By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Supplemented record shows petition and summons were personally served on respondent [In re L.A.C., Jr.] (02-2-14).
On June 20, 2002, the El Paso Court of Appeals held that a return of service in a supplemented record created a presumption not rebutted that the respondent was personally served with petition and summons.
02-3-14. In the Matter of L.A.C., Jr., UNPUBLISHED, No. 08-01-00221-CV, 2002 WL 1340965, 2002 Tex.App.Lexis ___ (Tex.App.-El Paso 6/20/02) [Texas Juvenile Law (5th Edition 2000).
Facts: L.A.C., Jr. appeals his adjudication of delinquency, based upon the commission of the offenses of murder and aggravated assault.
On February 1, 2001, the State filed in the juvenile court a Petition Based on Delinquent Conduct and Notice of Intent to Seek a Determinate Sentence under the Texas Family Code. Appellant, then fifteen years of age, was accused of engaging in delinquent conduct by committing one count of murder and one count of aggravated assault.
L.A.C. pleaded not true to both allegations on May 8, 2001 in open court. Testimony commenced and at the conclusion of the trial, seven special issues were submitted to the jury. The jury found that L.A.C. had engaged in delinquent conduct for both the aggravated assault with a deadly weapon and murder. The jury was then presented with five special issues regarding punishment. For the aggravated assault with a deadly weapon, the jury assessed punishment at five years. For the murder, the jury assessed punishment at thirty years.
Held: Affirmed.
Opinion Text: Appellant raises one point of error on appeal. He argues that under section 53.06 of the Texas Family Code, a court is required to issue summons to a juvenile named in the petition and that the personal service of process on the juvenile must appear in the record. Because there was no personal service of summons on him, he argues, the trial court lacked jurisdiction to hear the matter.
In order to effect service under section 53.06, a summons shall be issued to the child named in the petition. Tex. Fam.Code Ann. § 53.06(a)(1) (Vernon 1996); see also In re M.W., 523 S.W .2d 513, 514 (Tex.Civ.App.-El Paso 1975, no writ) (emphasizing the recognized necessity of personal service upon a minor). The summons "must require the persons served to appear before the court at the time set to answer the allegations of the petition," and "[a] copy of the petition must accompany the summons." Tex. Fam.Code Ann. § 53.06(b) (Vernon 1996).
It is true that, as originally filed, the Clerk's Record contained no evidence that a summons was issued. However, the State requested supplementation of the record pursuant to Tex.R.App. P . 34.5(c)(1). The supplemental record reflects that the State's petition was filed on January 30, 2001 and that summons was issued to appellant and his parents, providing them with a copy of the petition and requesting that all of the parties appear for a pretrial hearing. The record reflects return of personal service of the summons on L.A.C. and his parents on February 1, 2001 at 1 p.m. by an El Paso County probation officer. Thus, we conclude the service on the parties here complied with the statute. See Sauve v. State, 638 S.W.2d 608, 610 (Tex.App.-Dallas 1982, pet. ref'd) (holding that an officer's return creates the rebuttable presumption that service was appropriate and that defects in the officer's return must be attacked in the trial court).
Because the supplemental record contains a summons reflecting that appellant was served, we conclude the trial court had jurisdiction.