In re T.D.

O’CONNOR, Justice,

dissenting.

I dissent.

T.D. is a black male who is functionally illiterate, with poor social and language skills, and has an intelligence quotient of 73, which is considered the lower end of the borderline range of intelligence. T.D. was described by a psychologist as emotionally isolated and likely to react to situations and events in a childish, immature, impulsive, and restless manner. T.D. is from a family of 11 children, and lives with his mother in a drug-infested part of Houston; his father is an alcoholic. When T.D. was 15 years of age, he was diagnosed as a substance abuser, both of alcohol and crack cocaine.

In December of 1988 and January of 1989, when T.D. was 15 years old, he was referred to the Harris County Juvenile Probation Department for possession of crack cocaine. As a result of the two referrals, the juvenile court found T.D. had engaged in delinquent conduct and committed him to the Texas Youth Commission (TYC).1 In the order referring T.D. to TYC, the court said T.D. needed a highly structured environment with constant supervision and control. The recommendation of Ms. Willis, his probation officer, was that T.D. be given some sort of substance abuse counseling and, because of his borderline intelligence, some specialized academic and vocational training. The court order committed T.D. to the Brownwood State School for an indeterminate period of time not to exceed T.D.’s twenty-first birthday. Two months after his commitment, Brownwood released T.D., returned him to the custody of his mother, and assigned him to the Texas Key *780Day Treatment program, a contract facility for nonresidential treatment.

When T.D. was told he was going to be discharged from Brownwood, he objected to being sent home and asked to go back to the state school. Ms. Olson, his case manager at TYC, testified that she told T.D. that he would have to do something wrong, that is, get into more trouble, before he could go back to the state school. He did.

While at TYC, T.D. was medicated with Thorazine, a major neuroleptics, anti-psychotic drug, given to people with schizophrenia or schizophrenic-formed disorder, a heavy sedative used to calm psychotic patients. At the certification hearing, an expert testified there was no indication T.D. was psychotic. Although institutions sometimes use Thorazine to control their patients, TYC is prohibited by regulation from using psychotropic drugs as a means of management control.2 Thus, TYC, in prescribing the drug for T.D., violated its own regulations regarding the medication of children. When TYC discharged T.D., it gave him a month’s supply of Thorazine, 25 milligrams, and told him to medicate himself daily. Recall: T.D. is a diagnosed substance abuser. By regulation, TYC is required to have the prescribing physician periodically review drug prescriptions.3 TYC did not review T.D.’s use of the drug Thorazine. Thus, TYC again violated its own regulations regarding the medication of children.

After being discharged from Brown-wood, TYC enrolled T.D. in the Texas Key day-care program, which required parental supervision. All the records indicate that TYC knew that T.D. had no parental supervision. T.D.’s mother works as a medical clerk full time as the sole support of her children. One of the complaints lodged by TYC against T.D. was that, after he returned home, he dropped out of the Texas Key program. One doctor’s report stated, “Since quitting school, T.D. has generally slept late (into the afternoon) at home, gotten up and gone over to the park where he hangs out with friends.” T.D.’s mother testified TYC did not tell her it sent T.D. home with Thorazine (another violation of TYC’s regulations).4 When she found the Thorazine, she threw it out. Until then, she said, T.D. slept most of the day.

When T.D. was released from Brown-wood, TYC gave him a curfew. A few months later, T.D. was shot in the leg as a bystander at the scene of a robbery. Inexplicably, as a direct result of that incident, TYC responded by extending T.D.’s curfew to a later hour.

In October 1987, T.D. was re-enrolled in the ninth grade at Kashmere High School, even though he could barely read and write. Another of the complaints lodged against T.D. was that he stopped going to school. It was predictable that he would stop attending school. His records showed that, with his low IQ, he needed special education and vocational training, neither of which was offered to him at Kashmere.

In January of 1990, T.D. was arrested for possession and delivery of two $10 pieces of crack cocaine to undercover Houston Police Officer Chaney, the referral made the basis of the certification hearing. T.D. was placed in the Harris County Juvenile Center on hold for TYC. At the Juvenile Center, he had regularly scheduled detention hearings, but no adjudicatory hearing.

On February 5, 1990, the State filed a motion for the juvenile court to waive jurisdiction. In response, the juvenile court ordered a diagnostic study, social evaluation, and full investigation of T.D., his circumstances, and the circumstances of the offense (the report). On April 6, 1990, after a three-day hearing, the court waived jurisdiction and transferred T.D. to the criminal district court.

*781At the certification hearing, Ms. Willis testified that T.D. could benefit from long-term care in a structured facility that provides the special services he needs, that is special education and vocational training. She recommended that T.D. be sent to a long term substance abuse program for at least a year. She testified that based on her experience with T.D., it was not in his best interest to give him Thorazine to medicate himself. She testified that the TYC facilities could serve T.D.’s needs; that T.D. needs to be in a long range, lock-up facility that will meet his need for drug and alcohol addiction treatment, and provide vocational training and education.

Joseph Chevalier, the clinical director for the Chrysalis Center, a speciality hospital that deals with substance abuse whose staff is made up of minority doctors, testified for T.D. He said T.D., as all addicts, denied his addiction, and was not able to self-medicate with the Thorazine. He said that if T.D. were willing to go into treatment and would follow instructions, he would benefit if enrolled in a treatment program.

1. Error in the referral

In point of error three, T.D. urges that the juvenile court erred in waiving its jurisdiction over him because the court did not specify its reasons, certify its findings, or specifically state which constitutional and statutory rights he waived both in violation of express statutory requirements. I begin this analysis by reminding the reader that the determination to transfer a child from the statutory structure of the juvenile court to the criminal processes of the district court is a “critically important” proceeding. Kent v. United States, 383 U.S. 541, 558, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966).

a. Specific findings

Section 54.02 of the Texas Family Code directs the juvenile court judge to state specifically in the order its reasons for waiver. Tex.Fam.Code Ann. § 54.02(h) (Vernon Supp.1991) (emphasis added). The statute directs the juvenile court to consider “among other matters,” whether the alleged offense was against people or property, whether it was committed in an aggressive and premeditated manner, whether there is evidence on which a grand jury might return an indictment, the sophistication, maturity, record, and previous history of the child, adequate protection of the public, and the likelihood of the child’s rehabilitation through juvenile services. Tex. Fam.Code Ann. § 54.02(f) (Vernon 1986).

T.D. complains that the order is merely a restatement of the statute, and does not include any specific reasons for the referral. T.D. cites Kent to support his argument that the juvenile court’s findings are not specific enough. In Kent, the juvenile court made no findings and recited no reasons for the referral. 383 U.S. at 546, 86 S.Ct. at 1049. The court’s waiver of jurisdiction merely stated, “after full investigation, I do hereby waive jurisdiction of petition.” 383 U.S. at 546, 86 S.Ct. at 1049. The Supreme Court held the order waiving jurisdiction was invalid. 383 U.S. at 552, 86 S.Ct. at 1053. The Court said that the procedure used in Kent was faulty because, among other things, the court did not state its reasons for the referral. 383 U.S. at 554, 86 S.Ct. at 1053-54.

The Kent opinion teaches that the trial court’s order must set forth the reasons for the order with sufficient specificity to permit meaningful review. Kent, 383 U.S. at 561, 86 S.Ct. at 1057. The appellate court must have before it a statement from the trial court of the reasons that motivated the waiver. Kent, 383 U.S. at 561, 86 S.Ct. at 1057. We should not “assume” the trial court had adequate reasons for the waiver. Kent, 383 U.S. at 561, 86 S.Ct. at 1057.

A comparison of the provisions in § 54.-02(a) and (f) that require the court to consider certain, specified matters, with the language from the trial court’s order follows:

Required findings

Juvenile alleged to commit a felony. § 54.-02(a)(1).

*782Juvenile was 15 or over at time of offense. § 54.02(a)(2).

No adjudication hearing was conducted. § 54.02(a)(2).

Probable cause to believe juvenile committed offense. § 54.02(a)(3).

Because of the seriousness of the offense or the background of the child, the welfare of the community requires criminal proceedings. § 54.02(a)(3).

Whether the alleged offense was against the person or property, with the greater weight in favor of waiver given to offenses against the person. § 54.02(f)(1).

Whether the offense was committed in an aggressive and premeditated manner. § 54.02(f)(2).

Whether a grand jury may be expected to return an indictment. § 54.02(f)(3).

The sophistication and maturity of the child. § 54.02(f)(4).

The record and previous history of the child. § 54.02(f)(5).

Likelihood of rehabilitation by use of services currently available. § 54.02(f)(6).

Prospects of adequate protection of the public. § 54.02(f)(6).

*781Findings of the court

The Court finds that the [juvenile] is charged in the violation of a penal law of *782the grade of felony, if committed by an adult, to wit: THREE PARAGRAPHS OF DELIVERY OF CONTROLLED SUBSTANCE NAMELY COCAINE on or about the 30th day of January, 1990 .... The Court finds that the penal law alleged to have been violated by the [juvenile], was of the grade of felony.

[The juvenile] was 16 years of age at the time of the commission of the alleged offense, having been born on the 15th day of FEBRUARY, 1973 .... The Court further finds that the [juvenile] is now 17 years of age and was at the time of the alleged offense 15 years of age or over having been born on the 15th day of February, 1973.

[T]here has been no adjudication of these offenses .... The Court further finds that there was no adjudication hearing concerning the offense.

[T]here is probable cause to believe that the child committed the offense alleged.

[B]ecause of the seriousness of the offense, the welfare of the community requires criminal proceedings.

No finding.

The Court has considered the offense and finds that it was committed in an aggressive and premeditated manner ....

[Tjhere is sufficient evidence upon which a grand jury might be expected to return an indictment ....

The Court specifically finds that [the juvenile] is of sufficient sophistication and maturity to have intelligently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived ... and is of sufficient sophistication and maturity to intelligently and knowingly understand . . . the proceedings ....

[T]he Court has considered ... the previous history of the [juvenile] . . .. — not a finding.

[T]he Court finds that there is little if any, likelihood that the facilities and services available to this Court could reasonably be expected to rehabilitate the [juvenile] ....

[F]rom the nature of the offense the likelihood that the public is not adequately protected from future such conduct ....

[F]or those reasons and other reasons, the jurisdiction of this Court is waived ....

*783If we reject the assumption that the trial court is only required to adopt the language in the statute for its findings and it must make actual findings that relate to this juvenile, the court’s order makes few findings that relate to this juvenile — only the findings of T.D.’s age and the time of the offense are specific as to him. Worse, the order implies that there are other reasons, not stated in the order, on which the court relies. In Kent, the United States Supreme Court said the juvenile court may not “receive and rely on secret information.” Kent, 383 U.S. at 563, 86 S.Ct. at 1058. I would hold that reproducing the language of the statute in the order does not comply with the requirements in the statute itself, Tex.Fam.Code Ann. § 54.02, or with Kent. Appellate courts need factual findings, not legal reasons. It is not necessary for the order to reproduce the language of the statute; it is necessary for the order to state the factual reasons for waiving jurisdiction. See In the Matter of J.R.C., 522 S.W.2d 579, 583-84 (Tex.Civ. App. — Texarkana 1975, writ ref’d n.r.e.) (“The fact that the Legislature changed ‘briefly state’ to ‘state specifically’ indicates that it contemplated more than merely an adherence to printed forms”).

For example, the trial court found that T.D. committed the offense in an aggressive and premeditated manner. It would be helpful for us to know what behavior of T.D. the court considered aggressive. T.D. was charged with the offense of selling crack, not assault or murder. When the undercover police officer approached T.D. to buy crack, T.D. responded with three questions: “You okay? You cool? You the law?” Did the trial court consider that as aggressive behavior? If the trial court had stated that T.D.’s sales approach was aggressive, this Court might have something to review. What the court more likely considered as aggressive was the police officers’ characterization of T.D. during the booking procedure as impatient, cocky, and “mouthy.” Again, if the trial court had stated its findings, we might be in the position to evaluate its reasons for finding the crime was committed in an aggressive manner.

Another example of the problem the lack of findings creates, is that we do not know how the trial court evaluated the evidence that T.D. was referred on six different matters, three of which were declined. Did the court consider the three that were declined?

I recognize that the court in In re I.B., 619 S.W.2d 584, 587 (Tex.App. — Amarillo 1981, no writ), held that an order that “parrots” the considerations in the statute complies with the requirement to state specific reasons, so long as the reasons have some support in the evidence. I disagree. The United States Supreme Court said the court may not “assume” the juvenile court had adequate reasons for the waiver of jurisdiction. Kent, 383 U.S. at 561, 86 S.Ct. at 1057. To reproduce the statutory requirements as the findings, makes a mockery of the entire proceeding.

b. Waiver of constitutional rights

The juvenile court order states that T.D. “is of sufficient sophistication and maturity to have intelligently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived by the said Respondent....”

T.D. asserts that such a finding lacks specificity, and complains that he did not waive any constitutional or statutory rights. The State responds that the fact that no rights may have been waived does not render false the finding that rights which were waived were done so intelligently, knowingly, and voluntarily. I disagree. The order states that T.D. waived unspecified constitutional and statutory rights. If this case is certified to district court and if T.D. asserts constitutional or statutory rights, the State could argue that the trial court found T.D. waived those rights.

*784In R.E.M. v. State, 541 S.W.2d 841 (Tex. Civ.App. — San Antonio 1976, writ ref’d n.r.e.), the order waiving jurisdiction also found that the defendant was of “sufficient sophistication and maturity to have intelligently, knowingly, and voluntarily waived all constitutional and statutory rights heretofore waived.” 541 S.W.2d at 846. The San Antonio Court of Appeals was troubled by the finding, and held the requirement that the court consider the maturity and sophistication of the child referred to the question of culpability, not to waiver of rights. In R.E.M., the court reversed, in part because the juvenile officer testified that the child probably did not understand the seriousness of his conduct. 541 S.W.2d at 846, 847.

I would sustain T.D.’s point of error three with respect to the lack of specificity in the court’s reasons for waiving jurisdiction and in stating which constitutional and statutory rights he waived.

2. Sufficiency of the evidence

In point of error four, T.D. argues that there was no evidence or, alternatively, insufficient evidence to support the juvenile court’s findings. I would decline to review the challenges to the evidence until the trial court makes appropriate findings.

I would remand the cause to the trial court to make specific factual findings to support the certification order and to determine which, if any, statutory and constitutional rights were waived by T.D. See, e.g., Kent, 388 U.S. at 556, 86 S.Ct. at 1057.

. There were three other referrals, but they were declined and T.D. was released to the custody of his parents.

. Tex. Youth Comm’n, 37 Tex.Admin.Code § 87.-103(a)(5) (West Supp. Dec. 20, 1990).

. Tex. Youth Comm’n, 37 Tex Admin.Code § 87.-103(a)(6) (West Supp. Dec. 20, 1990).

. Under Tex. Youth Comm’n, 37 Tex.Admin.Code § 87.91(a), (f) (West Supp. Dec. 20, 1990), parents must be contacted for medical consent for TYC to administer drugs. Unless contrary notice is given by the parents, TYC has authority to administer drugs. Contact with the parents is documented by the postal receipt for certified mail, kept in the youth’s medical file.