By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Right to hearing by court waived by
on-the-record dialogue with master [In re D.C.] (00-4-10).
On October 5, 2000, the First District Court of Appeals held that a dialogue
on the record with the master in which the respondent and his attorney both
agreed to have the master hear the case satisfied the wavier requirements of the
Family Code.
00-4-10. In the Matter of D.C., ___ S.W.3d ___, No. 01-00-00213-CV, 2000 WL
1473777, 2000 Tex.App.Lexis ___ (Tex.App.--Houston [1st Dist.] 10/5/00)[Texas
Juvenile Law (5th Edition 2000)].
Facts: D.C., a juvenile and appellant here, was tried before a master of the
juvenile court. The master found that appellant had engaged in delinquent
conduct and recommended that appellant be removed from home and committed to the
Texas Youth Commission. The trial court signed a judgment to that effect.
The Texas Family Code provides that a referee may conduct an adjudication
hearing if the referee informs the child of his entitlement to a hearing before
the juvenile court judge and the child and his attorney waive such right in
writing or in court proceedings that are recorded. Tex. Fam.Code Ann. §§
54.10(a), 51.02(10), 51.09(a)(4) (Vernon 1996). [FN1] In his sole point of
error, appellant contends the trial court erred in approving the master's
recommendation because the master never secured a waiver of appellant's right to
have the trial before the judge rather than the master. The record, however,
reflects otherwise.
FN 1. This Court has held that these
requirements apply to both referees and masters. See In re D.L.M., 982 S.W.2d
146, 149 (Tex.App.--Houston [1st Dist.] 1998, no pet.)
At the commencement of the delinquency hearing, the following exchange took
place:
[The master]: You have a right to a trial on this matter before a Judge or
before a jury, but it's my understanding that you had this case set on the
court trial docket today and that you're agreeing to have this trial heard by
me today; is that right?
[D.C.]: Yes, sir.
[The master]: Is that you agreement as well, Mr. Dysart [defense counsel]?
[Defense counsel]: Yes, Judge. I have been on this thing. This is the second
trial setting. And I advised him of the jury right they have and court rights,
and they have always--we're happy to have the Court hear it.
[The master]: All right. And that's your agreement, too, Ms. Dimaio
[prosecutor]?
[Prosecutor]: Yes, your Honor.
The record clearly shows that appellant was told
by the master that he had the right "to a trial on this matter before a
judge or before a jury," and that appellant and his attorney affirmatively,
and on the record in open court, agreed to have the case tried before the
master. At no time was there an objection to having a master try the case.
Therefore, we conclude that the master adequately complied with sections
54.10(a) and 51.09 of the Family Code.
We overrule appellant's sole point of error.
We affirm the judgment.