In re J.L.W.

919 S.W.2d 841, 1996 Tex. App. LEXIS 1272, 1996 WL 148720
CourtCourt of Appeals of Texas
DecidedMarch 28, 1996
DocketNo. 08-95-00114-CV
StatusPublished
Cited by8 cases

This text of 919 S.W.2d 841 (In re J.L.W.) 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 J.L.W., 919 S.W.2d 841, 1996 Tex. App. LEXIS 1272, 1996 WL 148720 (Tex. Ct. App. 1996).

Opinions

OPINION

LARSEN, Justice.

J.L.W., a juvenile (appellant), appeals from an order of the juvenile court certifying her to stand trial as an adult for the offense of capital murder.1 Appellant challenges the certification order by a single point of error.

FACTS

On January 11, 1995, the state filed a petition alleging that appellant engaged in delinquent conduct by committing the offense [842]*842of capital murder on January 2, 1995.2 Subsequently, on January 31, 1995, the state filed a petition to waive juvenile court jurisdiction over appellant and transfer her to a district court for criminal proceedings. See former Tex.Fam.Code Ann. § 54.02.3 On that same date, in accordance with § 54.02(d), the trial court ordered that the El Paso County Juvenile Probation Department make a complete diagnostic study, social evaluation, and full investigation of appellant, her circumstances, and the circumstances of the alleged offense, and file a written report with the court on February 23. Former Tex.Fam.Code Ann. § 54.02(d). The following day, February 1, the court ordered that appellant undergo complete psychological and psychiatric evaluations. The order provided that the reports of those evaluations would be filed with the court on February 14. Appellant waived her right to a detention hearing on February 3, 13, and 23. After conducting a hearing on March 2 and 3, the juvenile court entered an order waiving jurisdiction and transferring appellant to district court on March 6,1995.

Deadline for Hearing on Petition to Waive Juvenile Jurisdiction

In a single point of error, appellant challenges the certification order on the ground that the juvenile court failed to conduct the certification hearing within ten days after the filing of the petition. She relies on former Tex.Fam.Code Ann. § 53.05 which provided:

(a) After the petition has been filed, the juvenile court shall set a time for the hearing. '
(b) The time set for the hearing shall not be later than 10 working days after the day the petition was filed if:
(1) the child is in detention; or
(2) the child will be taken into custody under Section 53.06(d) of this code.

Former Tex.Fam.Code Ann. § 53.05.4

As acknowledged by appellant, several courts have held that the statutorily mandated time period within which to set a hearing is directory rather than jurisdictional, and the juvenile court does not lose jurisdiction absent a timely setting. See Melendez v. State, 873 S.W.2d 723, 724 (Tex.App.-San Antonio 1994, no pet.); Williams v. State, 834 S.W.2d 613, 614 (Tex.App.-San Antonio 1992, no pet.); In the matter of S.D., 667 S.W.2d 820, 821-22 (Tex.App.-Texarkana 1983, writ ref'd n.r.e.); D.L.H. v. State, 649 S.W.2d 826, 827 (Tex.App.-Fort Worth 1983, writ ref'd n.r.e.); In the matter of B.V., 645 S.W.2d 334, 336 (Tex.App.-Corpus Christi 1982, no writ); In the matter of M.I.L., 601 S.W.2d 175, 176 (Tex.Civ.App.-Corpus Christi 1980, no writ); R.E.M. v. State, 569 S.W.2d 613, 616 (Tex.Civ.App.-Waco 1978, writ ref'd n.r.e.); L.L.S. v. State, 565 S.W.2d 252, 255-56 (Tex.Civ.App.-Dallas), writ ref'd n.r.e. per curiam, 569 S.W.2d 495 (Tex.1978).

Despite the weight of authority to the contrary, appellant invites this Court to follow a different path and hold that the requirement of § 53.05 is mandatory given the statute’s use of the word “shall.” Although. the word “shall” is generally construed to be mandatory, it may be and frequently is, as in the above cases, held to be directory. Lewis v. Jacksonville Bldg. and Loan Ass’n, 540 S.W.2d 307, 310 (Tex.1976); Hunt v. Heaton, 631 S.W.2d 549, 550 (Tex.App.-Beaumont), aff'd, 643 S.W.2d 677 (Tex.1982). In addition, a statute may be mandatory in some respects and directory in others. Hunt, 631 S.W.2d at 550; Kessler v. Texas Employers’ Ins. Ass’n, 421 S.W.2d 133 (Tex.Civ.App.-Eastland 1967, writ ref'd n.r.e.); Nichols v. Aldine Indep. School Dist., [843]*843356 S.W.2d 182, 183 (Tex.Civ.App.-Houston 1962, no writ). It should be given that meaning which will best express the legislative intent. Nichols, 356 S.W.2d at 183. The legislative intent is to be determined from a consideration of the entire act, its nature, its object, and the consequences that follow from construction thereof. Hunt, 631 S.W.2d at 550; Moore v. City of Corpus Christi, 542 S.W.2d 720 (Tex.Civ.App.-Corpus Christi 1976, writ refd n.r.e.); see Nichols, 356 S.W.2d at 183.

Melendez and the other cases cited determined, at least implicitly, that the Legislature intended that § 53.05’s ten-day requirement be directory rather than mandatory. This conclusion is warranted given the general objectives of Title 3 of the Family Code and the specific objectives of § 54.02. Title 3 is aimed generally at: providing for the care, protection, and development of juveniles coming within its provisions; protecting the rights of juveniles, and rehabilitating them, if possible; and ensuring public safety and welfare. See former Tex.Fam.Code Ann. § 51.01.5 The certification proceeding provided for by § 54.02 focuses particularly upon protecting not only the rights of the child, but the safety and welfare of the public. It is only upon determining that criminal proceedings are required due to considerations of the seriousness of the offense alleged or the welfare of the community that the trial court can enter an order waiving jurisdiction. See former Tex.Fam.Code Ann. § 54.02(a)(3). Construing the ten-day requirement as mandatory would certainly impede the juvenile court in its effort to provide these protections.

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