In re of S.C.

790 S.W.2d 766
CourtCourt of Appeals of Texas
DecidedMay 9, 1990
DocketNos. 3-88-144-CV, 3-89-087-CV
StatusPublished
Cited by26 cases

This text of 790 S.W.2d 766 (In re of S.C.) 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 of S.C., 790 S.W.2d 766 (Tex. Ct. App. 1990).

Opinions

ON MOTION FOR REHEARING

CARROLL, Justice.

The opinion of the Court in this cause, handed down on March 21, 1990, is withdrawn and the following opinion is substituted therefor.

This appeal involves several constitutional challenges to the Texas determinate sentencing statute for violent juvenile offenders. The State alleged that appellant committed murder at the age of 16. A jury found that he engaged in delinquent conduct and committed him to the Texas Youth Commission subject to transfer to the penitentiary for a total of 30 years. At the age of 18, appellant was transferred from the Texas Youth Commission to the penitentiary to serve out the remainder of his 30 year sentence. We will affirm the judgment of adjudication and disposition, and we will affirm the order of transfer to the penitentiary.

BACKGROUND

The Texas determinate sentencing statute provides for the prosecution of juveniles who commit violent offenses so that the State may assert control over the [769]*769youthful offender after the juvenile reaches the age of 21. Under the statute, the juvenile court presides over an adjudication and disposition proceeding that confers to the juvenile many of the procedural protections that are provided to an adult during a criminal proceeding. Tex.Fam.Code Ann. § 54.03 (1986 & Supp.1990).

After the juvenile court declined to transfer appellant to the criminal district court for prosecution as an adult, the district attorney obtained from the grand jury an approved petition that alleged that appellant committed murder in violation of section 19.02 of the Texas Penal Code. Tex. Fam.Code Ann. §§ 53.045 and 54.02 (Supp. 1990). Pursuant to an adjudication hearing, a jury found that appellant committed murder; pursuant to a subsequent disposition hearing, the jury recommended that appellant be committed to the Texas Youth Commission with eventual transfer to the penitentiary for a total of 30 years. Tex. Fam.Code Ann. §§ 54.03 and 54.04 (Supp. 1990).

Before appellant’s 18th birthday, the juvenile court held a release hearing and ordered appellant transferred to the penitentiary at age 18 to serve the remainder of his determinate sentence. Tex.Fam. Code Ann. § 54.11(i)(2) (Supp.1990); Tex. Hum.Res.Code Ann. § 61.084(b) (Pamp. 1990). On March 23, 1989, appellant was ordered transferred to the penitentiary. Appellant now challenges his adjudication and his transfer to the penitentiary in this combined appeal.

CONTENTIONS ON APPEAL

Appellant’s fourteen points of error break down into seven general contentions: (1) that the determinate sentencing statute violates his right to equal protection of the laws under the United States and Texas Constitutions; (2) that the statute violates his right to due process of law and due course of law under the United States and Texas Constitutions, respectively; (3) that he was improperly held to answer for a criminal offense and sentenced to the penitentiary without indictment; (4) that his prosecution violates section 54.02(g) of the Texas Family Code and section 8.07 of the Texas Penal Code because he was criminally prosecuted; (5) that the determinate sentencing statute imposes an unconstitutional involuntary servitude on him and violates the Federal Anti-peonage Act; (6) that he was denied his right to trial by jury, his right to be confronted with witnesses against him, and his privilege against self-incrimination, with respect to the issue of whether he was between the ages of 10 and 17 at the time of the delinquent conduct as required by the Texas Family Code; and (7) that the assistant district attorney who prosecuted him should not have participated because the attorney had previously represented him in a substantially related matter.

EQUAL PROTECTION OF THE LAWS

In his second point of error, appellant contends that because he has been transferred to the penitentiary “without possibility of parole,” the determinate sentencing statute violates his right to equal protection of the laws under the fourteenth amendment of the United States Constitution as well as article I, section 3 of the Texas Constitution. Appellant maintains that because his adjudication under the Texas Family Code is “not a conviction of a crime” he cannot become eligible for parole under the Texas Constitution. Tex.Fam. Code Ann. § 51.13(a) (1986).

According to appellant, he cannot become eligible for parole despite the explicit pronouncement in the Texas Government Code that “[a]ll laws relating to ... eligibility for release on parole or mandatory supervision apply to a person transferred to the [penitentiary] by the youth commission ” Tex. Gov’t Code Ann. § 498.053(c) (Pamp.1990). Appellant premises his contention on the Texas Court of Criminal Appeals’ interpretation of article IV, section 11 of the Texas Constitution in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988), and several other cases holding that the governor’s clemency power extends only to “criminal cases.”

He argues that the legislature unconstitutionally expanded the power of the Texas [770]*770Board of Pardons and Paroles (“Parole Board”) at the expense of the judiciary, thus violating the separation of powers doctrine. See Tex. Const. art. II, § 1 (1984); Rose, 752 S.W.2d at 583-534. That is, if his adjudication and disposition constitutes a final judgment in a civil case, the Parole Board has no authority to disturb the final judgment in any way. See, e.g., Hankamer v. Templin, 143 Tex. 572, 187 S.W.2d 549 (1945); Ex parte Green, 116 Tex. 515, 295 S.W. 910 (1927); Taylor v. Goodrich, 25 Tex.Civ.App. 109, 40 S.W. 515 (1897, no writ). Therefore, he asserts that he cannot be paroled, and that this predicament violates his right to equal protection of the laws.

We disagree. The Parole Board does have the constitutional authority to provide appellant with the opportunity for parole pursuant to section 498.053(c) of the Texas Government Code. The enactment of section 498.053(c) merely codified the Parole Board's preexisting constitutional authority to grant parole to those persons who have been adjudicated under the determinate sentencing statute and transferred to the penitentiary for specific violent conduct substantively defined by the Texas Penal Code.

Our analysis begins with the following presupposition and rule: An act of the legislature is presumed to be constitutional, and a challenger bears the burden of demonstrating that it is unconstitutional. Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927 (Tex.1985). In addition, no act of the legislature will be declared unconstitutional unless some provision of the Constitution can be cited that clearly demonstrates the invalidity of such act. Texas Nat’l Guard Armory Bd. v.

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790 S.W.2d 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-of-sc-texapp-1990.