Mercer v. State, 11724

• Decision Date: 28 January 1970
• Docket Number: No. 11724,11724
• Citation: 450 S.W.2d 715
• Parties: Roger Lee MERCER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 715

450 S.W.2d 715

Roger Lee MERCER, Appellant, v. The STATE of Texas, Appellee.

No. 11724.

Court of Civil Appeals of Texas Austin.

Jan. 28, 1970.

Rehearing Denied Feb. 18, 1970.

Phillip Sanders, Seth B. Cox, Jr., Austin, for appellant.

Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Hawthorne Phillips, Exec. Asst. Atty. Gen., Robert C. Flowers, Bennie W. Back, II, Monroe Clayton, Asst. Attys. Gen., Ray Grill, Austin, for appellee.

O'QUINN, Justice.

This is an appeal from the juvenile court of Travis County in which appellant was adjudged a delinquent child and committed to the custody of the Texas Youth Council.

These proceedings grew out of discovery, by the principal of the school the youth was attending, of several forms of marijuana in possession of appellant.

Appellant contends that the marijuana he took from his pockets and placed on the principal's desk was recovered by an unreasonable search and seizure in contravention of his constitutional rights afforded by the Fourth Amendment to the Constitution of the United States and that at the disposition hearing following trial, the court permitted the introduction of a 'supplemental report' containing hearsay to the prejudice of appellant.

We affirm the action of the trial court.

Appellant was a student at Reagan High School in Austin. The dean of men received a 'tip' that appellant was in possession of marijuana at school and relayed the information to the principal. The principal caused appellant to be brought to his office where he directed the youth to empty his pockets. Appellant after some hesitation emptied his pockets upon being informed that his father would be called if he failed to comply with the principal's request. This procedure produced two marijuana cigarettes, marijuana, and marijuana seed.

No force was used on appellant, nor was he searched or handled by the principal in the usual sense. The youth testified that if his father had been called, the father would have made appellant empty his pockets, and his father would not have used force to require the boy to empty his pockets.

After appellant emptied his pockets, the principal called the youth's father. Following the father's arrival, the police were called, with the father's knowledge. The principal told appellant's father, 'You understand I am going to have to call the police,' and the boy's father said, 'Yes.'

We have able briefs from counsel affording extended examination of the case law and legal writings pertaining to search and seizure. Upon due consideration, we conclude that the principal of the school in insisting that appellant disclose the contents of his pockets acted in the place of the boy's father, and that the father by words and action later acquiesced in the summoning of police officers which resulted in trial of appellant as a delinquent.

The statute under which appellant was declared a delinquent makes the proceeding a civil action, and the law does not provide for conviction and punishment of the minor for commission of a crime. Article 2338--1, Vernon's Ann.Tex.St.; Yzaguirre v. State, 427 S.W.2d 687 (Tex.Civ.App., Corpus Christi, 1968, no writ); Solis v. State, 418 S.W.2d 265 (Tex.Civ.App., San Antonio, 1967, no writ). The Supreme Court of Texas in 1969 concluded that the rule of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) '* * * does not require that the juvenile trial be adversary and criminal in nature, and that the 'beyond a reasonable doubt' test is not required.' State v. Santana, 444 S.W.2d 614 (Tex. 1969).

Unreasonable seizure forbidden by the Fourth Amendment is that undertaken through governmental action, and the security afforded by the Amendment is not invaded by acts of individuals in which the government has no part. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The principal in dealing with appellant acted In loco parentis, not for an arm of the government, when he demanded that appellant disclose the contents of his pockets.

Blackstone stated this authority of the school principal as one delegated by the parent. It was said that a parent may delegate part of parental authority to the schoolmaster '* * * who is then In loco parentis, and has such a portion of the power of the parent * * * as may be necessary to answer the purposes for which he is employed.' 1 W. Blackstone, Commentaries, 453.

This principle has been recognized in Texas. Hailey v. Brooks, 191 S.W. 781 (Tex.Civ.App., Fort Worth, 1916, no writ). In Hailey the court asserted that

'Generally speaking * * * the * * * principal * * * of a public free school, to a limited extent at least, stand(s), as to pupils attending the school, in loco parentis, and * * * may exercise such powers of control, restraint, and correction over such pupils as may be reasonably necessary to enable the teachers to perform their duties and to effect the general purposes of education.'

It does not seem to be outside the purposes of discipline in a system of education for the principal of a public school to discover and bring under control drugs considered dangerous under law and possession of which is made an offense by law. The same procedure employed by the principal, if used by the boy's father, would not violate security of appellant under the Fourth Amendment.

Even with a statute granting to teachers in public schools 'the same authority as to conduct and behavior over the pupils * * * as the parents * * * may exercise over them * * *', 24 P.S.Pa. § 13--1317, the law has been construed as limiting the grant to those powers necessary to effectuation of the school's purposes. Guerrieri v. Tyson, 147 Pa.Super. 239, 24 A.2d 468 (1942).

This rule is concisely stated in the Restatement of Torts, Second, limiting In loco parentis authority of a school to the purposes of the school's existence. Restatement (Second) of Torts, secs. 152, 154 (1965). See discussion in 117 Pa.L. 373, 377 et seq.

In Texas it has been held that schools have plenary parental power over pupils while in school, and that violation of a rule not shown to be an abuse of power and discretion to insure proper conduct and decorum may be punished even though in violating the rule the pupil 'was following her father's instructions.' McLean Independent School District v. Andrews, 333 S.W.2d 886 (Tex.Civ.App., Amarillo, 1960, no writ).

About a week following trial of appellant a disposition hearing was conducted, with a different district judge presiding. After the disposition hearing, the trial court stated to appellant, 'I have come to the conclusion that the best thing to be done for you as well as for society is that you be committed to the Texas Youth Council.'

At the disposition hearing appellant objected to the presentation of a 'supplemental report' to the court on the grounds that the report contained hearsay evidence, was prejudicial, contained unsworn testimony and inflammatory matter, and was not subject to cross examination.

The presiding judge overruled the objections and stated:

'The objection is overruled, with this statement: that the Court, if he considers the supplemental report at all, will only consider--or, will not consider any portion thereof which would not be admissible in the trial of a criminal action.'

No findings of fact or conclusions of law were requested or filed. This being a civil action, the usual rules of procedure in civil cases are applicable. Without findings of fact or conclusions of law, the trial court is presumed in rendering its decision not to have considered inadmissible evidence. Unless appellant shows from the record that under no theory was the court authorized to enter judgment, the cause will be affirmed if the judgment on any theory is supported by the statement of facts. 3 Tex.Jur.2d, Appeal and Error--Civil, p. 689, sec. 438; Rosales v. Rosales, 377 S.W.2d 661 (Tex.Civ.App., Corpus Christi, 1964, no writ).

Appellant brings a seventh point of error that the testimony of two employees of the juvenile detention home was incompetent, irrelevant, and highly inflammatory. The trial court sustained objections on the ground of hearsay as to the testimony of these witnesses, but did admit other testimony that appellant had left the juvenile home without permission after being committed pending the disposition hearing and upon being returned gave the appearance and bore the marks of a person under the influence of drugs. Appellant relies upon Article 38.29, Texas Code of Criminal Procedure (1965) which we conclude is applicable to 'a defendant in a criminal case' and has no bearing upon a civil proceeding as the one before us.

We have carefully considered all points of error brought by appellant in this appeal and have overruled all points.

The business of trying and sending young boys and girls to confinement until they attain their majority is a dismal and depressing business. As pointed out by the Supreme Court of Texas in the Santana case, supra, 'The policy of the juvenile laws has been fixed by the Texas Legislature; and we conceive it to be our duty to uphold the spriit of that law * * *' 444 S.W.2d 614, 617, col. 2.

The judgment of the trial court is in all things affirmed.

HUGHES, Justice (dissenting).

I agree with all the statements of law from order cases and authorities quoted in the opinion of the Court regarding the legal doctrine of in loco parentis but I do not agree that such authorities have been followed in this case. Rather, I am of the opinion that the Court has enlarged and extended the doctrine of in loco parentis to unconstitutional proportions. I, therefore, respectfully dissent.

In order that the facts may be more fully stated, I copy the following undisputed statement from appellant's brief:

'On or about February 27, 1969, Mr. Kermit Heiman, Dean of Boys at Reagan High School, Austin, Texas, received a 'tip' from an unidentified student that your Appellant, Roger Mercer,...