P. G. v. State

• Decision Date: 11 March 1981
• Docket Number: No. 16645,16645
• Citation: 616 S.W.2d 635
• Parties: P. G., A Juvenile, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 635

616 S.W.2d 635

P. G., A Juvenile, Appellant, v. STATE of Texas, Appellee.

No. 16645.

Court of Civil Appeals of Texas, San Antonio.

March 11, 1981.

Rehearing Denied April 15, 1981.

James P. Sieloff, San Antonio, for appellant.

John Horn, Asst. Dist. Atty., San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is an appeal of an order of the Juvenile Court waiving juvenile jurisdiction and transferring the cause to the criminal district court. The appellant, P. G., was sixteen years old at the time of the alleged offense. He was charged with engaging in delinquent conduct consisting of sexual abuse of a child as set forth in Section 21.10 of the Texas Penal Code. After a hearing, appellant was certified and transferred to the district court pursuant to Section 54.02 of the Texas Family Code. ¹

Appellant in three points of error asserts (1) that the trial court's failure to comply with the Texas Family Code and the Texas Rules of Civil Procedure as to service of summons deprived appellant of due process of law; (2) that there is insufficient evidence to support the trial court's finding that the use of procedures, services and facilities currently available to the juvenile courts are inadequate to protect the public and reasonably rehabilitate appellant, and (3) that the original petition and motion to certify and transfer failed to allege a criminal offense which can be committed by appellant.

Appellant's first point of error is premised on two bases, (a) juvenile cases are civil in nature and are governed by the Texas Rules of Civil Procedure; and (b) the service of summons here was made by a probation officer who was not a suitable person to serve such summons.

Rule 103 of the Texas Rules of Civil Procedure states:

All process may be served by the sheriff or any constable of any county in which the party to be served is found, provided that no officer who is a party to or interested in the outcome of a suit shall serve any process therein. ²

Section 53.07(c) of the Texas Family Code, Service of Summons, which applies to juvenile certifications, provides: "Service of the summons may be made by any suitable person under the direction of the court."

In his first contention, appellant urges that the mode of service provided in Rule 103, Texas Rules of Civil Procedure, is mandatory and exclusive, and since the summons was not served by an officer or a constable of this state, the service was void and of no effect. It is clear that a juvenile court lacks jurisdiction to consider waiver of jurisdiction and discretionary transfer to district court for criminal proceedings where the juvenile has not been served with summons to the hearing. In the Matter of W. L. C., 562 S.W.2d 454 (Tex.1978); In the Matter of D. W. M., 562 S.W.2d 851 (Tex.1978); In the Matter of T. T. W., 532 S.W.2d 418 (Tex.Civ.App. Texarkana 1976, no writ). It is undisputed that appellant here was served with a summons.

Appellant's primary contention in support of his point of error number one is that the service of summons by Marion Thompson, a juvenile probation officer, deprived him of due process because Mr. Thompson was a witness for the state at the certification hearing, and his testimony was adverse to appellant and, therefore, Thompson was interested in the case so as to disqualify him from serving a summons.

Texas courts, like a number of other states, hold that the proceedings in a juvenile case are not criminal in nature, but rather are civil proceedings. Carrillo v. State, 480 S.W.2d 612 (Tex.1972); J. J. H. v. State, 557 S.W.2d 838 (Tex.Civ.App. Waco 1977, no writ). It is often stated that juvenile proceedings are governed by the Texas Rules of Civil Procedure. J. J. H. v. State, supra; Yzaguirre v. State, 427 S.W.2d 687 (Tex.Civ.App. Corpus Christi 1968, no writ). However, there are also Texas cases which have held that the Rules of Civil Procedure apply to juvenile cases as far as practicable. Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290 (Tex.1968); Steed v. State, 143 Tex. 82, 183 S.W.2d 458 (1944); Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944); In the Matter of R. A. B., 525 S.W.2d 892 (Tex.Civ.App. Corpus Christi 1975, no writ). Moreover, Section 51.17 of the Texas Family Code provides that the Texas Rules of Civil Procedure govern juvenile proceedings unless they conflict with provisions of Title 3 of the Code.

We disagree with appellant's contention that the service of summons in a juvenile proceeding must be made pursuant to the provisions of Rule 103, Tex.R.Civ.P., and this type of service is mandatory. Our holding herein is not inconsistent with the cases above cited and this is particularly true where the Family Code contains a specific provision for the service of such process. It is clear that the legislature intended to give the juvenile court discretion to determine who is a "suitable person" to serve a summons on a juvenile. See Commentary to the Family Code, set forth in 5 Tex.Tech.L.Rev. 545, 553-54 (1974). We hold that Rule 103 of the Texas Rules of Civil Procedure is not a mandatory provision for service of a summons in a juvenile case.

We also disagree with appellant's contention that the officer or probation officer here involved is not a suitable person to serve such summons. The fact that a person may be called as a witness by one or the other party to a suit and may thereafter testify favorably or adversely to the person calling him, does not make him an interested party in the ordinary sense of the word or make him a person interested in the outcome of the suit.

A juvenile probation officer who is familiar with the person served or who may have worked with him in an attempt to rehabilitate him would appear to be a very suitable person to serve notice on a juvenile for an appearance at a hearing to determine whether he will be certified to stand trial as an adult for an alleged offense. We hold that Mr. Thompson was a suitable person to serve the summons here involved.

It is often said that an essential element of due process is a meaningful opportunity to be heard. It is undisputed that appellant and his mother were duly served with a copy of the petition, the motion for certification to transfer the cause, and the summons, and appeared at the hearing and were represented by counsel. We see no violation of due process and due process was afforded to appellant.

Appellant's point of error number one is without merit and is overruled.

Appellant's second point of error complains that there is insufficient evidence to support the trial court's finding that use of procedures, services, and facilities currently available to the juvenile court are inadequate to protect the public and reasonably rehabilitate appellant. Section 54.02(f) of the Family Code provides that in making its determination whether to waive and transfer the court shall consider, among other things:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) whether the alleged offense was committed in an aggressive and premeditated manner;

(3) whether there is evidence on which a grand jury may be expected to return an indictment;

(4) the sophistication and maturity of the child;

(5) the record and previous history of the child; and

(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Tex.Fam.Code Ann. § 54.02(f) (Vernon 1975).

Appellant's complaint in this point of error is centered on section 6 of such section. However, he also complains that the court did not make specific findings on every element of section 54.02(f).

The proceeding in the juvenile court is, by the nature of the Texas Family Code, discretionary in character. In the Matter of M. I. L., 601 S.W.2d 175 (Tex.Civ.App. Corpus Christi 1980, no writ).

In its judgment, the trial court enumerated the statutory requirements of section 54.02(a), as to waiver and transfer to criminal district courts, and stated that each had been found. The court further listed the six factors of section 54.02(f) and stated that each had been considered in making a determination. The judgment then contains these additional findings:

The Court specifically finds that the said P.G. is of sufficient sophistication and maturity to have intelligently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived by the said P.G., and to have aided in the preparation of this defense; that the offenses alleged to have been committed by the said P.G., to wit: Sexual abuse of a Child, alleged to have been committed on the 13th day of April, 1980, A.D., was committed in an aggressive and premediated (sic) manner; that evidence was presented concerning the alleged offenses upon which a grand jury may be expected to return an indictment; because of the seriousness and gravity of the alleged offenses demonstrated to the Court that there is little, if any, prospect of adequate protection of the public and likelihood of reasonable rehabilitation of the said P.G. by use of procedures, services, and facilities currently available to the JUVENILE COURT.

The court need not find that all the factors in subdivision (f) have been established, but it must consider all these factors and state the reasons for its transfer so that the appellate court may review the basis on which the conclusion was made and can determine whether the evidence so considered does in fact justify that conclusion. In the Matter of J. S., 602 S.W.2d 585 (Tex.Civ.App. Amarillo 1980, no writ); T. P. S. v. State, 590 S.W.2d 946 (Tex.Civ.App. Dallas 1979, writ ref'd n. r. e.); In the Matter of J. R. C., 551 S.W.2d 748 (Tex.Civ.App. Texarkana 1977, writ ref'd n. r. e.).

In the case of In the Matter of G. B. B., 572 S.W.2d 751...