In re E. G.

212 S.W.3d 536
CourtCourt of Appeals of Texas
DecidedJuly 28, 2006
DocketNo. 03-05-00235-CV
StatusPublished
Cited by1 cases

This text of 212 S.W.3d 536 (In re E. G.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re E. G., 212 S.W.3d 536 (Tex. Ct. App. 2006).

Opinion

OPINION

DAVID PURYEAR, Justice.

E.G., a juvenile, appeals from the trial court’s order modifying his probation by extending his probation and placing him in secure confinement at the Hays County Juvenile Center (referred to by the trial court as the Hays County Boot Camp). E.G. contends that the trial court abused its discretion in placing him in secure confinement because such a placement is governed by section 54.04(n) of the family code and the evidence is factually insufficient to support the findings required by section 54.04(n). See Tex. Fam.Code Ann. § 54.04(n) (West Supp.2005). We will affirm the oi’der of the trial court.

Factual and Procedural Background

E.G. was adjudicated for truancy, a status offense, and on October 28, 2004, he was given nine months’ probation in his home under the supervision of his mother. See id. § 51.02(15) (West Supp.2005) (“status offender” is a child accused, adjudicated, or convicted of conduct that would not be a crime if committed by adult, such as truancy or curfew violation). According to a report by E.G.’s probation officer that was introduced into evidence before the trial court, E.G.’s mother complained in March 2005 that E.G. had frequently violated the curfew set out in his probation order, E.G. did not timely enroll in a GED program as required by his probation, and on March 16, 2005, E.G. tested positive for marihuana in violation of Rule No. 3 of the probation order, which prohibited the use of “alcohol, inhalants, or illegal drugs.”

The district attorney filed a motion to modify E.G.’s original disposition order, and the trial court held a hearing on the motion on April 7. During the adjudication phase of the hearing, E.G. pled true to violating Rule No. 3. During the disposition phase, the court heard from E.G. and E.G.’s mother, who also submitted a letter to the court “beg[ging]” the court to send her son to boot camp. The trial court considered reports by E.G.’s probation officer and Dr. Michael Scott McNeil, who conducted a psychological evaluation of E.G. shortly before the hearing. The probation officer recommended in-home probation with intensive therapy, but Dr. McNeil recommended that E.G. be placed in a “controlled therapeutic environment where he can receive behavioral, substance abuse, and related therapies.” The court extended E.G.’s probation until December 7, 2005, and placed him in secure confinement at the Hays County Boot Camp for the duration of his probation period. E.G. appeals, arguing that the court abused its discretion in placing him in secui’e confinement because it did not satisfy the requirements of section 54.04(n) of the family code.

Applicability of Section 54.04(n)

E.G. contends that the court abused its discretion in modifying his disposition to extend his probation and place him in boot camp because (1) the court did not satisfy the requirements of section [538]*53854.04(n) when ordering that he be removed from his home and placed in secure confinement, and (2) the evidence is factually insufficient to support the findings required under section 54.04(11).1

Section 54.04(n) provides that after a disposition hearing, a juvenile classified as a status offender and adjudicated for violating a court order may be placed in secure confinement only if before the court order was issued, the child received all the due process protections guaranteed by the federal and state constitutions, and if the juvenile probation department files a report showing that the probation department: (1) “reviewed the behavior of the child and the circumstances under which the child was brought before the court”; (2) determined the reasons for that behavior; and (3) “determined that all dispositions, including treatment, other than placement in a secure detention facility or secure correctional facility, have been exhausted or are clearly inappropriate.” Tex. Fam.Code Ann. § 54.04(h). E.G.’s disposition was modified and he was placed in boot camp because he violated the terms of his original status-offender disposition. Since his probation officer recommended placement at home, not in a secure facility, E.G. contends that the modification placing him in boot camp violates section 54.04(n) and is an abuse of discretion.

However, the supreme court has held that section 54.04 findings are only required when making an initial disposition, not in a modification proceeding. In re J.P., 136 S.W.3d 629, 630-31, 633 (Tex.2004) (“The plain language of the Juvenile Justice Code requires different findings in initial orders committing a juvenile to TYC than in modified orders that do so.”). In J.P., the child challenged the modification order placing him in secure confinement, arguing that the order did not include the findings required under section 54.04(i). Id. at 631; see Tex. Fam.Code Ann. § 54.04(i) (requiring findings that (1) placement outside home is in child’s best interests, (2) reasonable efforts were made to prevent need for placement outside home, and (3) home does not provide care and supervision needed to meet terms of probation). The court, in an attempt to “give effect to this difference in plain language unless doing so violates other provisions of the statute,” contrasted section 54.04 (entitled “Disposition Hearing”) with section 54.05 (entitled “Hearing to Modify Disposition”) and concluded that the “Legislature provided different rules for different stages of a juvenile proceeding” and “provided for differences in disposition orders depending on the stage of the proceedings.”2 136 S.W.3d at 630-32; see [539]*539also In re P.W., No. 03-04-00562-CV, 2005 Tex.App. LEXIS 6965, at *1, 2005 WL 2043944, at *3 (Tex.App.-Austin Aug. 25, 2005, no pet.) (mem.op.) (in modification hearing, trial court need not consider alternatives to secure confinement); In re J.D., No. 03-03-00511-CV, 2004 Tex.App. LEXIS 6254, at *3-4, 2004 WL 1574541, at *1 (Tex.App.-Austin July 15, 2004, no pet.) (mem.op.) (not all findings required in initial disposition order are required when modifying existing disposition).

Although J.P. concerned section 54.04(i), not subsection (n), the opinion’s broad language seems to encompass all subsections of 54.04. See 136 S.W.3d at 633. Based on the supreme court’s interpretation of sections 54.04 and 54.05, we conclude that the modification of an existing juvenile disposition order is governed by section 54.05, not section 54.04, unless a provision of section 54.05 specifically states otherwise.3 Id. at 630, 633; see Tex. Fam.Code. Ann. §§ 54.04, .05 (West Supp.2005). Therefore, the findings required in an original disposition under section 54.04(n) are not required in a modification under section 54.05. See Tex. Fam.Code. Ann. §§ 54.04(n), .05; J.P., 136 S.W.3d at 630, 633.

Although the supreme court’s opinion in J.P.

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Related

In Re EG
212 S.W.3d 536 (Court of Appeals of Texas, 2006)

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Bluebook (online)
212 S.W.3d 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-e-g-texapp-2006.