By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Court approves changing disposition from
probation to TYC without formal revocation motion or hearing (00-1-15)
On December 30, 1999, the San Antonio Court of Appeals approved of a
juvenile court modification of its probation disposition to a TYC commitment
despite the absence of a formal motion to revoke. The violation occurred while
the respondent was awaiting placement in a residential treatment facility.
00-1-15. In the Matter of D.M.W., UNPUBLISHED, No. 04-99-00071-CV, 2000 WL
36106, 2000 Tex.App.Lexis ____ (Tex.App.-San Antonio 12/30/99)[Texas Juvenile
Law 217 (4th Edition 1996)].
Facts: The trial court determined that D.M.W., a thirteen-year old child,
engaged in delinquent conduct by committing the misdemeanor offense of cruelty
to animals, and committed D.M.W. to the Texas Youth Commission (TYC). D.M.W.
appealed the trial court's judgment.
On January 25, 1999, D.M.W. pled true to the State's allegations of delinquent
conduct. After his adjudication hearing on that same day, the trial judge found
that D.M.W. had engaged in delinquent conduct by setting a chained-up dog on
fire. The trial court conducted the disposition hearing on January 26, 1999. At
that time, the trial judge reviewed D.M.W.'s psychological evaluation
recommending therapy and a stable, structured environment, and numerous
disciplinary reports from the detention center. After considering these
documents, the trial judge pronounced that she was placing D.M.W. on probation
in the custody of the chief probation officer to await transfer to a residential
treatment facility. The judge then instructed that another hearing would be held
once the probation department identified a treatment facility. The judge wanted
to assure that the designated facility could meet the recommendations of the
child psychologist who had evaluated D.M.W. Three days later, the State filed a
Motion to Reconsider Disposition stating that D.M.W. had received another
disciplinary referral for an incident that occurred on the night following his
adjudication hearing and asking that the trial court reform its judgment and
place D.M.W. with TYC. A hearing was conducted on the State's motion, and the
trial judge then decided to place D.M.W. in the custody of TYC.
In his sole issue on appeal, D.M.W. contends that the trial judge erred by
reconsidering his probation and by ordering him to be placed with TYC.
Specifically, D.M.W. complains that the State's motion did not set forth
sufficient evidence to modify D.M.W.'s probation and that the State used an
improper motion to obtain a "second bite at the apple" in a high
profile case. Although the State did not follow the proper procedure in this
case, we find that the trial judge acted within her discretion to modify her
original disposition order.
Held: Affirmed.
Opinion Text: The judgment placing D.M.W. with TYC was signed on February 2,
1999. The order refers to the hearing held on January 29, 1999 as the
disposition hearing. Although the court's file contains only this order, what
occurred in this case is analogous to modifying
disposition under section 54.05 of the Family Code. That section provides that
"[a]ny disposition, except a commitment to the Texas Youth Commission, may
be modified by the juvenile court ... until: (1) the child reaches his18th
birthday; or (2) the child is
earlier discharged by the court or by operation of law." Tex. Fam.Code Ann.
§ 54.05 (Vernon 1996). Thus, the Family Code places the decision to change an
original disposition in the trial court's discretion. See Echols v. State, 481
S.W.2d 160, 161 (Tex.Civ.App.--Houston [14th Dist.] 1972, no writ) (stating that
question of modifying former order is within trial court's sound discretion to
determine whether commitment to institution is in best interest of a delinquent
child). Here, the trial judge exercised that discretion. From this standpoint,
what the trial court did is proper.
Section 54.05 also authorizes the State to request a modification of
disposition. Tex. Fam.Code Ann. § 54.05(d) (Vernon 1996). Here though, the
State relied on Rule 329(b) of the Rules of Civil Procedure in its Motion to
Reconsider Disposition. Although this rule is used to request a new trial in a
civil case, we know of no case where this rule has been applied to a juvenile's
disposition hearing. Although the Family Code does not expressly provide for a
new disposition hearing, the Code clearly anticipates that a child's conduct may
require a modification of the child's disposition. Nothing indicates that the
State may rely on the Rules of Civil Procedure to create an opportunity to
rehear a case in order to obtain the disposition the State sought in the
original hearing. Thus, what occurred here appears to be an irregular procedure.
Although an irregular procedure, the substance of the State's motion asks the
trial court to act within its jurisdiction. The State's motion asked the trial
court "to reconsider its disposition judgment placing [D.M.W.] on probation
with long term placement, and to reform the judgment to commit [D.M.W.] to the
Texas Youth Commission"--in essence, a motion requesting the revocation of
probation or a request for modification.
Because the facts of this case would have supported D.M.W.'s placement with TYC
initially, we do not find that the judge's action in reconsidering her initial
decision was improper despite the irregularity. Our willingness to accommodate
this procedural irregularity is greatly due to the trial judge's obvious concern
for D.M.W.'s welfare and her considerable deliberation in reaching her decision.
The record reflects the trial judge wanted to assure that D.M.W. was placed in a
stable, structured environment that could meet the needs reflected in D.M.W.'s
psychological evaluation. Although the trial judge initially decided to place
D.M.W. on probation at a residential treatment facility, she changed her mind
after further considering D.M.W.'s detention conduct and discovering that the
designated treatment facility was not a lock-down facility. Clearly, the trial
judge wanted to assure D.M.W. was placed in a stable, structured environment
that could meet D.M.W.'s needs, but D.M.W.'s conduct indicated to the judge that
D.M.W. would not succeed in a non-secured facility. Although we caution the
State not to interpret this decision as a mechanism by which it can obtain a
second opportunity to obtain TYC placement, we find that the trial court did not
abuse its discretion by placing D.M.W. with TYC. As a result, we overrule this
issue and affirm the judgment of the trial court.