By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Cannot revoke probation based on motion
filed after probation has expired; motion filed during probation not served on
respondent [In re J.A.D.] (00-4-09)
On October 4, 2000, the Waco Court of Appeals reversed revocation of
juvenile probation because it was based on a motion to modify that had been
filed after probation had expired. A motion had been filed before probation
expired, but it had not been served on the respondent.
00-4-09. In the Matter of J.A.D., ___ S.W.3d ___, No. 10-99-268-CV, 2000 WL
1474092, 2000 Tex.App.Lexis 6713 (Tex.App.—Waco 10/4/00)[Texas Juvenile Law
(5th Edition 2000)].
Facts: The court below sitting as a juvenile court found that Appellant J.A.D.
had engaged in delinquent conduct by committing the offense of arson and placed
J.A.D. on probation for one year. See TEX. FAM. CODE ANN. § 54.03(f) (Vernon
Supp. 2000); TEX. PEN. CODE ANN. § 28.02(a)(2)(A) (Vernon Supp. 2000). The
State filed a motion to modify this disposition shortly before the expiration of
the probationary term and later amended the motion to modify after the term had
expired. The court heard the amended motion, modified the disposition, and
committed J.A.D. to the Texas Youth Commission without a determinate sentence.
J.A.D. claims in a single issue that the court erred by proceeding on the
amended motion to modify because it was filed after his probationary term
expired.
The court originally placed J.A.D. on probation on August 4, 1998. The State
filed a motion to modify this disposition on August 3, 1999, one day before the
probationary term expired. The motion to modify was set for hearing on August 9.
The State filed a first amended motion to modify on August 5 and a motion for
continuance on August 9. At the August 9 hearing, the court denied the State's
motion for continuance because the State failed to exercise due diligence in
securing the attendance of the witnesses on whose absence the State premised the
need for a continuance.
J.A.D. argued that the State's first amended motion to modify was untimely
because it had been filed less than seven days before trial without leave of
court. The court agreed, struck the amended motion, and directed the State to
proceed on the original motion. The court then determined, however, that J.A.D.
had never been personally served with a copy of the original motion to modify.
Accordingly, the court postponed the matter for sixteen days.
The State filed a second amended motion to modify on August 11. J.A.D. filed a
motion to dismiss this motion because it was filed after the expiration of his
probationary term. At the beginning of the August 25 hearing, the court heard
J.A.D. 's motion. The court denied the motion because it considered the amended
motion to relate back to the time the original motion was filed under the Rules
of Civil Procedure and because J.A.D. did not claim that he had insufficient
time to prepare his defense to the amended motion.
Held: Reversed and remanded
Opinion Text: We review a court's decision to modify a juvenile disposition
under an abuse-of-discretion standard. See In re M.A.L., 995 S.W.2d 322, 324
(Tex. App.--Waco 1999, no pet.); In re Cockrell, 493 S.W.2d 620, 627 (Tex. Civ.
App.--Amarillo 1973, writ ref'd n.r.e.). According to section 54.05(a) of the
Family Code, a court may modify a juvenile disposition, other than a commitment
to the Texas Youth Commission, until the child becomes eighteen years old or
"is earlier discharged by the court or operation of law." TEX. FAM.
CODE ANN. § 54.05(a) (Vernon Supp. 2000).
The Code of Criminal Procedure contains similar provisions for the modification
or revocation of an adult criminal defendant's community supervision. See TEX.
CODE CRIM. PROC. ANN. art. 42.12, §§ 21, 22, 23 (Vernon Supp. 2000). For this
reason, appellate courts reviewing the modification of juvenile dispositions
have looked to adult revocation cases for guidance in determining the
appropriate procedures to be followed in juvenile cases. See, e.g., In re R.G.,
687 S.W.2d 774, 776-77 (Tex. App.--Amarillo 1985, no writ); Franks v. State, 498
S.W.2d 516, 518 (Tex. Civ. App.--Texarkana 1973, no writ); see also In re Gault,
387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); In re D.I.B., 988 S.W.2d
753 (Tex. 1999).
In R.G., the Amarillo Court of Appeals applied precedent from the Court of
Criminal Appeals to determine whether a juvenile court can hear a motion to
modify after the expiration of the probationary term. The Court held:
When a petition to modify disposition is filed within the probationary term for an alleged violation of the terms and conditions of probation which occurred within the probationary period, and the court proceeds to orderly disposition of that petition within a reasonable time with full regard for the procedural and substantive rights of the child, the court has authority to modify the prior disposition order even though the modification occurs after the termination date specified by the prior order.
R.G., 687 S.W.2d at 777. The Court relied on Bobo
v. State, 479 S.W.2d 947 (Tex. Crim. App. 1972), to reach this conclusion. See
R.G., 687 S.W.2d at 776 (citing Bobo v. State, 479 S.W.2d 947, 949 (Tex. Crim.
App. 1972)).
The Court of Criminal Appeals first enunciated the rule applied in Bobo in the
case of Ex parte Fennell. See Bobo, 479 S.W.2d at 949 (citing Ex parte Fennell,
162 Tex. Crim. 286, 288, 284 S.W.2d 727, 728-29 (1955)). In Fennell, the Court
established the principle that a hearing on a timely-filed revocation motion may
be conducted after the expiration of the probationary term if the hearing is not
"unduly delayed." Fennell, 162 Tex. Crim. at 288, 284 S.W.2d at 728-29
(quoting State ex rel. Lee v. Coker, 80 So. 2d 462, 463 (Fla. 1955)). This
principle has come to be known as the "due diligence" requirement. See
Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). Thus, the State
must use "due diligence in executing the capias that results from the
motion to revoke," and the trial court must use "due diligence in
hearing and determining the allegations in the revocation motion." Id.
In these due diligence cases, the Court of Criminal Appeals has also determined
that the State may not amend a timely-filed revocation motion after the
probationary term has expired. See Guillot v. State, 543 S.W.2d 650, 653 (Tex.
Crim. App. 1976); accord Holtzman v. State, 866 S.W.2d 728, 729 n.2 (Tex.
App.--Houston [14th Dist.] 1993, pet. ref'd); Crockett v. State, 840 S.W.2d 160,
162 (Tex. App.--Houston [1st Dist.] 1992, no pet.); Chreene v. State, 691 S.W.2d
748, 750 (Tex. App.--Texarkana 1985, pet. ref'd). The Court described an amended
revocation motion filed after the expiration of the probationary term as "a
nullity." Guillot, 543 S.W.2d at 653. The appellate courts in the more
recent decisions cited above referred to such pleadings as "void." See
Holtzman, 866 S.W.2d at 729 n.2; Crockett, 840 S.W.2d at 162; Chreene, 691
S.W.2d at 750.
In Guillot, the State timely filed a revocation motion alleging in part that the
defendant had violated the conditions of his probation by being in possession of
cocaine. Guillot, 543 S.W.2d at 651. The State filed an amended motion after the
probationary term had expired, altering the allegation to allege possession of
heroin. Guillot, 543 S.W.2d at 651-52. The Court held that the trial court could
revoke only upon proof of one of the violations alleged in the timely-filed
motion. Guillot, 543 S.W.2d at 653. Because the defendant pled true to one of
the allegations contained in the original revocation motion, the Court affirmed
the judgment. Id.; accord Chreene, 691 S.W.2d at 750.
In J.A.D. 's case, the court relied on the rule in civil cases that under
certain circumstances an amended petition will be deemed to relate back to the
date of the original petition for limitations purposes. See Enserch Corp. v.
Parker, 794 S.W.2d 2, 4-5 (Tex. 1990); Cooke v. Maxam Tool & Supply, Inc.,
854 S.W.2d 136, 141 (Tex. App.--Houston [14th Dist.] 1993, writ denied); TEX.
CIV. PRAC. & REM. CODE ANN. § 16.068 (Vernon 1997). Section 51.17(a) of the
Family Code provides that the Rules of Civil Procedure generally govern juvenile
proceedings except on the burden of proof or when in conflict with the
provisions of the Juvenile Justice Code. TEX. FAM. CODE ANN. § 51.17(a) (Vernon
Supp. 2000); see also D.I.B., 988 S.W.2d at 756. The Austin Court of Appeals has
described such proceedings in this manner:
Juvenile delinquency proceedings are both civil and criminal in nature. In light
of the very real possibility of loss of liberty faced by the juvenile
respondent, juvenile proceedings have been characterized as
"quasi-criminal," with procedural requirements similar to those in
adult prosecutions. In re S.L.L., 906 S.W.2d 190, 192 (Tex. App.--Austin 1995,
no writ); accord In re M.R., 846 S.W.2d 97, 100-01 (Tex. App.--Fort Worth 1992),
writ denied per curiam, 858 S.W.2d 365 (Tex. 1993).
Because of the "quasi-criminal" nature of juvenile proceedings and
because permitting amendments to motions to modify after the expiration of the
probationary term would conflict with section 54.05(a) of the Family Code, which
permits modification only during the term of probation, we hold that the civil
rule that amended pleadings can relate back to the date of the original pleading
for limitations purposes does not apply to motions to modify a juvenile
disposition which are filed after the expiration of the probationary term.
The State filed its second amended motion to modify J.A.D. 's disposition after
the expiration of his probationary term. Therefore, the second amended motion is
"a nullity" and the court had no authority to act upon it. Guillot,
543 S.W.2d at 653; accord Holtzman, 866 S.W.2d at 729 n.2; Crockett, 840 S.W.2d
at 162; Chreene, 691 S.W.2d at 750. Nevertheless, the court's error in acting
upon the untimely motion could be harmless if the court found that J.A.D.
committed one of the violations alleged in the original motion and if the
evidence supports such a finding. See Guillot, 543 S.W.2d at 653; Chreene, 691
S.W.2d at 750. However, the State has never served the original motion to modify
on J.A.D. Thus, the allegations of this motion cannot serve as a basis for
affirmance of the judgment. See TEX. R. CIV. P. 21 (any motion requesting an
order must first be served on opposing party); see also D.I.B., 988 S.W.2d at
756. Accordingly, we sustain J.A.D. 's sole issue.
We reverse the judgment and remand this cause for further proceedings consistent
with this opinion.
DISSENTING OPINION
The majority concludes that the allegations of the original motion to modify
cannot serve as a basis to affirm the judgment because the State failed to serve
J.A.D. with a copy of the original motion. Because this conclusion does not
address the question of whether J.A.D. was harmed by the court's error in acting
on the untimely-filed second amended motion, I respectfully dissent.
Whenever we find error in the proceedings below, we must conduct a harm
analysis, except when the error "defies analysis by harmless error
standards or the data is insufficient to conduct a meaningful harmless error
analysis." In re D.I.B., 988 S.W.2d 753, 759 (Tex. 1999) (quoting Cain v.
State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). According to Rule of
Appellate Procedure 44.1(a)(1), we cannot reverse the judgment unless we
conclude that the error "probably caused the rendition of an improper
judgment." TEX. R. APP. P. 44.1(a)(1); see also In re C.P., 998 S.W.2d 703,
712 (Tex. App.--Waco 1999, no pet.).
The original motion to modify alleges in part that J.A.D. violated the
conditions of his probation by being expelled from school on November 6, 1998.
The court found this allegation to be true. J.A.D. does not challenge the
sufficiency of the evidence to support this finding. Accordingly, I would
conclude that the court's error in proceeding on the untimely- filed motion did
not result in "rendition of an improper judgment." See Guillot v.
State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976); Chreene v. State, 691 S.W.2d
748, 750 (Tex. App.--Texarkana 1985, pet. ref'd). Thus, I would affirm the
judgment.
REX D. DAVIS
Chief Justice