing.

(f) The probation officer or other officer supervising a program of deferred prosecution for a child shall report to the juvenile court any violation by the child of the program.

(g) Prosecution may not be deferred for a child alleged to have engaged in conduct that constitutes: driving/flying/boating while intoxicated, intoxication assault, intoxication manslaughter, or that constitutes a third or subsequent offense of consumption of alcohol by a minor or driving under the influence of alcohol (DUI) of a minor.

First Offender Program: Texas Family Code Section 52.031

A juvenile board may establish a first offender program for the referral and disposition of children taken into custody for: (1) conduct indicating a need for supervision; or (2) delinquent conduct other than conduct that constitutes a felony of the first, second, or third degree, an aggravated controlled substance felony, or a capital felony; or a state jail felony or misdemeanor involving violence to a person or the use or possession of a firearm, illegal knife, or club, or a prohibited weapon, as described by Section 46.05, Texas Penal Code. If the child has previously been adjudicated as having engaged in delinquent conduct he may be ineligible for the First Offender Program. Also, the child's parents or guardian must receive notice that the child has been referred for disposition under the First Offender Program.

Teen Court Program: Texas Family Code Section 54.032

A juvenile court may defer adjudication proceedings during an adjudication hearing for not more than 180 days if the child:

(1) is alleged to have engaged in conduct indicating a need for supervision that violated a penal law of Texas of the grade of misdemeanor that is punishable by a fine only or a penal ordinance of a political subdivision of Texas;

(2) waives the privilege against self-incrimination and testifies under oath that the allegations are true;

(3) presents to the court an oral or written request to attend a teen court program; and

(4) has not successfully completed a teen court program for the violation of the same penal law or ordinance in the two years preceding the date that the alleged conduct occurred.

Note: The teen court program must be approved by the court.

Adjudication Hearing: Texas Family Code Section 54.03

This is what is commonly referred to as the "guilty-not guilty" phase of a trial. A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing. The child is presumed innocent unless and until the prosecution proves that the child is guilty of the charge beyond a reasonable doubt. The burden of proof is on the state. The verdict must be unanimous.

At the beginning of an adjudication hearing the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem: the allegations made against the child; the nature and possible consequences of the proceedings; the child's privilege against self-incrimination; the child's right to trial and to confront witnesses; the child's right to representation by an attorney if he is not already represented; and the child's right to a trial by jury.

Only material, relevant, and competent evidence in accordance with the Texas Rules of Criminal Evidence may be considered in an adjudication hearing. Hearsay testimony is generally not admissible. A statement made by the child out of court is insufficient to support a finding of delinquent conduct or conduct indicating a need for supervision unless it is corroborated in whole or in part by other evidence. An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision; and the corroboration is not sufficient if it merely shows the commission of the alleged conduct. Finally, evidence illegally seized or obtained is inadmissible in an adjudication hearing.

A child may be found guilty of committing a lesser-included offense of the offense charged.

If the judge or jury finds that the child did engage in delinquent conduct or conduct indicating a need for supervision, then the court or jury shall state which of the allegations in the petition were found to be established by the evidence. The court will then set a date and time for the disposition hearing.

If the judge or jury finds that the child did not engage in delinquent conduct or conduct indicating a need for supervision, the court shall dismiss the case with prejudice.

Disposition Hearing: Texas Family Code Section 54.04

This term can be confusing. What we're talking about here is the "sentencing" phase of the proceedings. The disposition hearing only comes into play if the child has been found guilty of the delinquent conduct or criminal activity alleged in the petition. If the child is found not guilty of all allegations during the adjudication hearing then there is no disposition hearing.

The disposition hearing is separate, distinct, and subsequent to the adjudication hearing. There is no right to a jury at the disposition hearing unless the child is in jeopardy of a determinate sentence as approved by the grand jury. If the child is eligible for determinate sentencing, then the child is entitled to a jury of 12 persons to determine the sentence.

At the disposition hearing, the juvenile court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. Prior to the disposition hearing, the child's lawyer is to have received all written matter to be considered in disposition. No disposition may be made unless the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made. No disposition placing the child on probation outside the child's home may be made under this section unless the court or jury finds that the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. If the judge or jury grant probation, the court will attach various conditions of the probation. Depending on the nature of the charges and the child's criminal history, if probation is not granted, the child could be sentenced to a term of confinement in the Texas Youth Commission.

Payment of Probation Fees: Texas Family Code Section 54.061

If a child is placed on probation, the juvenile court, after giving the child, parent, or other person responsible for the child's support, a reasonable opportunity to be heard, shall order the child, parent, or other person, if financially able to do so, to pay to the court a fee of not more than $15 a month during the period that the child continues on probation. If the court finds that a child, parent, or other person responsible for the child's support is financially unable to pay the probation fee, the court shall enter into the records of the child's case a statement of that finding.

Monitoring School Attendance: Texas Family Code Section 54.043

If the court places a child on probation and requires as a condition of probation that the child attend school, the probation officer shall monitor the child's school attendance and report to the court if the child is voluntarily absent from school.

Restitution: Texas Family Code Section 54.048

A juvenile court, in a disposition hearing, may order restitution to be made by the child and the child's parents. This applies regardless of whether the petition in the case contains a plea for restitution.

Admission of Unadjudicated Conduct: Section 54.045

During a disposition hearing, a child may admit having engaged in delinquent conduct or conduct indicating a need for supervision for which the child has not been adjudicated and request the court to take the admitted conduct into account in the disposition of the child's pending case. If the prosecutor agrees in writing, then the court may take the admitted conduct into account in the disposition of the child. However, a court may take into account admitted conduct over with exclusive venue lies in another county only if the court obtains the written permission of the prosecuting attorney for that county. A child may not be adjudicated by any court for having engaged in conduct taken into account under this section unless the conduct taken into account included conduct that took place in another county and the written permission of the prosecuting attorney of that county was not obtained.

Community Service: Texas Family Code Section 54.044

If the court places a child on probation, the court shall require as a condition of probation that the child work a specified number of hours at a community service project approved by the court and designated by the juvenile probation department. This requirement may be waived if the court finds that the child is physically or mentally incapable of participating in the project or that participating in the project will be a hardship on the child or his family or that the child has shown good cause that community service should not be required.

Note: The court may also order that the child's parent perform community service with the child.

Child Placed on Probation for Conduct Involving a Handgun:

Texas Family Code Section 54.0406

(a) If a court or jury places a child on probation for conduct that violates a penal law that includes as an element of the offense the possession, carrying, using, or exhibiting of a handgun, and if at the adjudication hearing the court or the jury affirmatively finds that the child personally possessed, carried, used, or exhibited a handgun, the court must require as a condition of probation that the child, not later than the 30th day after the date the court places the child on probation, notify the juvenile probation officer who is supervising the child of the manner in which the child acquired the handgun, including the date and place of any person involved in the acquisition. The juvenile probation officer is then to relay any relevant information regarding the handgun to the police. Your lawyer should be with you when this takes place.

Note: Information provided by the child to the juvenile probation officer regarding the acquisition of the handgun and any other information derived from that information may not be used as evidence against the child in any juvenile or criminal proceeding.

Rights of Appeal: Warning: Texas Family Code Section 54.034

Before the court may accept a child's plea or stipulation of evidence in a proceeding under this title, the court must inform the child that if the court accepts the plea or stipulation and the court makes a disposition in accordance with the agreement between the state and the child regarding the disposition of the case, the child may not appeal an order of the court pursuant to an adjudication hearing, a disposition hearing, or a hearing to modify disposition, unless the court gives the child permission to appeal; or the appeal is based on a matter raised by written motion filed before the proceeding in which the child entered the plea or agreed to the stipulation of evidence. An appeal from an order of a juvenile court is to the court of appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally. The requirements governing a juvenile appeal are as in civil cases generally.

Note: An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of the person, institution, or agency to whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for a personal bond pending the appeal.

Sealing Juvenile Records: Texas Family Code Section 58.003

One of the most important things that can be done for a juvenile is to get the juvenile records sealed as soon as allowed by law.

The benefits of sealing a child's juvenile records are immense. Once the records are sealed, information relating to the arrest, detention, prosecution, and conviction, are physically sealed and/or destroyed. This means that the child can start adulthood with a "clean" slate. And it also means that the child is authorized by law to say that he has never been convicted.

Section 58.003 of the Texas Family Code provides that, except for juveniles who received a determinate sentence for engaging in delinquent conduct that violated a penal law such as murder, capital murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, injury to a child/elderly/disabled person, arson, indecency with a child, etc., or engaged in habitual felony conduct, the juvenile records may be sealed if the court finds that 2 years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and if since that time the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

A court may also order the sealing of records concerning a juvenile adjudicated as having engaged in delinquent conduct that violated a penal law of the grade of felony (not including many determinate sentences) if: the person is 21 years of age or older; the person was not transferred by a juvenile court to an adult criminal court for prosecution; the records have not been used as evidence in the punishment phase of a criminal proceeding under Article 37.07, Code of Texas Criminal Procedure; and if the person has not been convicted of a penal law of the grade of felony after becoming age 17.

If a child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing (guilt/innocence) the child is found to be not guilty of each offense alleged, the court shall immediately order the sealing of all files and records relating to the case.

David Finn is board certified in criminal law by the Texas Board of Legal Specialization. Call today for a free initial consultation.


The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.

And it all startswith a plea of guilt . without the benefit of counsel! But the qualify for medicaid.......

The youth sent to the Texas Youth Commission (TYC) are the state's most serious or chronically delinquent offenders. In fiscal year 2006 (9/05 - 8/06), 33% of new arrivals had committed violent offenses, the same percentage as in fiscal 2005. Overall, 39% of new arrivals were categorized as high risk offenders.

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89% were boys.
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11% were girls.
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44% were Hispanic.
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34% were African-American.
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22% were Anglo.
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34% admitted at intake that they are gang members.
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Median age at commitment was 16.
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Median reading achievement level was 6th grade (four years behind their peers).
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Median math achievement level was 5th grade (five years behind their peers).
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40% were identified as eligible for special education services.
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7% of the TYC population were English language learners.
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83% had IQs below the mean score of 100.
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46% were chemically dependent.
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41% had serious mental health problems.
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76% had parents who never married or who divorced or separated.
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36% had a documented history of being abused or neglected.
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60% came from low-income homes.
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74% came from chaotic environments.
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52% had families with histories of criminal behavior.
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12% had family members with mental impairments.
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48% were in juvenile court on two or more felony-level offenses before being committed to TYC.

More detailed statistics are available in the TYC Commitment Profile.

Home | About TYC | Programs & Facilities | Research & Data | In The News | Prevention | Jobs | Search

The "thousand points of light" symbolize the American citizen's spirit and a shining example of giving selflessly to care for 1 another'.... icry

Rockin' In The Free World

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Neil Young Lyrics Analysis

Neil Young News

Lyrics, Tabs, And Chords for "Rockin' In The Free World" by Neil Young

Please comment and add your thoughts on "Rockin' In The Free World" in the guestbook
History and Commentary on "Rockin' In The Free World" lyrics by Neil Young

by Thrasher

[Note: This is one of a series of articles which provide an explanation of the meaning of Neil Young's classic song "Rockin' In The Free World". While the interpretation of lyrics presented here is composed of several viewpoints, there is little consensus on the exact meaning of Neil's songs. The themes and symbolism of Young's songwriting provide a rich tapestry on which to project various meanings and analysis.]

Neil Young's song "Rockin' In The Free World" from the album Freedom is one of his most popular, important and prophetic songs.

The song has become an iconic anthem and it's status continues to rise as more and more artists cover the song. Young's lyrics are considered to be an indictment of the politics of the 1980's. In today's post-9/11 world, the lyrics seem prophetic and even more meaningful than when originally written on the eve of the '90's.

In 2004, Rolling Stone magazine selected "Rockin' in the Free World" as one of the 500 greatest songs of all times.

"Rockin' In The Free World" was first performed live in concert on February 21, 1989 at the Paramount Theater, Seattle, WA with Neil Young's band The Restless. Since then, the song has been performed 368 times through the Greendale tour's conclusion on March 21, 2004 at the Mullins Center in Amherst, MA according to The Neil Young Tour Statistics page.

The song is prominent in director Michael Moore's film 'Fahrenheit 9/11' where "Rockin' in the Free World" runs over the closing credits. A re-release of the song and a new music video directed by Moore is scheduled for the Summer of 2004. (See more below on the film and song.)
Analysis of "Rockin' in the Free World" Lyrics

(Listen to clip of acoustic version of "Rockin' in the Free World" and electric version.)

The newspaper USA Today has called the song:

"a savage attack on the policies of Ronald Reagan and the first President Bush ... (and) anything but a celebration of democracy."

On the contrary, a strong case can be made that the song is NOT "anything but a celebration of democracy." In fact, an argument can be made that the song is very pro-democracy and is a protest song that has advanced the argument about inequities in society. The song is clearly the work of someone who could be called a courageous patriot.

The song's lyrics contain the lines:

We got a thousand points of light
For the homeless man
We got a kinder, gentler,
Machine gun hand

The lyrics are a direct reference to President George Bush's (#41) campaign pledge to create a compassionate citizenry volunteering to help cope with society's ills. The "thousand points of light" symbolize the American citizen's spirit and a shining example of giving selflessly to care for one another's neighbor and brother. Along with "a kinder, gentler hand", Bush believed that each American could contribute to helping make the United States -- and the world -- a better place to live and work.

The song is strongly democratic and with pro-American ideals in that it is a condemnation of the supply-side/trickle down politics of President Ronald Reagan. "Reaganomics" involved massive tax cuts in the wealthiest brackets which supporters claimed would trickle down to lower brackets. In fact, the policies led to huge federal deficits and exploding unemployment and social decay, particularly in large urban American cities.

The economic realities of the 1980's with increasing social problems -- such as homelessness and drug abuse -- made Young mock the campaign promises of President Bush as hollow rhetoric. The drug problems ("she's gonna take a hit") refer to the crack epidemic which swept large American cities during the 1980's.

The lyrics of "Rockin' In The Free World" also refer to the rampant consumerism of American culture and the rise of the disposable society based on waste and pollution.

We got department stores and toilet paper
Got styrofoam boxes for the ozone layer
Got a man of the people, says keep hope alive
Got fuel to burn, got roads to drive.

The lyrics "Got a man of the people, says keep hope alive" refer to the Reverand Jesse Jackson's signature phrase to "Keep hope alive." Young contrasts President Bush's rhetoric and Rev. Jackson's religion as solutions to society's ills, when in actuality, they are nothing more than "feel good" slogans with little results to show.

According to Neil Young's biography Shakey, while on tour in the late 80s, Young and Frank 'Poncho' Sampedro looked at photos in a newspaper of the Ayatollah Khomeini's body being carried to his grave. These images showed mourners burning American flags in the street, which incited fear in Poncho due to the band's up coming European tour. Sampedro commented that 'whatever we do, we shouldn't go near the mideast. Its probably better we just keep on rockin' in the free world.' Then Young asked if he could make a song out of it. (source: Wikipedia)

China's Tiananmen Square Protests

On June 9, 1989, Chinese authorities confronted student protesters in Tiananmen Square, which led to the deaths of an untold number. From this event, the picture of a student standing before a line of tanks became the image that was broadcast around the world.

Neil Young, upon seeing this photo and video, began commenting before performing "Rockin' In The Free World" that the song was going out to that "Chinese boy in Tiananmen Square who stopped the tanks."

Similar to Young's '70's political protest anthem "Ohio", the song has become associated with peaceful, non-violent protest.

Saturday Night Live Neil Young Rockin
Saturday Night Live Performance

On Saturday Night Live in September '89, Neil served notice that he was back with a vengeance with his legendary performance of 'Rockin'. Considered to be one of the most intense live television studio performances ever, Young seemed possessed as he throttled his Les Paul guitar and shredded its strings before the audience. Wearing a Elvis Presley T-shirt, Young seemed to be bridging his 1970's classic "Hey, Hey, My, My" with the lyrics "The King [Elvis] is gone but not forgotten, this is the story of Johnny Rotten" with the end of the 1980's and the impending advent of the grunge-alternative music explosion.

Later, Young commented that he worked with a trainer before going onstage to work himself up to the encore intensity level when he normally performs the song after 2 hours on stage. Neil came on the set as if he had just performed the concert of his life and went from there. The song was selected as one of the best of Saturday Night Live musical performances of all time in broadcasts later in the 1990's for the 25th anniversary.

Critics were ecstatic about Young's return to form based on just the single broadcast and it marked a critical turning point in Neil's career. Jimmy McDonough writes in a Village Voice interview:

"With the September 30 appearance on Saturday Night Live, Young arrested any signs of rust - at least for the moment. Backed by Charlie Drayton, Steve Jordan, and longtime sideman Frank 'Poncho' Sampedro - a new band Young's tentatively calling Young, CS&P - he was all over the stage, jumping on the drum stand, lunging out of camera range, whipping off earsplitting solos that sounded like falling power lines. It was the loudest thing I've ever heard on TV, the lyrics to 'Rockin' in the Free World' barely audible. This is easily his best band since Crazy Horse.

Just the look on his face was enough. He really seemed insane.

YOUNG: 'Yeah, well I was. I don't like TV. Never have. It always sucks and there's nothing you can do about it. You can't just walk on and do 'Rockin' in the Free World,' or you'll look like a fuckin' idiot. To perform that song the way it's supposed to be performed you have to be at peak blood level, everything has to be up, the machine has to be stoked. To do that I had to ignore Saturday Night Live completely. I had to pretend I wasn't there.'

So Young developed 'a brand new technique for doing TV' - a half-hour before going on he worked out with his trainer, lifting weights and doing calisthenics to get himself wired. "

freedom album
Freedom is Released

In October, 1989, the album Freedom was released to considerable critical acclaim. A review on Pagewise declared: "If 'Freedom' is the first true alternative album, 'Rockin' in the Free World' is the first true alternative song."

The album Freedom contains two versions of 'Rockin' in the Free World' - acoustic and electric, similar to Rust Never Sleeps and Tonight's The Night. In an album Review, Jeff Dove writes:

" 'Rockin' in the Free World,' which opens and closes the album in different versions, recalls Rust Never Sleeps. The parallel goes beyond the similar tactic, used in 'Hey Hey, My My (Out of the Blue) / My My, Hey Hey (Out of the Black),' but the styles of the two recordings on Freedom match Rust Never Sleep's live acoustic A-side and Crazy Horse-raging B-side. As with 'Hey Hey...,' and for that matter as with 'Tonight's the Night' on the album of the same name, the two versions have some lyrical differences. The opening version of 'Rockin' in the Free World' is a live solo acoustic version from a Jones Beach, Long Island, NY show, while the closer is an electric ripper that is right in there with the best of the Horse. "

At the Jones Beach, New York concert on June 14, 1989, Young performed an acoustic version of "Ritfw" with a third verse that was removed from the LP.

Little did critics and fans realize that the album's signature song soon would be heard around the world.

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Before the Fall: Neil writes "Love Is All We Need" on the Berlin Wall in 1982
Berlin Wall Falls

On November 9, 1989 The Berlin Wall fell and Young's song lyrics "Keep on Rockin' In The Free World" could be heard over newscasts of the historic occasion. The song has since been established as a beacon of hope for repressed people throughout the world and a soundtrack for freedom - in it's every manifestation.

Neil Young Rockin video Neil Young Rockin video Rockin vid glasses Rockin video metal
"Rockin' In The Free World" Video

In the music video for "Rockin'", directed by Julien Temple, the performance footage is intercut with scenes of Neil as a homeless person pushing a shopping cart through city streets. As a homeless person, Neil encounters numerous pitiful situations but manages to inject some humor. For example, at one point as he pushes his worldly possessions along a sidewalk, he encounters an elderly woman who he gives money.

The music video also has a montage of television news footage of a variety of current events such as police busting drug dealers and other criminal activity interspersed with Wall Street dealers. The "Rockin' In The Free World" video also includes footage of China's Tiananmen Square protests.

Among the many bands performing "Rockin' In The Free World" are Pearl Jam who have covered the song over 100 times in concert, often as final encores.

pj & neil
Pearl Jam & Neil at the MTV Music Awards

Neil joined Pearl Jam onstage at the MTV Music Awards on September 2, 1993 to play an incendiary version of "Rocking in The Free World". After the broadcast, MTV commentator Kurt Loder observed that the interplay between Young and Pearl Jam was probably one of the most memorable live MTV performances ever.

Some of the other bands that have covered "Rockin'" include:

Van Halen
Patti Smith
Vines
Slobberbone
David Byrne
Phil Lesh & Friends
Indigo Girls
Richard Thompson

The song became a standard during the 1991 tour with Crazy Horse which began as the Persian Gulf war began. At the end of "Rockin' In the Free World" (listen to San Francisco, CA. 1991-04-06) segues into a homage to Bob Dylan's "Blowing in the Wind" for a most majestic feedback drenched finale.

Again, during the second war with Iraq, Young featured the song "Rockin' In The Free World" prominently during encores for the 2003 Greendale tour. The lyrics to the song were altered in the Greendale concerts to: "Boys are dying everyday because we didn't have a plan". The additional lyrics were censored for the Farm Aid 2003 broadcast on PBS on Thanksgiving Day.

Also during the Greendale tour, the feedback drenched finale of "Rocking in the Free World" segued into "Taps", Neil's gesture to the soldiers fighting and dying in Iraq.

In the post 9/11 world, the lyrics take on a sinister new meaning:

'There's a lot of people sayin' we'd be better off dead.
Don't feel like Satan but I am to them.'

It is very hard to listen to these words today and think about what they mean to people of various religious beliefs. How could Neil have possibly known the prophetic power which these lyrics hold today?

In an analysis of "Rockin'" called "The Advantages of Using Rock and Roll in Teaching Social Studies by James Lane at the Orange High School he writes:

"The tune warns us of the complacency of our own lives and the lack of empathy we express for people who are not blessed with the benefits and cushy lifestyle the majority of Americans enjoy. The song is a musical signpost telling us not to lose sight of the problems our society and its less fortunate members face. It is a song of insight attempting to awaken us to the reality of a culture seen on a wider screen, one with 'a thousand points of light / For the homeless man / ...a kinder, gentler / Machine gun hand.'"

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Michael Moore's Film Fahrenheit 9/11 Soundtrack

In June 2004, filmmaker Michael Moore and Neil Young reached agreement to use Young's song 'Rockin' in the Free World' for the controversial film 'Fahrenheit 9/11''s closing credits. (For more, see June 2004 News page and Neil News page for updates.) From Thrasher's Wheat Guestbook, Bill posted:

"Michael Moore inexplicably edited out the most telling line - "Don't feel like Satan but I am to them" - which could be applied flexibly to Osama's hatred of the U.S. or the Right Wing's demonization of everyone they disagree with. Instead, he combined the beginning of the first verse with the end of the second verse, the one about the crack-addict and her child, so they came out:

'There are colours on the street
Red, white and blue
People shufflin' their feet
People sleepin' in their shoes
But there's a warnin' sign on the road ahead
There's a lot of people sayin' we'd be better off dead
That's one more kid that will never go to school
Never get to fall in love never get to be cool

A new video for "Rockin' In The Free World" directed by filmmaker Michael Moore was released in November 2004. The video intercuts footage from the film Fahrenheit 9/11 and performance footage of Neil Young and Crazy Horse performing the song on the 2003/4 Greendale tour.
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"There's one more kid that will never go to school
Never get to fall in love,
never get to be cool."
Conclusion

The song "Rocking in The Free World" continues to be a standard encore for Neil Young's concerts and most likely will continue as long as there is a need to rock in the free -- or more or less free -- world.

The use of the song "Rockin'" undoubtably put Young and his music in the political spotlight. In the summer of 2004, we asked what folks thought of a Moore's use of the song. The question was whether the use of the song in the film was a good idea? Or was it going to create trouble for Neil?

poll-f911

About 70% thought it was a good idea, 27% thought it would cause trouble, and less than 3% didn't much care about music & politics.

In November 2004, a music video for "Rockin' In The Free World" directed by Michael Moore was released.

So what did folks think of the video for "Rockin"? With nearly 600 votes, here are the results when the polls closed:

poll-rocking-free.jpg

77% (455 votes) voted "Yes, I like both the song and the video"
10% (58 votes) voted "No, I can't stand Young and Moore"
13% (78 votes) voted "Not sure because politics and music make me feel uneasy."

Please comment and add your thoughts on "Rockin' In The Free World" in the guestbook.

Also, check out the other Neil polls, so get off that couch, turn off that MTV and VOTE!

Lastly, here's a song parody by Skisics Surus:

"We got more failing stores and worthless paper
Got new coal burning for the ozone layer
Got a man who screws the people, helps his friends all thrive
Expensive fuel to burn, try not to drive

Bush keeps mockin' the free world"

"Rockin' In The Free World" lyrics by Neil Young

(Listen to clip of acoustic version of "Rockin' in the Free World" and electric version.)

See inside reference book pages of Music and Social Movements : Mobilizing Traditions in the Twentieth Century by Cambridge Cultural Social Studies for more on music relating to China's Tiananmen Square protests and the fall of Berlin Wall.

Also, see Gone Mild Blog article "Neil Young Keeps On Rockin' In the Free World".

Play and watch the video of "Rockin' In The Free World" here.

Freedom - Album Reviews

Neil Young Lyrics Analysis

Thrasher's Wheat - A Neil Young Archives