(concurring).
I join in the majority opinion which upholds the constitutionality of Family Code, § 54.04(b), V.T.C.A., against the attack made — that the minor was denied his constitutionally protected right of confrontation by witnesses and his concomitant right of cross-examination of such witnesses.
The narrow question of constitutional law presented is new in the sense that it arises under a new statute; it is not new in the context of being a new question of constitutional right. The Family Code so recently adopted has brought to this field of the law the well-known bifurcated trial. In the adjudicatory hearing [§ 54.03], the full panoply of constitutional rights of due process of law are all afforded the minor.1 However, in the disposition hearing [§ 54.-04], a different rule applies.
A logical starting point in our study of the constitutional question presented is the federal criminal system. Presentence reports have long been used there, as well as in many state courts, in determining the punishment to be assessed after the defendant has been found guilty of the offense charged. Indeed, the practice is embodied in Federal Rules of Criminal Procedure, Rule 32(c) (2).2
*49R. Lehrich, in “Presentence Reports,” 47 F.R.D. 225, 228 (1969), has this comment upon such reports:
“Although the presentence report contains much information about the defendant that is vital to the determination of his sentence, his prison treatment, and his parole, it has been held many times in the federal courts that neither the defendant nor his counsel has any right to examine the report for possible errors that might be rebutted.”
Note that the accused may not, as a matter of right, even look at the report, much less cross-examine the authors of the statements therein contained.
Justice Black, not known for his disregard of the constitutional rights of persons accused of crime, was the author of the leading case upon the subject: Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).3 Justice Black noted that “most of the information now relied upon by judges [which is found in the reports of the probation workers] to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination.” (337 U.S. at 250, 69 S.Ct. at 1084)
He rejected the constitutional challenge, saying:
“The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts — state and federal— from making progressive efforts to improve the administration of criminal justice.” (Id. at 251, 69 S.Ct. at 1085, emphasis supplied)
Justice Douglas, also a long-time fervid supporter of constitutional rights, has joined in the discussion. In what is termed “Mr. Justice Douglas’ Statement”, announced simultaneously with the adoption of the new Federal Rules of Criminal Procedure, 39 F.R.D. 69, 278 (1966), a similar view is adopted :
“The imposition of sentence is of critical importance to a man convicted of crime. Trial judges need presentence reports so that they may have at their disposal the fullest possible information. See Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. But while the formal rules of evidence do not apply to restrict the factors which the sentencing judge may consider, fairness would, in my opinion, require that the defendant be advised of the facts — perhaps very damaging to him ■ — on which the judge intends to rely. The presentence report may be inaccurate, a flaw which may be of constitutional dimension. Cf. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690.” (emphasis supplied)
Justice White, in Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442, 446 (1969), held:
“Presentence reports are documents which the rule does not make available to the defendant as a matter of right. There are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged.” (emphasis supplied)
*50See and compare Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), reaffirming Williams v. New York, supra. See also, Advisory Committee’s Note to Rule 32(c)(2), reported in 39 F.R.D. 69, 193, and again in 18 U.S.C.A., Federal Rules of Criminal Procedure, Rules 32 to End, Supp. Pamphlet, 1961— 1970, p. 6, for additional citations.
The provision of § 54.04(b) of our new code specifically requires the trial court to provide the attorney for the child “with access to all written matter to be considered by the court in disposition.” This satisfies the constitutional requirement; for, indeed, the courts and the scholars now generally confine their remarks to the discretionary denial of such access; seemingly, they are in accord that a disclosure with a right to refute material therein contained would satisfy all constitutional requirements. Indeed, such is the main thrust of the Lehrich article mentioned earlier which contains copious quotations from and citations to authorities not available to this court.
While the judge of the juvenile court is not passing “sentence” on the minor at the disposition hearing, he has the duty and obligation of entering a judgment which is to the best interest of the minor as well as to society in general. He must have available for use all of the recognized tools and information in order to enable him to discharge this responsibility. The report of the probation officer, analogous to the pre-sentence report discussed above, is one such tool of recognized value.
The examination of the rationale of the bifurcated trial now required in juvenile cases discloses the answer: The constitutional right of due process extending to the adjudication hearing is not applicable to the disposition hearing. Thus, in holding § 54.04(b) constitutional, we protect the substantive rights of the minor while at the same time permitting the trial judge to utilize the best available tools in fashioning the decree. Williams v. New York, supra.4
Having disposed of the single issue presented by this appeal, I do not join in the introspective probe of the intent of the legislature nor of the motives which may have prompted the enactment of Title 3, Family Code. Such questions are not presented by this appeal.
I would reserve for another day all inquiries into extraneous matters not necessary to a determination of this case. Upon a complete record squarely presenting questions involving legislative policy, we may then write upon the “purpose” provisions of Title 3 of the new Family Code. Knotty questions of constitutional law may leap out of the woodwork once presented. See, e.g., Smith v. State, 444 S.W.2d 941 (Tex.Civ.App., San Antonio, 1969, error ref. n.r.e.), and E. Chase, “Juvenile Sentencing,” 51 Tex.L.R. 673 (1973).
My concurrence is confined to the single narrow issue presented by the record in this cause.
. In addition to the authorities cited by Chief Justice Dies, see those mentioned in my concurring opinion in Landry v. State, 504 S.W.2d 580 at 582, et seq., (Tex.Civ.App., Beaumont, 1973, error ref. n. r. e.), construing the earlier statute.
. “Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation *49and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.”
. Other cases so holding are cited in Lehrich, supra (47 F.R.D. at 229, fn. 20).
. Caveat: Such probation reports, and similar material, should not be made known to the trial judge before the adjudication hearing has been completed. The very nature of the material ordinarily contained therein may tend to prejudice the rights of the minor to a fair hearing at the adjudicatory stage. The federal rule noted prohibits the submission of such presentence reports before there has been a plea or a finding of guilt. Similar limitations should be read into our State practice in order to assure the minor a fair hearing at the adjudication stage of the proceeding. See and compare: Gregg v. United States, supra (394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed. 2d at 447) ; United States v. Hopwood, 422 F.2d 348, 349 (10th Cir. 1970).