IN THE MATTER OF J.P., A JUVENILE (Majority)

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No. 03-0266

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In The Matter of J.P., A Juvenile

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On Petition for Review from the

Court of Appeals for the Second District of Texas

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Argued February 4, 2004

Justice Schneider, joined by Justice O=Neill and Justice Jefferson, concurring.

I join the Court=s opinion but write separately to express my concern and bring to the Legislature=s attention the result that the statute could have in certain circumstances.

A plain reading of subsections 54.04(I), 54.05(f), and 54.05(k) allows a juvenile that has committed a relatively minor infraction to be committed to TYC without a finding by the trial court that such disposition is in his or her best interests or necessary to protect the public safety. Tex. Fam. Code '' 54.04(I) and 54.05(f), (k). As Justice Rickhoff has emphasized, In re H.G. provides one such example. 993 S.W.2d 211, 215 (Tex. App.BSan Antonio 1999, no pet.) (Rickhoff, J., concurring). There, the juvenile was initially adjudicated for criminal mischief, $20-500. Id. His initial disposition resulted in six months of home probation. Id. While serving that probation, his disposition was modified, and he was committed to TYC. The acts that resulted in his committal were failing to attend the required probation counseling because his father Adid not approve of@ it and failing to pay restitution because his mother vetoed his job prospect. Id. I agree with Justice Rickhoff that such acts alone should not warrant commitment to an institutional juvenile facility without a finding that it is in the child=s best interest. Yet, under this statute, the trial court was within its discretion in committing the child in In re H.G. to TYC without that finding.

The Court here emphasizes that A[i]f a trial court abuses its discretion by arbitrarily removing a child from home for trivial infractions, nothing in the statute prohibits the appellate judges of Texas from doing something about it.@ __ S.W.3d __. While this may be true, results like that in In re H.G. suggest that the amount of discretion afforded trial courts in this area is exceedingly broad. And nothing in the statute or in our opinion today gives sufficient guidance to trial courts on how to deal with those cases that are on the margins.

TYC is the most severe form of incarceration contemplated in the juvenile justice scheme for an eleven-year-old child. Historically, the Legislature has expressed its intent that the commitment be reserved for only serious juvenile offenders. See, e.g., Criminal Justice Policy Council, The Changing Profile of the Texas Youth Commission Population 4 available at www.cjpc.state.tx.us/reports/alphalist/index.html (Sept. 1996). For one, a juvenile commitment, away from the child=s family, will undoubtedly have a permanent, lasting effect on any child that goes to TYC. Also, the Legislature has not overlooked the fact that TYC commitment costs the State over $50,000 a year per child. See Criminal Justice Policy Council, Mangos to Mangos: Comparing the Operating Costs of Juvenile and Adult Correctional Programs in Texas 10, 12 (Jan. 2003), available at www.cjpc.state.tx.us/reports/alphalist/index.html.

In certain cases, sending a child to TYC may provide a more proper environment and be in that child=s best interests. However, I find it hard to believe that the Legislature intended for children that committed only minor infractions to be sent to TYC without first finding that it is in the child=s best interests. But on its face, this statute allows that result.

As the Court points out, the first purpose of the juvenile justice code is to provide for the protection of the public safety. Tex. Fam. Code ' 51.01(1). If a child poses a legitimate physical threat to those around him or her, TYC is a proper alternative. However, not all children that may be committed to TYC under this statute pose such a threat. Consistent with protecting the public, the code also encourages Aseparating the child from the child=s parents only when necessary for the child=s welfare or in the interest of public safety.@ Tex. Fam. Code ' 51.01(5). Thus, according to this purpose, it appears that the Legislature intended for the child=s interests to be considered before separating the child from his parents and sending him to TYC. But, as we properly hold today, the plain wording of the statute does not require this when juvenile dispositions are being modified. See Tex. Fam. Code ' 54.05. I would urge the Legislature to reevaluate this statute and to change it if the Legislature intended to require more before committing a child to TYC.

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MICHAEL H. SCHNEIDER

JUSTICE

OPINION DELIVERED: May 14, 2004