E. S. G. v. State

• Decision Date: 22 October 1969
• Docket Number: No. 14749,14749
• Citation: 447 S.W.2d 225
• Parties: E. S. G., Appellant, v. The STATE of Texas, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 225

447 S.W.2d 225

E. S. G., Appellant, v. The STATE of Texas, Appellee.

No. 14749.

Court of Civil Appeals of Texas San Antonio.

Oct. 22, 1969.

Rehearing Denied Nov. 19, 1969.

John L. Sanders, Harry B. Adams, III, San Antonio, for appellant.

James E. Barlow, Sparta Bitsis, San Antonio, for appellee.

BARROW, Chief Justice.

Appellant, a girl fourteen years of age, was adjuged delinquent by the Juvenile Court of Bexar County after a non-jury trial and committed to the custody of the Texas Youth Council for an indefinite term not extending beyond her twenty-first birthday, in accordance with the provisions of the Texas Juvenile Act, Art. 2338-1, Vernon's Ann.Civ.St. She is presently confined in the State Training School for Girls.

The finding of delinquency is based on Sec. 3(f) of said Act, which defines a delinquent child as one who 'habitually so deports himself as to injure or endanger the morals or health of himself or others.' The question presented here is whether this portion of the statute is unconstitutionally vague. No question is presented as to the fairness of the trial, the adequacy of the evidence, or whether the essentials of due process were observed. Cf. In re Gault, 387 U .S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Leach v. State, 428 S.W.2d 817 (Tex.Civ.App.--Houston (14th) 1968, no writ).

This case was originally drawn by Justice Cadena, and while we find no disagreement with the exhaustive and scholarly presentation of the problem raised by the 'void for vagueness' doctrine as set forth in his opinion, ¹ we disagree with his conclusion that Sec. 3(f), supra, is unconstitutional. Accordingly, this opinion is filed as the majority opinion of this Court.

The relatively comprehensive word 'morals' is one which conveys concrete impressions to the ordinary person. Such word is in constant use in popular parlance, and this word or words of similar import are used in the statutes of most States to define behavior illegal for a child. In thirty-three States a child can be found delinquent if he is guilty of immoral conduct, and the various States' definitions of immoral conduct are all somewhat similar to Sec. 3(f). See XXI Baylor Law Review 352, 358; Sussman, Law of Juvenile Delinquency, Ch. II. The obvious reason for granting such broad and general jurisdiction is seen when one makes even a cursory attempt to define all the types and patterns of behavior and conduct injurious to a child. The need to correct habits and patterns of behavior which are injurious to the health or morals of the child goes to the very heart of our Juvenile Act. The judge in this case observed that most girls who came before said court were charged with violation of this section.

It is not questioned that appellant was engaged in a course of conduct injurious to her morals, if not her health. Nor could it be questioned that this fourteen-year-old girl understood that such conduct was injurious to her morals. Even her attorney recognized that her parents had lost control and that the girl desperately needed supervision. She was gone from her home for days at a time and lived with a girl reputed by appellant's mother to be a prostitute. Appellant and this girl hung around the Greyhound Bus Station and other public places. She was brought before the Juvenile Court after her mother had located her in a downtown transient apartment with a young adult male. She had been gone from home for over a week on this occasion, and when apprehended by her mother and a policeman she was only partially dressed. This case history illustrates the need for a provision such as found in Sec. 3(f), supra.

The use of words such as 'morals' is not confined to our Juvenile Act. In Lowe v. Texas Liquor Control Board, 255 S.W.2d 252 (Tex.Civ .App.--Amarillo 1952 no writ), the Court rejected a charge that Art. 666-12(6), Vernon's Ann.P.C., was vague and indefinite although it contained similar type words. The Court said: '(These) terms (general welfare, health, peace, morals and safety of the people, and sense of decency) have a well-accepted and understood meaning.' Other States have reached a similar result. In People v. Deibert, 117 Cal.App.2d 410, 256 P.2d 355, 1953, defendant was convicted of contributing to the delinquency of a minor, that is of encouraging the minor to lead an 'idle, dissolute or immoral life.' The Court rejected a contention that the statute was too vague, indefinite and uncertain to form the basis of a criminal charge and hence invalid under the due process clause of the Constitution. In doing so it said: 'The use of words of general meaning is the essence of our code system. Thus, in a sphere so vital to the community as the welfare of its youth, the words used in a statute designed to enable the Legislature to come to grips effectively with the problems of juvenile delinquency should be upheld where their frequent use in penal statutes gives assurance that they are understood by men of ordinary intelligence.' See also United States v. Meyers, 16 Alaska 368, 143 F.Supp. 1 (1956).

It is conceded that Sec. 3(f), supra, defines a delinquent child in general terms. However, the petition filed under same must allege the specific acts or conduct which brings the child within the prohibited behavior. Viall v. State, 423 S.W.2d 186 (Tex.Civ.App.--Amarillo 1967, no writ); Cantu v. State, 207 S.W.2d 901 (Tex.Civ.App.--San Antonio 1948, no writ). This protects the rights of the child in the adjudicatory stage of the proceedings. We do not believe that the section in question is unconstitutionally vague.

Appellant also urges that the trial court erred in not requiring the State to prove its allegations beyond a reasonable doubt. Actually, the court found only that 'the evidence is sufficient,' and refused to state the test that it applied. Since submission of this cause, the Supreme Court in State v. Santana, 444 S.W.2d 614 (July 23, 1969), has held that the 'beyond a reasonable doubt' test is not required under the Juvenile Act. Therefore, appellant's point is without merit even if we assume that the Juvenile Court found appellant delinquent by applying the 'preponderance of evidence' test.

The judgment is affirmed.

CADENA, Justice (dissenting).

The Texas Juvenile Act, ¹ is typical of almost every statute on the subject in that, after defining the term 'delinquent child' in rather specific language relating to conduct violative of penal statutes and ordinances, ² it vests broad discretion in the Juvenile Court by extending the definition to include any child who 'habitually so deports himself as to injure or endanger the morals or health of himself or others' ³ or who 'habitually associates with vicious and immoral persons.' ⁴ In this case, the petition filed by the State alleged that appellant had habitually so conducted herself as to endanger 'the morals or health of herself and others,' without specifying whether the facts alleged in the petition constituted a threat to appellant's morals or health, or to the morals or health of others.

Despite some indications to the contrary, ⁴ the Supreme Court of the United States has explicitly refused to limit the application of the 'void for vagueness' doctrine to criminal cases. ⁵

Rather than relying on differences in nomenclature and the civil-criminal dichotomy, ⁶ it would be a sounder approach to attach significance to the seriousness of the matter which is at stake in determining whether the statute will survive a vagueness attack. ⁷ Under our statute a child of ten may be deprived of his liberty for a period of eleven years. Appellant here faces confinement for almost seven years. To insist on greater definiteness in a statute imposing a $5.00 fine than in one imposing such confinement as a sanction, and to defend such distinction on the ground that the statute imposing the fine is a criminal enactment while the statute imposing the confinement is civil in nature, is to ignore reality.

The vagueness doctrine requires that a statute be sufficiently clear to give notice of the conduct required or prohibited to those whose activity the statute attempts to regulate. A judgment that a particular statute does not provide the required certainty or definiteness is seldom, if ever, a completely objective conclusion. ⁸ What is uncertain today may have been certain yesterday and may be certain again tomorrow. What is uncertain to one judge may be certain to another, and what is uncertain to one judge in one area of the law may be certain to the same judge as to another subject matter.

Unfortunately, the decisions which speak of vagueness do so in vague terms which are the source of counter-sounding quotations. Thus, we are told that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process * * *.' ⁹ On the other hand, it is a fact, as Mr. Justice Holmes observed, that 'the law is full of instances where a man's fate depends on his estimating rightly * * * some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment * * *, he may incur the penalty of death.' ¹⁰

The vagueness doctrine, of course, creates practical difficulties. Although speaking in dissent, Mr. Justice Frankfurter has well articulated the resulting legislative problem:

'In these matters, legislatures are confronted with a dilemma. If a law is framed with narrow particularity, too easy opportunities are afforded to nullify the purpose of the legislation. If the legislation is drafted in terms so vague that no ascertainable line is drawn in advance between innocent and condemned conduct, the purpose of the legislation cannot be enforced because no purpose is defined. * * * The reconciliation of these two contradictories is necessarily an empirical enterprise largely depending on the nature of the...