NO. 761-99







Johnson, J., filed a dissenting opinion.

D I S S E N T I N G  O P I N I O N

I respectfully dissent. The majority remands this cause because it says that the Court of Appeals did not address an argument raised by the state in its appellate brief. I disagree.

We granted the state's petition for discretionary review on the following ground: The Third Court of Appeals erroneously failed to address the state's argument that appellant admitted on the record that he had been personally served before an adult certification hearing was held." In the court of appeals, the state argued that, given the evidence, "the trial court was free to assess the facts and accept appellant's personal statement over a possible documentary mistake" and that "under these circumstances, the trial court properly found that personal service had been accomplished." In a footnote, it noted "that [Tex. Fam. Code 53.06] does not expressly prevent a child from waiving service of the summons by failing to object or making a contrary personal admission of service to a judge." Citing to Tex. Fam. Code 53.06(e), the state also conceded that "a child does not waive service of the summons by a voluntary appearance at the hearing." Thus, the state's argument, while not a model of clarity, appears to be that appellant's admission waived such service.

In the section of the court of appeals' opinion labeled "Proper Personal Jurisdiction," the court first notes that the state's argument "relies upon appellant's affirmative answer to the juvenile court's inquiry about service and the finding in the juvenile court's order that 'all' persons had been properly summoned in compliance with section 53.07 of the Family Code." Light v. State, 993 S.W.2d 740, 749 (Tex. App.--Austin 1999). It then goes on to state that

[t]he cases discussed earlier make clear that a juvenile cannot legally waive the personal service of the summons in a certification hearing. Nevertheless, the State argues that under the circumstances, appellant, in effect, waived such service. It observed, however, that under Title 3 of the Juvenile Justice Code of Chapter 51 of the Family Code, any right granted to a child under the title or by the constitution and laws of this state or the United States may be waived only if the waiver is made by the child and his attorney after being duly warned of the right and the consequences of waiving it, is voluntary, and is made in writing or in a recorded court proceeding. See Tex. Fam. Code Ann. 51.09(a) (West 1996). No such waiver appears in the instant record.

Id. at 749-50 (emphases added).

The above paragraph shows clearly that the court answered the state's argument of waiver by appellant's admission. The court found that under the strict language of the code, personal service could be waived only under certain conditions, and that these conditions do not include appellant's admission in the instant case.

Furthermore, to the extent that the state's argument can be read to say, as the majority argues, that appellant's admission is evidence of personal service that should be taken into account in reviewing the trial court's determination that appellant had been personally served, the court of appeals rejected that argument,(1) and for good reason. Contrary to the state's assertion, it appears that there is no evidence of appellant's admission of personal service. According to both the court of appeals(2) and the state's own brief, the court asked appellant, "Were you served with notice of this summons at least two entire days before today." Appellant answered, "Yes, Your Honor." Certainly appellant had notice of the summons; he knew that his father had been served. The issue, however, is whether there has been compliance with the requirement of personal service mandated by Tex. Fam. Code 53.07, not whether appellant knew through his father that his case had been set on a particular day.

The Court of Appeals addressed all arguments raised by the state in its brief to that court, which is all that it was required to do.(3) See Tex. R. App. P. 47.1. Because there is no basis for remanding this case, I dissent.

Johnson, J.

Date Delivered: April 5, 2000


1. See Light, 993 S.W.2d at 743-44 ("The record reflects that appellant was not served personally with a summons or a copy of the petition. The summons directed to appellant was served upon appellant's father by an investigator for the county attorney's office . . . The record reflects only one attempted service of summons on appellant.")

2. See id.

3. In its brief to this court, the state appears to make an additional argument: appellant is estopped by his personal admission from complaining about lack of personal service. This argument was not made to the court of appeals on original submission, but was first argued in the court of appeals on the state's motion for rehearing, and then only in a footnote. The court of appeals overruled the motion for rehearing, and was within its discretion in doing so. See Rochelle v. State, 791 S.W.2d 121, 124-25 (Tex. Crim. App. 1990).