Appeal from an order or judgment of the County Court of Bexar County, sitting as a juvenile court, overruling what is styled “First Original Petition to Modify or Revoke Order of Commitment of Juvenile,” in a proceeding, brought under Art. 2338 — 1, Vernon’s Ann.Civ.St., in which Elvira A. Reyna, a girl 17 years old, daughter of Matías and Eliza Reyna, was adjudged a delinquent child, and committed to the “care, custody and control of the Convent of the Good Shepherd in San Antonio.” The petition was filed on behalf of Elvira, by her parents as next friends, and is sworn to by both parents. It was overruled upon its presentation, without hearing or evidence other than the reading from the evidence. on the original trial that the mother was present at that trial. The appeal is predicated upon three points of error urging that the case be reversed because: (1) the parents did not have sufficient notice of the proceeding; (2) the complaint was not sustained by the evidence; and (3) “the child was deprived of the right to complain of the injury done'to her person and reputation by others.”
The suit was filed February 4, 1947, the petition alleging three grounds of delinquency: That Elvira (1) “habitually so deports herself as to injure and endanger the morals and health of herself and others”'; (2) “habitually associates with vicious and immoral persons”; (3) “habitually loiters on the streets late at night and is not subj ect to the management and control of the person having her in cusody.”
The summons to the parents was in the form of a subpoena commanding them to appear on February 6, 1947, “then and there to testify as a witness in behalf of the State, in an action in which Elvira Reyna is charged with being a ‘delinquent child’.” It was issued February 4, 1947, and placed in the hands of the sheriff the same day, whose return showed merely: “Executed1 by leaving a copy of the subpoena with the following witnesses: Matias Reyna Eliza Reyna.” No date of service was given, but it was returned and filed February S, 1947, the day preceding the trial and judgment; which latter recited no-character of service. The “Petition to Modify or Revoke” was verified February 23, and filed February 27 during the same term of court at which the judgment was rendered. Its verified allegations were that: Elvira was the elder of two children residing from birth in the “family home” of the parents, attending school regularly, where but for the incident stated below she would have graduated from high school in 1947. About January 22, 1947, she absented herself from home and her parents being unable to find her, reported her absence to the police. January 25, she came home, accompanied by an officer, and informed her mother “that she had gone to the police because she feared her parents would punish her for having absented herself from her home without permission, and for what she had done during her absence. * * * She informed her mother that she had been induced to leave home by a young man named Jesse J. Trevino and go with him in reliance upon his promise to marry her, and after said promised marriage they would tell their parents that they were married and so, their parents could not prevent them from marrying, (would) .forgive her for marrying without their consent and they would all be happy.” Jesse thereafter refused to marry her and abandoned her, and she went to the police to be taken home, as stated. She and her mother later went to the courthouse to file a complaint against Jesse “for the wrong done said child,” and appeared before the Juvenile Officer in the belief that he was the one to whom to make the complaint. The mother speaks Spanish and very little English, and did not know that Elvira was being charged with delinquency, and the summons served on her was not sufficient notice thereof. - The father had no notice and was ignorant of the proceedings. The parents “were at all times able, willing Und ready, and are now * * * to provide a good and suitable home and family invironments for said child, and to in every 'respect comply fully with their obligation to safeguard said child’s physical and moral health and best interest, and firmly believe it will be to said child’s best interest to be returned to their custody.” The prayer was to revoke the judgment of so modify it as to give the párertts custody of Elvira.
*653It was stipulated that the only evidence upon the February 6, 1947, trial was to the effect that: January 30, 1947, Elvira was brought to the probation office by her mother, who complained that Elvira had run away from home eight days before and had been living with Jesse. This Elvira admitted and that they had had sexual intercourse many times in this period. She went back to her mother’s home after reporting to the police herself that she had been a runaway and asked for their protection. The mother was present at the trial but did not testify, “and it is admitted that she does not speak nor understand the English language and Elvira was not represented by an attorney c.t the trial.”
The State contends that the judgment of delinquency is valid and immune to “collateral attack”, since there was no motion for new trial nor appeal taken within five days as provided by Sec. 21 of Art. 2338 — 1; and that modification of the judgment of commitment to the custody of the Convent is a matter purely within the discretion of the trial court and not subject to review.
This was in no sense a collateral attack on the judgment. It was a direct attack brought in the court in which the judgment was rendered to “revoke or modify” the judgment. Moreover, being filed and heard at the same term of court at which the judgment was rendered, it may be regarded either as a motion for new trial (the court having jurisdiction over the judgment during the term), or as an independent proceeding to set the judgment aside. Here the nomenclature is not of substantial'importance. These principles are elementary.
Sec. 8 provides (Emphasis added) : “Unless the parties hereinafter named shall voluntarily appgar, the court shall issue a summons reciting briefly the substance of the petition, and requiring the person or persons mho have the custody or control of the child to appear personally and bring the child before the court at a time and place stated.11 The petition specifically stated that Elvira lived with her parents (naming them) and gave their street address in San Antonio. The process served upon the mother was in no proper sense the “summons” provided for in Sec. 8. It was headed “Subpoena” and commanded the parents to appear “as witnesses for the State.” There was no recitation briefly or otherwise of the “substance of the petition”; its only recitation in this regard was that they were “to testify as witnesses in behalf of the State, in an aetion wherein Elvira Reyna is charged with being a ‘delinquent child’.” Even as a 'statutory “summons” it was insufficient against direct attack in not giving the substance of ' the petition. The recent case of Robinson v. State, Tex.Civ.App., 204 S.W.2d 981, holds the petition insufficient where it does not reasonably set forth the grounds of delinquency, and by parity of reasoning a summons defective in that respect would be insufficient.
But, contends the State, the mother voluntarily appeared and rendered the summons unnecessary. The record does not show voluntary appearance by the mother. She appeared in obedience to a subpoena as a witness for the State. The stipulation recites that she was present at the trial, but did not testify. As she did not speak or understand English, it is evident that she was not aware of the significance of what was going on, or of what her rights as mother and one of the custodians of her daughter, or those of her daughter, were. Moreover the father “had no notice of any proceedings instituted against said child.” Such was his verified statement, which stands unchallenged in the record. But even if he were served with the subpoena it did not meet the requirements of the statutory summons.
If we turn to the stipulations we find that no evidence whatever was presented at the trial upon any of the three specifications charging delinquency. The only evidence upon that issue was that of the single instance of the girl’s running away from home and living a few days with Jesse, which was not specified in the petition. No evidence whatever of the girl’s prior life, her character, habits, or associations. This single act stands in the record of the trial, entirely isolated. In determining whether it was sufficient to warrant a judgment of delinquency, it was highly pertinent to have a reasonably accurate *654picture of the setting and attendant circumstances — whether, in fact, an innocent girl was the victim of a designing seducer, to whose persuasions she yielded under a promise of marriage (as she told her mother), or otherwise. Nor was there any evidence from which to determine that it was not for the best interest of the child that she be placed on probation or supervision in her own home, as provided in the first subdivision in Sec. 13.
This is an adversary proceeding in which the State is plaintiff and the child defendant. The latter’s custodians (in this instance the parents) are the real representatives of the child and of its interests as well as of their own. They are required to be served with a summons which shall convey reasonable notice of the alleged grounds of delinquency. They, more than any one else except the child, are interested in its future welfare. Certainly a fair and reasonable opportunity should be given them to develop the facts which bear upon the vital issues of the case. Sec. 2 provides: “This Act shall be liberally construed to accomplish the purpose herein sought.” Sec. 1 provides: “The purpose of this Act is to secure for each child under its jurisdiction such care, guidance and control, preferably in his ozvn home, as will serve the child’s welfare and the best interest of the state.” (Emphasis added.)
From what has been said we conclude that the case should have been reopened upon both issues; that of delinquency vel non and proper custody.
The trial court’s judgment is reversed and the cause remanded for a new trial on all issues. Costs of appeal are assessed against the State.
Reversed and Remanded.