in the Matter of L. A. C., Jr., a Juvenile ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER OF L.A.C., JR., A JUVENILE.

' ' ' ' '  '

No. 08-01-00221-CV Appeal from the 327th District Court of El Paso County, Texas (TC# 99,01203)

                                                                  O P I N I O N

L.A.C., Jr. appeals his adjudication of delinquency, based upon the commission of the offenses of murder and aggravated assault.  We affirm.

Facts

On February 1, 2001, the State filed in the juvenile court a Petition Based on Delinquent Conduct and Notice of Intent to Seek a Determinate Sentence under the Texas Family Code.  Appellant, then fifteen years of age, was accused of engaging in delinquent conduct by committing one count of murder and one count of aggravated assault.^[1]

L.A.C. pleaded not true to both allegations on May 8, 2001 in open court. Testimony commenced and at the conclusion of the trial, seven special issues were submitted to the jury.  The jury found that L.A.C. had engaged in delinquent conduct for both the aggravated assault with a deadly weapon and murder.  The jury was then presented with five special issues regarding punishment.  For the aggravated assault with a deadly weapon, the jury assessed punishment at five years.  For the murder, the jury assessed punishment at thirty years.

Discussion

Appellant raises one point of error on appeal.  He argues that under section 53.06 of the Texas Family Code, a court is required to issue summons to a juvenile named in the petition and that the personal service of process on the juvenile must appear in the record. Because there was no personal service of summons on him, he argues, the trial court lacked jurisdiction to hear the matter.

In order to effect service under section 53.06, a summons shall be issued to the child named in the petition.  Tex. Fam. Code Ann. ' 53.06(a)(1) (Vernon 1996); see also In re M.W., 523 S.W.2d 513, 514 (Tex. Civ. App.--El Paso 1975, no writ) (emphasizing the recognized necessity of personal service upon a minor).  The summons Amust require the persons served to appear before the court at the time set to answer the allegations of the petition,@ and A[a] copy of the petition must accompany the summons.@  Tex. Fam. Code Ann. ' 53.06(b) (Vernon 1996).

It is true that, as originally filed, the Clerk=s Record contained no evidence that a summons was issued.  However, the State requested supplementation of the record pursuant to Tex. R. App. P. 34.5(c)(1). The supplemental record reflects that the State=s petition was filed on January 30, 2001^[2] and that summons was issued to appellant and his parents, providing them with a copy of the petition and requesting that all of the parties appear for a pretrial hearing.  The record reflects return of personal service of the summons on L.A.C. and his parents on February 1, 2001 at 1 p.m. by an El Paso County probation officer.  Thus, we conclude the service on the parties here complied with the statute.  See Sauve v. State, 638 S.W.2d 608, 610 (Tex. App.--Dallas 1982, pet. ref=d) (holding that an officer=s return creates the rebuttable presumption that service was appropriate and that defects in the officer=s return must be attacked in the trial court).

Because the supplemental record contains a summons reflecting that appellant was served, we conclude the trial court had jurisdiction.

Conclusion

Accordingly, we overrule appellant=s point and affirm the judgment of the lower court.

SUSAN LARSEN, Justice

June 20, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

---

^[1]A first amended petition, including the two counts of the original petition, was filed on March 8, 2001.  In addition to the two counts, the amended petition included a third count: deadly conduct involving a firearm.  At the beginning of the trial on the merits, the court announced that the third count would not be part of the trial.

^[2]There is some confusion about the date, as the original Clerk=s Record lists the summons as filed February 1. In either case, the summons was issued prior to the pretrial hearing.