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In re J.I.A.

Court of Appeals of Texas, First District

December 17, 2013

IN THE MATTER OF J.I.A.

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2009-01632J

Panel consists of Justices Jennings, Sharp, and Brown.

MEMORANDUM OPINION

TERRY JENNINGS JUSTICE

The juvenile court adjudicated that appellant, J.I.A., engaged in delinquent conduct after he pleaded true to committing the offense of aggravated sexual assault of a child under fourteen years of age.[1] In two issues, appellant contends that the juvenile court lacked jurisdiction to adjudicate his conduct and he was not afforded the requisite notice of the modification proceedings. We affirm.

Background

Appellant, pursuant to an agreed punishment recommendation with the State, pleaded true to having engaged in delinquent conduct by committing the offense of aggravated sexual assault of a child. After a hearing, the juvenile court entered its order of adjudication and made an affirmative finding that appellant was in need of rehabilitation. In accord with appellant's agreement, the juvenile court assessed his punishment at probation until his eighteenth birthday, ordered that he be committed to the custody of the Harris County Chief Juvenile Probation Officer ("CJPO"), ordered that he participate in sex-offender counseling, and deferred its determination on whether he would be required to register as a sex offender.[2]Although the juvenile court granted permission to appeal its order of adjudication, [3]appellant did not appeal.

A year later, the State moved for a modification disposition (referred to by the parties as a "Reopen"), alleging that appellant had committed two new misdemeanor offenses. Appellant stipulated to the State's evidence and signed a judicial confession, admitting to having committed the offenses. In accord with appellant's punishment agreement with the State, the juvenile court assessed his punishment at probation for one year.

Subsequently, the State again moved for a modification disposition (referred to by the parties as a "2nd Reopen"), alleging that appellant had violated the terms of probation by failing to report to his juvenile probation officer as required, attend school and sex-offender counseling as ordered, and abide by the curfews imposed by the court. After a deputy constable tried unsuccessfully to serve appellant and his mother with the State's second petition for modification, service was "reissued." The return shows that the deputy successfully served appellant, who was in state jail custody, and his mother.

One day before appellant's eighteenth birthday, the juvenile court held a hearing, at which he appeared with counsel, on the State's second petition for modification. In its modification order, the trial court revoked appellant's probation, but made no further disposition in the case other than ordering appellant to publicly register as a sex offender.[4]

Jurisdiction

In his first issue, appellant argues that the juvenile court lacked jurisdiction to render its original adjudication order because "the record does not affirmatively show that [he] was served with the petition and citation" in the original proceeding. He argues, thus, that the juvenile court's subsequent modification order requiring him to register as a sex offender is "void."

Assuming without deciding that appellant may raise in an appeal from a modification order the issue of failure of service in the underlying adjudication proceeding, we conclude that appellant nevertheless cannot prevail on the record before us.[5]

In proceedings before a juvenile court, due process requires notice that would be deemed constitutionally adequate in a civil or criminal proceeding, and such notice must be given sufficiently in advance of trial to give the accused a reasonable amount of time to prepare. In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446 (1967). Texas Family Code section 53.06 provides that a juvenile court "shall direct issuance of a summons" to the child named in the petition, among others. See Tex. Fam. Code §.53.06(a) (Vernon 2008). "A copy of the petition must accompany the summons, " and "[t]he summons must require the persons served to appear before the court at the time set to answer the allegations of the petition." Id. §.53.06(b).

A juvenile may not waive service of process by written stipulation or voluntary appearance at trial. See Tex. Fam. Code Ann. ยง 53.06(e) ("A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing."). A juvenile court lacks jurisdiction if the record does not contain an affirmative showing of service on the juvenile, ...


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