By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Removal from home findings of 54.04 do not
apply to probation revocation (99-2-41)
On May 19, 1999, the San Antonio Court of Appeals held that the three
factual findings that must be made before a child can be removed from his home
and committed to the TYC under 54.04 do not apply to a TYC commitment based upon
revocation of probation under 54.05.
99-2-41. In the Matter of J.G., UNPUBLISHED, No. 04-98-00962-CV, 1999 WL 323316,
1999 Tex.App.Lexis ___ (Tex.App.-San Antonio 5/19/99)[Texas Juvenile Law (4th
Ed. 1996)].
Facts: J.G. appeals the trial court's order modifying his disposition by
committing him to the Texas Youth Commission. In a sole point of error, J.G.
complains that the evidence is legally insufficient to support his commitment to
TYC under section 54.04(i) of the Texas Family Code.
J.G. was adjudicated to have engaged in delinquent conduct and placed on
community supervision. The State moved to modify based on J.G.'s violation of
the terms of community supervision. The trial court found that J.G. was in
violation, and modified his disposition to commit J.G. to the Texas Youth
Commission.
Held: Affirmed.
Opinion Text: J.G. argues that the evidence is legally insufficient to support
his commitment to TYC under section 54.04(i) of the Texas Family Code. [FN2] A
juvenile judge has broad discretion to determine a suitable disposition for a
child who has been adjudicated as having engaged in delinquent conduct. In re
T.A.F., 977 S.W.2d 386, 387 (Tex.App.--San Antonio 1998, no pet.). Accordingly,
we review the trial court's modification of a juvenile disposition for an abuse
of discretion. Id.; In the Matter of Rodriguez, 687 S.W.2d 421, 422-23 (Tex.App.--Houston
[14th Dist.] 1985, no writ).
FN2. Section 54.04(i) provides that, if the trial court commits the child to the
Texas Youth Commission, the trial court shall include in its order its
determination that: (1) it is in the child's best interest to be placed outside
the child's home; (2) reasonable efforts were made to prevent or eliminate the
need for the child's removal from the home and to make it possible for the child
to return to the child's home; and (3) 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. Tex.Fam.Code Ann. § 54.04(i) (Vernon
1996 & Supp.1999).
The trial court may modify its disposition based on a finding that the juvenile
engaged in delinquent conduct to commit the juvenile to TYC 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); Rodriguez, 687 S.W.2d at 422- 23.
As this court has recently held, J.G.'s reliance on section 54.04(i) is
misplaced. See In re H.G., No.04-98-00542-CV, 1999 WL 174189 at *2 (Tex.App.--San
Antonio March 31, 1999, no pet. h.).[See Juvenile Law Newsletter ¶ 99-2-11]
Section 54.04 of the Texas Family Code applies exclusively to an original
disposition hearing. Id. J.G. was before the court on a motion to modify his
prior disposition, which is governed by section 54.05 of the Texas Family Code.
Section 54.05(f) permits a trial court to modify a disposition by ordering
commitment to TYC if it finds "that a child violated a reasonable and
lawful order of the court." Tex.Fam.Code Ann. § 54.05(f) (Vernon 1996).
Section 54.05(f), which specifically addresses the situation of transfer to TYC
upon a modification of a disposition, does not require the trial court to make
the findings under section 54.04(i). Id.; H.G.,1999 WL 174189 at *2. It merely
requires that the trial court find that the child violated a reasonable and
lawful order of the court. H.G., 1999 WL 174189 at *2. Therefore, the
"mandatory determinations" required by section 54.04(i) are
inapplicable, and our sole inquiry is whether the evidence is sufficient to
support the trial court's finding that J.G. violated a reasonable and lawful
order of the court. Id.
When a juvenile challenges the legal sufficiency of the evidence, we consider
only that evidence and those inferences which tend to support the challenged
findings, and disregard any and all evidence and inferences to the contrary. In
re S.A.M., 933 S.W.2d 744, 745 (Tex.App.--San Antonio 1996, no writ).
At the close of the hearing on the State's motion to modify, the trial court
found that J.G. had violated the terms of his probation. On appeal, J.G. does
not challenge the sufficiency of the evidence supporting the trial court's
finding that he violated the terms of his community supervision, nor does he
allege that the trial court's original disposition imposing probation was not a
reasonable and lawful order. We find the evidence to be legally sufficient to
support the trial court's modification under section 54.05(f) of the Family
Code. J.G.'s sole point of error is overruled.