NO. 123456

THE STATE OF TEXAS	§		IN THE ____ DISTRICT COURT
§
V.	§		OF
§
JOHN DOE	§		_____________ COUNTY, TEXAS

CHALLENGE TO THE CONSTITUTIONALITY OF 
JUVENILE TRANSFER PROCEEDING

	COMES NOW, JOHN DOE,  by counsel, and pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections  10 and 18 of the Texas Constitution  and TEX. C. CRIM. P. Articles 1.04, 1.05, 1.09  and moves the Court to find that TEXAS FAMILY CODE §54.02 violates his rights under the Constitutional provisions cited herein and in support thereof would show the court the following:

1.   Mr. Doe is ____ years of age, a juvenile.  He has been originally charged, as a juvenile, with the  offense(s) of ____________________________. On the ____ day of _____________, 2000___, a juvenile transfer proceeding was held pursuant to Texas Family Code §54.02 which proves that the juvenile court may waive its jurisdiction and transfer a child to District Court where the juvenile will be adjudicated as if he were an adult.  If tried as an adult, he will be punished as an adult, not as a juvenile..  The range of possible punishments to which the juvenile is exposed is far greater than the possible punishment under the Texas Family Code.
2.  The juvenile court shall conduct a hearing without a jury to consider the transfer of the child for adult criminal proceeding, and must determine that 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 alleged or the background of the child the welfare of the community requires criminal proceedings.  TEXAS FAMILY CODE §54.02 (a)(3).  The Court, in making this determination, the Court shall consider, among other things:
(1)	whether the alleged offense was against a person or property, with greater weight in favor of transfer given to offenses again the person;
	(2) 	the sophistication and maturity of the child;
	(3) 	the record and previous history of the child;
(4) 	the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services an d facilities currently available to the juvenile court.
TEXAS FAMILY CODE §54.02 (f).

3.  The Fourteenth Amendment right to Due Process and the Sixth Amendment right to Trial By Jury, taken together, entitle Mr. Doe to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970); Colorado Constitution, Art. II, §§ 16 and 25.

4.  The Supreme Court has noted that the rights to due process and to a trial by jury extend to all matters which are required in order to subject an individual to a particular punishment.  “[T]he guarantee that ‘in all criminal prosecutions, the accused shall enjoy the right to. . . trial, by an impartial jury,’ has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.”  Apprendi v. New Jersey, 530 U.S. 466, 499, 120 S. Ct. 2348, 2367, (2000).

5.  These rights are fundamental, not only to our system of criminal justice, but to our very structure of government. “[T]o guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbors . . .” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769); Apprendi supra, 530 U.S. at 477.

6.  The bright-line rule of Apprendi has been expressed as “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004).

7.  The Sixth Amendment, by its terms, is not a limitation on judicial power, but a reservation of jury power. Id. at 308.

8.  This reservation of jury power does not simply limit judicial power but also limits administrative and legislative power.

Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial.  That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.  Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. Id. at 305, 306.

The Framers’ [of the United States Constitution] decision to entrench the jury-trial right in the Constitution shows that they did not trust government to make political decisions in this area. Id. at 307.  There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.  As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment . . .The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbors rather than a lone employee of the State.”  Id. at 313.

9.  In the State of Washington, Mr. Blakely, a grown man, faced a sentence of three additional years based on the decision of a lone employee of the State.  In this case, Mr. ________________,  a juvenile, faces the difference between ( insert maximum juvenile exposure) and (insert range of adult punishment).  The exposure to adult punishment greatly exceeds the maximum punishment that Mr. ______________________ would be exposed to as a juvenile.  However, the decisions that are made to expose him to that increased punishment are not made by a jury and found beyond a reasonable doubt, but by a judge and by a preponderance of the evidence.

 WHEREFORE PREMISES CONSIDERED , Mr. Doe and his counsel pray that:

	1.	This Court finds that the procedure set out in TEXAS FAMILY CODE §54.02 are in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and applicable provisions of the Texas Constitution;

	2.	This Court find that it does not have jurisdiction to prosecute Mr. Doe as an adult; and

	3.	This matter be returned to the appropriate juvenile court where the issues relevant to a transfer determination be properly decided by a jury, each of who must find that such conditions precedent to transfer are established beyond a reasonable doubt.

Respectfully submitted on this the ____ day of___________, 200__.
Mr. Lawyer
Address, etc.

CERTIFICATE OF SERVICE
		I hereby certify that a true and correct copy of the above and foregoing instrument has been furnished to counsel for the State by hand-delivery of a copy of same this the ___ day of ______________________, 200__.