Casanova v. State
| Decision Date | 27 December 1972 |
| Docket Number | No. 15098,15098 |
| Parties | Jose CASANOVA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Herman Glosserman, San Antonio, for appellant.
Ted Butler, Criminal Dist. Atty., Keith W. Burris, Asst. Crim. Dist. Atty., San Antonio, for appellee.
Appellant, Jose Casanova, seeks reversal of a judgment of the juvenile court of Bexar County declaring him to be a delinquent child within the meaning of our juvenile delinquency statute, Article 2338--1, Vernon's Tex.Rev.Civ.Stat.Ann., and committing him to the custody of the Texas Youth Council for an indefinite period, not to extend beyond his twenty-first birthday. The judgment further ordered that appellant be sent to the Gatesville School for Boys. At the time the judgment was rendered, appellant was sixteen years and nine months old.
Appellant's sole contention is that, since he was not personally served with notice of the pendency of the proceedings against him, the juvenile court lacked jurisdiction over his person; and that the judgment in this case, therefore, deprives him of his liberty without due process of law.
In accordance with the procedure established by the juvenile statute, the Criminal District Attorney of Bexar County, on December 7, 1971, filed a petition seeking a declaration that appellant is a juvenile delinquent. On December 8, 1971, and order was entered appointing Herman Glosserman, Esq., 'to represent' appellant 'and to act as his/her (sic) Guardian Ad Litem.' At the time of the entry of such order, no one had been served with process. Six days later, on December 14, 1971, a summons was served on appellant's mother, Mrs. Trinidad Casanova, directing her 'to appear personally' before the juvenile court, and to bring appellant before such court, on December 23, 1971, at which time the State's petition would be heard.
The hearing was postponed twice, for reasons not apparent from the record. On January 7, 1972, the State filed an amended petition which differed from the original petition only in that it alleged that appellant was also known as Jose Campos Casanova. On January 13, 1972, summons was again served on appellant's mother, notifying her that the amended petition would be heard on January 24, 1972, and directing her to be present before the juvenile court on that date and to bring appellant with her.
On January 18, 1972, the court relieved Mr. Glosserman, at his request, of the position of guardian ad litem and substituted appellant's mother as such guardian. On the same day, Mr. Glosserman, 'as an Officer of the Court and as Amicus Curiae and also as attorney for' appellant, filed an instrument calling the attention of the court to the fact that appellant had not been served 'with citation and notice on the petition filed by the State in this cause and therefore this Court has no jurisdiction over the minor in this cause . . ..' This instrument further contended that the appointment of a guardian ad litem for appellant is a nullity because such appointment was made without citation and notice to appellant. This instrument bears the notation, dated January 18, 1972, in the judge's handwriting, 'Overruled--to which action of the Court Respondent excepted.'
Appellant, his attorney and his mother were present at the hearing held on January 24, 1972. After the State had rested, appellant's attorney called only one witness, a deputy district clerk, to establish the sole fact that no process whatever had ever been served on appellant personally. On July 25, 1972, the judgment appealed from was entered.
The only portion of Article 2338--1 relating to notice in a juvenile delinquency proceeding is Section 8, which provides as follows (all emphasis added):
There is nothing in this section relating to notice to the child who, as a result of the proceeding, is subject to deprivation of his liberty. The only persons on whom the summons is directed to be served are the persons having the custody and control of the child, except that where the persons having such custody and control are other than the parent or guardian of the child, then the parent or guardian, or both, must be notified of the proceeding by personal service.
Since the statute is silent on the question of personal notice to the child whose liberty is at stake, the question is whether or not, in a proceeding to declare a child delinquent, personal notice on the child is required. It is well settled that juvenile delinquency proceedings are governed by the Texas Rules of Civil Procedure. Brenan v. Court of Civil Appeals 444 S.W.2d 290 (Tex.1969); State v. Thomasson, 154 Tex. 151, 275 S.W.2d 463 (1955); Steed v. State, 143 Tex. 82, 183 S.W.2d 458 (1944); Boardman v. State, 473 S.W.2d 538 (Tex.Civ.App.--Fort Worth 1971, no writ).
Rule 124, Texas Rules of Civil Procedure, prohibits the rendition of Any judgment against Any defendant 'unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant . . ..' Unless we are prepared to hold that juvenile proceedings are criminal in nature, Rule 124 clearly requires that the defendant in a delinquency proceeding be served personally with process.
We consider next whether appellant 'waived' service of process upon him personally by appearing at the hearing, both in person and by his court-appointed attorney and guardian ad litem. Section 8 of the juvenile statute is not relevant here. It dispenses with the requirement of notice only where 'the parties hereinafter named shall voluntarily appear.' It is clear from the language of the section that the waiver of notice by voluntary personal appearance applies only to the 'parties hereinafter named,' that is, to the parent, guardian or person having custody of the child. Lazaros v. State, 228 S.W.2d 972, 975 (Tex.Civ.App.--Dallas 1950, no writ). Article 2338--1, then, does not provide that the personal appearance of the child, even if it be assumed that a child who is dragged to court by his parent can be held to have 'voluntarily' appeared, dispenses with the requirement of notice to the child, if...
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H.R.A., Matter of
...nor can anyone waive it for him. Wright v. Jones, 52 S.W.2d 247 (Tex.Comm'n App.1932, holding approved); Casanova v. State, 489 S.W.2d 727 (Tex.Civ.App.--San Antonio 1972), rev'd per curiam, 494 S.W.2d 812 (Tex.1973). We hold that a juvenile must be served with summons and that it must affi......
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D. W. M., In Matter of
...writ ref'd); nor can anyone waive it for him. Wright v. Jones, 52 S.W.2d 247 (Tex.Comm'n App.1932, holding approved); Casanova v. State, 489 S.W.2d 727 (San Antonio 1972), rev'd per curiam, 494 S.W.2d 812 (Tex.1973). We hold that a juvenile must be served with summons and that it must affir......
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Johnson v. State
...issued requiring the appearance of any other person whose presence, in the opinion of the Judge, is necessary." Casanova v. State, 489 S.W.2d 727 (Tex.Civ.App. San Antonio 1972), held that in a juvenile delinquency proceeding under Article 2338-1, V.A.C.S., the juvenile must be personally s......
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Alaniz v. State
...service of process upon the minor. Id. at 516. In its analysis, the court relied on this court's opinion in Casanova v. State, 489 S.W.2d 727 (Tex. Civ. App.-San Antonio 1972) reversed on other grounds, 494 S.W.2d 812 (Tex. 1973). In Casanova, this court held that service of process upon a ......