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

OPINION

No. 04-06-00265-CV

In the MATTER OF R.J.M.

From the 289th Judicial District Court, Bexar County, Texas

Trial Court No. 1998-JUV-01057

Honorable Carmen Kelsey, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 26, 2006

DISMISSED FOR LACK OF JURISDICTION

In this case of first impression, R.J.M. appeals the juvenile court s order denying his motion to appoint counsel to assist him in filing a motion for DNA testing under chapter 64 of the Texas Code of Criminal Procedure. We hold an order of this nature by a juvenile court is not appealable and therefore dismiss this appeal for lack of jurisdiction.

Factual and Procedural Background

After pleading true to aggravated sexual assault of a child, R.J.M. received a ten-year determinate sentence. See In re R.M., No. 04-03-00505-CV, 2004 WL 2450882 (Tex. App. San Antonio Nov. 3, 2004, no pet.) (mem. op.) (affirming order transferring R.J.M. from the Texas Youth Commission to the Texas Department of Criminal Justice Institutional Division). Thereafter, R.J.M. filed a motion asking the juvenile court to appoint counsel to assist him in filing a motion for forensic DNA testing pursuant to article 64.01(c) of the Texas Code of Criminal Procedure. The juvenile court found there are no reasonable grounds for a motion [for forensic DNA testing] to be filed and denied the motion. R.J.M. appealed.

Jurisdiction

In general, [t]he right of appeal in juvenile proceedings is ... controlled by Section 56.01 of the Texas Family Code. C. L. B. v. State, 567 S.W.2d 795, 796 (Tex. 1978). // [W]hen a legislative enactment says a juvenile may appeal orders delineated in the statute, there is no right to appeal orders not so included. In re J.H., 176 S.W.3d 677, 679 (Tex. App. Dallas 2005, no pet.) (dismissing juvenile s appeal for lack of jurisdiction because juvenile court order transferring determinate sentence probation to criminal district court not appealable). //

Neither section 56.01 of the Texas Family Code nor any of other statutes listed in footnote 1 expressly authorizes a juvenile to appeal a motion asking a juvenile court to appoint counsel to assist in filing a post-adjudication motion for forensic DNA testing. Nor does chapter 64 of the Texas Code of Criminal Procedure, which governs motions for forensic DNA testing and related appeals in criminal cases. And we do not believe such authority may be implied.

As a general rule, because [d]elinquency proceedings are civil in nature, the Texas Code of Criminal Procedure does not apply unless the Legislature evinces a contrary intent. Vasquez v. State, 739 S.W.2d 37, 42 (Tex. Crim. App. 1987) (plurality op.). The legislature has not evinced a contrary intent in chapter 64; in fact, all orders that may be appealed under article 64.05 are orders of a convicting court. See Tex. Code Crim. Proc. Ann. arts. 64.01(c); 64.03(a), (c), (d), (e); 64.04 (Vernon Supp. 2005). A juvenile court is not a convicting court. See Tex. Fam. Code Ann. 51.13 (a) (Vernon Supp. 2005) (except for purposes of penalty enhancement in subsequent felonies, an order of adjudication or disposition ... is not a conviction of crime ). //

Conclusion

Because the legislature has not expressly or impliedly authorized a juvenile to appeal a juvenile court s order denying his motion to appoint counsel to assist him in filing a motion for DNA testing under chapter 64 of the Texas Code of Criminal Procedure, we dismiss this appeal for lack of jurisdiction.

Sarah B. Duncan, Justice