In the Matter of D.M.W.--Appeal from 289th Judicial District Court of Bexar County

No. 04-99-00071-CV
In the Matter of D.M.W.
From the 289th Judicial District, Bexar County, Texas
Trial Court No. 99-JUV-00001
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: December 30, 1999

AFFIRMED

The trial court determined that D.M.W., a thirteen-year old child, engaged in delinquent conduct by committing the misdemeanor offense of cruelty to animals, and committed D.M.W. to the Texas Youth Commission (TYC). D.M.W. appealed the trial court's judgment. Because we find no reversible error, we affirm the judgment of the trial court.

Procedural Background of the Court's Disposition

On January 25, 1999, D.M.W. pled true to the State's allegations of delinquent conduct. After his adjudication hearing on that same day, the trial judge found that D.M.W. had engaged in delinquent conduct by setting a chained-up dog on fire. The trial court conducted the disposition hearing on January 26, 1999. At that time, the trial judge reviewed D.M.W.'s psychological evaluation recommending therapy and a stable, structured environment, and numerous disciplinary reports from the detention center. After considering these documents, the trial judge pronounced that she was placing D.M.W. on probation in the custody of the chief probation officer to await transfer to a residential treatment facility. The judge then instructed that another hearing would be held once the probation department identified a treatment facility. The judge wanted to assure that the designated facility could meet the recommendations of the child psychologist who had evaluated D.M.W. Three days later, the State filed a Motion to Reconsider Disposition stating that D.M.W. had received another disciplinary referral for an incident that occurred on the night following his adjudication hearing and asking that the trial court reform its judgment and place D.M.W. with TYC. A hearing was conducted on the State's motion, and the trial judge then decided to place D.M.W. in the custody of TYC.

In his sole issue on appeal, D.M.W. contends that the trial judge erred by reconsidering his probation and by ordering him to be placed with TYC. Specifically, D.M.W. complains that the State's motion did not set forth sufficient evidence to modify D.M.W.'s probation and that the State used an improper motion to obtain a "second bite at the apple" in a high profile case. Although the State did not follow the proper procedure in this case, we find that the trial judge acted within her discretion to modify her original disposition order.

Modification of Disposition

The judgment placing D.M.W. with TYC was signed on February 2, 1999. The order refers to the hearing held on January 29, 1999 as the disposition hearing. Although the court's file contains only this order, what occurred in this case is analogous to modifying disposition under section 54.05 of the Family Code. That section provides that "[a]ny disposition, except a commitment to the Texas Youth Commission, may be modified by the juvenile court . . . until: (1) the child reaches his18th birthday; or (2) the child is earlier discharged by the court or by operation of law." Tex. Fam. Code Ann. 54.05 (Vernon 1996). Thus, the Family Code places the decision to change an original disposition in the trial court's discretion. See Echols v. State, 481 S.W.2d 160, 161 (Tex. Civ. App.--Houston [14th Dist.] 1972, no writ) (stating that question of modifying former order is within trial court's sound discretion to determine whether commitment to institution is in best interest of a delinquent child). Here, the trial judge exercised that discretion. From this standpoint, what the trial court did is proper.

Section 54.05 also authorizes the State to request a modification of disposition. Tex. Fam. Code Ann. 54.05(d) (Vernon 1996). Here though, the State relied on Rule 329(b) of the Rules of Civil Procedure in its Motion to Reconsider Disposition. Although this rule is used to request a new trial in a civil case, we know of no case where this rule has been applied to a juvenile's disposition hearing. Although the Family Code does not expressly provide for a new disposition hearing, the Code clearly anticipates that a child's conduct may require a modification of the child's disposition. Nothing indicates that the State may rely on the Rules of Civil Procedure to create an opportunity to rehear a case in order to obtain the disposition the State sought in the original hearing. Thus, what occurred here appears to be an irregular procedure. Although an irregular procedure, the substance of the State's motion asks the trial court to act within its jurisdiction. The State's motion asked the trial court "to reconsider its disposition judgment placing [D.M.W.] on probation with long term placement, and to reform the judgment to commit [D.M.W.] to the Texas Youth Commission"--in essence, a motion requesting the revocation of probation or a request for modification. Because the facts of this case would have supported D.M.W.'s placement with TYC initially, we do not find that the judge's action in reconsidering her initial decision was improper despite the irregularity.

Our willingness to accommodate this procedural irregularity is greatly due to the trial judge's obvious concern for D.M.W.'s welfare and her considerable deliberation in reaching her decision. The record reflects the trial judge wanted to assure that D.M.W. was placed in a stable, structured environment that could meet the needs reflected in D.M.W.'s psychological evaluation. Although the trial judge initially decided to place D.M.W. on probation at a residential treatment facility, she changed her mind after further considering D.M.W.'s detention conduct and discovering that the designated treatment facility was not a lock-down facility. Clearly, the trial judge wanted to assure D.M.W. was placed in a stable, structured environment that could meet D.M.W.'s needs, but D.M.W.'s conduct indicated to the judge that D.M.W. would not succeed in a non-secured facility. Although we caution the State not to interpret this decision as a mechanism by which it can obtain a second opportunity to obtain TYC placement, we find that the trial court did not abuse its discretion by placing D.M.W. with TYC. As a result, we overrule this issue and affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH