TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00072-CV
In the Matter of A. H.
NO. C-97-0185-J, HONORABLE DICK ALCALA, JUDGE PRESIDING
After A.H. was adjudicated and placed on probation in his mother's custody, the juvenile court amended its disposition and extended his probation on two different occasions. The first time the juvenile court placed him outside the home at a boot camp, and the second time, after he completed the boot camp program, the court allowed him to return home in his mother's custody. Soon after he returned to his mother's home, A.H. pleaded true to allegations that he violated his probation conditions by being away from home on three nights and by using marihuana. This time, after a hearing to modify his disposition, the court committed A.H. to TYC.
In his first issue, A.H. contends that under the recently amended Texas Family Code section 54.05(f) and the newly enacted 54.05(j), the juvenile court erred as a matter of law in committing him to TYC. See Tex. Fam. Code Ann. § 54.05(f), (j) (West Supp. 2000).
Amended section 54.05(f) provides that a juvenile court may modify a disposition of probation and commit a child to TYC because the child violated a court-ordered condition of probation if the original adjudication was a felony offense. See Tex. Fam. Code § 54.05(f). Newly enacted section 54.05(j) provides that a juvenile court may modify a disposition of probation and commit a child to TYC because the child violated a probation provision if the original adjudication was a misdemeanor only if (1) the child has been adjudicated as having committed a felony or misdemeanor on a least two previous occasions and (2) of the previous adjudications, the conduct that was the basis for those adjudications occurred after the date of another previous adjudication. See Tex. Fam. Code § 54.05(j).
A.H. argues that because the juvenile court signed the modification order on September 20, 1999, the new provisions applied and the court improperly modified his disposition by committing him to TYC. He contends that under the new provisions of section 54.05 as a matter of law the juvenile court could not commit him to TYC because he had not been previously adjudicated to have committed a felony or multiple misdemeanors on different dates.
The State responds that although sections 54.05(f) and 54.05(j) became effective September 1, 1999, they apply only to delinquent conduct that occurs after September 1, 1999. See Act of May 30, 1999, 76th Leg., R.S., ch.1448, § 3(b), 1999 Tex. Gen. Laws 4920, 4921; Act of May 27, 1999, 76th Leg., R.S., ch. 1477, § 39(a), 1999 Tex. Gen. Laws 5067, 5090. Conduct that occurred before September 1, 1999, is covered by the laws relating to adjudication and disposition in effect at the time the conduct occurred, and the former law is continued in effect for those purposes including modifications. See id.
A.H. was adjudicated for engaging in delinquent conduct that occurred in April 1997. The State alleged that he violated his court-ordered probation on August 1-3, 1999. Because the conduct for which he was adjudicated occurred before September 1, 1999 as well as the probation violations, the former law governs the juvenile court's modification of his disposition rather than the new provisions. The former law in effect at the time A.H. was adjudicated provided that a juvenile court may modify a disposition and commit a child to TYC (1) if the original disposition was based on a finding that a child engaged in any type of delinquent conduct, and (2) if the juvenile court finds by a preponderance of the evidence that the child violated a court-order. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 42, 1995 Tex. Gen. Laws 2517, 2540 (formerly Tex. Fam. Code Ann. § 54.05(f)). The former law did not include a provision, as the new sections 54.05(f) and 54.05(j) do, that the juvenile must have previously committed a felony or multiple misdemeanor offenses before a disposition may be modified to commit a child to TYC.
Because A.H. committed the offenses and violated his disposition order before the effective dates for the newly amended section 54.05(f) and the newly enacted section 54.05(j), we hold that these new provisions do not apply to the juvenile court's modification of A.H.'s disposition. We overrule A.H.'s first issue.
Alternatively, in his second issue, A.H. contends that the juvenile court abused its discretion by committing him to TYC because, based on the evidence, an opportunity for rehabilitation existed that was less severe than sending him to TYC. Rick Adney, A.H.'s former step-father, testified at the modification hearing that he was willing to take responsibility for A.H. and to have A.H. reside with him. A.H. contends that instead of committing him to TYC the juvenile court should have modified his disposition to send him to live with Adney.
Juvenile courts are granted broad discretion to determine a suitable disposition for a child adjudicated delinquent. See In re J.R., 907 S.W.2d 107, 110 (Tex. App.--Austin 1995, no writ). A juvenile court abuses its discretion when it acts arbitrarily, unreasonably or without reference to guiding rules and principles. See In re T.A.F., 977 S.W.2d 386, 387 (Tex. App.--San Antonio 1998, no pet.).
At the modification hearing Rick Adney testified that he wanted the court to continue A.H.'s probation and asked the juvenile court to place A.H. in his custody. He stated that he was a strict disciplinarian and that he was willing and able to properly supervise A.H. He explained that he worked away from the home from 6:00 a.m. until 3:00 p.m. which would allow him to supervise A.H. better than his mother.
A.H.'s juvenile court history shows that many reasonable efforts have been made to allow him to live at home but that he continues to violate his probation orders. The court's summary reflects that A.H.'s delinquent conduct referrals began in April 1995 when he received a supervisory caution for burglary of a coin-operated machine. In May 1995, he was placed on deferred prosecution, an informal type of pre-adjudication home probation, for a class A assault. While serving on deferred, he received a supervisory caution in July 1995 for a class B misdemeanor criminal mischief offense. In July 1996, he was again placed on deferred prosecution for criminal trespass. In August 1996, he received another supervisory caution for another class B criminal mischief referral. Finally, in September 1997, he was adjudicated for the offense of class B criminal mischief and placed on court-ordered probation in his mother's custody for one year. Before he completed the one-year probation, in August 1998 the district attorney moved to modify his disposition because A.H. violated his probation conditions by committing the misdemeanor offense of evading detention. Additionally, in October 1998 a class B misdemeanor criminal mischief and class A assault were consolidated with the State's motion to modify his disposition. Before the case was heard, A.H. voluntarily agreed to extend his probation another year and to participate in the Hemphill County Juvenile Boot Camp. At that time the juvenile court specifically found that placement outside of the home was in A.H.'s best interest and that reasonable efforts had been made to prevent the need for removal from the child's home. On April 5, 1999, after successfully completing the boot camp program, appellant voluntarily amended his probation to allow him to return to his mother's home and participate in the Probation Community Control Program which is the Tom Green County Juvenile Probation Department's strictest form of home probation. On June 30, 1999, after probation officers found evidence of marihuana use during a routine urinalysis, A.H. was required to wear an electronic ankle monitor to record any unauthorized journeys from his mother's house. On August 1, 1999, A.H. cut off the ankle monitor and left the county.
The juvenile court has been supervising A.H. since 1995. Although the juvenile court once placed A.H. outside the home at a boot camp, the court has attempted several times to allow A.H. to remain in the community. A.H. had been placed on deferred prosecution, regular probation, and electronic monitoring. Each time A.H. violated the conditions of his probation. Given A.H.'s history of failing to comply with his probation conditions, we hold that the trial court did not act arbitrarily or unreasonably in modifying A.H.'s disposition to commit him to TYC. While less severe measures than committing A.H. to TYC were once again available to the juvenile court, we conclude that A.H. has not shown that the juvenile court abused its discretion in modifying his disposition to send him to TYC. We overrule A.H.'s second issue.
We affirm the juvenile court's modification of A.H.'s disposition.
J. Woodfin Jones, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: June 15, 2000
Do Not Publish
1. The version of the criminal mischief statute that applies to this offense may be found at Act of May 26, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3628. The current version of this offense is located at Tex. Penal Code Ann. § 38.03(b)(2) (West Supp. 2000).
him. A.H. contends that instead of committing him to TYC the juvenile court should have modified his disposition to send him to live with Adney.
Juvenile courts are granted broad discretion to determine a suitable disposition for a child adjudicated delinquent. See In re J.R., 907 S.W.2d 107, 110 (Tex. App.--Austin 1995, no writ). A juvenile court abuses its discretion when it acts arbitrarily, unreasonably or without reference to guiding rules and principles. See In re T.A.F., 977 S.W.2d 386, 387 (Tex. App.--San Antonio 1998, no pet.).
At the modification hearing Rick Adney testified that he wanted the court to continue A.H.'s probation and asked the juvenile court to place A.H. in his custody. He stated that he was a strict disciplinarian and that he was willing and able to properly supervise A.H. He explained that he worked away from the home from 6:00 a.m. until 3:00 p.m. which would allow him to supervise A.H. better than his mother.
A.H.'s juvenile court history shows that many reasonable efforts have been made to allow him to live at home but that he continues to violate his probation orders. The court's summary reflects that A.H.'s delinquent conduct referrals began in April 1995 when he received a supervisory caution for burglary of a coin-operated machine. In May 1995, he was placed on deferred prosecution, an informal type of pre-adjudication home probation, for a class A assault. While serving on deferred, he received a supervisory caution in July 1995 for a class B misdemeanor criminal mischief offense. In July 1996, he was again placed on deferred prosecution for criminal trespass. In August 1996, he received another supervisory caution for another class B criminal mischief referral. Finally, in September 1997, he was adjudicated for the offense of class B criminal mischief and placed on court-ordered probation in his mother's custody for one year. Before he completed the one-year probation, in August 1998 the district attorney moved to modify his disposition because A.H. violated his probation conditions by committing the misdemeanor offense of evading detention. Additionally, in October 1998 a class B misdemeanor criminal mischief and class A assault were consolidated with the State's motion to modify his disposition. Before the case was heard, A.H. voluntarily agreed to extend his probation another year and to participate in the Hemphill County Juvenile Boot Camp. At that time the juvenile court specifically found that placement outside of the home was in A.H.'s best interest and that reasonable efforts had been made to prevent the need for removal from the child's home. On April 5, 1999, after successfully completing the boot camp program, appellant voluntarily amended his probation to allow him to return to his mother's home and participate in the Probation Community Control Program which is the Tom Green County Juvenile Probation Department's strictest form of home probation. On June 30, 1999, after probation officers found evidence of marihuana use during a routine urinalysis, A.H. was required to wear an electronic ankle monitor to