E. S. G. v. State

447 S.W.2d 225

• Court: Court of Appeals of Texas
• Decided: October 22, 1969
• Docket: No. 14749
• Status: Published

Opinions

BARROW, Chief Justice.

Appellant, a girl fourteen years of age, was adjudged delinquent by the Juvenile Court of Bexar County after a non-jury trial and committed to the custody of the Texas Youth Council for an indefinite term not extending beyond her twenty-first birthday, in accordance with the provisions of the Texas Juvenile Act, Art. 2338 — 1, Vernon’s Ann.Civ.St. She is presently copfined in the State Training School for Girls.

The finding of delinquency is based on Sec. 3(f) of said Act, which defines a delinquent child as one who “habitually so deports himself as to injure or endanger the morals or health of himself or others.” The question presented here is whether this portion of the statute is unconstitutionally vague. No question is presented as to the fairness of the trial, the adequacy of the evidence, or whether the essentials of due process were observed. Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Leach v. State, 428 S.W.2d 817 (Tex.Civ.App.—Houston (14th) 1968, no writ).

This case was originally drawn by Justice Cadena, and while we find no disagreement with the exhaustive and scholarly presentation of the problem raised by the “void for vagueness” doctrine as set forth in his opinion,¹ we disagree with his conclusion that Sec. 3(f), supra, is unconstitutional. Accordingly, this opinion is filed as the majority opinion of this Court.

The relatively comprehensive word “morals” is one which conveys concrete impressions to the ordinary person. Such word is in constant use in popular parlance, and this word or words of similar import are used in the statutes of most States to define behavior illegal for a child. In thirty-three States a child can be found delinquent if he is guilty of immoral conduct, and the various States’ definitions of immoral conduct are all somewhat similar to Sec. 3(f). See XXI Baylor Law Review 352, 358; Sussman, Law of Juvenile Delinquency, Ch. II. The obvious reason for granting such broad and general jurisdiction is seen when one makes even a cursory attempt to define all the types and patterns of behavior and conduct injurious to a child. The need to correct habits and patterns of behavior which are injurious to the health or morals of the child goes to the very heart of our Juvenile Act. The judge in this case observed that most girls who came before said court were charged with violation of this section.

It is not questioned that appellant was engaged in a course of conduct injurious to her morals, if not her health. Nor could it be questioned that this fourteen-year-old girl understood that such conduct was injurious to her morals. Even her attorney recognized that her parents had lost control and that the girl desperately needed supervision. She was gone from her home for days at a time and lived with a girl reputed by appellant’s mother to be a prostitute. Appellant and this girl hung around the Greyhound Bus Station and other public places. She was brought before the Juvenile Court after her mother had located her in a downtown transient apartment with a young adult male. She had been gone from home for over a week on this occasion, and when apprehended by her mother and a policeman she was only partially dressed. This case history illustrates the need for a provision such as found in Sec. 3(f), supra.

The use of words such as “morals” is not confined to our Juvenile Act. In Lowe v. Texas Liquor Control Board, 255 S.W.2d 252 (Tex.Civ.App.—Amarillo 1952, no writ), the Court rejected a charge that Art. 666 — 12(6), Vernon’s Ann.P.C., was vague and indefinite although it contained similar type words. The Court said: “[These] terms (general welfare, health, peace, morals and safety of the people, and sense of decency) have a well-accepted and understood meaning.” Other States have reached a similar result. In People v. Deibert, 117 Cal.App.2d 410, 256 P.2d 355, 1953, defendant was convicted of contributing to the delinquency of a minor, that is of encouraging the minor to lead an “idle, dissolute or immoral life.” The Court rejected a contention that the statute was too vague, indefinite and uncertain to form the basis of a criminal charge and hence invalid under the due process clause of the Constitution. In doing so it said: “The use of words of general meaning is the essence of our code system. Thus, in a sphere so vital to the community as the welfare of its youth, the words used in a statute designed to enable the Legislature to come to grips effectively with the problems of juvenile delinquency should be upheld where their frequent use in penal statutes gives assurance that they are understood by men of ordinary intelligence.” See also United States v. Meyers, 16 Alaska 368, 143 F.Supp. 1 (1956).

It is conceded that Sec. 3(f), supra, defines a delinquent child in general terms. However, the petition filed under same must allege the specific acts or conduct which brings the child within the prohibited behavior. Viall v. State, 423 S.W.2d 186 (Tex.Civ.App.—Amarillo 1967, no writ); Cantu v. State, 207 S.W.2d 901 (Tex.Civ.App.—San Antonio 1948, no writ). This protects the rights of the child in the adjudicatory stage of the proceedings. We do not believe that the section in question is unconstitutionally vague.

Appellant also urges that the trial court erred in not requiring the State to prove its allegations beyond a reasonable doubt. Actually, the court found only that “the evidence is sufficient,” and refused to state the test that it applied. Since submission of this cause, the Supreme Court in State v. Santana, 444 S.W.2d 614 (July 23, 1969), has held that the “beyond a reasonable doubt” test is not required under the Juvenile Act. Therefore, appellant’s point is without merit even if we assume that the Juvenile Court found appellant delinquent by applying the “preponderance of evidence” test.

The judgment is affirmed.

1 . It is significant that the United States Supreme Court has used the doctrine of unconstitutional vagueness almost exclusively to protect encroachment upon freedoms protected by the Bill of Bights, and even in this area the strict application of the doctrine is limited to cases where the statute has “a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.” Smith v. California, 361 U.S. 147, 150-151, 80 S.Ct. 215, 218, 4 L.Ed.2d 205 (1959); University of Pennsylvania Law Review, The Void-for-Vagueness Doctrine, Vol. 109, 67, 75.