By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Lack of evidence of service of summons on
juvenile requires vacating adjudication and TYC commitment [In re B.R.S.]
(00-3-33)
On August 31, 2000, the Austin Court of Appeals held that the record failed
to show that a summons had been served on the juvenile. Therefore, the Court of
Appeals concluded the juvenile court lacked jurisdiction to proceed in the case.
Accordingly, it vacated the adjudication and TYC commitment and remanded the
case to the juvenile court.
00-3-33. In the Matter of B.R.S., UNPUBLISHED, No. 03-00-00076-Cv, 2000 WL
1228005, 2000 Tex.App.Lexis ___ (Tex.App.-Austin 8/31/00)[Texas Juvenile Law 120
(4th Edition 1996)].
Facts: After a jury trial, B.R.S. was found to have engaged in delinquent
conduct and committed to the Texas Youth Commission for a determinate forty-year
term. B.R.S. brings two points of error on appeal. In his first point, he
contends that the district court, sitting as a juvenile court, lacked
jurisdiction because a summons and petition was not served on him. In his second
point, B.R.S. contends that the jury charge should have included an instruction
on a lesser-included offense. Because we hold that the juvenile court lacked
jurisdiction, we will vacate the trial court judgment.
Held: Vacated and remanded.
Opinion Text: The juvenile court must direct issuance of a summons and the
petition, accompanied by the summons, must be personally served upon the child
named in the petition. See Tex. Fam.Code Ann. §§ 53.06(a)(1), (b) (West 1996);
In re D.W.M., 562 S.W.2d 851, 853 (Tex.1978); In re W.L.C., 562 S.W.2d 454, 455
(Tex.1978); Alaniz v. State, 2 S.W.3d 451, 452 (Tex.App.--San Antonio 1999, no
pet.); Light v. State, 993 S.W.2d 740, 745-46 (Tex.App.-- Austin 1999); [FN1] In
re K.P.S., 840 S.W.2d 706, 708 (Tex.App.--Corpus Christi 1992, no writ). Unless
a summons and citation is served on the child, the juvenile court does not
acquire jurisdiction. See Watson v. State, 587 S.W.2d 161, 162
(Tex.Crim.App.1979); Grayless v. State, 567 S.W.2d 216, 219 (Tex.Crim.App.1978);
D.W.M., 562 S.W.2d at 853; W.L.C., 562 S.W.2d at 455; Alaniz, 2 S.W.3d at 453;
Light, 993 S.W.2d at 746; McBride v. State, 655 S.W.2d 280, 283 (Tex.App.--Houston
[14th Dist.] 1983, no writ). The personal service of process on the juvenile
must affirmatively appear of record. See D.W.M., 562 S.W.2d at 851; W.L.C., 562
S.W.2d at 455; Alaniz, 2 S.W.3d at 453.
FN1. Light v. State, 993 S.W.2d 740, 745-46 (Tex.App.--Austin 1999), vacated and remanded on other grounds, 15 S.W.3d 104, 108 (Tex.Crim.App.2000), appeal dism'd after remand, No. 03-91-387-CR (Tex.App.--Austin June 29, 2000, no pet. h.) (not designated for publication).
A party, other than the child, may waive service
of summons by written stipulation or by voluntary appearance at the hearing. See
Tex. Fam.Code Ann. § 53.06(e); D.W.M., 562 S.W.2d at 853. The "other than
the child" language in section 53.06(e) reflects the common-law rule that a
minor is without legal capacity under the law to waive service of summons. See
D.W.M., 562 S.W.2d at 853. Nor may anyone waive service on the child's behalf.
See id. An answer filed by the child's attorney cannot waive service. See Light,
993 S.W.2d at 746; In re H.R.A., 790 S.W.2d 102, 107 (Tex.App.--Beaumont 1990,
no writ). The child's appearance at the hearing and the failure to object to the
lack of a proper summons does not constitute a waiver. See Grayless, 567 S.W.2d
at 219-20; Light, 993 S.W.2d at 746; Deleon v. State, 728 S.W.2d 935, 939 (Tex.
App--Amarillo 1987, no pet.).
In this case, a review of the record fails affirmatively to show service of the
summons and petition on B.R.S. The record does not contain a copy of a summons
directed to any party specified by the Family Code. Nor does the record contain
a return of service. See Tex. Fam.Code Ann. § 53.06 (West 1996). At the
adjudication hearing, the judge asked B.R.S. whether he had received the
petition and amended petition. The juvenile responded that he had never received
any such documents. Because we can find no evidence in the record of service of
a summons and the petition, we conclude that the juvenile court never acquired
jurisdiction and sustain appellant's first point of error. Because of our
disposition of this point, we need not address appellant's second point.
We vacate the juvenile court judgment and remand for further proceedings.
Vacated and Remanded