By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Date of probation violation controls for
preponderance standard in revocation (00-1-02)
On June 2, 1999, in an opinion the publication of which was for some reason
delayed for six months, the San Antonio Court of Appeals held that the 1995
amendments to the Family Code changing the standard of proof for probation
revocation from beyond a reasonable doubt to preponderance apply to a case in
which the respondent was placed on probation before January 1, 1996 but who
violated probation after that date. The date of violation, not the date of the
offense resulting in placing the child on probation, controls.
00-1-02. In the Matter of T.W.K., ___ S.W.3d ___, No. 04-98-01071-CV, 1999 WL
1116995, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 6/2/99)[Texas Juvenile
Law 210 (4th Edition 1996)].
Facts: T.W.K. appeals the trial court's modification of his disposition order,
committing him to the Texas Youth Commission. In a sole point of error, he
argues that the trial court applied an incorrect standard of proof to its
finding that he violated a condition of his community supervision.
T.W.K. was adjudicated to have engaged in delinquent conduct and placed on
community supervision. The State moved to modify the disposition, alleging that
T.W.K. had violated a condition of his community supervision. [FN1] Upon hearing
on the State's motion, the trial court found the allegation to be true. T.W.K.'s
disposition was modified to commit him to the Texas Youth Commission.
Held: Affirmed.
Opinion Text: T.W.K. asserts that the trial court incorrectly applied the
"preponderance of the evidence" standard of proof to its finding that
the allegation was true, where the appropriate standard was proof beyond a
reasonable doubt.
Effective January 1, 1996, a disposition based on a finding that the child
engaged in delinquent conduct may be modified so as to commit the child to the
Texas Youth Commission if the court, after a hearing to modify disposition,
finds by a preponderance of the evidence that the child violated a reasonable
and lawful order of the court. Tex.Fam.Code Ann. § 54.05(f) (Vernon 1996).
Prior to the 1995 amendments, section 54.05(f) provided that a juvenile's
disposition could be modified to commit the child to the Texas Youth Commission
if the court found beyond a reasonable doubt that the child violated a
reasonable and lawful order of the court. Act of May 25, 1973, 63d Leg., R.S.,
ch. 544, 1973 Tex.Gen.Laws 1460, 1479 (amended 1995) (current version at
Tex.Fam.Code Ann. § 54.05(f) (Vernon 1996).
T.W.K. argues that the reasonable doubt standard applies to him since the
conduct giving rise to his original adjudication occurred in 1995. [FN2] We
reject this argument. The plain language of section 54.05(f) says that the
relevant inquiry of the court on a motion to modify a juvenile's disposition is
whether the child violated a reasonable and lawful order of the court. The
child's violation of the court's adjudication order is the inquiry to which the
standard of proof is attached under section 54.05(f). Thus, the date of the
offense giving rise to the adjudication which the State is seeking to modify is
irrelevant to the trial court's determination on a motion to modify a
disposition. In its oral pronouncements, the trial court stated that it found
the allegation to be true by a preponderance of the evidence. The trial court's
modified adjudication order, however, avers that the trial court found the
allegation to be true beyond a reasonable doubt. The trial court was only
required to find a violation of a reasonable and lawful order of the court by a
preponderance of the evidence. However, even if we are incorrect in finding that
the applicable standard of proof is "preponderance of the evidence,"
there is sufficient evidence in the record to support the trial court's finding
that the allegation was true under the "beyond a reasonable doubt"
standard as well. T.W.K.'s point of error is overruled.
FN1. The State alleged that he violated the first condition of his community
supervision--that he not commit an offense against the laws of the State of
Texas--when he engaged in deadly conduct under Texas Penal Code section 22.05 by
brandishing a gun and pointing it at his sister's head.
FN2. In support of this position, T.W.K. relies on Robert Dawson's treatise,
Texas Juvenile Law. See ROBERT O. DAWSON, TEXAS JUVENILE LAW 209 (1996). The
conduct giving rise to T.W.K.'s original adjudication occurred in September
1995. The State filed its petition for adjudication in October 1995, and the
trial court issued its order of adjudication placing T.W.K. on community
supervision in February 1996. The State moved to modify T.W.K.'s disposition in
December 1998.