in the Matter of C.C.C., a Juvenile ( 2022 )

NUMBER 13-21-00371-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE MATTER OF C.C.C., A JUVENILE
On appeal from the 484th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Chief Justice Contreras
Appellant C.C.C. was charged with delinquent conduct as a juvenile. After he
reached the age of eighteen in 2021, the juvenile court transferred the case to criminal
court pursuant to the State’s petition. See TEX. FAM. CODE ANN. § 54.02. By three issues,
C.C.C. argues on appeal that the transfer was error because: (1) the State failed to
establish that it exercised due diligence in proceeding in juvenile court before his
eighteenth birthday or that the failure to do so was due to circumstances beyond its
control; (2) neither C.C.C. nor his parents were served with a summons regarding the
final hearing date; and (3) there was no probable cause that he committed the charged
offenses. We reverse and render judgment of dismissal.
I. BACKGROUND
The underlying charges arose out of an accident which occurred on or about March
30, 2020, about two months before C.C.C.’s seventeenth birthday. According to the State,
C.C.C. was driving an all-terrain vehicle (ATV) when it flipped, causing the death of his
friend, D.A.L. After the Cameron County Sheriff’s Office conducted an investigation, a
magistrate signed an arrest warrant for C.C.C. on October 20, 2020. C.C.C. turned
himself in to law enforcement on October 23, 2020, and was released to the custody of
his parents after a videoconference detention hearing three days later. During the
detention hearing, the prosecutor stated that “[w]e have received all of the evidence” and
that she expected the State would be able to decide whether to file a petition for
discretionary transfer to criminal court before C.C.C. turned eighteen years of age in May
2021.
In its “Petition for Discretionary Transfer to Criminal Court” filed on November 9,
2020, the State sought to charge C.C.C. as an adult with the state jail felony offense of
criminally negligent homicide. See TEX. PENAL CODE ANN. § 19.05. The State argued that,
“because of the serious nature of the alleged offense mentioned above, the prospects of
adequate protection of the public and the likelihood of reasonable rehabilitation of the
child by the use of the procedures, services and facilities currently available to the
Juvenile Court is in serious doubt.” On December 15, 2020, the State filed an amended
petition adding second-degree felony charges of manslaughter and aggravated assault
causing serious bodily injury. See id. §§ 19.04, 22.02(a)(1).
2
On January 19, 2021, the juvenile court ordered the preparation of a “complete
psychiatric evaluation,” a “complete psychosocial evaluation,” and a “full social evaluation
and complete diagnostic study” with regard to C.C.C. See TEX. FAM. CODE ANN.
§§ 51.20(a), 54.02(d). In compliance with the court’s order, psychologist Mario Tovar,
Ph.D. filed a psychosocial evaluation report on February 15, 2021; psychiatrist David
Morón, M.D. filed a psychiatric evaluation report on March 29, 2021; and juvenile
probation officer Laura Armijo filed a “Social Study and Diagnostic Study” on March 30,
2021.
A hearing on the State’s petition for discretionary transfer was initially set for
February 17, 2021, but was continued and reset for April 14, 2021. On April 14, C.C.C.’s
counsel objected to the hearing going forward on grounds that C.C.C. and his parents
had been served with the summons and a copy of the State’s amended petition only
minutes before the hearing. See id. § 53.07. The prosecutor replied that C.C.C.’s counsel
“is entitled to 10 days” and “[w]e’re willing to give him the 10 days.” The court initially reset
the hearing for May 5, but C.C.C.’s counsel stated that he had a conflict in federal court
on that date. The following colloquy then occurred:
THE COURT: Okay. How about the following Wednesday?
THE ADMINISTRATOR: May 12th?
[Prosecutor]: Judge, we have no objection to June 9th.
THE COURT: What?
[Prosecutor]: June 9th.
THE COURT: What about June 9th?
[C.C.C.’s counsel]: Judge, I don’t have an issue with a reset, but I
don’t want the State to later argue that my client
is now 18 and that this Court has no choice but
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to transfer jurisdiction.
My client is 17. He’s a juvenile. This alleged
offense occurred when he was 16, and so as
long as the State is not wanting to reset this date
for the date after and then argue to the Court
that, you know, “We’re asking that it be
transferred for that reason.”
[Prosecutor]: Judge, after his 18th birthday, I have every right
to do that. And if we don’t proceed today, we can
proceed any time. My arguments remain the
same.
[C.C.C.’s counsel]: As long as that argument is not made.
[Prosecutor]: We announce ready, Your Honor.
THE COURT: Okay. So what is the situation, [C.C.C.’s
counsel]? What do you want to do?
[C.C.C.’s counsel]: June 9th would work for me, Your Honor.
THE COURT: June 9th.
[C.C.C.’s counsel]: Yes, Your Honor.
THE COURT: Okay. June 9th.
C.C.C. turned eighteen years of age on May 19, 2021. On June 3, he filed a
“Motion to Dismiss Based on Lack of Compliance With [§] 54.02(j) of the Texas Family
Code and Lack of Jurisdiction.” In the motion, C.C.C. argued that “the State has no
justifiable reasons why it was not practicable to proceed in juvenile court before [C.C.C.’s]
18th birthday” and asked the juvenile court to deny the State’s motion to transfer. The
motion stated specifically that C.C.C. was not served with “a summons of the State’s First
Amended Petition for Discretionary Transfer” until “approximately fifteen minutes” before
the April 14, 2021 hearing. He argued that “it took the State 4 months to serve [C.C.C.]
and his parents with the State’s Petition for Discretionary Transfer” even though C.C.C.
was “regularly reporting to his juvenile probation officer” and “the State was fully aware of
4
where [C.C.C.] resided with his mother as well as where his father and mother were
employed.”
Because C.C.C.’s counsel had another conflict in federal court, the parties agreed
to reset the hearing on the State’s petition to transfer from June 9, 2021, to August 11,
2021. Later, the hearing was reset again for October 8, 2021. On October 7, the State
filed its response to C.C.C.’s motion to dismiss arguing that it “has shown due diligence
in the investigation and filing of this cause number.” The State noted in its response that,
although the State was ready to proceed on April 14, defense counsel “refused to waive
issues of [s]ervice.” It also argued that, under the Texas Supreme Court’s emergency
orders concerning the COVID-19 pandemic, “Texas Courts must . . . ‘modify or suspend
any and all deadlines and procedures . . .’ until further notice” (ellipses in original).
A. Hearing on Motion to Dismiss
At the beginning of the hearing on October 8, the juvenile court heard arguments
on C.C.C.’s motion to dismiss. C.C.C.’s counsel argued that the State could not show
that, due to reasons beyond its control, it was impracticable to proceed in juvenile court
before C.C.C.’s eighteenth birthday. See id. § 54.02(j)(4)(A). Specifically, counsel argued
that “the only reason we did not have a hearing on the 14th of April,” before C.C.C. turned
eighteen, was because the summons was not timely served on C.C.C. or his parents.
See id. § 53.06 (regarding service of summons in juvenile cases). He noted that the trial
court issued the summons on December 17, 2020, but the summons was not served until
minutes before the April 14 hearing. Counsel further noted that, under the statute, a child
may not waive service of the summons for a discretionary transfer hearing “by written
stipulation or by voluntary appearance at the hearing.” See id. § 53.06(e).
5
In response, the prosecutor argued:
Your Honor, first of all, I’d like to defend your bailiffs. Your bailiffs are under
COVID protocols since March 13th of 2020 and this allegation occurred on
March 30th of 2020. And at that time the Texas Supreme Court issued
several emergency declarations saying that no extraordinary business
could be conducted unless it was pertinent to justice. And there are several
other—the Texas governor issued the same declaration, the county judge
issued the same declaration, and your protocol for your bailiffs here in this
court are to await the arrival of the person for the case and then serve him
at that time. This is what they’ve done for years and years. If you want them
to testify, they will stand up and testify.
The prosecutor next urged that C.C.C.’s argument regarding lack of service “went outside
the scope of his motion” because the motion was based on § 54.02(j), which does not
concern service. Finally, the prosecutor contended that there was no “unnecessary delay”
and that “[w]ith COVID protocols in place, we went strictly as fast as we could with due
diligence, we filed as much as we could, we amended before the trial.” The prosecutor
noted that the State “announced ready” at the April 14 setting, whereas C.C.C.’s counsel
“decided not to waive the issues of service” but instead “requested a hearing and that
was the June 9th hearing.” 1
The juvenile court orally denied C.C.C.’s motion to dismiss. Before pronouncing its
ruling, the court stated that, under the Texas Supreme Court’s emergency pandemic
orders in effect on April 14, 2021, “no hearings could be held unless they were emergency
hearings.” The court further recounted that the chairman of the county juvenile board and
the county juvenile probation department agreed that “the only cases that we considered
to be emergency cases in which we had to act upon immediately were the ones in custody
1 The prosecutor further noted that the June 9 setting was continued until August only because
C.C.C.’s counsel had a conflict in federal court on June 9. In reply, C.C.C.’s counsel argued that his request
for a continuance from June to August is “irrelevant” to the issue at hand because, by the time he made
that request on June 4, C.C.C. had already turned eighteen.
6
because they have to have a 10-day detention hearing.”
The court further stated as follows:
The Court will take judicial notice that in the juvenile court that I’ve been
here since I retired, we’ve been here three years, and even before then,
that the juvenile and the parents are served in court by the two bailiffs that
we have. Our bailiffs do not go somewhere else and do not leave the
premises to serve anybody and that’s been the practice of the Court for a
long time. I don’t know exactly—I don’t think we’ve ever had our bailiffs go
out and serve anybody in the community.
....
So based on the arguments of counsel, based on the motions filed, based
on the case timeline, the Court is going to find that the State did do due
diligence in handling this case due to the circumstances as they
existed . . . under COVID.
....
The Court will take judicial notice of the fact that the COVID orders were in
place here in the juvenile department and at the detention center, our
detention center, that the staff had to deal with the situation as it presented
itself, they tried to make sure that the kids in custody didn’t have COVID—
in fact, some of the kids did come out positive for COVID—that the staff
were not exposed to it, and that was their priority at the time and had to be
the priority based on the health of everybody and keeping everybody safe
and following all the other orders that were sent our way.
And so the procedure of this Court is that the bailiffs serve the individual the
first time they come to court. So if they come to court for an announcement,
they come for the first hearing, at that time they’re served. If they haven’t
been served before they go to trial, and like [C.C.C.’s counsel] stated, they
get served 15 minutes before, I always allow the defense attorney the right
to either waive because they feel that they’re ready or I give them their 10-
day notice to prepare for trial.
And I have never denied a defense attorney that motion and that request,
because I agree with you, you know, they cannot be ready in 15 minutes if
they just got served and haven’t been working on the case, they just got
hired or the first time they met their client.
We also have the problem that a lot of the juveniles, even though they’re
told to come, you know, do not appear because the parents cannot bring
them, because they’re working, many, many reasons this Court hears. So I
will find that, again, that the State did do due diligence.
7
B. Hearing on Petition for Discretionary Transfer
After denying the motion to dismiss, the court heard testimony regarding the
petition for discretionary transfer. Rosie Hernandez, the Cameron County Sheriff’s Deputy
who initiated the investigation, testified that when she responded to the scene of the
accident and tried to interview C.C.C., C.C.C. “blurted out” to her that “I was going really
fast, closed my eyes and the ATV flipped over.”2 She said that the road where the accident
occurred was a “blacktop” and that she believed C.C.C. “may have lost control” of the
ATV near “a very deep curve” in the road. She did not know whether the victim was
wearing a seat belt. Hernandez read excerpts from the ATV’s owner’s manual exhorting
the operator to “slow down before entering [a] turn” and to “avoid sharp turns to keep the
vehicle from tipping.” Hernandez stated: “Based on the evidence at the scene, and only
based on those facts, was I able to charge [C.C.C.] with the crime.”
Karlo Ruiz, a Cameron County juvenile probation officer, testified that according to
Tovar’s report, C.C.C. “has the maturity, sophistication and the mindset to understand
what is happening in this court.” He stated that the juvenile probation department does
not have “rehabilitative therapies” for juveniles accused of criminally negligent homicide,
manslaughter, or aggravated assault; instead, he agreed that “the only options” available
are “prison, detention, or discretionary transfer to the adult system.”
Armijo testified that she was C.C.C.’s probation officer and she prepared the
“Social Study and Diagnostic Study,” which included Tovar’s and Morón’s reports. She
stated that C.C.C. reported to her telephonically every Wednesday. At the time of the
2 Prior to Hernandez’s testimony, the prosecutor advised the court that “this is only a probable
cause hearing and that hearsay is allowed and Rules of Evidence generally don’t apply.” The court replied
that it “will take judicial notice.”
8
hearing, C.C.C. had graduated high school and was taking college classes. Armijo
testified that C.C.C.’s school disciplinary records showed “nothing negative,” and there
was nothing indicating he was “into gang activities or using drugs.” She agreed that,
based on the reports and her research, C.C.C. is “an exemplary child.” However, she
conceded that she recommended in her report that the court grant the motion for
discretionary transfer “[b]ased on the interview, the reports gathered for this diagnostic
study, the maturity and sophistication of the child in question, the prospects of adequate
protection of the public and the lack of rehabilitation services available to the juvenile
court.”
The juvenile court stated it had reviewed the reports submitted by Tovar, Morón,
and Armijo, and it orally granted the State’s petition for discretionary transfer, giving the
following reasons:
All of the offenses alleged are violent offenses against a person. Also a
report from the doctor supports that the juvenile respondent has sufficient
maturity to be tried as an adult. Further, the juvenile respondent is now
currently 18 years of age or older and by his action has displayed a level of
sophistication and maturity sufficient for him to be tried as an adult.
Finally, the seriousness of the offenses alleged in connection with the other
factors mentioned, including the juvenile’s age, demonstrate the lack of
available rehabilitative options in the juvenile system and the need for adult
criminal proceedings in order to protect the community.
After the hearing, the juvenile court signed an order reiterating the above-quoted findings
and also stating:
The Court finds that all those entitled to service of summons were properly
served with summons, in compliance with [§] 53.07 Texas Family Code, and
that this Court had jurisdiction to proceed.
The Court finds that the attorney for the Juvenile-Respondent has had at
least ten (10) days to prepare for this discretionary transfer hearing.
....
9
The Court finds by a preponderance of the evidence that for a reason
beyond the control of the state, it was not practicable to proceed in juvenile
court before the Respondent’s 18th birthday due to the Emergency Orders
issued by the Supreme Court of Texas limiting proceedings in response to
the COVID-19 pandemic, multiple resets made by the court due to said
orders, and the lack of receiving the Social and Diagnostic Study so ordered
by the Court on January 19, 2021, by the Respondent’s 18th birthday.
....
After considering evidence and argument of counsel, this Court finds that
the welfare of the community requires criminal proceedings, [and] that there
is probable cause to believe that the child committed the [charged offenses].
....
This Court is hereby waiving its exclusive, original jurisdiction for the
following reasons:
(1) The Juvenile-Respondent was 14 years of age or older at the time
he is alleged to have committed the offenses of Criminal[ly] Negligent
Homicide, Manslaughter and Aggravated Assault Caus[ing Serious
Bodily Injury];
(2) The sophistication and maturity of [C.C.C.];
(3) Inadequate protection of the public; and
(4) The unlikelihood of the rehabilitation of the child by the use of
procedures, services, and facilities currently available to the juvenile
court.
The court ordered that C.C.C. “be committed immediately to the custody of the Sheriff of
Cameron County, Texas and dealt with as an adult.”
This accelerated appeal followed. See TEX. FAM. CODE ANN. § 56.01(c)(1)(A) (“An
appeal may be taken . . . by or on behalf of a child from an order entered under . . .
[§] 54.02 respecting transfer of the child for prosecution as an adult . . . .”); id. § 56.01(h)
(“If the order appealed from takes custody of the child from the child’s parent, guardian,
or custodian or waives jurisdiction under [§] 54.02 and transfers the child to criminal court
for prosecution, the appeal has precedence over all other cases.”).
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II. DISCUSSION
A. Applicable Law
“Children ordinarily are not subject to criminal proceedings like adults.” In re
S.G.R., 496 S.W.3d 235, 238 (Tex. App.—Houston [1st Dist.] 2016, no pet.). When a child
engages in conduct that would be considered criminal if committed by an adult, it is called
“delinquent conduct.” See TEX. FAM. CODE ANN. § 51.03(a)(1). Juvenile courts have
exclusive original jurisdiction over cases involving delinquent conduct by children
between ten and seventeen years old. Id. §§ 51.02(2)(A), 51.04(a). Delinquency
proceedings against minors proceed in juvenile court under the Juvenile Justice Code,
codified in Title 3 of the Texas Family Code. See id. §§ 51.01–61.107.
A juvenile court may waive its exclusive original jurisdiction under certain
conditions and transfer the proceeding to a district court for criminal prosecution. See id.
§ 54.02(a), (j). “The transfer of a juvenile offender from juvenile court to criminal court for
prosecution as an adult should be regarded as the exception, not the rule.” Ex parte
Thomas, 623 S.W.3d 370, 376 (Tex. Crim. App. 2021) (noting that, whenever feasible,
“children and adolescents below a certain age should be protected and rehabilitated
rather than subjected to the harshness of the criminal system.”). “The burden is upon the
State to prove transfer is appropriate.” Id. What the State must prove to obtain transfer
depends on whether the minor has reached the age of eighteen by the date of the transfer
hearing. In re A.M., 577 S.W.3d 653, 658 (Tex. App.—Houston [1st Dist.] 2019, pet.
granted). Section 54.02(a) applies where the juvenile is under eighteen years of age at
the time of the transfer hearing, while § 54.02(j) applies where the juvenile is eighteen
years of age or older at the time of the hearing. Id.; see Morrison v. State, 503 S.W.3d
11724, 727–28 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
Under § 54.02(a),
The juvenile court may waive its exclusive original jurisdiction and transfer
a child to the appropriate district court or criminal district court for criminal
proceedings if:
(1) the child is alleged to have violated a penal law of the grade
of felony;
(2) the child was:
(A) 14 years of age or older at the time he is alleged to
have committed the offense, if the offense is a capital
felony, an aggravated controlled substance felony, or a
felony of the first degree, and no adjudication hearing
has been conducted concerning that offense; or
(B) 15 years of age or older at the time the child is alleged
to have committed the offense, if the offense is a felony
of the second or third degree or a state jail felony, and
no adjudication hearing has been conducted
concerning that offense; and
(3) after a full investigation and a hearing, the juvenile court
determines that there is probable cause to believe that the
child before the court committed the offense alleged and that
because of the seriousness of the offense alleged or the
background of the child the welfare of the community requires
criminal proceedings.
TEX. FAM. CODE ANN. § 54.02(a). 3 On the other hand, § 54.02(j) states:
3 Subsection (f) of § 54.02 states:
In making the determination required by Subsection (a) of this section, the court shall
consider, among other matters:
(1) whether the alleged offense was against person or property, with greater weight in
favor of transfer given to offenses against the person;
(2) the sophistication and maturity of the child;
(3) the record and previous history of the child; and
(4) the prospects of adequate protection of the public and the likelihood of the
rehabilitation of the child by use of procedures, services, and facilities currently
available to the juvenile court.
12
The juvenile court may waive its exclusive original jurisdiction and transfer
a person to the appropriate district court or criminal district court for criminal
proceedings if:
(1) the person is 18 years of age or older;
(2) the person was:
(A) 10 years of age or older and under 17 years of age at the time
the person is alleged to have committed a capital felony or an
offense under Section 19.02, Penal Code;
(B) 14 years of age or older and under 17 years of age at the time
the person is alleged to have committed an aggravated
controlled substance felony or a felony of the first degree other
than an offense under Section 19.02, Penal Code; or
(C) 15 years of age or older and under 17 years of age at the time
the person is alleged to have committed a felony of the second
or third degree or a state jail felony;
(3) no adjudication concerning the alleged offense has been made or no
adjudication hearing concerning the offense has been conducted;
(4) the juvenile court finds from a preponderance of the evidence that:
(A) for a reason beyond the control of the state it was not
practicable to proceed in juvenile court before the 18th
birthday of the person; or
(B) after due diligence of the state it was not practicable to
proceed in juvenile court before the 18th birthday of the
person because:
(i) the state did not have probable cause to proceed in
juvenile court and new evidence has been found since
the 18th birthday of the person;
(ii) the person could not be found; or
(iii) a previous transfer order was reversed by an appellate
court or set aside by a district court; and
(5) the juvenile court determines that there is probable cause to believe
TEX. FAM. CODE ANN. § 54.02(f). There is no similar statute requiring the juvenile court to consider these or
any other factors when making a transfer determination under § 54.02(j).
13
that the child before the court committed the offense alleged.
Id. § 54.02(j); see Moore v. State, 532 S.W.3d 400, 405 (Tex. Crim. App. 2017) (noting
that § 54.02(j)(4)(A) “is meant to limit the prosecution of an adult for an act he committed
as a juvenile if his case could reasonably have been dealt with when he was still a
juvenile”).
Once an accused turns eighteen years old, the juvenile court’s jurisdiction is
generally limited to either dismissing the case or transferring the case to criminal court.
In re B.R.H., 426 S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
However, the juvenile court
retains jurisdiction over a person, without regard to the age of the person,
who is a respondent in . . . a proceeding for waiver of jurisdiction and
transfer to criminal court under [§] 54.02(a) . . . if:
(1) the petition or motion was filed while the respondent was younger
than 18 or 19 years of age, as applicable;
(2) the proceeding is not complete before the respondent becomes 18
or 19 years of age, as applicable; and
(3) the court enters a finding in the proceeding that the prosecuting
attorney exercised due diligence in an attempt to complete the
proceeding before the respondent became 18 or 19 years of age, as
applicable.
TEX. FAM. CODE ANN. § 51.0412; In re J.C.W.G., 613 S.W.3d 560, 566 (Tex. App.—San
Antonio 2020, no pet.); In re B.R.H., 426 S.W.3d at 166–67.
B. Standard of Review
In reviewing a discretionary transfer, we evaluate the trial court’s findings of fact
under traditional sufficiency of the evidence principles. In re A.M., 577 S.W.3d at 658. In
reviewing legal sufficiency, we view the evidence in the light most favorable to the court’s
findings to determine whether there is more than a scintilla of evidence to support them.
14
In re J.C.W.G., 613 S.W.3d at 569. “Under a factual-sufficiency challenge, we consider
all the evidence presented to determine if the court’s finding is so against the great weight
and preponderance of the evidence as to be clearly wrong or unjust.” In re A.M., 577
S.W.3d at 659.
“If the findings of the juvenile court are supported by legally and factually sufficient
proof, then we review the ultimate waiver decision under an abuse-of-discretion
standard.” Id.; see Collins v. State, 516 S.W.3d 504, 520 (Tex. App.—Beaumont 2017,
pet. denied). A court abuses its discretion if it acts without reference to any guiding rules
and principles. In re Nat’l Lloyds Ins., 507 S.W.3d 219, 226 (Tex. 2016) (orig. proceeding).
An abuse of discretion does not occur when a trial court bases its decisions on conflicting
evidence. See In re B.N.F., 120 S.W.3d 873, 877 (Tex. App.—Fort Worth 2003, no pet.).
But “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to
the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “Thus,
a clear failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.” Id.C. Practicability of Proceeding in Juvenile Court
By his first issue, C.C.C. contends that the juvenile court erred by concluding that
the State (1) exercised due diligence in “bringing C.C.C.’s matter to a close before his
eighteenth birthday” and (2) showed by a preponderance of the evidence that “it could
not feasibly proceed against C.C.C. before his eighteenth birthday because of
circumstances beyond its control.”4
4 By his second issue, C.C.C. contends that service of the summons did not strictly comply with
due process or the family code, and therefore the juvenile court lacked jurisdiction to consider the State’s
motion to transfer. See id. §§ 53.06, 53.07(a), 54.02(k) (providing that a summons for a hearing on a petition
15
At the outset of our analysis, we observe that the parties and the juvenile court
appear to have discussed a multitude of elements which are not applicable in a case of
this type. In its oral and written findings, the trial court stated that it considered, among
other things: (1) the seriousness of the charged offenses; (2) that the charged offenses
were against a person rather than property; (3) C.C.C.’s “sophistication and maturity”; (4)
the “lack of rehabilitative options in the juvenile system”; (5) the “need for criminal
proceedings in order to protect the community” and whether “the welfare of the community
requires criminal proceedings”; (6) the prospects of adequate protection of the public; and
(7) the “unlikelihood of the rehabilitation of the child by the use of procedures, services,
and facilities currently available to the juvenile court.” All of these factors are necessary
considerations in determining whether to transfer a juvenile to criminal court under
subsection (a) of § 54.02. See TEX. FAM. CODE ANN. § 54.02(a)(3), (f). But C.C.C. was
for discretionary transfer must be served on an in-state juvenile at least two days before the day of the
hearing); Ex parte Rodriguez, 466 S.W.3d 846, 850, 851 (Tex. Crim. App. 2015) (noting that “the failure to
comply with § 54.02(b) deprives the juvenile court of jurisdiction to transfer the case” and that, for a
judgment to survive a direct attack based on defective service, “strict compliance with the rules for service
of citation [must] affirmatively appear on the record”). The State acknowledges that C.C.C. was never
served with a written summons specifically mentioning the October 8, 2021 hearing date; nevertheless, it
argues that the statutory requirements were satisfied because C.C.C. was orally “summoned by the
presiding judge” at the April 14, 2021 hearing. The State cites In re K.P.S., in which we held that “the trial
judge’s oral summons and in-court service [of an adjudication petition] to the appellant, his guardian, and
his attorney were sufficient to satisfy the requirements of §§ 53.06 & 53.07.” 840 S.W.2d 706, 708 (Tex.
App.—Corpus Christi–Edinburg 1992, no writ). The State further argues that, even if C.C.C. was not
properly served, he waived service of the summons by voluntarily appearing at the October 8, 2021 hearing,
at which time he was no longer a “child.” See TEX. FAM. CODE ANN. § 51.02(2) (defining “child” as 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”); id. § 53.06(e) (“A
party, other than the child, may waive service of summons by written stipulation or by voluntary appearance
at the hearing.”); see also Paz v. State, No. 08-15-00354-CR, 2017 WL 2351349, at *6 (Tex. App.—El Paso
May 31, 2017, no pet.) (not designated for publication) (holding, where juvenile appellant argued that
procedural requirements for service of the petition for discretionary transfer were not met, that “[a]ppellant
was an adult at the time of this hearing and thus his appearance waived any technical service deficiency”
under § 53.06(e)).
For purposes of this opinion, we assume but do not decide that the trial court had jurisdiction to
consider the State’s petition for discretionary transfer.
16
eighteen years old at the time of the discretionary transfer hearing; therefore, § 54.02(a)
is not applicable to this case. See id.; In re A.M., 577 S.W.3d at 658; Morrison, 503 S.W.3d
at 727–28. Instead, this case proceeded exclusively under § 54.02(j), which concerns the
transfer of a person who was charged as a juvenile but has since reached the age of
eighteen. See TEX. FAM. CODE ANN. § 54.02(j). In a transfer proceeding under subsection
(j), the juvenile court is not instructed to consider the factors enumerated above. 5
Moreover, the court’s oral findings reflect that one of its primary considerations in
deciding the merits of the transfer petition was whether the State exercised “due diligence
in handling this case,” and the parties extensively brief the issue of due diligence in their
arguments regarding grounds for transfer. To transfer a case under § 54.02(j)(4)(B), the
juvenile court must find by a preponderance of the evidence that “after due diligence of
the state it was not practicable to proceed” before the juvenile’s eighteenth birthday. Id.
§ 54.02(j)(4)(B). 6 But that part of the statute applies only if the court finds it was
impracticable to proceed in juvenile court
because:
(i) the state did not have probable cause to proceed in juvenile court
and new evidence has been found since the 18th birthday of the
person;
(ii) the person could not be found; or
(iii) a previous transfer order was reversed by an appellate court or set
aside by a district court.
5 Although the trial court was correct to order a diagnostic study including psychological and
psychosocial evaluations because C.C.C. was under eighteen at the time of the order, the statute does not
require this to be done when transfer is sought under subsection (j). See TEX. FAM. CODE ANN. § 54.02(l)
(“Except as otherwise provided by this subsection, a waiver of jurisdiction under Subsection (j) may be
made without the necessity of conducting the diagnostic study or complying with the requirements of
discretionary transfer proceedings under Subsection (d).”).
6 The elements listed in § 54.02(j)(1), (2) and (3) have undisputedly been satisfied in this case.
17
Id. None of these reasons has ever been alleged or proven in this case. Accordingly,
§ 54.02(j)(4)(B) is not applicable. Instead, this case proceeded exclusively under
§ 54.02(j)(4)(A), which does not require a showing of due diligence. See id.
§ 54.02(j)(4)(A). Under that section, the State only needed to show by a preponderance
of the evidence that it was not practicable to proceed in juvenile court before C.C.C.’s
eighteenth birthday “for a reason beyond the control of the state.” Id. We therefore confine
our analysis to this element.
In its written order granting the transfer petition, the juvenile court stated that it
found this element true for three reasons: (1) “the Emergency Orders issued by the
Supreme Court of Texas limiting proceedings in response to the COVID-19 pandemic”;
(2) “multiple resets made by the court due to said orders”; and (3) “the lack of receiving
the Social and Diagnostic Study so ordered by the Court on January 19, 2021, by
[C.C.C.]’s 18th birthday.”
With respect to the third finding, the record demonstrates that Armijo filed her
“Social Study and Diagnostic Study,” which included Tovar’s and Morón’s reports, on
March 30, 2021—that is, fifty days before C.C.C.’s eighteenth birthday. Therefore, there
is no evidence to support the juvenile court’s finding that it did not “receiv[e] the Social
and Diagnostic Study . . . by the Respondent’s 18th birthday.” In any event, as noted
above, the preparation of a social study is not required in a transfer proceeding under
§ 54.02(j), see id. § 54.02(l), and the matters addressed in such a study are not relevant
to the issue before the court—i.e., whether it was impracticable to proceed in juvenile
court before C.C.C.’s eighteenth birthday “for a reason beyond the control of the state.”
See id. § 54.02(j)(4)(A).
18
The first two findings concern the Texas Supreme Court’s pandemic orders and
“multiple resets” allegedly made pursuant to those orders. The emergency order in effect
at the time of C.C.C.’s arrest, issued on September 18, 2020, provides in part:
2. Subject only to constitutional limitations, all courts in Texas may in
any case, civil or criminal—and must to avoid risk to court staff,
parties, attorneys, jurors, and the public—without a participant’s
consent:
a. except as provided in paragraph (b), modify or suspend any
and all deadlines and procedures, whether prescribed by
statute, rule, or order, for a stated period ending no later than
December 1, 2020;
b. [concerning proceedings under Subtitle E, Title 5 of the Family
Code, not applicable here]
c. except as this Order provides otherwise, allow or require
anyone involved in any hearing, deposition, or other
proceeding of any kind—including but not limited to a party,
attorney, witness, court reporter, grand juror, or petit juror—to
participate remotely, such as by teleconferencing,
videoconferencing, or other means;
d. consider as evidence sworn statements made out of court or
sworn testimony given remotely, out of court, such as by
teleconferencing, videoconferencing, or other means;
e. conduct proceedings away from the court’s usual location with
reasonable notice and access to the participants and the
public;
f. require every participant in a proceeding to alert the court if
the participant has, or knows of another participant who has:
(i) COVID-19 or flu-like symptoms . . . ; or (ii) recently been in
close contact with a person who is confirmed to have COVID-
19 or exhibiting the symptoms described above;
g. take any other reasonable action to avoid exposing court
proceedings to the threat of COVID-19.
3. Courts must not conduct in-person proceedings contrary to the
Guidance for All Court Proceedings During COVID-19 Pandemic
(“Guidance”) issued by the Office of Court Administration, which may
be updated from time to time, regarding social distancing, maximum
group size, and other restrictions and precautions. Prior to holding
19
any in-person proceedings, a court must submit an operating plan
that is consistent with the requirements set forth in the Guidance.
Courts must continue to use all reasonable efforts to conduct
proceedings remotely.
Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 135,
136 (Tex. 2020) (eff. Oct. 1. 2020). 7 Subsequent orders which took effect during the
pendency of the case contained substantially identical provisions. See Twenty-Ninth
Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 863, 863–64 (Tex.
2020) (eff. Nov. 11, 2020); Thirty-Third Emergency Order Regarding COVID-19 State of
Disaster, 629 S.W.3d 179, 179–180 (Tex. 2021) (eff. Jan. 14, 2021). As of March 5, 2021,
courts were no longer prohibited from conducting in-person proceedings contrary to the
guidance issued by the Office of Court Administration. See Thirty-Sixth Emergency Order
Regarding COVID-19 State of Disaster, 629 S.W.3d 897, 897–98 (Tex. 2021) (eff. Mar.
5, 2021); Thirty-Eighth Emergency Order Regarding COVID-19 State of Disaster, 629
S.W.3d 900, 900 (Tex. 2021) (eff. May 26, 2021); Forty-Third Emergency Order
Regarding COVID-19 State of Disaster, 629 S.W.3d 929, 929 (Tex. 2021) (eff. Oct. 1,
2021).
The emergency pandemic orders were intended to mitigate the health risk
presented by COVID-19 to litigants and court personnel, in part by giving courts wide
discretion to conduct remote proceedings in nearly all circumstances. They do not
generate a blanket excuse which can be used to extend deadlines indefinitely, especially
in the absence of any specific explanation for why such extensions are warranted.
Moreover, the emergency orders are not self-executing; they permit courts to extend
7 The State’s representation, made in its response to C.C.C.’s motion to dismiss, that “Texas Courts
must . . . ‘modify or suspend any and all deadlines and procedures . . .’ until further notice” (ellipses in
original) is grossly overbroad and misleading.
20
deadlines, and they require extensions in certain instances, but they do not extend
deadlines themselves. Here, there is nothing in the record indicating that any hearing or
other proceeding in C.C.C.’s case was ever postponed or continued due to the pandemic
conditions or any provision of any emergency order. The juvenile court’s finding to the
contrary is supported by no evidence. 8
We agree with C.C.C. that the only reason why the transfer hearing could not
proceed on April 14, 2021, was because C.C.C. was not timely served with the summons
and amended petition. C.C.C.’s counsel had no legal authority to waive timely service on
his behalf. See TEX. FAM. CODE ANN. § 53.06(e). The prosecutor and juvenile court
represented that it was the long-term common practice of the court to serve a juvenile
respondent with the summons at the courthouse on the day the juvenile first appears. But
such practice risks violating the Juvenile Justice Code, which generally requires that the
summons be served “at least two days before the day of the . . . hearing.” See id. § 53.07
(“If a person to be served with a summons is in this state and can be found, the summons
shall be served upon him personally at least two days before the day of the adjudication
hearing.”); id. § 54.02(k) (noting that “[t]he petition and notice requirements of [§§] 53.04,
53.05, 53.06, and 53.07 of this code must be satisfied” with respect to a petition for
discretionary transfer under § 54.02(j)).
Crucially, while the State cannot be faulted for the delay caused by C.C.C.’s
counsel’s conflict in federal court on May 5, the same cannot be said for the delay
between May 12, the reset date suggested by the court administrator, and June 9, the
8 In its brief on appeal, the State does not direct us to any order “saying that no extraordinary
business could be conducted unless it was pertinent to justice,” as the prosecutor claimed at the transfer
hearing; nor does it direct us to any order providing that “no hearings could be held unless they were
emergency hearings,” as the juvenile court claimed at that hearing.
21
date the State proposed instead. Had the State acquiesced to the May 12 reset date, the
hearing would have taken place before C.C.C.’s eighteenth birthday. 9 The State did not
offer to the juvenile court and does not offer on appeal any reason for why the transfer
hearing could not have gone forward on May 12.
The State contends that it “is not responsible for court delays or delays caused by
court appointed private actors.” See In re J.C.W.G., 613 S.W.3d at 567 (citing Lloyd v.
State, 665 S.W.2d 472, 475 (Tex. Crim. App. [Panel Op.] 1984)) (“The State is not
responsible for court delays, which can be described as exceptional circumstances.”). But
for purposes of the analysis, “the state” includes “law enforcement and the prosecution.”
Moore v. State, 532 S.W.3d 400, 403–04 (Tex. Crim. App. 2017). Here, the delays are
not attributable to the court or private actors. As C.C.C. notes, despite the emergency
orders and pandemic conditions, the State was able to send investigators to conduct its
investigation, obtain an arrest warrant and detain C.C.C., conduct a detention hearing,
file its petitions for transfer, obtain an order for the issuance of summons, obtain orders
for psychological and sociological studies, provide probation services, and obtain a
hearing date prior to C.C.C.’s eighteenth birthday. There is no evidence in the record
establishing that timely service of the summons for the transfer hearing could not have
been accomplished before C.C.C.’s eighteenth birthday, for reasons related to the
pandemic or the emergency orders, or for any other reason beyond the control of the
State.
In this case, C.C.C. was arrested on October 23, 2020, and released after a
9 C.C.C.’s counsel had a conflict in federal court on May 5 but did not object to the court
administrator’s suggestion of May 12.
22
detention hearing on October 26, 2020—i.e., 205 days before C.C.C.’s eighteenth
birthday. At the detention hearing, the prosecutor stated that “[w]e have received all of
the evidence.” This was corroborated by Hernandez’s uncontroverted testimony at the
transfer hearing, in which she stated that she was able to charge C.C.C. with a crime
based “only” on the facts and evidence gathered at the scene of the accident, which took
place 415 days before C.C.C. turned eighteen. Further, Armijo gave uncontroverted
testimony that C.C.C. reported to her weekly throughout the pendency of the case. 10
In light of the foregoing, we conclude the juvenile court abused its discretion in
finding, by a preponderance of the evidence, that “for a reason beyond the control of the
state, it was not practicable to proceed in juvenile court before [C.C.C.]’s 18th birthday.”
See id. § 53.02(j)(4)(A). Therefore, the court erred in granting the State’s motion to
transfer. We sustain C.C.C.’s first issue. 11
D. Due Diligence
As noted, under family code § 51.0412, the juvenile court may retain jurisdiction
over a person over eighteen under certain conditions, notwithstanding the State’s failure
to prove grounds for transfer under § 54.02. 12 See id. § 51.0412; Moore, 532 S.W.3d at
10 Armijo recommended in her report that the juvenile court waive its jurisdiction and transfer the
case, but the reasons she gave for that recommendation—including C.C.C.’s “maturity and sophistication,”
the “prospects of adequate protection of the public,” and the “lack of rehabilitation services available to the
juvenile court”—are not relevant under § 54.02(j).
11In light of this conclusion, we need not address C.C.C.’s third issue concerning probable cause.
See TEX. R. APP. P. 47.1.
12 The parties brief § 51.0412 within their arguments concerning the petition for discretionary
transfer. But, though § 51.0412(e) requires a showing of due diligence, it does not concern the elements
necessary to obtain transfer under § 54.02. Instead, it concerns what the juvenile court must do should it
not transfer the case (i.e., if § 51.0412 is not satisfied, then the court must dismiss the case, but if it is
satisfied, then the court retains jurisdiction). The State does not ask us, in the event we find the court erred
in granting the motion to transfer, to remand for further proceedings in light of § 51.0412. See TEX. FAM.
CODE ANN. § 51.0412; see also Powell v. State, No. 05-07-01078-CR, 2009 WL 866194, at *3 (Tex. App.—
Dallas Apr. 1, 2009, pet. ref’d) (mem. op., not designated for publication) (finding the juvenile court erred
23
405 n.4 (characterizing § 51.0412 as an “exception” to the general rule that a juvenile
court’s jurisdiction over a person over eighteen is limited to dismissal or transfer). Here,
the transfer petition was filed before C.C.C.’s eighteenth birthday, the proceeding was not
completed by that date, and the juvenile court orally found that the State exercised “due
diligence in handling this case.” 13 Thus, so long as the juvenile court’s finding of due
diligence is supported by the record, then it will retain jurisdiction over C.C.C. See TEX.
FAM. CODE ANN. § 51.0412; In re J.C.W.G., 613 S.W.3d 560, 566 (Tex. App.—San
Antonio 2020, no pet.); In re B.R.H., 426 S.W.3d at 166–67; see also Moore, 532 S.W.3d
at 405 n.4.
We have already concluded that the juvenile court erred in finding that it was not
practicable to proceed before C.C.C.’s eighteenth birthday for reasons beyond the State’s
control. For the same reasons, we conclude the court erred in finding that “the prosecuting
attorney exercised due diligence in an attempt to complete the proceeding before [C.C.C.]
became 18 . . . years of age.” See TEX. FAM. CODE ANN. § 51.0412(3). “Due diligence” is
not defined by statute but commonly means “[t]he diligence reasonably expected from,
and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to
discharge an obligation.” Collins, 516 S.W.3d at 520 (citing BLACK’S LAW DICTIONARY 523
(9th ed. 2009)); see TEX. GOV’T CODE ANN. § 311.011(a) (“Words and phrases shall be
read in context and construed according to the rules of grammar and common usage.”).
As noted, there is no indication in the record that it was impracticable for C.C.C. to be
by transferring to criminal court under § 54.02, but remanding for further proceedings). We address the
issue out of an abundance of caution and in our sole discretion.
13 The juvenile court made this finding when it ruled on C.C.C.’s motion to dismiss, which did not
concern the retention of jurisdiction under § 51.0412. The written judgment does not contain a due diligence
finding. We assume but do not decide, for purposes of this analysis, that the oral finding invoked retention
of jurisdiction under § 51.0412(3).
24
timely served before the April 14, 2021 hearing, or that it was impracticable for the transfer
hearing to have taken place on May 12, 2021, as suggested by the court administrator.
Further, the evidence at the transfer hearing was uncontroverted that the State’s
investigation into the March 30, 2020 accident was complete as of the time C.C.C. was
arrested, in October of that year.
We conclude that the trial court’s finding that the State “did do due diligence in
handling this case” was supported by legally insufficient evidence. See In re A.M., 577
S.W.3d at 658. Accordingly, in light of our conclusion above, the juvenile court was
obligated to dismiss the case. See In re B.R.H., 426 S.W.3d at 166.
III. CONCLUSION
The juvenile court’s judgment is reversed, and we render judgment dismissing the
case.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
10th day of March, 2022.
25