in the Matter of H.G.

• Court: Court of Appeals of Texas
• Decided: March 31, 1999
• Docket: 04-98-00542-CV
• Status: Published

Opinion

CONCURRING OPINION

No. 04-98-00542-CV

In re H. G., a Juvenile

From the 289th Judicial District Court, Bexar County, Texas Trial Court No. 97-JUV-01944 Honorable Carmen Kelsey, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Concurring opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. López, Justice

Delivered and Filed: March 31, 1999

Here is a child whose insolence and indolence wore on his parents, probation officer, teachers and eventually the court . . . so he was committed for being sullen. Since this judgment does not rely on section 54.04(i) of the Texas Family Code, but upon 54.05(f), which permits modification if the child violated a lawful order of the court, we must affirm.

If this were an original disposition with the mandatory determinations required by sections 54.04(i), I could not find that commitment to the Texas Youth Commission met the "no evidence" standard. The reason we have section 54.04(i) is because commitment is our most significant resource; it should be reserved for serious offenders.

This child pleaded true to delinquent conduct, to-wit: criminal mischief, $20-500. His disposition included only six months probation -- hardly the prototype offender for commitment. Subsequently, the child did not re-offend. However, during the hearing on the State's motion to modify, it was clear he failed to pay restitution, complete community service or attend counseling. Frankly, even from the cold record it seems his probation was programmed to fail due to this child's mildly surly attitude and his uncooperative parents. His mother vetoed his job prospect -- the pizza place near his home -- because it was also a bar. He completed 21 of 40 hours of community service at the animal shelter, probably due to sleeping-in and transportation problems. However, the essential failure of probation was missing counseling. His mother said this was because his dad "did not approve of counseling" and would not take him. One would think some inquiry would have been made to see if the parents would cooperate so as to make this a reasonable order of the court. As it was, it was a clear prescription for failure. While references to his wrestling with students at his alternative school exist, his dress was featured at the brief hearing: "When you go look for a job, do you go dressed like you are with your baggy pants and rolled-up cuffs?" Apparently this child also failed to wear a belt at school, and wore black shoelaces and had small scissors on his keychain. He also sneered while with his probation officer. Why, we'd have to lock up most of the male judges in the Bexar County Courthouse every other month if these were commitable offenses.

The majority has correctly set forth the standard of review as abuse of discretion. While we must trust our trial judges to reach these difficult revocation decisions, I would be more comfortable with a record that demonstrates the need for commitment than this record, which I believe merely shows a predictable failure of probation.

Motions to modify do not rely on section 54.04(i) but upon section 54.05(f). Here there is sufficient evidence to show this juvenile violated a reasonable and lawful order of the court and that the court did not act arbitrarily or unreasonably, or without reference to guiding principles. With this addendum I therefore join the opinion of the court.

Tom Rickhoff, Justice

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