By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Restriction on TYC commitment for
revocation does not apply to a probation violation that occurred before 9/1/99;
no discretion abuse in commitment (00-3-06)
On June 15, 2000, the Austin Court of Appeals held that the 1999 enactment
restricting TYC commitments to cases with multiple prior misdemeanor
adjudications does not apply probation violations that occur before the
effective date of the legislation—9/1/99.
00-3-06. In the Matter of A.H., UNPUBLISHED, No. 03-00-00072-CV, 2000 WL 766267,
2000 Tex.App.Lexis ___ (Tex.App.—Austin 6/15/00)[Texas Juvenile Law 217 (4th
Edition 1996)].
Facts: The State charged that on April 16, 1997 A.H., a juvenile, committed two
offenses of class B misdemeanor criminal mischief. The district court, sitting
as a juvenile court, adjudicated A.H. to have engaged in delinquent conduct by
committing two offenses of class B misdemeanor criminal mischief. The court
ordered that A.H. be placed on probation for one year, subject to extensions not
to exceed one year each, until A.H. turns eighteen years old, unless he is
otherwise discharged. In two issues A.H. complains that the juvenile court
abused its discretion when it modified A.H.'s disposition and committed him to
the Texas Youth Commission (TYC).
After A.H. was adjudicated and placed on probation in his mother's custody, the
juvenile court amended its disposition and extended his probation on two
different occasions. The first time the juvenile court placed him outside the
home at a boot camp, and the second time, after he completed the boot camp
program, the court allowed him to return home in his mother's custody. Soon
after he returned to his mother's home, A.H. pleaded true to allegations that he
violated his probation conditions by being away from home on three nights and by
using marihuana. This time, after a hearing to modify his disposition, the court
committed A.H. to TYC.
Held: Affirmed.
Opinion Text: In his first issue, A.H. contends that under the recently amended
Texas Family Code section 54.05(f) and the newly enacted 54.05(j), the juvenile
court erred as a matter of law in committing him to TYC. See Tex.Fam.Code Ann.
§ 54.05(f), (j) (West Supp.2000).
Amended section 54.05(f) provides that a juvenile court may modify a disposition
of probation and commit a child to TYC because the child violated a
court-ordered condition of probation if the original adjudication was a felony
offense. See Tex.Fam.Code § 54.05(f). Newly enacted section 54.05(j) provides
that a juvenile court may modify a disposition of probation and commit a child
to TYC because the child violated a probation provision if the original
adjudication was a misdemeanor only if (1) the child has been adjudicated as
having committed a felony or misdemeanor on a least two previous occasions and
(2) of the previous adjudications, the conduct that was the basis for those
adjudications occurred after the date of another previous adjudication. See
Tex.Fam.Code § 54.05(j).
A.H. argues that because the juvenile court signed the modification order on
September 20, 1999, the new provisions applied and the court improperly modified
his disposition by committing him to TYC. He contends that under the new
provisions of section 54.05 as a matter of law the juvenile court could not
commit him to TYC because he had not been previously adjudicated to have
committed a felony or multiple misdemeanors on different dates.
The State responds that although sections 54.05(f) and 54.05(j) became effective
September 1, 1999, they apply only to delinquent conduct that occurs after
September 1, 1999. See Act of May 30, 1999, 76th Leg., R.S., ch.1448, § 3(b),
1999 Tex.Gen.Laws 4920, 4921; Act of May 27, 1999, 76th Leg., R.S., ch. 1477, §
39(a), 1999 Tex.Gen.Laws 5067, 5090. Conduct that occurred before September 1,
1999, is covered by the laws relating to adjudication and disposition in effect
at the time the conduct occurred, and the former law is continued in effect for
those purposes including modifications. See id.
A.H. was adjudicated for engaging in delinquent conduct that occurred in April
1997. The State alleged that he violated his court-ordered probation on August
1-3, 1999. Because the conduct for which he was adjudicated occurred before
September 1, 1999 as well as the probation violations, the former law governs
the juvenile court's modification of his disposition rather than the new
provisions. The former law in effect at the time A.H. was adjudicated provided
that a juvenile court may modify a disposition and commit a child to TYC (1) if
the original disposition was based on a finding that a child engaged in any type
of delinquent conduct, and (2) if the juvenile court finds by a preponderance of
the evidence that the child violated a court-order. See Act of May 27, 1995,
74th Leg., R.S., ch. 262, § 42, 1995 Tex.Gen.Laws 2517, 2540 (formerly
Tex.Fam.Code Ann. § 54.05(f)). The former law did not include a provision, as
the new sections 54.05(f) and 54.05(j) do, that the juvenile must have
previously committed a felony or multiple misdemeanor offenses before a
disposition may be modified to commit a child to TYC.
Because A.H. committed the offenses and violated his disposition order before
the effective dates for the newly amended section 54.05(f) and the newly enacted
section 54.05(j), we hold that these new provisions do not apply to the juvenile
court's modification of A.H.'s disposition. We overrule A.H.'s first issue.
Alternatively, in his second issue, A.H. contends that the juvenile court abused
its discretion by committing him to TYC because, based on the evidence, an
opportunity for rehabilitation existed that was less severe than sending him to
TYC. Rick Adney, A .H.'s former step-father, testified at the modification
hearing that he was willing to take responsibility for A.H. and to have A.H.
reside with him. A.H. contends that instead of committing him to TYC the
juvenile court should have modified his disposition to send him to live with
Adney.
Juvenile courts are granted broad discretion to determine a suitable disposition
for a child adjudicated delinquent. See In re J.R., 907 S.W.2d 107, 110 (Tex.App.--Austin
1995, no writ). A juvenile court abuses its discretion when it acts arbitrarily,
unreasonably or without reference to guiding rules and principles. See In re
T.A.F., 977 S.W.2d 386, 387 (Tex.App.--San Antonio 1998, no pet.).
At the modification hearing Rick Adney testified that he wanted the court to
continue A.H.'s probation and asked the juvenile court to place A.H. in his
custody. He stated that he was a strict disciplinarian and that he was willing
and able to properly supervise A.H. He explained that he worked away from the
home from 6:00 a.m. until 3:00 p.m. which would allow him to supervise A.H.
better than his mother.
A.H.'s juvenile court history shows that many reasonable efforts have been made
to allow him to live at home but that he continues to violate his probation
orders. The court's summary reflects that A.H .'s delinquent conduct referrals
began in April 1995 when he received a supervisory caution for burglary of a
coin-operated machine. In May 1995, he was placed on deferred prosecution, an
informal type of pre-adjudication home probation, for a class A assault. While
serving on deferred, he received a supervisory caution in July 1995 for a class
B misdemeanor criminal mischief offense. In July 1996, he was again placed on
deferred prosecution for criminal trespass. In August 1996, he received another
supervisory caution for another class B criminal mischief referral. Finally, in
September 1997, he was adjudicated for the offense of class B criminal mischief
and placed on court-ordered probation in his mother's custody for one year.
Before he completed the one-year probation, in August 1998 the district attorney
moved to modify his disposition because A.H. violated his probation conditions
by committing the misdemeanor offense of evading detention. Additionally, in
October 1998 a class B misdemeanor criminal mischief and class A assault were
consolidated with the State's motion to modify his disposition. Before the case
was heard, A.H. voluntarily agreed to extend his probation another year and to
participate in the Hemphill County Juvenile Boot Camp. At that time the juvenile
court specifically found that placement outside of the home was in A.H.'s best
interest and that reasonable efforts had been made to prevent the need for
removal from the child's home. On April 5, 1999, after successfully completing
the boot camp program, appellant voluntarily amended his probation to allow him
to return to his mother's home and participate in the Probation Community
Control Program which is the Tom Green County Juvenile Probation Department's
strictest form of home probation. On June 30, 1999, after probation officers
found evidence of marihuana use during a routine urinalysis, A.H. was required
to wear an electronic ankle monitor to record any unauthorized journeys from his
mother's house. On August 1, 1999, A .H. cut off the ankle monitor and left the
county.
The juvenile court has been supervising A.H. since 1995. Although the juvenile
court once placed A.H. outside the home at a boot camp, the court has attempted
several times to allow A.H. to remain in the community. A.H. had been placed on
deferred prosecution, regular probation, and electronic monitoring. Each time
A.H. violated the conditions of his probation. Given A.H.'s history of failing
to comply with his probation conditions, we hold that the trial court did not
act arbitrarily or unreasonably in modifying A.H.'s disposition to commit him to
TYC. While less severe measures than committing A.H. to TYC were once again
available to the juvenile court, we conclude that A.H. has not shown that the
juvenile court abused its discretion in modifying his disposition to send him to
TYC. We overrule A.H.'s second issue.
We affirm the juvenile court's modification of A.H.'s disposition.