Mendoza v. Baker

• Decision Date: 04 December 1958
• Docket Number: No. 13405,13405
• Parties: Marlano MENDOZA, a Minor, Appellant, v. D. H. BAKER, Supervisor, Juvenile Detention Home, Harris County, Appellee.
• Court: Texas Court of Appeals

Page 147

319 S.W.2d 147

Marlano MENDOZA, a Minor, Appellant, v. D. H. BAKER, Supervisor, Juvenile Detention Home, Harris County, Appellee.

No. 13405.

Court of Civil Appeals of Texas, Houston.

Dec. 4, 1958.

Robert L. Lowry, Billy E. Lee, and Hill, Lowry, Lee & Koster, Houston, for appellant.

James M. Shatto and Edwin G. Moorhead, Asst. Dist. Attys. of Harris County, Houston, for appellee.

WOODRUFF, Justice.

This is an appeal from an order dated November 19, 1958, entered by the Court of Domestic Relations of Harris County, Texas, refusing to grant appellant, a minor over ten and under seventeen years of age, a writ of habeas corpus releasing him from the custody of D. H. Baker, Supervisor of the Juvenile Detention Home, Harris County, Texas, where he had been placed for detention by virtue of an order entered on November 7, 1958, directing that he be held in custody until final hearing on said case.

The order appealed from recites that after having duly considered the petition the court was of the opinion that petitioner was not illegally restrained of his liberty, 'and that it would be to the best interest of said child that he remain in temporary custody pending final hearing in said cause.' Appellant duly excepted and gave notice of appeal. No Findings of Fact or Conclusions of Law appear in the record and no-contention is made that they were requested.

Attached to appellant's application was a copy of the petition originally filed against him alleging that he was over ten and under seventeen years of age and was a delinquent in that he, on or about October 31, 1958, in Harris County, Texes, did then and there with malice aforethought voluntarily and with malice aforethought kill Albert Felix Morales by shooting him with a gun, and after stating other information concerning the names of his parents and that his father lived at a stated address, it provided that citation, as the law requires, be issued and that he be adjudged a delinquent child.

In the transcript filed by appellant appears the order entered November 7, 1958, reciting that it having been made known to the court on said date that Mariano Mendoza, a child over the age of ten and under seventeen years had been charged in a petition with being a delinquent child and it appearing further that the child was in such conditions and surroundings that his welfare required that his custody be immediately assumed by the court, it was ordered that any probation officer or peace officer take the child and place him in the custody and control of D. H. Baker, Supervisor, Juvenile Detention Home, Houston, Harris County, Texas, until final hearing can be had on the case or pending further orders of the court.

Appellant predicates this appeal upon the sole point that the trial court erred in denying his petition because no evidence was introduced showing probable cause for holding appellant. By counterpoint appellee contends that the order appealed from is a temporary order, from which no appeal can be taken to the Court of Civil Appeals. In our opinion this is the cardinal issue in the case.

Section 6 of Article V of our State Constitution, Vernon's Ann.St., confers appellate jurisdiction on Courts of Civl Appeals in all civil cases of which the District Courts and County Courts have original or appellate jurisdiction, 'under such restrictions * * * as may be prescribed by law. * * *'

Article 2249, V.A.T.S., provides that appeals may be taken to the Court of Civil Appeals 'from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases in which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds $100. exclusive of interest and costs.'

It is, therefore, clear from the terms of this statutory provision that appeals in civil cases to the Court of Civil Appeals may be taken only from a final judgment in the District and County Courts. ¹

Under Title 43, V.A.T.S., known as the Juvenile Courts Act, is found Article 2338-1, V.A.T.S., sections 1 and 2, which provide:

'Sec. 1. The purpose of this Act is to secure for each child under its jurisdiction such care, guidance and control, preferably in his own home, as will serve the child's welfare and the best interest of the state; and when said child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given him by his parents.

'The principle is hereby recognized that children under the jurisdiction of the court are wards of the state, subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them.

'Sec. 3. This Act shall be liberally construed to accomplish the purpose herein sought.'

Sec. 3. defines the term 'delinquent' child.

Sec. 7. of this Article provides for the filing of a petition in those cases in which information has been given that a child is within the provisions of the Act and the judge, county attorney or probation officer, after making a preliminary investigation, determines that it is to the interests of the public or of the child that further action be taken and formal jurisdiction should be acquired.

Sec. 11 of the same Act contains the following provision:

'Sec. 11. Whenever any officer takes a child into custody, he may release said child to a parent, guardian, or any other person upon receipt of a written or oral promise of said person to assume complete responsibility for said child and to have him before the probation officer or the court at any time then, or subsequently, specified by said officer. If not so released, such child shall be placed in the custody of a probation officer or other person designated by the court or be taken immediately to the probation department, the court, or to the place of detention designated by the court. The court may make a general order designating such places of detention which may include private foster or boarding homes for children, or such other places of detention which to the court seem desirable. * * *'

The Court of Domestic Relations of Harris County was created by the terms of Art. 2338-5, V.A.T.S. Sec. 3 thereof confers on that Court jurisdiction to hear certain specified cases including delinquent, neglected and dependent child proceedings, and 'all jurisdiction, powers and authority now or hereafter placed in the District or County Courts under the juvenile and child-welfare laws of this State; * * *' and in addition thereto 'all cases in which children are alleged or charged to be dependent and neglected children or delinquent children as provided by law. * * *'

Section 11 of the Act provides as follows:

'Sec. 11. The said Court and the Judge thereof shall have the power to issue writs of habeas corpus and mandamus, injunctions, temporary injunctions, restraining orders, orders of sale, executions, writs of possession and restitution, and any and all other writs as now or hereafter may be issued under the laws of this State by District Courts, when necessary or proper in cases or matters in which said Court of Domestic Relations had jurisdiction, and also shall have power to punish for contempt.'

Section 13 provides:

'Sec. 13. Appeals in all civil cases from judgments and orders of said Court shall...