When a juvenile is adjudicated of a crime in Texas, they will receive either a determinate or indeterminate sentence. These two sentencing options have different implications for the juvenile’s future, so it’s important to understand both – especially if you have a child facing juvenile prosecution.
Like most everything in the juvenile system, determinate and indeterminate sentences can be confusing – even for attorneys and legal professionals. That’s why it is so important to have an experienced juvenile defense attorney in your corner if your child has been taken into custody.
At Varghese Summersett, we are fortunate to have one of the foremost experts in Texas juvenile law on our team. Attorney Lisa Herrick is Board Certified in Juvenile Law – one of only a handful of attorneys in North Texas who holds this distinction.
In this article, we will explore the key differences between determinate and indeterminate sentences in Texas juvenile justice system and answer some frequently asked questions. But first please, take a moment to watch this video by Lisa in which she gives an overview of determinate and indeterminate sentencing in Texas.
What are the Main Differences Between a Determinate and Indeterminate Sentence for Texas Juveniles?
It’s important for juveniles and their parents to understand the differences between a determinate and indeterminate sentence because it dictates how long the justice system will have jurisdiction over the youth.
- Determinate Sentence
A determinate sentence is a fixed length, meaning the juvenile offender will be placed on probation or incarcerated for a specified period of time. For example, if a 16-year-old boy is sentenced to 10 years in prison for aggravated robbery, he will be under court supervision for 10 years.
The teen would start the sentence at the Texas Juvenile Justice Department (TJJD), which is juvenile prison. Just before his 19th birthday, a hearing will be conducted to determine whether the youth will be transferred to the adult prison to complete his sentence or discharged. If the judge does transfer him, he will be eligble for parole under the normal parole rules for adult offenders.
A determinate sentence typically applies to older juveniles or repeat offenders who committed a very serious felony offense, such as murder, aggravated robbery, and sexual assault. In fact, a determinate sentence can only be used for certain felony offenses, which we explain below.
- Indeterminate Sentence
An indeterminate sentence is not a set prison sentence. A number of years or months is not attached to a conviction, which is referred to as “adjudication” in the juvenile system.
Instead, juvenile authorities at TJJD will determine how long a youth will be incarcerated based on how well they “work the program.” The sentence depends on the youth’s progress, behavior, commitment to treatment, rehabilitation, and risk of reoffending.
If the child is placed on probation, however, the judge will give a set length of time. However, a juvenile cannot be kept on probation for an indeterminate sentence past their 18th birthday or held in TJJD past their 19th birthday. Once those ages are reached, the juvenile must be discharged and juvenile authorities lose jurisdiction entirely. A juvenile also cannot be placed on parole past their 19th birthday.
Who Determines Whether to Seek a Determinate or Indeterminate Sentence?
The type of sentence a juvenile faces is determined by the prosecutor. An indeterminate sentence is the standard for most juvenile cases. However, if the prosecutor believes that a determinate sentence is warranted, they can’t just make they can’t make that decision unilaterally. They must first get approval by a grand jury. This is the equivalent of a grand jury indictment in adult criminal court.
If the prosecutor’s petition for a determinate sentence is approved by the grand jury, then it becomes a determinate sentencing case. If the petition is denied, then the youth will receive an indeterminate sentence if convicted, which means authorities in the juvenile justice system will determine how long a youth serves.
What Offenses are Eligible for a Determinate Sentence?
Section 53.045 of the Texas Family Code lists offenses that are eligible for determinate sentencing, including:
- Capital murder
- Aggravated Kidnapping
- Sexual Assault & Aggravated Sexual Assault
- Aggravated Assault
- Aggravated Robbery
- Injury to a Child, Elderly, or Disabled Individual
- Felony Deadly Conduct Involving Discharging a Firearm
- Controlled Substance First-Degree Felony
- Criminal Solicitation
- Indecency with a Child
- Criminal Solicitation of a Minor
- Attempted Murder or Attempted Capital Murder
- Arson Involving Bodily Injury or Death
- Intoxication Manslaugther
- Criminal Conspiracy
When deciding whether to pursue a determinate sentence, the prosecutor will consider the nature and severity of the offense, the juvenile’s age, criminal history, and level of culpability, progress, behavior in detention, and risk of re-offending.
What is the Range of Punishment for a Determinate Sentence?
If a juvenile is adjudicated (convicted) on a determinate sentencing case, he or she faces the following punishment:
- Third Degree Felony: 0 to 10 years
- Second Degree Felony: 0 to 20 years
- First Degree Felony: 0 to 40 years
As you can see, there is no minimum punishment range on determinate sentencing cases and the maximum punishment is capped at 40 years. In the adult criminal justice system there is a minimum punishment and the maximum punishment for a first-degree felony is life in prison.
Who Asseses Punishment after a Juvenile is Ajudicated (Convicted?)
For an indeterminate sentencing case, the judge will assess punishment, basically deciding whether probation or incarceration at TJJD is appropriate. However, for determinate sentencing cases, the juvenile may choose to have a judge or jury assess punishment.
Can a Determinate Sentence be Changed to an Indeterminate Sentence?
Once a sentence has been imposed, it cannot be changed to a different type of sentence. However, the prosecutor has the power to waive determinate sentencing before the juvenile has been adjudication. This sometimes occurs during plea negotiations, when the prosecutor offers an indeterminate sentence in exchange for the juvenile admitting guilt.
When Do Prosecutors Seek to Certify a Child as an Adult?
In extremely serious cases, prosecutors may forgo determinate or indeterminate sentencing and seek to certify a juvenile as an adult. The decision to certify a child to stand trial as an adult must be granted by a juvenile judge after a hearing. If the judge agrees to certify the juvenile, the case will be transferred to adult criminal court and the minor will be tried as an adult and will face the full range of adult punishment associated with the offense for which they are charged.
If the judge does not agree to certify the child, the juvenile court retains jurisdiction and the prosecutor can proceed under determinate and indeterminate sentencing.
Can a Juvenile’s Record be Sealed if they Receive a Determinate Sentence?
No, if a juvenile receives a determinate sentence their record cannot be sealed. Unfortunately, the offense can follow them for the rest of their life. That’s one of the reasons why it is so important to have a highly skilled juvenile attorney advocating for them every step of the way in an effort to receive the best possible outcome.
Child Accused of a Crime? Call Lisa Herrick.
Attorney Lisa Herrick has extensive experience handling determinate and indeterminate juvenile cases. Before going into private practice as a juvenile defense attorney, she spent years as a juvenile prosecutor. Serving on both sides, coupled with Board Certification in juvenile law, puts Lisa in an elite class of juvenile attorneys in North Texas. She is devoted to helping juvenile offenders get their lives back on track so they can have a successful future.
If your child has been accused of a crime, call Lisa at 817-203-2220 for a free consultation today.