TPS v. StateTPS v. State
- Reporters:
- ,
- Before:
- Guittard, Carver, Humphreys
Henry M. Wade, Dist. Atty., Maridell Templeton, Asst. Dist. Atty., Dallas, for appellee.
GUITTARD, Chief Justice.
A fifteen-year old boy brings this appeal from an order of the juvenile court transferring him to a felony court for trial on a charge of murder. His principal complaint is that the trial court denied him a hearing on his application for temporary hospitalization under
1. Temporary Hospitalization
a. Applicability of Section 55.02 to Discretionary Transfers
Appellant‘s request for temporary hospitalization was based on subdivision (a) of
If it appears to the juvenile court, on suggestion of a party or on the court‘s own notice, that a child alleged by petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision may be mеntally ill, the court shall initiate proceedings to order temporary hospitalization of the child for observation and treatment.
The state contends that this section does not apply when the petition seeks a transfer rather than a delinquency adjudication because the child is not “alleged by the petition... to have engaged in delinquent conduct” within
Moreover, as we read the Code, the prosecuting attorney is required to allege that the child has “engaged in delinquent conduct” as a basis for transfer to a criminal court. Transfer proceedings are governed by
(a) If the preliminary investigation, required by Section 53.01 of this code results in a determination that further proceedings are authorized and warranted, a petition for an adjudication or transfer hearing of a child alleged to have engaged in delinquent conduct or conduct indiсating a need for supervision may be made as promptly as practicable by a prosecuting attorney who has knowledge of the facts alleged or is informed and believes that they are true. [Emphasis added].
Construed together, as they must be,
In view of the specific reference to
In explaining his ruling, the juvenile judge expressed the view that when transfer to a criminal court is sought,
If the court or jury determines that the child is unfit to proceed, the court or jury shall determine whether the child should be committed for a period of temporary hospitalization for observation and treatment in accordance with Section 55.02 of this code ....
We read
The state contends that a child charged with a felony should not be permitted to use
Whatever basis this argument may have in considerations of policy, we find no support for it in the Code. We recognize that the guilt of the child is not the issue in a transfer proceeding. Nevertheless, a report concerning the child‘s mental condition after a period of hospital observation and treatment should be considered by the juvenile court in exercising its discretion to order a transfer in view of subdivision (f)(6), which requires the court to consider “the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities сurrently available to the juvenile court.” Such a report would also be pertinent under subdivision (d) of
Appellant contends alternatively that if temporary hospitalization is not available when the prosecuting attorney seeks a discretionary transfer, then the child is denied equal protection of the laws because this construction would result in an invidious discrimination, without the justification of a compelling state interest, between juveniles who are respondents to a petition for discretionary transfer and those in like circumstances with respect to whom a delinquency adjudication is sought. We do not find it necessary to pass on this question in view of our interpretation above stated that proceedings for temporary hospitalization are available under
We recognize that the state‘s construction of the Code is supported by R. K. A. v. State, 553 S.W.2d 781 (Tex.Civ.App.—Fort Worth 1977, no writ). There the court said that
Although in R.K.A. the court states that its construction of
b. Denial of Hearing for Temporary Hospitalization
Having decided that
The Texas Mental Health Code (5547-1 et seq., Vernon‘s Texas Civil Statutes) governs proceedings for temporary hospitalization exсept that the juvenile court shall conduct the proceedings whether or not the juvenile court is also a county court.
Subdivision (c) provides that if the juvenile court orders temporary hospitalization, the child shall be cared for, treated, and released in accordance with the Mental Health Code, except that the head of the mental hospital must notify the juvenile court ten days before discharge. Subdivision (d) provides:
If the juvenile court orders temporary hospitalization of a child, the proceedings under this title then pending in juvenile court shall be stayed.
The record in this case shows that no hearing under
Also before the court at this hearing were a written report from Dr. Green and a diagnostic report signed by Dr. Sandra Mims and Dr. Saleem Ateek, staff psychologists, to whom appellant had been referred by the probation officer. Dr. Mims and Dr. Ateek stated that in the absence of unusual stress, appellant was able to think and interact in an appropriate manner, but that “under even minimal stress and when placed in an emotionally-charged situation, he shows the capaсity to rapidly deteriorate in his ability to accurately interpret the situation and respond in an appropriately modulated fashion.”
At the conclusion of this hearing, there was a discussion about the application of
Before the next hearing, appellant‘s counsel filed a “motion for temporary hospitalization and observation,” specifically invoking the provisions of
After appellant‘s “motion for temporary hospitalization and observation” was filed, several hearings were held, but no further evidence was presented. On March 7 there was a discussion between the judge and counsel concerning the availability of hospital treatment, which ended with a statement by the judge that he would not release appellant for voluntary hospitalization and that the only other way was “to have this hearing and order him there in accordance with the statute.”
At another hearing on March 21, appellant‘s counsel represented to the court that he had “two M. D. psychiatrists who will testify that temporary hospitalization is what they need to offer a firm opinion,” and that it was necessary to develop the evidence of sophistication and mаturity to be presented at the hearing for discretionary transfer. Counsel stated that he did not think he could show that appellant was incompetent to proceed, but could show by the doctors’ testimony that he was mentally ill and required hospitalization.
After considerable discussion, the judge ruled that the only matter to be tried in advance of the transfer hearing was the
This record does not present a case in which the juvenile court initiated proceedings for temporary hospitalization and then, on the basis of evidence presented at a heаring held in accordance with
The state contends that appellant is not entitled to temporary hospitalization because he has not made a proper application for voluntary hospitalization under section 22 of the Mental Health Code,
We must determine, therefore, whether the information before the court was sufficient to require the court to institute proceedings for such temporary hospitalization. We hold that it was sufficient tо require such proceedings. The court had before it the testimony of Dr. Green at the earlier hearing and the written reports of Dr. Green, Dr. Mims, Dr. Ateek, and Dr. McLaughlin, all qualified experts, who stated that there was a strong possibility of a serious psychiatric or emotional disorder requiring further observation and treatment. This information was sufficient to show to the juvenile court that appellant “may be mentally ill,” in the sense of a reasonable possibility that such hospitalization was needed. This is the same standard as that requiring an inquiry into the child‘s respоnsibility under
Accordingly, we reverse the transfer order and remand the case to the juvenile court for further proceedings. We comment briefly on other questions raised on this appeal which may be pertinent to those proceedings.
2. Vagueness of Factors Affecting Transfer
Appellant further complains of the order of transfer on the ground that
(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the рrospects 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.
This statute has been upheld as constitutional in a number of opinions that do not specify the grounds of the attack. See S C B v. State, 578 S.W.2d 833, 836 (Tex.Civ. App.—Houston [1st Dist.] 1979, writ ref‘d n. r. e.); In re P. A. C., 562 S.W.2d 913, 917 (Tex.Civ.App.—Amarillo 1978, no writ); In re P. B. C., 538 S.W.2d 448 (Tex.Civ.App.— El Paso 1976, no writ). In our opinion, it is not so uncertain as to render its enforcement impracticable or impossible. It does not allow the juvenile judge unlimited discretion, since subdivision (h) of
Appellant, in effect, attacks the basic сoncept of a discretionary transfer in that he argues that the circumstances authorizing a transfer must be defined by the statute with the same certainty as that necessary to define a penal offense so that the child, when he engages in the conduct complained of, may be presumed to know, not only that he is committing an offense, but also that if charged with such conduct, he will be tried as an adult. We do not agree that due process requires the factors affecting the transfer to be defined with the same certainty as that required to define an offense. For due process it is enough that the conduct be defined as criminal so as to subject the offender either to the processes of juvenile justice or to trial and punishment as an adult.
This conclusion is consistent with the holding in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), which holds that due process requires a notice and hearing before any determination that a juvenile offender should be tried as an adult. Kent does not hold that the
3. Denial of Discovery
Finally, appellant complains that the juvenile court acted arbitrarily in quashing his notice to take the deposition of Sergeant Gus Rose, an investigating officer who later became a witness for the State at the transfer hearing. Counsel contends that if he had been permitted to take this deposition, new evidentiary leads might have been developed that would have assisted him in preparing for the transfer hearing and might have resulted in a different judgment. Counsel also argues that a deposition would have allowed for more effective cross-examination of Sergeant Rose.
Although
Judgment
We conclude that the issue of temporary hospitalization is separable from the issues at the transfer hearing without unfairness to the parties. Accordingly, under the provisions of
Reversed and remanded with instructions.