Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
March 6, 1981
MARK WHITE
Attorney General
Honorable Patrick J. Ridley Opinion No. MW-2 9 8
Bell County Attorney
P. 0. Box 474 Re: Whether section 53.06 of the
Belton, Texas 76513 Family Code requires service of
summons on the parents of a
married juvenile
Dear Mr. Ridley:
The Texas Family Code sets forth statutory requirements pertaining to
judicial proceedings involving juveniles. See S5LO1, et. Section 53.04
provides for an adjudication or transfer hearing when a child has allegedly
engaged in delinquent conduct or conduct indicating a need for supervision,
as defined in section 51.03. Section 53.06 requires that, prior to said
hearing:
(a) The juvenile court shall direct issuance of a
summmons to:
(1) the child named in the petition;
(2) the child’s parent, guardian, or custodian;
(3) the child’s guardian ad litem; and
(4) any other person who appears to the court to
be a proper or necessary party to the
proceeding. (Emphasis added).
You have requested our opinion as to whether section 53.06 requires service
of summons upon the parents of a juvenile who is married.
Texas courts have repeatedly held that in order for a juvenile court to
have jurisdiction over a juvenile proceeding, a summons to appear at the
hearing must issue to the juvenile’s parent or guardian. Grayless v. State,
567 S.W.2d 216 (Tex. Crim. App. 1978); In re T.T.W., 532 S.W.2d 418 (Tex.
Civ. App. - Texarkana 1976, no writ). See also Ex parte Webb, 3 S.W.2d 810
(Tex. Crim. App. 1928); Ex parte Tomlin, 298 S.W. 902 (Tex. Crim. App.
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Honorable Patrick J. Ridley - Page Two
1927). Compare In re Honsaker, 539 S.W.2d 198 (Tex. Civ. App. -Dallas 1976, writ
rePd n.r.e.1. An exception is permitted when the parent or guardian waives service of
summons ln writing or by voluntarily appearing at the hearing. See Family Code
g53.06(e). As the court observed in In re Honsaker, a, the r=on for such a
requirement is that:
every child who appears before the juvenile court must have the
assistance of some friendly, competent adult who can supply the
child with support and guidance. Usually, one of the child’s
parents or in some situations a substitute parent, will fill this
need.
539 S.W.2d at 200-01, citing commentary to section 51.11,Family Code.
It has been suggested that because the parents of a juvenile who marries no
longer have parental duties and privileges under section 12.04 of the Family Code,
there is no reason for them to be present at a juvenile hearing, and therefore they need
not be served with a summons under section 53.06. It is true that once a minor
marries, he loses the disabilities of minority and acquires the legal capacity of an
adult, see Family Code sections 4.03 and 31.07, and he is no longer considered a “child’
for put$%es of section 12.04. See Family Code §lLOl (definition of “child’). However,
he is still subject to the juvenslaws set forth in section 51.01, et. Section 51.02
defines “child’ for purposes of Title III of the Family Code which concerns delinquent
children and children in need of supervision, as follows:
(1) ‘Child’ means a person who is:
(A) ten years of age or older and under 17 years of age; or
(B) seventeen years of age or older and under 18 years of
age who is alleged or found to have engaged in
delinquent conduct or conduct indicating a need for
supervision as a result of acts committed before
becoming 17 years of age.
No reference is made to marital status. See also Williams v. State, 219 S.W.2d 509
(Tex. Civ. App. - Galveston 1949, no writ). Compare Family Code SILOI, which defines
“child’ for purposes of sections lLO1, et, and 31.01, et, as a:
person under 18 years of age who is not and has not been
married or who has not had his disabilities of minority removed
for general purposes. ‘Adult’ means any other person.
It does not follow from the fact that the parents of a married juvenile have no duties
and privileges under section 12.04 that they would necessarily not have an interest in a
juvenile proceeding sufficient to justify the statutory requirement that summons to
appear at said hearing must issue. The fact of marriage does not negate the policy
considerations set forth in cases such as In re Honsaker, supp&
P- 952
Honorable Patrick J. Ridley - Page Three
Section 53.06 is plain and unambiguous, and its provisions must be given effect as
written, unless such a construction would lead to an absurd or unjust result. Dovalina
v. Albert, 409 S.W.2d 616 (Tex. Civ. App. - Amarillo 1966, writ rePd n.r.e.1. They must
also be strictly construed. D.A.W. v. State, 535 S.W.2d 21 (Tex. Civ. App. - Houston
B4th Dist.1 1976, writ rePd n.r.e.l. From a practical standpoint, there may be valid
reasons for eliminating the requirement that summons issue under section 53.06 to the
parents of a married juvenile; however, that is a matter for the legislature to consider.
We cannot ignore the express provisions of the statute.
We therefore conclude that section 53.06 of the Family Code requires service of
summons on the parents of a juvenile who is married.
SUMMARY
Section 53.06 of the Family Code requires the judge of a
juvenile court to direct issuance of summons on the parents of a
juvenile who is married.
z*
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Kathryn Reed
Bruce Youngblood
P. 953