Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/8/2015 4:37:57 PM JEFFREY D. KYLE Clerk CAUSE NO. 03-15-00276-CV THIRD COURT OF APPEALS 12/7/2015 3:29:57 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00276-CV *1 ACCEPTED [8121343] CLERK _________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN DIVISION
_________________________________________________ IN THE MATTER OF C.P. §
_______________________________________________ APPELLANT’S AMENDED BRIEF _______________________________________________ Justin Bradford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL Appellant
C.P.
Appellant’s Counsel
Justin Bradford Smith
Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: 254-771-1855
FAX: 254-771-2082
Email: justin@templelawoffice.com
Appellant’s Trial Counsel
Blas J. Coy, Jr.
807 Pecan Street
Bastrop, Texas 78602
Phone: 512-303-6963
FAX: (512) 303-6766
E-MAIL: bjcoy@coylaw.net
Appellee
The State of Texas
Appellee’s Trial Counsel
Bastrop County District Attorney
Kirsten Ruehman
804 Pecan Street
Bastrop, TX 78602
Phone: 512-581-7125
Fax: 512-581-7133
Email: kirsten.ruehman@co.bastrop.tx.us
Appellee’s Appellate Counsel
Greg Gilleland and Kirsten Ruehman
Bastrop County Assistant District Attorney
Address, Phone, and Fax Same As Above
Email: greg.gilleland@co.bastrop.tx.us
Email: kirsten.ruehman@co.bastrop.tx.us
*3 TABLE OF CONTENTS
Identity of Parties and Counsel…………………………..………………………... 2
Table of Contents……………………………………….………………………..3-4
Index of Authorities…………………………………….………………………..5-6
Statement of the Case……………………………………….……………………...7
Statement Regarding Oral Argument………………………………………………7
Issue Presented.….……………..………....…………………….……………….....7
ISSUE ONE: The juvenile court lacked personal jurisdiction over Appellant because the record does not affirmatively show that at least one of his parents, his guardian, or his custodian was served with summons with the original petition attached, nor does the record show waiver pursuant to Texas Family Code Section 53.06(e)…...7 Statement of Facts…………………………………..…………………………..8-12
Summary of the Argument……………………………..……………………...12-14
ISSUE ONE: The juvenile court lacked personal jurisdiction over Appellant because the record does not affirmatively show that at least one of his parents, his guardian, or his custodian was served with summons with the original petition attached, nor does the record show waiver pursuant to Texas Family Code Section 53.06(e)….12 Argument…………………………………………………………………........15-27
Law………………………………………………………………….................15-16
Application………………………………………………..…………………...16-26
1. Neither Appellant’s father nor Kathy Brown were served with the summons and the original petition, nor did they waive service…………………………………………………………….16-17 2. The record does not affirmatively show that Camilla Brown Lawrence is Appellant’s mother, guardian, or custodian…............17-22 3. The record does not contain a statutory waiver of service by anyone who could be Appellant’s mother, guardian, or custodian………………………………………………………….22-26 Conclusion……………………………………………………………………..26-27
Prayer…………………..…………………………………………………….........27
Certificate of Compliance………………………………………………………....27
Certificate of Service……………………………………………………………...28
Appendix………………………………………………………………………….29
INDEX OF AUTHORITIES Texas Supreme Court:
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer , 904 S.W.2d 656
(Tex. 1995)……………………………………………...…………19, 22, n.9 Court of Criminal Appeals:
Johnson v. State , 72 S.W.3d 346
(Tex. Crim. App. 2002)…………………………………………19-20, 24-25 Texas Courts of Appeals:
Barker CATV Const., Inc. v. Ampro, Inc. , 989 S.W.2d 789
(Tex. App.—Houston [1st Dist.] 1999, no pet.)……….……………….18-19 Carlson v. State , 151 S.W.3d 643
(Tex. App.—Eastland 2004, no pet.)………………………..15-16, 18-19, 22 Garcia v. Gutierrez , 697 S.W.2d 758
(Tex. App.—Corpus Christi 1985, no writ)…………………………..19, n. 9 Graham v. McCord , 384 S.W.2d 897
(Tex. Civ. App.—San Antonio 1964, no writ)……………………………..16 In the Matter of Edwards , 644 S.W.2d 815
(Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.)……………………….15 In the Matter of M.D.R. , 113 S.W.3d 552
(Tex. App.—Texarkana 2003, no pet.)………………………………...15, 18 In the Matter of X.B. , 369 S.W.3d 350
(Tex. App.—Texarkana 2012, no pet.)…………………………16, 18-19, 22 In re G.A.T. , 16 S.W.3d 818
(Tex. App.—Houston [14th Dist.] 2000, pet. denied)………………….15, 23 McEntire v. McEntire , 706 S.W.2d 347
(Tex. App.—San Antonio 1986, writ dism’d)……………………………..25 *6 Midstate Envtl. Servs., LP v. Peterson , 435 S.W.3d 287
(Tex. App.—Waco 2014, no pet.)…………………………………..18-19, 22 Medeles v. Nunez , 923 S.W.2d 659
(Tex. App.—Houston [1st Dist.] 1996, writ denied)……………….18-19, 22 Seals v. Upper Trinity Reg’l Water Dist. , 145 S.W.3d 291
(Tex. App.—Fort Worth 2004, pet. dism’d)……………………………25-26 Smith v. Amarillo Hosp. Dist. , 672 S.W.2d 615
(Tex. App.—Amarillo 1984, no writ)……………………………………...23 State v. C.J.F. , 183 S.W.3d 841
(Tex. App.—Houston [1st Dist.] 2005, pet. denied)…………………...15, 23 Wilson v. Newton County , 269 S.W. 227
(Tex. Civ. App.—Beaumont 1925, no writ)……………………………16-17 Constitutions/Statutes/Rules
Tex. Fam. Code § 51.02(3)………………………………………………19, 21, n. 9
Tex. Fam. Code § 51.02(4)………………………………………………19, 21, n. 9
Tex. Fam. Code § 51.17(a)…………………………………………….17-18, 22, 25
Tex. Fam. Code § 53.06(a)(2)………………………………………………...15, 23
Tex. Fam. Code § 53.06(e)………………………………….7, 12, 14-15, 22-24, 26
Tex. R. Civ. P. 106(b)(1)………………………………………………………….17
STATEMENT OF THE CASE Nature of the Case: This is a juvenile appeal from an order modifying
Appellant’s disposition. (VIII R.R. at 44) (I C.R. at 62- 65).
Judge/Court: Judge Benton Eskew, County Court at Law, Sitting as the
Juvenile Court (I C.R. at 62).
Pleas: Not true. (VII R.R. at 8).
Trial Court Disposition: The trial judge revoked Appellant’s probation and
committed him to the Texas Juvenile Justice Department for an indeterminate sentence. (VIII R.R. at 44).
STATEMENT REGARDING ORAL ARGUMENT The precedents and the record are clear in this case, so Appellant does not request oral argument. However, should the Court believe oral argument is
necessary, Appellant’s counsel will be ready to participate.
ISSUE PRESENTED
ISSUE ONE: The juvenile court lacked personal jurisdiction over Appellant because the record does not affirmatively show that at least one of his parents, his
guardian, or his custodian was served with summons with the original petition
attached, nor does the record show waiver pursuant to Texas Family Code Section
53.06(e).
STATEMENT OF FACTS [1]
The State filed an original petition bringing two counts of delinquent conduct, and alleged that James Pertolanitz and Camilla Brown Lawrence are
Appellant’s parents. (I C.R. at 6-7). In the return attached to the summons (with
the original petition attached) that was directed to Appellant, Camilla Brown
Lawrence is served. (Appendix at Tab 1, 00007—00008). [2] In the return attached
to the summons (with the original petition attached) that was directed to Camilla
Brown Lawrence, Appellant is served at the same address. (Appendix at Tab 1,
00009—000010). There are various other summonses on file with the clerk,
including ones to James Pertolanitz, but none of these show service on James
Pertolanitz or Camilla Brown Lawrence. (Appendix at Tab 1, 000001—000026).
There is a summons directed to James Pertolanitz with a return stating it was
served on “James Pertolanitz c/o wife”, and the summons and the return have
notations indicating that James’ wife was at the house. (Appendix, Tab 4,
000001—000002). The notations indicate the process server spoke with someone
on the phone, but whether this was James or his wife is unclear. (Appendix, Tab 4,
000001—000002). However, the summons does not show personal service on
*9 James, and he did not appear in the case. (Appendix, Tab 4, 000001—000002)
(Volumes 2-8 of the Reporter’s Record) (I C.R. at 1-99).
The trial court’s Nunc Pro Tunc Order Revoking Probation leading to the instant appeal “finds that Camilla (Blossum) Lawrence [is] the mother responsible
for the support of [Appellant].” (I C.R. at 64) (Appendix at Tab 2, 000003—
000005). Nowhere does the record show that Camilla Blossum Lawrence was
served with summons, nor does the reporter’s record show that she made a
voluntary appearance in any hearing, (Volumes 2-8 of the Reporter’s Record), nor
does the clerk’s record contain a written stipulation waiving service of summons.
(I C.R. at 1-99). Likewise, the court’s docket sheet does not contain any notation
that any of Appellant’s parents, guardian, or custodian were served, waived
service, or appeared. (I C.R. at 96-97).
When the court originally adjudicated Appellant delinquent, the court signed
an order reciting that Appellant was present with his attorney and Appellant’s
“mother, Camilla Brown Lawrence, also [was] present”, and noted “all parties
announced ready” as well as that “due notice had been served on all parties for the
time required by law”. (I C.R. at 11) (underlining in original) (Appendix at Tab 2,
000001). “Respondent’s Plea of True, Waiver, Stipulation & Judicial Confession”,
which Appellant executed the same day as the adjudication hearing, contains a
signature on the “Parent or Guardian of Child” blank, but that signature is not of
Camilla Brown Lawrence or Camilla Blossum Lawrence. (I C.R. at 10). The
same holds true of the Conditions of Probation signed on June 14, 2012. (I C.R. at
17). [3] The record contains an Order of Probation stating that the “Court finds
Camilla Brown Lawrence is the person responsible for supporting [Appellant]” and
states she is responsible for supporting Appellant “while he resides at [a particular
address]”, but fails to find that this address, at which he was served, is the address
at which he resided at that time. (I C.R. at 14) (underlining in original) (Appendix
at Tab 1, 000009—000010). The Amended Order of Probation signed on October
9, 2012 also states Camilla Brown Lawrence is the person responsible for
supporting Appellant and places Appellant on probation in her custody. (I C.R. at
24-25).
In the Amended Conditions of Probation signed on October 9, 2012, the signature blank for the “Parent/Guardian” contains a different signature than the
previous parent/guardian signatures; this time, the signature is by “Blossom Brown
Lawrence”. (I C.R. at 28). [4] The Second Amended Conditions of Probation
appears to be signed by “C. Blossom Brown Lawrence”. (I C.R. at 31). [5] Again, in
the Second Amended Order of Probation, Appellant is committed to the custody of
“Camilla Brown Lawrence”, who is found to be the person responsible for
*11 supporting Appellant. (I C.R. at 32-33) (underlining in original). In the Third
Amended Order of Probation for Residential Placement, the court found that
“Blossom Lawrence” was the person responsible for supporting Appellant. (I C.R.
at 39) (underlining in original). The Order Extending Disposition signed January
28, 2014 contains the signature of yet another person on the “Parent” blank. (I
C.R. at 43). It is not clear who this person is because the handwriting is illegible:
the first letter may be an “H” or a “K”, and the rest is largely indecipherable. (I
C.R. at 43). The Third Amended Conditions of Probation contain a signature on
the “Parent/Guardian Signature” blank of what appears to be the same person, but
it is likewise indecipherable. (I C.R. at 43). [6] The Third Amended Order of
Probation for Residential Placement “finds that it is contrary to the child’s welfare
to continue to remain in the home of Kathy Brown” and has an “X” next to the
blank reading “The parent/guardian/custodian fails to provide a safe home
environment.” (I C.R. at 45) (underlining in original). [7] The Agreed Amended
Order of Probation for Residential Placement signed on January 26, 2015 “finds
Camilla Lawrence is the person responsible for supporting [Appellant].” (I C.R. at
*12 53) (underlining in original). The Order of Probation for Residential Placement
states that the “court finds that it is contrary to the child’s welfare to continue to
remain in the home of Camilla Lawrence”, and has an “X” next to the blank
reading “The parent/guardian/custodian exhibits a pattern of being unable to
provide adequate supervision”. (I C.R. at 55). The Order Extending Disposition
signed on January 2, 2015 contains Camilla Blossom Lawrence’s signature on the
“Parent” blank. (I C.R. at 57). Likewise, the next page is signed by Camilla
Blossom Lawrence on the blank “Parent/Guardian Signature”. (I C.R. at 58). [8]
SUMMARY OF THE ARGUMENT ISSUE ONE: The juvenile court lacked personal jurisdiction over Appellant because the record does not affirmatively show that at least one of his parents, his
guardian, or his custodian was served with summons with the original petition
attached, nor does the record show waiver pursuant to Texas Family Code Section
53.06(e).
Unless the record affirmatively shows that at least one parent, guardian, or custodian of a juvenile is properly served with the summons and a copy of the
original petition, or unless the record shows waiver pursuant to Texas Family Code
Section 53.06(e), the juvenile court does not acquire jurisdiction, and the case must
be reversed and remanded.
*13 Here, the record does not affirmatively show service nor does it contain a statutory waiver. It is undisputed that Appellant’s father, James Pertolanitz, was
not personally served, nor did he appear or waive service. Service on his wife is
ineffective because she is not his general agent and there is no showing that he
made her his agent for service of process. Kathy Brown, if she was Appellant’s
guardian or custodian (or even mother), was apparently served with summons—but
not with the summons that had the original petition attached, making this service
ineffectual to confer jurisdiction.
There remains Camilla Brown Lawrence. While she was served, there is no clear indication that she is, in fact, Appellant’s mother or guardian or custodian. In
fact, service on her was defective because the summons was directed to Appellant,
not her, and the record does not show that she answered or appeared, it is as if she
suffered a default judgment. The order giving rise to this appeal finds that a
different person is Appellant’s mother. The original adjudication judgment does
not actually find that Camilla Brown Lawrence is Appellant’s mother, though it
states she is, and in any event such a finding is contradicted by the later finding.
The record contains six different signatures from persons purporting to be
Appellant’s parent or guardian, and the one from the hearing at which Camilla
Brown Lawrence allegedly appeared is utterly unlike later signatures that might be
from her. The record simply fails to show that Camilla Brown Lawrence is, in
fact, Appellant’s mother, guardian, or custodian, and the court made, at best,
contradictory findings regarding the same.
Neither does the record contain a waiver of service of summons pursuant to Section 53.06(e) of the Family Code. Such a waiver may only be by written
stipulation or voluntary appearance at the hearing for which the summons was
issued. None of the documents bearing the signature of any of the people who
could be Appellant’s parent, guardian, or custodian is a written stipulation of
waiver of service. None of these writings can be voluntary appearances at the
hearing —that is, in court—for which the summons was issued. None of the
hearings in the reporter’s record show Appellant’s parent, guardian, or custodian
appeared or were even present, and the recitation in the judgment of adjudication is
therefore either false, or Camilla Brown Lawrence, whoever she is, did not
“appear” as that term is understood in the law.
Because the record does not affirmatively show service of the summons of the original petition on the parent, guardian, or custodian of Appellant, and because
the record does not contain a waiver of service of that summons, the case must be
reversed and remanded.
ARGUMENT
Law
Texas Family Code § 53.06(a)(2) requires the juvenile court to direct the issuance of summons to “the child’s parent, guardian, or custodian”, and service
upon either parent is sufficient. In the Matter of Edwards , 644 S.W.2d 815, 818
(Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.). A party other than a child may
waive service of summons, but only by “written stipulation or by voluntary
appearance at the hearing.” Tex. Fam. Code § 53.06(e).
Service of summons with the original petition is the act that confers jurisdiction on the juvenile court. In re G.A.T. , 16 S.W.3d 818, 823 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied); State v. C.J.F. , 183 S.W.3d 841, 851 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied). Likewise, where the record does not
affirmatively show service of the summons and original petition on the parent or
the juvenile, the juvenile court fails to acquire jurisdiction if it is the juvenile who
is not served, In the Matter of M.D.R. , 113 S.W.3d 552, 553 (Tex. App.—
Texarkana 2003, no pet.), and fails to acquire jurisdiction if it is the parent who is
not served and the parent does not waive service pursuant to the statute. Carlson v.
State , 151 S.W.3d 643, 645-646 (Tex. App.—Eastland 2004, no pet.); Tex. Fam.
Code § 53.06(e). The juvenile court fails to acquire jurisdiction if the parent is not
served and does not waive service, even if the juvenile is properly served with
summons and the original petition. Carlson , 151 S.W.3d at 645.
Failure to acquire jurisdiction over the case means the adjudication order is void and subject to collateral attack. In the Matter of X.B. , 369 S.W.3d 350, 352-
354 (Tex. App.—Texarkana 2012, no pet.).
Application
1. Neither Appellant’s father nor Kathy Brown were served with the summons and the original petition, nor did they waive service It is indisputable that James Pertolanitz, Appellant’s alleged father, was not personally served with summons and the original petition, nor did he waive service
by written stipulation or voluntary appearance at the adjudication hearing or any
other hearing. (Appendix at Tab 1, 000001—000026; at Tab 4, 000001—000002)
(Volumes 2-8 of the Reporter’s Record) (I C.R. at 1-99). The record shows one
summons directed to James that is served on his wife, (Appendix at Tab 4,
000001—000002), but this cannot substitute for personal service on James himself
without some evidence that James’ wife was his agent for service of process.
Graham v. McCord , 384 S.W.2d 897, 898 (Tex. Civ. App.—San Antonio 1964, no
writ) (“While a wife is not a general agent of her husband…a husband can make
his wife his agent.”); Wilson v. Newton County , 269 S.W. 227, 228 (Tex. Civ.
App.—Beaumont 1925, no writ) (“Mrs. Wilson was a necessary party to the
proceedings, and, such being true, the notice must have been served upon her
personally, and not by delivery to her husband.”); cf. Tex. R. Civ. P. 106(b)(1)
(substituted service “by leaving a true copy of the citation, with a copy of the
petition attached, with anyone over sixteen years of age at the location specified in
such affidavit” permitted only upon motion and affidavit showing, among other
things, unsuccessful attempted service upon defendant himself) and Tex. Fam.
Code § 51.17(a) (the Texas Rules of Civil Procedure, with exceptions not
applicable here, “govern proceedings under this title”). Nothing shows that she
was his agent—even if we assume the process server spoke to James on the phone,
nothing shows James told the server his wife could accept service on his behalf.
It is also indisputable that, whoever Kathy Brown is, she was not served with summons and the original petition (Appendix at Tab 1, 000015—000016), nor did
she waive service by written stipulation or voluntarily appear at the adjudication
hearing or any other hearing. (Volumes 2-8 of the Reporter’s Record) (I C.R. at 1-
99). Finally, it is undisputable that Appellant was served with summons and the
original petition, (Appendix at Tab 1, 000009—000010), although we might
wonder about the effect of him being served with a summons directed to Camilla
Brown Lawrence rather than to himself.
2. The record does not affirmatively show that Camilla Brown Lawrence is Appellant’s mother, guardian, or custodian So, unless Appellant’s mother, guardian, or custodian was served with summons and the original petition (or waived service pursuant to the statute), the
juvenile court never acquired jurisdiction over his case, the original adjudication
order and all subsequent orders are void, and the case must be remanded for a new
trial. Carlson , 151 S.W.3d at 645-646; In the Matter of X.B. , 369 S.W.3d at 354-
355. We know that Camilla Brown Lawrence was served with summons and the
original petition, (Appendix at Tab 1, 000007—000008), but what we do not
know, and what the record does not affirmatively show, is whether she is
Appellant’s mother, guardian, or custodian. In the Matter of M.D.R. , 113 S.W.3d
at 553 (record must affirmatively show service of summons and original petition).
Furthermore, because the summons with which she was served is directed to
Appellant, “there can be no doubt that a complete discrepancy between the
defendant listed in the petition and the entity or person that the citation is directed
to is a defect in service,” Midstate Envtl. Servs., LP v. Peterson , 435 S.W.3d 287,
290 (Tex. App.—Waco 2014, no pet.) (finding defective service for numerous
reasons under Texas Rule of Civil Procedure in an appeal from a default
judgment), Tex. Fam. Code § 51.17(a) (the Texas Rules of Civil Procedure, with
exceptions not applicable here, “govern proceedings under this title”), Medeles v.
Nunez , 923 S.W.2d 659, 662-663 (Tex. App.—Houston [1st Dist.] 1996, writ
denied) (finding various defects in service warranting reversal of default judgment,
including omission of one letter from the defendant’s last name) overruled on
other grounds by Barker CATV Const., Inc. v. Ampro, Inc. , 989 S.W.2d 789 (Tex.
App.—Houston [1st Dist.] 1999, no pet.), so even if the record affirmatively
showed she is Appellant’s mother, service would still be defective and thus
insufficient to confer jurisdiction. [9] Carlson , 151 S.W.3d at 645-646; In the Matter
of X.B. , 369 S.W.3d at 354-355. Midstate and Medeles considered whether service
was sufficient in view of default judgments; this case is analogous to a default
judgment because, as will be shown below, neither Camilla Brown Lawrence nor
anyone else but Appellant and his attorney, ever appeared. Thus, it is as if she
suffered a default judgment.
The order giving rise to the instant appeal finds that a different person, Camilla Blossum Lawrence, is Appellant’s mother. (I C.R. at 64). “We must
presume that statement correct in the absence of direct proof of its falsity”.
*20 Johnson v. State , 72 S.W.3d 346, 349 (Tex. Crim. App. 2002) (judgment reciting
the defendant “waived trial by jury”). But then, the original adjudication judgment
stated (without directly finding) a contrary conclusion: Appellant’s “mother,
Camilla Brown Lawrence, also [was] present”. (I C.R. at 11) (underlining in
original). So, “must [we] presume that statement correct in the absence of direct
proof of its falsity”? Johnson , 72 S.W.3d at 349. That same judgment recited that
“due notice had been served on all parties for the time required by law”. (I C.R. at
11). So, must we presume that statement correct? Johnson , 72 S.W.3d at 349.
But, again, we have the later judgment finding a different person to be Appellant’s
mother. (I C.R. at 64); Johnson , 72 S.W.3d at 349. Not only that, but we have at
least six other persons whose signatures purport to be that of Appellant’s parent,
and various persons listed as Appellant’s parent, guardian, or custodian. (I C.R. at
10; 17; 28; 31; 41; 43; 57-58). And whether Camilla Brown Lawrence appeared at
the original adjudication hearing or not, the signature of whoever signed the
stipulations and waiver (which did not waive service) as Appellant’s parent is
wholly unlike any other signatures that might belong to Camilla Brown Lawrence.
(I C.R. at 10 and 17 (June 14, 2012 signatures); 28; 31; 41; 43; 57-58). In short,
the record does not affirmatively show that Camilla Brown Lawrence is
Appellant’s mother: to the contrary, the record contains what are, at best, directly
contradictory findings by the trial court on this issue, and further reason to doubt
that Camilla Brown Lawrence is Appellant’s mother since multiple people signed
as his parent.
She cannot be Appellant’s guardian because the record does not contain a court order stating as much, nor a court order placing Appellant with her before she
was served with summons. Tex. Fam. Code § 51.02(4) (“‘Guardian’” means the
person who, under court order, is the guardian of the person of the child or the
public or private agency with whom the child has been placed by a court.”); see
footnote 9, supra . Neither does the record affirmatively show that she is
Appellant’s custodian, as that term is defined in the Family Code. Tex. Fam. Code
§ 51.02(3) (“‘Custodian’ means the adult with whom the child resides”); see
footnote 9, supra . The record shows that Appellant and Camilla Brown Lawrence
were served at the same address (both listed on the summons), but it does not
follow that Appellant resided with her at the time he was served. (Appendix at Tab
1, 000007—000010). While the Order of Probation of June 14, 2012 places
Appellant “on probation in the custody of Camilla Brown Lawrence at [the same
address at which they were served], this likewise is not a finding that Appellant
resided with her at the time he was served. (I C.R. at 13-14) (reciting that Camilla
Brown Lawrence is responsible for supporting Appellant “while he resides at [a
particular address]”, but failing to find that this was his permanent residence or
where he resided when he was served). The State’s original petition alleges the
same address for both (I C.R. at 7), but it is well-settled that, in general, pleadings,
even if sworn to or verified, are not evidence. Laidlaw Waste Sys. (Dallas), Inc. v.
City of Wilmer , 904 S.W.2d 656, 660 (Tex. 1995) (“pleadings are not competent
evidence, even if sworn or verified.”). Finally, even if the above were sufficient to
show that Camilla Brown Lawrence, whatever else she might be, is at least
Appellant’s custodian, service on her was defective because the summons with
which she was served was directed to Appellant, and thus this service was
insufficient to confer jurisdiction. Midstate Envtl. Servs. , 435 S.W.3d at 290; Tex.
Fam. Code § 51.17(a); Medeles , 923 S.W.2d at 662-663; Carlson , 151 S.W.3d at
645-646; In the Matter of X.B. , 369 S.W.3d at 354-355. As will be shown below,
the record does not affirmatively show that Camilla Brown Lawrence appeared in
the suit, so it is as if she suffered a default judgment.
3. The record does not contain a statutory waiver of service by anyone who could be Appellant’s mother, guardian, or custodian Neither does the record contain a waiver of service of summons of the original petition pursuant to Texas Family Code § 53.06(e) by anyone who could
be Appellant’s mother, guardian, or custodian. That statute allows a party other
than a child to waive service by “written stipulation or by voluntary appearance at
the hearing .” Tex. Fam. Code § 53.06(e) (emphasis added).
The only summonses containing the original petition were those issued for the original adjudication hearing in June 2012. (Appendix at Tab 1, 000001—
000010). The rest were for petitions to modify, (Appendix at Tab1, 000011—
000026), so they, even if validly served on a proper person under Section
53.06(a)(2), would be insufficient to confer jurisdiction. In re G.A.T. , 16 S.W.3d
at 823; State v. C.J.F. , 183 S.W.3d at 851.
None of the documents signed by anyone purporting to be Appellant’s parent, guardian, or custodian are written stipulations of waivers of service of
summons of the original petition . Tex. Fam. Code § 53.06(e); (I C.R. at 10; 17; 28;
31; 41; 43; 57-58). Neither, for that matter, are they waivers of service of anything
at all. (I C.R. at 10; 17; 28; 31; 41; 43; 57-58). As such, they do not constitute
waivers of service by written stipulation. Tex. Fam. Code § 53.06(e). And even if
they were, none of these documents contain findings by the court that whoever
these persons are who are signing the documents are in fact Appellant’s mother,
guardian, or custodian.
Likewise, the record does not show waiver by voluntary appearance at the hearing for which the summons with the original petition was issued . The
reporter’s record, in fact, is devoid of the appearance, or even presence, of anyone
on Appellant’s “side” except Appellant and his counsel. (Volumes 2-8 of the
Reporter’s Record). In particular, the arraignment and plea hearing do not show
the appearance or presence of anyone for Appellant other than Appellant and his
counsel. (Volumes 2 and 3 of the Reporter’s Record).
Now, the judgment adjudicating guilt recites that Appellant’s “mother, Camilla Brown Lawrence, also [was] present”. (I C.R. at 11) (Appendix at Tab 2,
000001). But there are three reasons why this does not constitute a voluntary
appearance at the hearing for which the summons with the original petition was
issued. [10]
First, as shown above, the court made contradictory findings about who Appellant’s mother is, and the record does not clearly show who his mother is. (I
C.R. at 10; 11; 17; 28; 31; 41; 43; 57-58; 64) (Appendix at Tab 2). The court never
found that she was his guardian or custodian either. So, it is not at all clear that, if
Camilla Brown Lawrence did appear in court, she is Appellant’s mother, guardian,
or custodian. Tex. Fam. Code § 53.06(e).
Second, the judgment’s recitation is contradicted by the record, and is therefore shown to be false. Johnson , 72 S.W.3d at 349. Not only is the reporter’s
record devoid of any indication of even the mere presence, much less the general
appearance, of anyone other than Appellant and his counsel, (Volumes 2 and 3 of
the Reporter’s Record), but the docket sheet fails to show the appearance of
Camilla Brown Lawrence or anyone else. Tex. R. Civ. P. 120 (defendant may
enter his appearance in open court, and “[s]uch appearance shall be noted by the
*25 judge upon his docket and entered in the minutes, and shall have the same force
and effect as if the citation had been duly issued and served as provided by law.”);
Tex. Fam. Code § 51.17(a) (the Texas Rules of Civil Procedure, with exceptions
not applicable here, “govern proceedings under this title”); (I C.R. at 96-97). As
such, the judgment’s boilerplate recitation is false. Johnson , 72 S.W.3d at 349.
Third, the “mere presence of a party or his attorney in the courtroom at the time of a hearing or a trial, where neither participates in the prosecution or defense
of the action, is not an appearance.” Smith v. Amarillo Hosp. Dist. , 672 S.W.2d
615, 617 (Tex. App.—Amarillo 1984, no writ). Rather, “the party must seek a
judgment or a decision by the court on some question.” Seals v. Upper Trinity
Reg’l Water Dist. , 145 S.W.3d 291, 296 (Tex. App.—Fort Worth 2004, pet.
dism’d). In-court actions that constitute a general appearance include examining
witnesses or offering testimony, Id . at 297, and even announcing “not ready”.
McEntire v. McEntire , 706 S.W.2d 347, 349 (Tex. App.—San Antonio 1986, writ
dism’d) (“We are of the opinion that appellant, by showing up to announce that he
was not ready, made his appearance to the court, and waived his complaint as to
the lack of service.”). “On the other hand, a party who is a silent figurehead in the
courtroom, observing the proceedings without participating, has not” made an
appearance. Seals , 145 S.W.3d at 297. Thus, in the absence of something more
than a silent record, Camilla Brown Lawrence did not waive service by “voluntary
appearance at the hearing” held on the original petition. Tex. Fam. Code §
53.06(e).
While a “general appearance is normally in the form of an answer to the claims made in the suit”, Seals , 145 S.W.3d at 296, the Family Code precludes the
possibility of voluntarily appearing in a juvenile proceeding in writing unless the
writing is a “written stipulation” waiving service. Tex. Fam. Code § 53.06(e).
This is because the statute does not say “voluntary appearance” simpliciter , but
rather, requires the voluntary appearance to be made “at the hearing”, that is, in
court. Id . Thus, any writings that are not “written stipulations” signed by anyone
who could be a parent, guardian, or custodian do not constitute a “voluntary
appearance at the hearing”. Id. Hence, even if the Plea of True, Waiver,
Stipulation & Judicial Confession is signed by Appellant’s parent or guardian or
custodian (it does not appear to be signed by Camilla Brown Lawrence, at any
rate), it cannot constitute a voluntary appearance under the plain meaning of the
statute. Tex. Fam. Code § 53.06(e) (I C.R. at 8-10).
Conclusion
The record does not affirmatively show Appellant’s parent, guardian, or custodian was served with summons and the original petition. Neither does the
record affirmatively show a statutory waiver of service by his parent, guardian, or
custodian. As such, the juvenile court failed to acquire jurisdiction, so the
adjudication order and all subsequent orders are void. Therefore, the case must be
reversed and remanded.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to
REVERSE and REMAND.
Respectfully submitted: /s/ Justin Bradford Smith Justin Bradford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com ATTORNEY FOR APPELLANT CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate Procedure, Appellant’s Brief contains 5,078 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, and certificate of compliance.
/s/ Justin Bradford Smith Justin Bradford Smith *28 CERTIFICATE OF SERVICE I hereby certify that on December 7, 2015, a true and correct copy of Appellant’s Amended Brief was forwarded to the counsel below by eservice:
Bastrop County District Attorney
Greg Gilleland
Kirsten Ruehman
804 Pecan Street
Bastrop, TX 78602
Phone: 512-581-7125
Fax: 512-581-7133
Email: kirsten.ruehman@co.bastrop.tx.us
Email: greg.gilleland@co.bastrop.tx.us
/s/ Justin Bradford Smith Justin Bradford Smith
APPENDIX
[1] Appellant does not challenge the sufficiency of the evidence to support the trial court’s decision to modify his disposition, so only those facts necessary to resolve the jurisdictional question are presented here.
[2] Appellant has asked the clerk to supplement the record with the summonses and returns, but in the interim these are included in the Appendix.
[3] The paragraph above the signature recites that the “Conditions of Probation were read and explained to me and my child….” (I C.R. at 17).
[4] This signature is also preceded by a recitation that the conditions were “read and explained to me and my child”. (I C.R. at 28); see n. 3, supra .
[5] This too contains the same recitation as in footnotes 3 and 4, supra .
[6] As with the other similar blanks, this signature is also preceded by a recitation that the conditions were explained “to me and my child”. (I C.R. at 43). See , n. 3, 4, and 5, supra .
[7] Service was attempted, and apparently completed, on Kathy Brown for the hearing on the State’s original petition to modify set for October 28, 2014. (Appendix at Tab 1, 000015— 000016). The summons, in addition to a stamp on the front saying “SERVED”, contains handwritten notes that indicate failed service attempts and a telephone conversation with Kathy as she was en route to court, while the return claims she was served. (Appendix at Tab 1, 000015). In any event, whoever Kathy Brown is, she was served, not with the Original Petition but with the Petition to Modify. (Appendix at Tab 1, 000015).
[8] As with the other similar blanks, this signature is also preceded by a recitation that the conditions were explained “to me and my child”. (I C.R. at 43). See , n. 3, 4, 5, and 6, supra .
[9] For this reason too, even if the record showed that Camilla Brown Lawrence, although not Appellant’s mother, was at least his “custodian” as that term is defined in the Family Code, see Tex. Fam. Code § 51.02(3) (“‘Custodian’ means the adult with whom the child resides”), service would still be defective and the juvenile court would not have acquired jurisdiction. But the record does not show, beyond the fact that Appellant and Camilla Brown Lawrence were served at the same address (both listed on the summons), that Appellant resided with her at the time he was served. (Appendix at Tab 1, 000007—000010); see (I C.R. at 14) (reciting that Camilla Brown Lawrence is responsible for supporting Appellant “while he resides at [a particular address]”, but failing to find that this was his permanent residence or where he resided when he was served); Garcia v. Gutierrez , 697 S.W.2d 758, 760 (Tex. App.—Corpus Christi 1985, no writ) (service not limited to address listed in the citation, as defendant may be served wherever he may be found). The State’s original petition alleges the same address for both (I C.R. at 7), but it is well-settled that, in general, pleadings, even if sworn to or verified, are not evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer , 904 S.W.2d 656, 660 (Tex. 1995) (“pleadings are not competent evidence, even if sworn or verified.”). Likewise, there is nothing in the record to show that she is Appellant’s guardian, as that term is defined in the Family Code. Tex. Fam. Code § 51.02(4) (“‘Guardian’” means the person who, under court order, is the guardian of the person of the child or the public or private agency with whom the child has been placed by a court.”).
[10] Of course, if the record affirmatively showed that Camilla Brown Lawrence was validly served and is Appellant’s mother, guardian, or custodian, then whether she appeared or not would be immaterial. However, as argued above, the record affirmatively shows neither fact, so whether she appeared or not matters.