By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Juvenile court has no duty to admonish as to
possible deportation consequences of an adjudication of delinquency (99-4-21)
On October 28, 1999, the El Paso Court of Appeals held that a juvenile court
judge has no duty to admonish a juvenile as to the deportation consequences of a
juvenile adjudication. And on the facts of this case, the juvenile failed to
show that her plea and stipulation were involuntary as a result of
misunderstanding the immigration consquences of her plea.
99-4-21. In the Matter of E.J.G.P., ___ S.W.2d ___, No. 08-98-00245-CV, 1999 WL
977847, 1999 Tex.App.Lexis ___ (Tex.App.—El Paso 10/28/99)[Texas Juvenile Law
160 (4th Edition 1996)].
Facts: E.J.G.P. appeals the juvenile court's disposition order, finding that she
had engaged in delinquent conduct. The court placed E.J.G.P. on electronic
monitor probation and ordered her to perform 200 hours of community service.
At the adjudication hearing on June 3, 1998, E.J.G.P. stipulated
"true" to the offense of possession of marijuana fifty pounds or less,
but more than five pounds. Prior to her stipulation, the juvenile court referee
explained to E.J.G.P. her right to remain silent, her right to be represented by
an attorney, her right to confront and cross-examine witnesses, her right to ten
days notice of the State's amended petition, her right to present evidence, her
right to testify, and her right to a trial by jury. Additionally, the juvenile
court informed E.J.G.P. of the possibility that the trial record in this cause
could become admissible during the penalty phase of a subsequent criminal
proceeding, and that, if adjudicated delinquent, she could face sanctions
ranging anywhere from probation to commitment to the Texas Youth Commission
until her twenty-first birthday. During the adjudication hearing, E.J.G.P.
testified that she knowingly and voluntarily signed a Waiver, Stipulation, and
Admission, which was admitted into evidence. The court accepted E.J.G.P.'s plea
of true and found that she had engaged in delinquent conduct.
At E.J.G.P.'s disposition hearing on June 26, 1998, the same referee advised her
of her right to remain silent, her right to be represented by a lawyer, her
right to confront and cross-examine witnesses, her right to present evidence,
and her right to testify. E.J.G.P. then raised two oral motions, both of which
the court denied: (1) a motion for continuance so as to determine E.J.G.P.'s
citizenship; and (2) a motion to withdraw her plea of true because she was
misinformed by her counsel of possible immigration consequences. Defense counsel
stated that regardless of the disposition decided at the hearing, immigration
officials would be arresting E.J.G.P. at the conclusion of the disposition
hearing, with the intention of deporting her. In denying E.J.G.P.'s motions, the
juvenile referee found that he had complied with the admonishments required by
the Texas Family Code.
E.J.G.P.'s two oral motions at the disposition hearing form the basis of this
appeal. Specifically, E.J.G.P. contends that her plea of true was not
voluntarily given because: (1) the juvenile court did not admonish her of
possible deportation consequences in accordance with Article 26.13 of the Texas
Code of Criminal Procedure; and (2) her plea of true was based on erroneous
information from her counsel that she would face no immigration consequences.
Held: Affirmed.
Opinion Text: Deportation a Collateral Consequence
Section 54.03 of the Texas Family Code provides as follows:
§ 54.03. Adjudication Hearing
(a) A child may be found to have engaged in delinquent conduct or conduct
indicating a need for supervision only after an adjudication hearing conducted
in accordance with the provisions of this section.
(b) At the beginning of the adjudication hearing, the juvenile court judge shall
explain to the child and his parent, guardian, or guardian ad litem:
(1) the allegations made against the child;
(2) the nature and possible consequences of the proceedings, including the law
relating to the admissibility of the record of a juvenile court adjudication in
a criminal proceeding;
(3) the child's privilege against self-incrimination;
(4) the child's right to trial and to confrontation of witnesses;
(5) the child's right to representation by an attorney if he is not already
represented; and
(6) the child's right to trial by jury.
Admonishments to juveniles under Section 54.03 of the Texas Family Code are
given to ensure that juveniles understand the nature of the proceedings and the
rights they possess. Giving admonitions pursuant to Section 54.03 to the
juvenile prior to receiving a plea is mandatory, and the failure to admonish the
juvenile in accordance with Section 54.03(b) is fundamental error.
In her first subpoint on appeal, E.J.G.P. argues that although the statute does
not expressly mandate that the trial court admonish the juvenile defendant about
immigration consequences, Section 54.03(b)(2), which addresses the
"possible consequences of
the proceedings," requires such an admonishment. E.J.G.P. notes that after
the adjudication hearing and before the disposition hearing, the referee had
access to the Probation Department's Pre-Disposition Report. Because that report
noted that the juvenile was a resident alien, E.J.G.P. contends that the referee
should have known that by pleading true to the petition, she risked deportation.
To begin, we are not presented with authority, nor could we find any, that holds
that in a juvenile case, possible deportation falls within the ambit of the
"nature and possible consequences of the proceedings" language in
Section 54.03(b)(2), thereby rendering deportation a mandatory admonishment in a
juvenile proceeding. Finding no case law directly on point, we must analogize
from the law in other areas. Naturally enough, the law in this area is most
developed in the criminal law.
The first question we must decide is whether the possibility of deportation, or
other immigration consequence, is a direct or collateral consequence of a plea
of true in a juvenile proceeding under Texas state law. A consequence is
"direct" if it is definite, immediate, and largely automatic. [FN7] A
consequence is "collateral," on the other hand, if it lies within the
discretion of the court whether to impose it, or its imposition is controlled by
an agency which operates beyond the direct authority of the trial judge. [FN8]
In State v. Jimenez, [FN9] the Texas Court of Criminal Appeals reversed this
court's opinion [FN10] holding that deportation is a collateral consequence,
that a deportation admonishment is not constitutionally required, and that,
unlike the Article 26.13 admonishment requirements that apply to felonies, the
Legislature chose not to require admonishments for persons charged with
misdemeanors. Several federal and state jurisdictions have also addressed the
deportation subject and determined that deportation is a collateral consequence,
not a direct one. It is well settled that before pleading, a defendant need not
be advised of all collateral consequences of his plea. We therefore conclude
that immigration consequences to a juvenile adjudication are a collateral
consequence because they involve civil proceedings administered by an
independent agency over which the trial judge has no control.
In a criminal proceeding, if the admonishment addresses a direct consequence of
entering a guilty plea, and the trial court failed to administer the
admonishment, the guilty plea is involuntary. If the admonishment addresses a
collateral consequence of entering a guilty plea, however, and the trial court
has otherwise substantially complied with Article 26.13, then the State has
satisfied its burden of establishing a prima facie showing that the plea was
knowing and voluntary. The burden then shifts to the defendant, who must show
that he or she did not otherwise understand the consequences of entering the
guilty plea and suffered subsequent harm. We believe this method of reviewing
the question is sound, and we will apply it to the juvenile proceeding on appeal
here.
Here, even accepting E.J.G.P.'s argument that immigration consequences do fall
under the "possible consequences of the proceedings," we find that the
juvenile court substantially complied with the admonitions required by the
Family Code, and therefore the State met its burden in establishing a prima
facie showing that E.J.G.P.'s plea of true was knowing and voluntary. The burden
then shifted to E.J.G.P. to show that she did not understand the consequences of
entering her plea and that she was harmed. [FN18] This record, however, contains
no evidence that E.J.G.P. was unaware of the consequences of her plea or that
she was harmed by the court's failure to admonish her on that topic. [FN19]
Based on our review of the record, E.J.G.P. has shown neither a lack of
awareness of the consequences of her plea nor that she was misled or harmed by
the court's admonishment.
This subpoint is overruled.
Voluntariness
In her second subpoint, E.J.G.P. asserts that the juvenile court erred in not
withdrawing her plea of true because her plea was based on misinformation from
her attorney that she would face no deportation consequences by pleading true.
E.J.G.P. contends that this misinformation rendered her plea involuntary. The
trial court may allow withdrawal of a plea within its sound discretion. The
appropriate standard of review by this court, therefore is abuse of discretion.
In asserting this issue, E.J.G.P. relies on this court's opinion in In re R.S.C.
[FN 21] There, after the juvenile court denied R.S.C.'s suppression motion,
R.S.C. stipulated true to unlawful carrying of a weapon. R.S.C. waived various
rights (but not the right to appeal the suppression ruling) and stipulated that
he had intentionally and knowingly carried an illegal knife. R.S.C.'s counsel
also stated "no objection" to the introduction of a social history
that reflected that R.S.C. had possessed a dagger. Based on this, the trial
court found R.S.C. had engaged in delinquent conduct. On appeal, R.S.C. asserted
that the trial court erred in denying his motion to suppress and this court
found that the stipulation to the very evidence sought to be suppressed would
normally waive the issue. This court further held, however, that R.S.C.'s waiver
of rights and stipulation of evidence rendered his plea of true involuntary
because "R.S.C., with the advice of his attorney, waived valuable
constitutional rights and entered into the stipulation with the express
understanding and assurance of the trial court that he could appeal the ruling
on the motion to suppress." The court noted that this holding is consistent
with the rule applied to non-negotiated guilty pleas in criminal cases. There,
if an open plea is entered on the mistaken understanding that the merits of a
pretrial motion may be raised on appeal, the plea is not knowingly and
voluntarily entered.
We find the present case distinguishable. Unlike the Fourth Amendment rights at
issue in R.S.C., an admonishment regarding the possibility of deportation is not
of constitutional dimension. Also unlike R.S.C., E.J.G.P. presents neither
evidence of how counsel misinformed her, nor of how she relied on any
misinformation in making her plea. [FN29] Rather, the record shows that E.J.G.P.
was fully advised of the direct consequences of her plea in accordance with
Texas Family Code Section 54.03.
A plea of true to allegations of delinquent conduct, like a guilty plea, must be
knowing and voluntary, but this rule is not limitless, especially as it concerns
collateral consequences. The rule that a valid plea must be intelligently made
does not require that a plea be vulnerable to later attack if the defendant did
not correctly assess every relevant factor entering into the decision. If a
defendant is fully advised of the direct consequences of her plea, her ignorance
of a collateral consequence does not render the plea involuntary.
Here, E.J.G.P. was fully advised of the direct consequences of her plea, thus
her ignorance of a collateral consequence, such as possible deportation, did not
render her plea involuntary. The trial court did not abuse its discretion in
refusing to withdraw E.J.G.P.'s plea of true. E.J.G.P.'s second subpoint is
overruled.
FOOTNOTES
FN7. State v. Jimenez, 987 S.W.2d 886, 888 n. 5 (Tex.Crim.App.1999).
FN8. Id. n. 6.
FN9. 987 S.W.2d 886 (Tex.Crim.App.1999).
FN10. State v. Jimenez, 957 S.W.2d 596, 598 (Tex.App.--El Paso 1997) (comparing
and contrasting misdemeanor and felony defendants and holding that misdemeanor
defendant has federal due process rights and Texas due course of law rights to
be admonished about immigration consequences of her guilty plea separate and
apart from admonishments required under Article 26.13 for felony cases), rev'd,
987 S.W.2d 886 (Tex.Crim.App.1999). We note that E.J.G.P. relies upon our
opinion in Jimenez, which is no longer good law, without citation to the higher
court's reversal.
FN18. See [Guzman v. State, 993 S.W.2d 232 (Tex.App.--San Antonio 1999]; see
also Carranza v. State, 980 S.W.2d 653, 658 (Tex.Crim.App.1998) (employing harm
analysis in case involving adult citizen of Mexico who possessed expired green
card and who was not admonished about deportation consequences and finding that
Carranza met his burden of showing "no more" than that he was not
aware of consequences of his plea and that he was misled or harmed by court's
admonishment when he affirmatively showed that he was harmed because "
'significant differences exist between an alien who does not possess valid
immigration documents and an alien who has been convicted of a criminal offense'
").
FN19. The only mention of possible harm in the record is her counsel's
representations to the court that immigration officials were on the verge of
arresting and deporting E.J.G.P. There was no testimony or evidence presented to
support defense counsel's motion, which was as follows:
DEFENSE COUNSEL: ... I have two motions, basically, that I--oral motions that I
would like to bring to the attention of the Court.
The first motion is a motion for continuance. Basically, the grounds for the
motion for continuance [is] that, as of today, the nationality--the citizenship
of this juvenile hasn't been determined. The father is a U.S. citizen, and we
believe that there is sufficient grounds to believe that the juvenile is also a
U.S. citizen.
If--without that determination, whatever disposition that this Department makes
in this case, it won't have any effect in the terms that Immigration, who has
been calling this Department, will be here today and, after this hearing,
without knowing the citizenship of the juvenile, will arrest the juvenile, will
take her through immigration proceedings and deportation. And whatever decision
this Department makes in this case will have no effect on the juvenile. And, so,
it won't be able--the Department won't be able to implement any disposition.
FN21. 940 S.W.2d 750 (Tex.App.--El Paso 1997, no pet.).
FN29. We note, moreover, that it is far from clear that E.J.G.P.'s plea of true
would render her deportable, in any event. The federal statute defining a
deportable alien includes "any alien who at any time after admission has
been convicted of a violation of (or a conspiracy or attempt to violate) any law
or regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in Section 802 of Title 21), other than a
single offense involving possession for one's own use of 30 grams or less of
marijuana...." (Emphasis added). 8 U.S.C.A. § 1227(a)(2)(B)(i) (1999).
Adjudications are not convictions. See Tex. Fam.Code Ann. § 51.13(a) (Vernon
1996) (providing that "an order of adjudication or disposition in a
proceeding under this title is not a conviction of crime"). Because this
statute addresses convictions and not adjudications, it is certainly arguable
that this statute does not apply to juvenile defendants.