By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Abuse of discretion, not legal and factual
sufficiency, is the standard of review in modification of disposition
proceedings (99-4-22)
On October 28, 1999, the Dallas Court of Appeals held that the standard of
review of a juvenile court decision revoking probation is abuse of discretion.
It found no abuse of discretion in this case.
99-4-22. In the Matter of Q.B.B., ___ S.W.3d ___, No. 05-98-01830-CV, 1999 WL
977741, 1999 Tex.App.Lexis ___ (Tex.App.—Dallas 10/28/99)[Texas Juvenile Law
218 (4th Edition 1996)].
Facts: Q.B.B. appeals the trial court's order modifying disposition and
committing Q.B.B. to the Texas Youth Commission (TYC). In four issues, Q.B.B.
argues that modification should be reviewed for legal and factual sufficiency of
the evidence, and, under that standard of review, the evidence is legally and
factually insufficient to support the trial court's disposition. We hold that
the proper standard of review is abuse of discretion, and based on that
standard, we affirm the trial court's order modifying disposition.
In 1996, after the trial court adjudicated him a delinquent for committing three
sexual assault offenses, Q.B.B. was placed on intensive supervision probation,
first with his mother and then with his father. Later that year, following a
subsequent delinquency adjudication for unlawfully carrying a weapon, Q.B.B. was
placed on probation for twenty-four months in the custody of the Dallas County
Juvenile Department for placement at the Pegasus School. Among its terms and
conditions of probation, the court ordered Q.B.B. to remain at Pegasus until
satisfactorily released or discharged by Pegasus.
In 1998, Q.B.B. was discharged from Pegasus without successfully completing the
program. The State subsequently filed a motion to modify disposition, alleging
that Q.B.B. violated the conditions of probation by "engaging in conduct
which caused him to be discharged unsatisfactorily from his court [-]ordered
placement." Following a hearing, the court found Q.B.B. violated the
condition of probation as alleged, sustained the State's motion, and committed
him to TYC.
Held: Affirmed.
Opinion Text: In his first two issues, Q.B.B. urges this Court to adopt a legal
and factual sufficiency standard of review for this case. In his third and
fourth issues, Q.B.B. challenges the legal and factual sufficiency of the
evidence supporting the trial court's order committing him to TYC. We first
consider Q.B.B.'s issues regarding the standard of review.
This Court looks to the statute's wording in determining the standard of review.
See J.R.W. v. State, 879 S.W.2d 254, 257 (Tex.App.-Dallas 1994, no writ).
Section 54.05 of the family code gives the trial court the authority to modify
the disposition of a juvenile adjudication and describes the trial court's power
to modify, stating that a disposition "may be modified." Tex. Fam.Code
Ann. § 54.05(a) & (f) (Vernon 1996) (emphasis added). May is a permissive
word, and when a statute uses it, we interpret the statute as permissive and
employ an abuse of discretion standard of review, unless there is legislative
intent otherwise. See J.R.W., 879 S.W.2d at 257. Nothing in section 54.05 shows
a legislative intent that may is mandatory. The trial court is not required to
modify disposition by this language. For similar juvenile disposition statutes
this Court and others have used the abuse of discretion standard of review. See
In the Matter of T.A.F., 977 S.W.2d 386, 387 (Tex.App.-San Antonio 1998, no
pet.) (applying abuse of discretion standard to original disposition); In the
Matter of K.B.H., 913 S.W.2d 684, 687-88 (Tex.App.-Texarkana 1995, no writ)
(applying abuse of discretion standard to certifying child to be tried as an
adult); J.R.W., 879 S.W.2d at 257 (applying abuse of discretion standard to
determinate sentencing). Accordingly, we overrule Q.B.B.'s first two issues and
review the trial court's modification of a juvenile disposition for an abuse of
discretion. See In re H.G, 993 S.W.2d 211, 213 (Tex.App.-San Antonio 1999, no
pet. h.); In the Matter of K.L.C., 972 S.W.2d 203, 207 (Tex.App.-Beaumont 1998,
no pet.) (Walker, C.J., dissenting); In the Matter of Rodriguez, 687 S.W.2d 421,
422-23 (Tex.App.-Houston [14 th Dist.] 1985, no writ); In the Matter of J.L.,
664 S.W.2d 119, 120 (Tex.App.-Corpus Christi 1983, no writ).
The trial court abuses its discretion when it acts arbitrarily or unreasonably,
or without reference to guiding rules and principles. See In re T.A.F., 977
S.W.2d at 387. Under the abuse of discretion standard, legal and factual
sufficiency are not independent grounds for asserting error but are relevant
factors for assessing whether the trial court abused its discretion. See In the
Interest of A.D.H., 979 S.W.2d 445, 446 (Tex.App.-Beaumont 1998, no pet.). A
court may modify a disposition based on a finding that a juvenile engaged in
delinquent conduct so as 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). When a juvenile challenges the court's
modification order, the reviewing court's "sole inquiry is whether the
evidence was sufficient to support the trial court's finding that [the juvenile]
violated a reasonable and lawful order of the court." In re H.G., 933
S.W.2d at 214. The evidence is sufficient if some evidence in the record
supports the trial court's finding. See In the Matter of T.D.H., 971 S.W.2d 606,
610 (Tex.App.-Dallas 1998, no pet.).
Having determined the standard of review, we turn to Q.B.B.'s arguments
regarding the evidence supporting modification of the disposition. In light of
the above discussion, we consider whether some evidence supports the trial
court's finding that Q.B.B. violated the trial court condition of probation by
engaging in conduct which caused him to be discharged unsatisfactorily from
court-ordered placement at Pegasus.
At the hearing on the motion to modify, John Morris, clinical director at
Pegasus, testified about the reasons for Q.B.B.'s failure to successfully
complete the Pegasus program. According to Morris, Q.B.B. did not take full
responsibility for his offenses and participated minimally in treatment groups.
Q.B.B. engaged in "horse-play" which Morris considered high risk
behavior for sex offenders. In addition, Morris described Pegasus' rules
"contract" and testified Q.B.B., in violation of Pegasus' rules, used
profanity towards a staff member, stole the answers to a test and cheated, had
pictures and a phone list of staff members in his room, and assaulted a peer.
Morris testified Q.B.B. failed a "thinking errors test" because he was
not "vested" in passing the test. The failure prevented Q.B.B. from
progressing to another phase of the program. According to Morris, Q.B.B. was
discharged from Pegasus because he "was not doing what he needed to
do"; he resisted assignments; he continued to lie to his groups about the
sexual assaults after admitting them; he did not complete assigned paperwork or
follow directions; and, he did not memorize information that all participants
were required to memorize. According to Morris, Q.B.B. was discharged because he
did not follow Pegasus' rules and directions and "had plenty of time to do
what he needed to do in our program." Morris recommended commitment to TYC
because Q.B.B. was "at a high risk to reoffend sexually" and should
not be released "into a less supervised structure."
After reviewing the above testimony as well as all the evidence in the record,
we conclude that some evidence supports the trial court's finding that Q.B.B.
violated the court's order by engaging in conduct which caused him to be
discharged unsatisfactorily from court-ordered placement at Pegasus.
Q.B.B., however, argues that it is improper to commit him to TYC because the
violations were slight and were due to circumstances beyond his control. Q.B.B.
claims that his situation is like In re D.E.P., 512 S.W.2d 789 (Tex.Civ.App.-Houston
[14 th Dist.] 1974, no writ). D.E.P. involved a violation of probation for not
attending school. Because of the residency of his parents and uncle, D.E.P. was
not eligible to attend the school that the court had ordered. See id. at 791-92.
The D.E.P. court held the trial court's order was unreasonable because the
juvenile could not comply with the order due to circumstances beyond his
control. See id. at 792. Here, Q.B.B. claims that his failure was due to lack of
parental support, as supported by the testimony of Jamaal Rasheed, his aftercare
probation officer, who testified to minimal participation by Q.B.B.'s parents in
his treatment. Any lack of parental support, however, is not the "lack of
control" situation that the court faced in In re D.E.P. Unlike D.E.P.,
nothing shows the trial court's probation condition was unreasonable because
Q.B.B. could not comply with it due to a legal impediment. The lack of parental
involvement did not prevent Q.B.B.'s compliance with the program. All the
behavior that caused Q.B.B.'s failure in the program was within his control.
Additionally, the directions and rules that Morris testified Q.B.B. did not
follow, were not shown to be arbitrary, nor were the violations of those
directions and rules merely technical. While Q.B.B. contends that his failure at
Pegasus was a subjective staff determination that he was not responding to
treatment rather than because of "any overt misconduct" or willful
refusal to participate, the violations were enumerated and directly dealt with
the purposes of the placement, the prevention of the risk of further sex
offenses.
We conclude the evidence supports the trial court's finding that Q.B.B. violated
a probation condition by engaging in conduct which caused him to be discharged
unsatisfactorily from Pegasus. Therefore, the trial court did not abuse its
discretion in modifying Q.B.B.'s disposition and committing him to TYC. See Tex.
Fam.Code Ann. § 54.05(f) (Vernon 1996); In the Matter of M.A.L., 995 S.W.2d
322, 324 (Tex.App.-Waco 1999, no pet. h.). We overrule Q.B.B.'s third and fourth
issues.
Having overruled Q.B.B.'s four issues, we affirm the trial court's order
modifying disposition.