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Error to adjudicate child delinquent for truancy

On October 20, 1999, the Dallas Court of Appeal reversed an adjudication for delinquent conduct when the judgment recited that it was based on conduct constituting truancy. Truancy is CINS, not delinquent conduct.

99-4-18. In the Matter of A.S., UNPUBLISHED, No. 05-98-02086, 1999 WL 956308, 1999 Tex.App.Lexis ___ (Tex.App.--Dallas 10/20/99)[Texas Juvenile Law 49 (4th Ed. 1996)].

Facts: The juvenile court adjudicated A.S. a child engaged in delinquent [sic] on a finding of truancy and committed him to the Texas Youth Commission (TYC). In two points of error, A.S. contends the juvenile court erred in its adjudication, in failing to state specific reasons for disposition, and that the evidence is insufficient to support the disposition. We sustain A.S.'s first point of error and reverse and render judgment.



A petition alleged appellant engaged in delinquent conduct by violating a lawful justice court order "under circumstances that would constitute contempt" by failing to "attend school each and every day with no unexcused absences ... in violation of Section 51.03 of the Texas Family Code." The juvenile court informed A.S. that, if the petition was found to be true, the court could place A.S. on probation at home in the custody of a parent or outside the home until his eighteenth birthday or A.S. could be committed to TYC until his twenty-first birthday. A.S. pleaded true, and the court found him to be a child engaged in delinquent conduct. In its adjudication findings, the juvenile court found A.S. committed the offense of "failing to attend school each and every school day with no unexcused absences and by failing to attend each and every class of each day of school[ ] on 12-1-97" and declared A.S. a child engaged in delinquent conduct, as defined by section 51.03 of the family code. After hearing evidence regarding disposition at the initial and subsequent hearings, the juvenile court committed A.S. to TYC.



The juvenile court entered the following findings for purposes of disposition:



1. The child is in need of rehabilitation;

2. The public is in need of protection;

3. The respondent child's best interest will be served by being placed outside the home[;]

4. All reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the home[;]

5. The child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.



The juvenile court then committed A.S. to TYC "for the reasons stated above."



Held: Reversed and rendered.



Opinion Text: In his first point of error, A.S. contends the trial court erred in adjudicating him a child engaged in delinquent conduct. We view the evidence as a whole to determine whether the State met its burden of proof beyond a reasonable doubt. See Tex. Fam.Code Ann. § 54.03(f) (Vernon 1996); C.D.F. v. State, 852 S.W.2d 281, 284 (Tex.App.-Dallas 1993, no writ); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.-Houston [1 st Dist.] 1991, no writ).



Failure to attend school is a misdemeanor offense under the education code and may be prosecuted in a justice court. See Tex. Educ.Code Ann. § 25.094(b) & (f) (Vernon 1996 & Supp.1999). If the justice court finds a juvenile "has engaged in truant conduct and that the conduct is of a recurrent nature," the court may order the juvenile to "attend school without unexcused absences." Tex. Fam.Code Ann. § 54.021(d)(6) (Vernon Supp.1999). If the justice court finds a juvenile has violated its order, the court shall transfer the complaint to the juvenile court which shall conduct a de novo adjudication hearing under section 54.03 of the family code. See Tex. Educ.Code Ann. § 25.094(d) (Vernon 1996). Under section 54.03 of the family code, a juvenile court may find that a juvenile has engaged in delinquent conduct or conduct indicating a need for supervision. See Tex. Fam.Code Ann. § 54.03 (Vernon 1996). The code also provides specifically that truancy is conduct indicating a need for supervision, not delinquent conduct. See id. § 51.03(a)(2)(B) & (b)(2) (Vernon Supp.1999); In the Matter of J.B.S., 696 S.W.2d 223, 225 (Tex.App.-San Antonio 1985, no writ); In the Matter of A.L.H., 517 S.W.2d 652, 653 (Tex.Civ.App.-Houston [1 st Dist.] 1974, no writ). A juvenile adjudicated a truant under section 51.03 of the family code may not be committed to TYC. See Tex. Fam.Code Ann. § 51.02(15)(A) (Vernon Supp.1999), § 54.04(o) (Vernon 1996) (providing that a child who commits truancy under section 51.03(b)(2), which is conduct that cannot be committed by an adult, may not be committed to TYC).



The juvenile court found A.S. committed the offense of failing to attend school with no unexcused absences, that is, truancy, which is not delinquent conduct under section 51.03 of the family code. Thus, there is no evidence to support an adjudication that A.S. is a child engaged in delinquent conduct. The State argues the court's error is a clerical rather than a legal error because the record demonstrates that A.S. pleaded to a charge of contempt that would support the adjudication. The State proposes that we may either correct the error in the factual finding or remand to the trial court for correction by a nunc pro tunc judgment. See, e.g., State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994) (noting "nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time"); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (noting "[a]ppellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record"); Tex.R.App. P. 43.2(b). However, the written judgment's finding that A.S. "failed to attend school" is consistent with the record of the plea. Furthermore, at a later disposition hearing, the court stated, "Back on September 22 nd, 1998, [A.S.] plead (sic) true to a count of truancy...." This finding of truancy was a judicial determination. Thus, we conclude the juvenile court's holding that A.S. engaged in delinquent conduct was error. We sustain A.S.'s first point of error. Our disposition of the first point of error makes it unnecessary for us to address A.S.'s second point of error. See Tex.R.App. P. 47.1.



We reverse the juvenile court's "Order of Adjudication and Judgment of Disposition with T.Y.C. Commitment" in all respects and render judgment that A.S. is not a child engaged in delinquent conduct.