Lazaros v. State, 14210
| Decision Date | 17 March 1950 |
| Docket Number | No. 14210,14210 |
| Citation | 228 S.W.2d 972 |
| Parties | LAZAROS et al. v. STATE. |
| Court | Texas Court of Appeals |
L. F. Sanders, Canton, for appellants.
Tom H. Prestridge and C. L. Stanford, Canton, for appellee.
This is an appeal from an order entered November 10, 1949 overruling a petition to reopen, set aside, and/or modify a former order declaring Billy Phillips a delinquent child under sec. 14, Art. 2338-1, Vernon's Ann.Civ.St. The petition also includes a count for a writ of habeas corpus.
No statement of facts accompanies the record. The transcript shows that appellants are the mother and stepfather of the child; that the original delinquency proceeding was filed October 3, 1949; heard October 5, and the minor child placed in Gatesville State School for Boys October 11; no motion for new trial was filed; no notice of appeal, required by sec. 21, Art. 2338-1, V.A.C.S., was given; no appeal perfected; and such judgment became final.
On November 9, 1949, this proceeding was filed, and on November 10 judgment was entered denying appellants all relief sought; proper exception was noted and notice of appeal given; and this appeal has been duly perfected. On appellants' motion, the court made and filed findings of fact (on requested specific facts only) in the original delinquency proceeding, in substance, as follows: Billy Phillips is a male child over 10 and under 17 years of age, and, with his mother Mrs. Minnie Lee Lazaros, resides at Canton, Van Zandt County; that he habitually associates with one Billy Black, a vicious and immoral person; on September 30, 1949 he, in company with Billy Black, followed a named adult female along a main street of the town of Canton and made highly vulgar and insulting proposals to her (recited specifically in the record); that sometime during 1948 he entered the dressing room of the Canton High School football team while the players were on the field and took money, fountain pens and other articles from their clothing without their permission; for which, after he had made a confession, he was dismissed from the school for the remainder of the term, and he has not made application to re-enter such school; that the Sheriff of Van Zandt County and two deputy sheriffs have on many occasions, for a year and a half or two years, seen him with Billy Black on the streets of Canton, Grand Saline, Edgewood, Wills Point, etc., at all hours of the nighttime, and that he has so conducted himself generally, in the past, as to render himself a nuisance to law enforcement officers of the county. The court's conclusions from such facts support the judgment declaring the boy a delinquent child and the order of confinement in Gatesville State School for Boys, rather than in the custody of his mother or some other person. At the request of the county attorney, additional specifically requested findings were filed November 19, in substance, as follows: Minnie Lee Lazaros and her son Billy made their voluntary appearance at the time of the hearing and announced ready for trial; his father's whereabouts is unknown and he did not appear; neither Billy nor his mother at any time requested a jury trial; his mother has not exercised proper parental care and discipline over him in her home, allowing him to absent himself from home at any time he desires, either day or night, showing a disregard for his whereabouts; allowing him not to attend school, and to smoke cigarettes. At request of appellants, the trial judge on November 21 filed further additional requested findings, in substance, as follows: That at no time during the entire proceeding did the court make any mention as to whether a jury was or was not demanded; that C. L. Stanford, assistant county attorney, represented the State; at no time was any mention made by the court to Billy or his mother asking whether or not they desired counsel, or whether or not they had counsel; at no time during the trial was the stepfather or father of Billy Phillips present; neither Billy, nor his mother, was sworn and neither testified; there was no evidence about the stepfather or his ability to care for the boy; no special investigation was made into the home or surroundings of Billy Phillips; no special investigation was made of the Gatesville State School for Boys, nor did the court order or secure information as to any place other than the Gatesville School in which to place Billy Phillips; no direct testimony was given of the incident of his insulting remarks made to the Canton lady; there was no citation, subpoena, or other notice issued to his mother, to himself, or himself, or to his stepfather shown by the court papers; on the trial there was no objection made by him or his mother to any of the testimony offered by the State; there were six practicing attorneys of Van Zandt County Bar living within close proximity to the courthouse where Billy was tried.
Appellants assign 14 points of error. The second point will be discussed first. By it, appellants assert error in the court's overruling their application to reopen and modify the order declaring Billy a delinquent child without such application being contested by the State. It is asserted thereunder that the record shows that the petition to modify was filed November 9, and was heard by the court the next day, November 10. The record shows that the court, by order entered November 15, granted appellee permission to file, as of November 10, its written answer-which only reduced to writing the oral motion formerly made at the hearing November 10. Such order recites that it was granted because the hearing was had before the county attorney prepared his answer in writing. On this record no harm could have resulted from the nunc pro tunc order. Point 2 is overruled.
By points 1, 3, 4, and 5, appellants, in substance, complain of the trial court's disposing of the proceeding to reopen and modify the original order declaring Billy a delinquent child without a formal hearing, because the sworn motion set up that the original judgment and commitment were void. This present proceeding was a motion to reopen such final judgment, and to set it (as well as the commitment issued thereon) aside, to modify the same, and 'to forthwith order the body of Billy Phillips before this court,' for that purpose. That portion of the motion which sought to modify the former judgment was discretionary with the trial court. Sec. 14, Art. 2338-1, supra, provides as follows: '* * * A petition may be filed with the committing court requesting the reopening of the case of a child who has been committed by the court to the custody of an institution, agency or...
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...until he is 21 years of age. It is the adjudication of delinquency which extends the court's jurisdiction. As was said in Lazaros v. State, 228 S.W.2d 972, 975 (Tex.Civ.App.), no writ "`When the trier of the facts found Billy a delinquent child, he automatically came under such (juvenile) c......
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Ex parte Henderson, 57115
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Sharp v. State, 41663
...are equally solicitous of the constitutional rights of litigants. A recent case upholding voluntary appearance is Lazaros v. State, Tex.Civ.App.1950, 228 S.W.2d 972. See also 31 Am.Jur., Juvenile Courts, Secs. 64, 65; 43 C.J.S. Infants § 99e, pp. 246-248. Hence in my opinion the decision of......
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Casanova v. State
...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 ......