By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Summons was not served on respondent more
than two days before a scheduled transfer hearing, but that defect was corrected
when the hearing was reset [Mosby v. State] (00-4-18).
On October 31, 2000 the Dallas Court of Appeals held that postponing a
transfer hearing corrected a failure to serve the summons on respondent more
than two days before the scheduled hearing.
¶ 00-4-18. Mosby v. State, UNPUBLISHED, No. 05-99-01356-CR, 2000 WL 1618469,
2000 Tex.App.Lexis ___ (Tex.App.—Dallas 10/31/00)[Texas Juvenile Law (5th
Edition 2000)].
Facts: Appellant was originally charged as a juvenile. The juvenile court waived
jurisdiction and transferred the case to criminal court where appellant was
indicted for aggravated assault. Appellant pleaded guilty. The trial court
assessed punishment, pursuant to a plea bargain conviction, at ten years'
confinement, probated for five years, and a $1,000 fine. The State subsequently
filed a motion to revoke appellant's probation. The trial court revoked
appellant's probation and assessed punishment at ten years' confinement and a
$1,000 fine.
In his sole point of error, appellant contends the juvenile court lacked
jurisdiction to transfer the case to the criminal district court because he was
not properly served with summons. Section 54.02 of the Texas Family Code
provides that a juvenile court may waive its exclusive jurisdiction and transfer
a proceeding to the appropriate district court. Tex. Fam.Code Ann. § 54.02
(Vernon 1996 & Supp.2000). Before a case can be transferred, however,
provisions of the family code concerning service of summons must be satisfied.
See Tex. Fam.Code Ann. § 54.02(b) (Vernon 1996). In particular, the juvenile
court must direct issuance of a summons to: (1) the child named in the petition,
(2) the child's parent, guardian, or custodian, (3) the child's guardian ad
litem, and (4) any other person who appears to the court to be a proper or
necessary party to the proceeding. See Tex. Fam.Code Ann. § 53.06(a) (Vernon
1996). The summons must state that the hearing is for the purpose of considering
discretionary transfer to criminal court. See Tex. Fam.Code Ann. § 54.02(b)
(Vernon 1996). The summons must be personally served at least two days before
the date of the hearing. See Tex. Fam.Code Ann. § 53.07(a) (Vernon 1996). A
juvenile cannot waive service of summons. Cf. Tex. Fam.Code Ann. § 53.06(e)
(Vernon 1996). If a juvenile is not personally served, the juvenile court does
not acquire jurisdiction over the juvenile. See In re D.W.M., 562 S.W.2d 851,
852 (Tex.1978). However, defects of form, rather than substance, in a summons do
not deprive the trial court of jurisdiction, and can be waived. See Hidalgo v.
State, 945 S.W.2d 313, 318 (Tex.App.-San Antonio 1997), aff'd, 983 S.W.2d 746
(Tex.Crim.App.1999); see also Sauve v. State, 638 S.W.2d 608, 611 (Tex.App.-Dallas
1982, pet. ref'd).
In his case, the record shows the State filed its petition for discretionary
transfer on September 8, 1998 alleging appellant committed the offense of
aggravated assault and seeking discretionary transfer to criminal court.
Appellant was served with a summons and a copy of the petition on September 11,
1998 at 3:00 p.m. The summons directed appellant to appear for a discretionary
transfer hearing on September 11, 1998 at 1:00 p.m., a time that had already
passed when the summons was served. The discretionary transfer hearing did not,
however, actually take place until October 5, 1998. At that time, appellant, his
mother, and his attorney appeared at the hearing. Appellant nevertheless asserts
the juvenile court never acquired jurisdiction over him because he was not
served with process two days before the originally scheduled hearing.
Held: Affirmed.
Opinion Text: In Carner v. State, 592 S.W.2d 618, 620 (Tex.Crim.App.1980) the
juvenile was served with summons one day before the date originally set for the
discretionary transfer hearing. The hearing, however, was reset and was not held
until several weeks after the juvenile was served. The juvenile personally
appeared at the hearing. The court of criminal appeals concluded the juvenile
court acquired jurisdiction over the juvenile because he was personally served
several weeks before the hearing actually occurred and he personally appeared at
the hearing. See Carner, 592 S.W.2d at 620.
We likewise conclude the juvenile court acquired jurisdiction over appellant.
Appellant was personally served with a summons directing him to appear for a
hearing to consider discretionary transfer to criminal court. A copy of the
petition was attached to the summons. The summons was defective, however, in
that it was served after the hearing was originally scheduled. However, the
record shows the hearing was reset and was not actually held until more than
three weeks after appellant was served. We conclude that because appellant was
personally served with summons and because he appeared at the hearing held more
than three weeks after he was served, the juvenile court acquired jurisdiction
over appellant. See Carner, 592 S.W.2d at 620. We overrule appellant's sole
point of error.