By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Failure to serve juvenile personally voided
transfer and criminal conviction for murder (99-3-22)
On July 21, 1999, the San Antonio Court of Appeals held that service of the
transfer petition and summons on the defense attorney’s secretary was not
personal service on the juvenile. Thus, the juvenile court lacked jurisdiction
to transfer the case to criminal court and the criminal court lacked
jurisdiction to convict appellant of murder.
99-3-22. Alaniz v. State, ___ S.W.2d ___, No. 04-97-00827-CR, 1999 WL 511463,
1999 Tex.App.Lexis ____ (Tex.App.-- San Antonio 7/21/99)[Texas Juvenile Law (4th
Ed. 1996)].
Facts: This case was transferred by the juvenile court to the district court for
prosecution. This is an appeal from a jury trial finding appellant, Luis Alaniz,
guilty of the offense of murder. Alaniz was sentenced to thirty-eight years in
the Texas Department of Criminal Justice--Institutional Division. On appeal, he
raises three issues. In his first issue, he asserts the trial court was without
jurisdiction to act on this matter as he was not personally served in compliance
with § 53.06 of the Texas Family Code. We agree with appellant's first issue,
therefore we reverse the judgment of the trial court and remand the case to the
juvenile court for further proceedings consistent with this opinion.
Held: Reversed and remanded.
Opinion Text: Appellant, Luis Alaniz was born on December 10, 1980. On March 6,
1997, appellant was arrested and charged with the stabbing death of Rafael
Galindo. The petition alleged appellant intentionally or knowingly caused the
death of Rafael Galindo. The summons ordered appellant and his parents to appear
for a pre-trial hearing for the purpose of considering the State's
"Petition for Waiver of Jurisdiction." Service of the summons and
petition were made to the secretary of appellant's attorney by the Starr County
Sheriff's Department. A copy of the summons and petition were never given to
appellant or his parents. However, despite the failure of proper service,
appellant, his parents, and counsel appeared for the hearing to transfer to
district court. The trial court, in its order certifying appellant an adult and
ordering transfer of the case to district court, found that appellant was duly
and properly served.
Jurisdiction
Section 54.02 of the Texas Family Code provides that a juvenile court may waive
its exclusive jurisdiction and transfer a proceeding to the appropriate district
court. Tex. Fam.Code Ann. § 54.02(a) (Vernon 1996). Prior to a case being
transferred, certain prerequisites must be met including the notice requirements
outlined under the code. Id.
Texas law specifically provides that a juvenile court direct the issuance of a
summons to the child, parent or guardian ad litem. Tex. Fam Code. Ann. §
53.06(a) (Vernon 1996). Furthermore, the code specifically provides that
"any party, other than the child, may waive service of process." Tex.
Fam.Code. Ann. § 53.06(e) (Vernon 1997). Under Texas case law, notice is
mandatory, and failure to comply with the notice provisions outlined under the
Texas Family Code deprives the juvenile court of jurisdiction. In the Matter of
D.W.M., 562 S.W.2d 851, 852 (Tex.1978). Absent an affirmative showing in the
record that the juvenile was served with citation, the juvenile court is without
jurisdiction to transfer the case to district court. Matter of W.L.C., 562
S.W.2d 454, 454 (Tex.1978).
At the hearing on the waiver of jurisdiction, appellant did not object to the
proceeding, but did question the law enforcement officer responsible for serving
citation on appellant. Subsequent to that hearing, the juvenile court entered a
waiver of jurisdiction which was filed in the record. In that order, the trial
court found that appellant was duly and properly served by a suitable person
under the direction of the court. At the hearing and the guilt-innocence phase
of trial, the officer who effected service testified that he did not personally
serve the summons and petition on the appellant. Instead, the officer testified,
service was made upon defense counsel's secretary. Based on these facts, the
issue presented in the case at bar is whether the service of the petition and
summons to appellant's attorney's secretary fulfilled the requirements of
service of process under the juvenile code.
The El Paso court of appeals was faced with a similar issue in the case of In
the Matter of M.W., 523 S.W.2d 513 (Tex.Civ.App.--El Paso 1975, no writ).
Citation issued to M.W. and his parents, but citation was served on M.W.'s
attorney. Appellant's attorney filed an answer in the case and even appeared at
the hearing for discretionary transfer to a criminal court. On review, the
appellate court was faced with the issue of jurisdiction. The court reasoned
that section 53.06 expressly necessitated the service of process upon the minor.
Id. at 516. In its analysis, the court relied on this court's opinion in
Casanova v. State, 489 S.W.2d 727 (Tex.Civ.App.--San Antonio 1972) reversed on
other grounds, 494 S.W.2d 812 (Tex.1973). In Casanova, this court held that
service of process upon a juvenile is necessary in a proceeding to declare a
child delinquent. Id. at 728-29; see also Johnson v. State, 551 S.W.2d 379, 381
(Tex.Crim.App.1977); see In re Gault, 387 U.S. 1, 33 (1967) (stating that due
process of law requires notice which would be deemed constitutionally adequate
in a civil or criminal proceeding).
As a juvenile, Alaniz did not have the capacity to waive service of process. See
Tex. Fam.Code Ann. §§ 53.06(e), 53.07 (Vernon 1997); In the Matter of D.W.M.,562
S.W.2d at 852; In the Matter of W.L.C., 562 S.W.2d at 455. Therefore, the
failure to object to the lack of personal service at the hearing on the waiver
of jurisdiction did not constitute waiver. See In the Matter of D.W.M., 562
S.W.2d at 853; Casanova, 489 S.W.2d at 729. In addition, under the Texas Family
Code, service on the juvenile's attorney was also ineffective. See In the Matter
of A.B., 938 S.W.2d 537, 539 (Tex.App.--Texarkana 1997, writ denied) (reversing
and remanding for new trial where juvenile's attorney was served with petition
only); In the Matter of M.W., 523 S.W.2d at 514. Simply, there is no affirmative
evidence in the record to indicate that Alaniz was served. [FN1] Based on Texas
statutory law and case law, as applied to the facts in this case, we find that
Alaniz was not properly served, and therefore the jurisdiction of the juvenile
court was not invoked.
FN1. The State argues that a certified copy of the summons was served on the
juvenile. It argues that this summons, coupled with the juvenile court's finding
that appellant was properly served placed the burden on appellant to show
invalid service. The State cites Polanco v. State, 914 S.W.2d 269 (Tex.App.--Beaumont
1996, pet. ref'd ) and Sauve v. State, 638 S.W.2d 608 (Tex.App.--Dallas 1982,
pet. ref'd) in support of this proposition. We do not agree that these two cases
are applicable to the case at hand because they are factually distinguishable.
In Polanco, appellant argued that service of citation was fatally defective
because the summons failed to state the purpose of the hearing, and the State
failed to serve him with a petition. Polanco, 914 S.W.2d at 270. In Sauve, the
appellant challenged the service of citation on the basis that the court failed
to make a finding that a probation officer was a suitable person to serve
process. Sauve, 638 S.W.2d at 609. There, appellant conceded the undisputed fact
that he had been served. There is nothing in the summons in the present case to
suggest that the child was served. See id. In the present case, appellant
asserts he was never personally served, nor is there evidence that he was.
Notwithstanding these cases, appellant has met the burden of showing invalid
service based on the testimony of the officer who served process.
In short, non-compliance with § 54.02 of the Texas Family Code deprived the
juvenile court of jurisdiction; thus, the district court never acquired
jurisdiction. We sustain appellant's first issue, and therefore we do not reach
the other issues raised on appeal. The juvenile court retains jurisdiction over
Alaniz regardless of his present age. See Tex. Fam.Code Ann. § 54.041 (Vernon
1996) [FN2]; In re D.W.R., 990 S.W.2d 446, 448 (Tex.App.--San Antonio 1999, no
pet.) (citing § 54.041 as asserting that the juvenile court retains
jurisdiction where the underlying conduct engaged occurred when appellant was a
child within the meaning of the juvenile code). We remand this case to the
juvenile court for action consistent with this opinion.
FN2. Section 54.041 provides that the "court retains jurisdiction over a
person, without regard to the age of the person, for conduct engaged in by the
person before becoming 17 years of age if, as a result of an appeal by the
person under Chapter 56 of an order of the court, the order is reversed or
modified and the case remanded to the court by the appellate court."