By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
No discretion abuse in TYC commitment on
revocation of probation; pro se juvenile appellant held to attorney standard [In
re S.M.G.] (00-4-11).
On October 5, 2000 the Austin Court of Appeals considered the pro se appeal
of a juvenile. It held the juvenile pro se appellant to the standard of an
attorney in prosecuting the appeal and, finding no abuse of discretion in
commitment to the TYC, affirmed the revocations.
00-4-11. In the Matter of S.M.G., UNPUBLISHED, No. 03-99-00848-CV, 2000 WL
1471636, 2000 Tex.App.Lexis ___ (Tex.App.—Austin 10/5/00)[Texas Juvenile Law
(5th Edition 2000)].
Facts: On August 26, 1999, the district court sitting as a juvenile court found
that S.M.G., who was fifteen at the time, had engaged in delinquent conduct, and
placed him on probation for one year. In November 1999, the State filed a
petition alleging S.M.G. had violated several conditions of his probation and
asking that he be placed in the Texas Youth Commission ("TYC"). After
a hearing on the State's petition, the juvenile court found that S.M.G. had
violated his probation and ordered him committed to TYC's custody for an
indeterminate period of time not to exceed his twenty-first birthday. In a pro
se brief, S.M.G. appeals that order. [FN1]
FN1. While pro se pleadings are to be liberally construed, pro se litigants are held to the same standards as licensed attorneys and must comply with rules of procedure and applicable laws. Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex.App.--San Antonio 1999, pet. denied); White v. Cole, 880 S.W.2d 292, 294 (Tex.App.--Beaumont 1994, writ denied). To hold otherwise would give pro se litigants an unfair advantage over litigants represented by counsel. Shull, 4 S.W.3d at 53. The rules of procedure are readily accessible and are intended to help clarify issues, expedite resolutions, and ensure accurate decisions. Tex.R. Civ. P. 1; In re Caldwell, 918 S.W.2d 9, 10 (Tex.App.--Amarillo 1995, no writ). The State argues that S.M.G.'s points of error are too general for appellate review and urges this Court to affirm the judgment on that basis. While we agree that S.M.G.'s points are general, in the interest of justice, we will review his points of error individually and to the extent allowed by the record before us.
S.M.G. was accused of criminal mischief for
destroying or damaging property valued at more than $50 and less than $500. Tex.
Penal Code Ann. § 28.03 (West Supp.2000). That conduct is a class B
misdemeanor--punishable by confinement of up to 180 days, imposition of a fine
up to $2000, or both--and is delinquent conduct as defined by section 51.03 of
the Family Code. Tex. Penal Code Ann. §§ 12.22, 28.03(b)(2) (West 1994 &
Supp.2000); Tex. Fam.Code Ann. § 51.03(a)(1) (West Supp.2000). In August 1999,
S.M.G. was adjudicated delinquent and put on probation for one year; he does not
complain of those orders. Once adjudicated delinquent, S.M.G. was bound to obey
the rules of his probation. Less than three months later, the State filed its
petition to modify S.M.G's disposition and commit him to TYC, alleging he had
committed numerous probation violations. Following a hearing on the State's
motion, the juvenile court found that S.M.G. had violated his probation by
disobeying his parent/custodian, failing four subjects in school, disrupting
classes and disobeying teachers and principals, possessing and consuming a
controlled substance, violating his curfew on several occasions, and tampering
with the electronic monitoring system provided by the Juvenile Probation
Department.
Held: Affirmed.
Opinion Text: The clerk's record is on file with this Court, but no reporter's
record from the hearing on the State's petition has been made part of the
appellate record. The party appealing a trial court's judgment bears the
responsibility of requesting in writing that the court reporter prepare the
reporter's record. Tex.R.App. P. 34.6(b)(1); In re Marriage of Spiegel, 6 S.W.3d
643, 646 (Tex.App.--Amarillo 1999, no pet.); see In re A.R.A., 898 S.W.2d 14, 16
(Tex.App.--Austin 1995, no writ). This Court may hear an appeal in which a
clerk's record but no reporter's record has been filed. Tex.R.App. P. 37.3(c).
Before hearing such a cause, we must give the appellant notice that the
reporter's record has not been filed and a reasonable opportunity to cure that
omission. Id. The Court has given S.M.G. the opportunity to file the reporter's
record and has received no response to our correspondence. S.M.G. has not
provided the Court with the reporter's record and has not notified this Court
that he intends to or is attempting to do so. Therefore, we overrule his fifth
point of error in which he complains that the reporter's record is incomplete,
and we will examine his remaining contentions based on the clerk's record alone.
A juvenile court has broad discretion to determine a suitable disposition of a
juvenile who has been adjudicated to have engaged in delinquent conduct. In re
C.C., 13 S.W.3d 854, 859 (Tex.App.--Austin 2000, no pet.); In re M.S., 940
S.W.2d 789, 791 (Tex.App.--Austin 1997, no writ). A trial court abuses its
discretion when it acts in an unreasonable and arbitrary manner or without
reference to guiding rules and principles. In re C.C., 13 S.W.3d at 859. We will
not reverse for abuse of discretion merely because we disagree with the juvenile
court's decision. Id. However, a child may not be placed outside of his or her
home unless the juvenile court finds (1) such placement is in the child's best
interests, (2) reasonable efforts were made to prevent or eliminate the need for
the child's removal from his or her home and to make it possible for the child
to return home, and (3) the child cannot be provided the quality of care and
level of support and supervision needed for the child to meet probation
requirements while living at home. Tex. Fam.Code. Ann. § 54.04(i) (West
Supp.2000); In re C.C., 13 S.W.3d at 858; In re B.M., 1 S.W.3d 204, 209 (Tex.App.--Tyler
1999, no pet.) (citing to previous version of section 54.04, amended by Act of
Sept. 1, 1999, 76th Leg., R.S., ch. 1448, § 1, 1999 Tex. Gen. Laws 4919, 4920).
In his first point of error, S.M.G. contends the juvenile court abused its
discretion by committing him to TYC because the offenses for which he had been
originally adjudicated delinquent were three instances of criminal mischief that
occurred within eight days of each other. While S.M.G. argues that the
disposition appears harsh, we do not have the benefit of the record the juvenile
court reviewed in reaching its decision. In its order, the juvenile court made
the required findings that it was in S.M.G.'s best interests to be placed
outside of his home, that reasonable efforts were made to prevent or eliminate
the need for placement outside of his home and to make it possible for him to
return home, and that he could not be provided the quality of care and level of
support and supervision he needs to meet his probation while living at home.
Tex. Fam.Code. Ann. § 54.04(i); In re C.C., 13 S.W.3d at 858; In re B.M., 1
S.W.3d at 209. S.M.G. has not demonstrated that those findings were unsupported
by evidence or otherwise incorrect or that the juvenile court abused its
discretion in committing him to TYC for probation violations. In re C.C., 13
S.W.3d at 858-59; In re S.A.M., 933 S.W.2d 744, 746 (Tex.App.--San Antonio 1996,
no writ). We overrule S.M.G.'s first point of error. [FN3]
FN3. Although separate adjudication for the acts constituting violations is not before us, we note that possession of a controlled substance is also a penal offense, and that this offense as well as each violation of the court's probation order could be grounds for additional adjudication of delinquent conduct. See Tex. Fam.Code Ann. § 51.03.
In his second, third, sixth, and seventh points
of error, S.M.G. argues the alleged probation violations were not sufficiently
proven in the record. As discussed above, we are constrained to review these
points of error based solely upon the record before us and, without a reporter's
record, we are bound by the juvenile court's findings. In re S.A.M., 933 S.W.2d
at 746; Sandles v. State, 887 S.W.2d 252, 254 (Tex.App.--Beaumont 1994, no
pet.); see In re A.R.A., 898 S.W.2d at 16. S.M.G. has not demonstrated that the
alleged probation violations were not sufficiently proven by the record. We
overrule his second, third, sixth, and seventh points of error.
Finally, in his eighth point of error, S.M.G. asserts that in sending him to TYC,
the juvenile court ignored the letter and spirit of House Bill 2947 (HB 2947),
which S.M.G. claims is intended to limit when a child adjudicated delinquent for
a misdemeanor offense may be committed to TYC. HB 2947 amended section 54.04 of
the Family Code effective September 1, 1999; the amended statute was effective
at the time of S.M.G.'s November 1999 disposition hearing. Act of Sept. 1, 1999,
76th Leg., R.S., ch. 1448, § 1, 1999 Tex. Gen. Laws 4919, 4920. Amended section
54.04 added further requirements that must be met before a child may be removed
from his or her home after being adjudicated delinquent. The juvenile court met
the new requirements of section 54.04 when it found in its order sending S.M.G.
to TYC that it was in S.M.G.'s best interests to be placed outside his home,
that reasonable efforts had been made to avoid such placement and to return him
home, and that he could not receive the care, support, and supervision necessary
to complete his probation. Tex. Fam.Code Ann. § 54.04(i). S.M.G. has not shown
the juvenile court abused its discretion or violated the letter or the spirit of
the amended statute in sending him to TYC. We overrule his eighth point of
error.
Having overruled S.M.G.'s eight points of error, we affirm the juvenile court's
order placing him in TYC's custody.