In the Matter of J.R. v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00149-CV
___________________________
IN THE MATTER OF J.R.
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-115225-21
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant J.R. appeals the juvenile court’s order transferring him from the Texas
Juvenile Justice Department (Juvenile Department) to the Institutional Division of the
Texas Department of Criminal Justice (Criminal Department). See Tex. Fam. Code
Ann. § 56.01. In a single issue, J.R. argues that the juvenile court committed harmful
error by holding an untimely hearing on the Juvenile Department’s transfer request and
transferring him to the Criminal Department to complete his sentence instead of
releasing him on parole. We hold that J.R. has not established harmful error, and we
affirm the juvenile court’s transfer order.
I. Background
When J.R. was sixteen years old, the State filed a petition alleging that J.R. had
engaged in delinquent conduct by committing three offenses of aggravated robbery
with a deadly weapon. A grand jury approved a determinate sentence for J.R.’s
delinquent conduct.1 See Tex. Fam. Code Ann. § 53.045(a)(7). J.R. signed a stipulation
of evidence, a judicial confession, and a disposition agreement. The juvenile court
adjudicated J.R. of engaging in delinquent conduct by committing three counts of
aggravated robbery with a deadly weapon, a first-degree felony. See Tex. Penal Code
“In a determinate sentence situation, a juvenile is initially committed to the
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Texas Juvenile Justice Department with a possible transfer to the Texas Department of
Criminal Justice.” In re R.C., 626 S.W.3d 76, 78 n.1 (Tex. App.—Houston [14th Dist.]
2021, no pet.).
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Ann. § 29.03. The juvenile court ordered J.R. to serve a term of ten years “in the custody
of the [Juvenile Department] with a possible transfer to the [Criminal Department].”
On November 29, 2022, the Juvenile Department recommended that J.R. be
transferred to the Criminal Department based on the results of its “release review
process.” The Juvenile Department sent letters to the juvenile court on March 6, 2023,
and March 9, 2023, informing the court that J.R. was eighteen years old, had not
completed his ten-year sentence, and was “subject to a transfer/release hearing under
Sections 244.014 and 245.051 [of the] Human Resources Code[] and Section 54.11 [of
the] Family Code.” See Tex. Hum. Res. Code Ann. § 244.014 (establishing requirements
to refer determinate-sentence offenders for transfer to Criminal
Department), § 245.051 (establishing requirements for releasing juveniles under
supervision); Tex. Fam. Code Ann. § 54.11 (establishing procedures for release or
transfer hearing). The Juvenile Department also recommended transferring J.R. to the
Criminal Department and requested a hearing within sixty days.
The juvenile court held a transfer hearing on April 26, 2023, and ordered J.R.
transferred “to the care, custody and control of the [Criminal Department] in
accordance with the provisions of Section[] 245.151(c) of the Texas Human Resources
Code, and [S]ection 54.11 of the Texas Family Code, . . . to serve the remainder of his
sentence as required by law.” This appeal followed.
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II. Standard of Review
Although we review a juvenile court’s decision to transfer a juvenile from the
Juvenile Department to the Criminal Department for an abuse of discretion, In re A.M.,
No. 02-17-00029-CV, 2017 WL 2812452, at *5 (Tex. App.—Fort Worth June 29, 2017,
no pet.) (mem. op.); In re K.Y., 392 S.W.3d 736, 737 (Tex. App.—Dallas 2012, no pet.);
In re J.D.P., 149 S.W.3d 790, 792 (Tex. App.—Fort Worth 2004, no pet.), J.R. does not
complain about the grounds for the juvenile court’s transfer decision. Rather, he
contends that the transfer order was invalid because the juvenile court failed to hold a
timely transfer hearing. We review such issues under the criminal harmless-error
analysis. See In re C.O.S., 988 S.W.2d 760, 767–68 (Tex. 1999) (applying harm analysis
to a juvenile court’s failure to make explanations required by Section 54.03 of the Texas
Family Code at the adjudication hearing’s beginning); In re C.O., No. 02-21-00235-CV,
2021 WL 5933796, at *4 (Tex. App.—Fort Worth Dec. 16, 2021, pet. denied) (mem.
op.) (citing C.O.S. and acknowledging that the harmless-error analysis applies to a
juvenile court’s statutory error); In re C.J.M., 167 S.W.3d 892, 895 (Tex. App.—Fort
Worth 2005, pet. denied) (“[H]arm in juvenile appeals from determinate sentences
should be analyzed under [Texas Rule of Appellate Procedure] 44.2.”).
J.R. concedes that the alleged error is not constitutional. We disregard any
nonconstitutional error that does not affect an appellant’s substantial rights. Tex. R.
App. P. 44.2(b). A substantial right is affected when the alleged error had a substantial
and injurious effect or influence on the outcome. Haley v. State, 173 S.W.3d 510,
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518 (Tex. Crim. App. 2005); see King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).
Conversely, an error does not affect a substantial right if the appellate court has a fair
assurance from an examination of the record as a whole that the error had but a slight
effect. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021).
III. Applicable Law
The Juvenile Department may refer a juvenile to the juvenile court for transfer
to the Criminal Department if (1) the juvenile’s conduct “indicates that the welfare of
the community requires the transfer” and the juvenile (2) is between sixteen and
nineteen years old, (3) is serving a determinate sentence, and (4) has not completed his
sentence. Tex. Hum. Res. Code Ann. § 244.014(a). The juvenile court must set a hearing
within sixty days of the referral. Tex. Fam. Code Ann. § 54.11(a), (h). In J.R.’s case, at
the conclusion of the hearing, the juvenile court could either (1) order him returned to
the Juvenile Department or (2) transfer him to the Criminal Department to complete
his sentence. See id. § 54.11(i).
If the juvenile court ordered the juvenile to complete his sentence in the Criminal
Department, the Juvenile Department would transfer him to the Criminal Department.
See Tex. Hum. Res. Code Ann. § 245.151(c). If the juvenile court ordered the juvenile
returned to the Juvenile Department, it could do so with or without approval to release
him under supervision. See Tex. Fam. Code Ann. § 54.11(j). But the Juvenile
Department “may not release the [juvenile] under supervision without approval of the
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juvenile court” if the juvenile is serving a determinate sentence and has not completed
the minimum term for his offense. See Tex. Hum. Res. Code Ann. § 245.051(c). If the
juvenile court approved release on parole, then the Juvenile Department would transfer
the juvenile on his nineteenth birthday to the Parole Division of the Criminal
Department. See id. § 245.151(e).
IV. Discussion
In his sole issue, J.R. contends that the juvenile court committed reversible error
by holding the transfer hearing more than sixty days after the Juvenile Department’s
referral. He further contends that he was harmed by the error because it resulted in his
transfer to the Criminal Department when he had a “right to be released on parole upon
his 19th birthday.”
The record reflects four occasions on which the Juvenile Department recorded
its decision to transfer J.R. to the Criminal Department. Two of these appear in letters
contained in the Juvenile Department’s report of J.R.’s progress since his commitment
to the Juvenile Department, which was admitted at the transfer hearing. The letters,
dated November 29, 2022, and April 13, 2023, each contain only one sentence: “Based
on the result of our release review process, the [Juvenile Department] recommends that
it is in the best interest of the youth and the community to transfer [J.R.] to [the Criminal
Department].” Neither letter contains a recipient’s address or salutation but are
addressed only: “To Whom It May Concern.” Neither letter appears in the clerk’s
record.
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The clerk’s record contains two additional letters, dated March 6, 2023, and
March 9, 2023, in which the Juvenile Department requested a transfer hearing under
Section 54.11 of the Texas Family Code and Section 244.014 of the Texas Human
Resources Code. The letters noted that J.R. would not complete the minimum sentence
by his nineteenth birthday and cited Section 245.051’s prohibition on releasing such
individuals without court approval. The transfer hearing was held on April 26, 2023.
At the hearing, the juvenile court took judicial notice of the Juvenile
Department’s March 6, 2023 hearing request, and the Juvenile Department noted its
November 29, 2022 decision to transfer J.R. to the Criminal Department as the reason
for the transfer hearing. During its review of the Juvenile Department’s report, the
juvenile court noted the November 29, 2022 transfer recommendation and asked why
it took so long for the March 6, 2023 hearing request to be sent to the juvenile court.
The Juvenile Department’s representative responded,
So I don’t know if you remember, but we did have a setting for [J.R.] in
February after the law conference and because we were not able to get the
materials together in time, we had to have it reset. So the original letter, I
think, was dated maybe the beginning of January, and in order to meet the
60 days, we resent the letter.
The juvenile court replied that it “had forgotten that.” The juvenile court then
determined that J.R. did not qualify for parole and stated that it would order his transfer
to the Criminal Department. It issued the transfer order on April 27, 2023.
The January 2023 letter referenced in the above colloquy does not appear in the
record, and neither party mentions it on appeal. Regardless, the Juvenile Department
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does not contest J.R.’s contention that it submitted a transfer hearing request to the
juvenile court on November 29, 2022, despite the absence of any record that such a
request was sent to or received by the court. 2 Thus, we will presume error and proceed
with a harm analysis. See In re K.H., No. 12-01-00342-CV, 2003 WL 744067, at *2 (Tex.
App.—Tyler Mar. 5, 2003, no pet.) (mem. op.) (holding a juvenile court commits error
by conducting a transfer hearing after the deadline).
J.R. contends that he was harmed by the juvenile court’s untimely transfer
hearing and resulting transfer order because he had a “right to be released on parole
upon his 19th birthday” under Section 245.151(e) of the Texas Human Resources Code.
Section 245.151(e) requires the Juvenile Department to
transfer a person who has been sentenced under a determinate sentence
to commitment under Section 54.04(d)(3), 54.04(m), or 54.05(f), Family
Code . . . to the custody of the [Criminal Department] on the person’s
19th birthday, if the person has not already been discharged or transferred,
to serve the remainder of the person’s sentence on parole.
Tex. Hum. Res. Code Ann. § 245.151(e). Because J.R. had not already been discharged
or transferred, he contends that, but for the untimely transfer hearing, he would have
been “entitled to serve the remainder of his determinate sentence on parole upon his
19th birthday”.
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Despite this concession, the State argues that the hearing was timely because the
Juvenile Department’s subsequent notices extended the hearing deadline. The State
offers no authority for this proposition. Thus, it has waived the argument. See Tex. R.
App. P. 38.1(i), 38.2(a)(1).
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Citing In re B.T., No. 05-10-00977-CV, 2011 WL 2860107, at *1 (Tex. App.—
Dallas July 20, 2011, no pet.) (mem. op.), and K.H., 2003 WL 744067, at *2, the State
contends that the untimely hearing does not affect the validity of the juvenile court’s
transfer order. But the hearings at issue in those cases began before the deadline and
finished afterward. B.T., 2011 WL 2860107, at *1; K.H., 2003 WL 744067, at *2. The
transfer hearing at issue here began after the deadline; thus, B.T. and K.H. are not helpful
to our analysis. Additionally, regarding the transfer hearings’ timeliness, the appellants
in those cases asserted only that the juvenile courts lacked jurisdiction. B.T.,
2011 WL 2860107, at *1; K.H., 2003 WL 744067, at *1. The parties here do not dispute
the juvenile court’s jurisdiction but question the effect of the untimely transfer hearing.
The court in In re H.V.R., 974 S.W.2d 213, 216 (Tex. App.—San Antonio 1998,
no pet.), addressed this question on facts like those at issue here. H.V.R. was assessed
a twenty-five-year determinate sentence after pleading true to murder and attempted
murder. Id. at 214. Under the applicable version of the Texas Family Code, the juvenile
court was required to hold a transfer hearing at least thirty days before H.V.R.’s
eighteenth birthday. Id. (citing Act of June 17, 1987, 70th Leg., R.S., ch. 385, § 13,
1987 Tex. Gen. Laws 1891, 1896 (amended 2021) (current version at Tex. Fam. Code
Ann. § 54.11(h)). Although H.V.R.’s transfer hearing was scheduled before the
deadline, icy roads prevented the deputy sheriff from transporting H.V.R. for several
days, and the hearing was held twenty-seven days before H.V.R.’s eighteenth birthday.
Id. On appeal from the juvenile court’s order transferring H.V.R. to the Criminal
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Department, H.V.R. argued that the juvenile court lacked jurisdiction to issue its order
because the transfer hearing was untimely. Id. He alternatively argued that the juvenile
court erred by holding the untimely hearing and that he was harmed by the resulting
transfer. Id. at 216–17.
The San Antonio Court of Appeals analyzed the public policy behind Title 3 of
the Texas Family Code, noting that, “consistent with its dominant purpose of
protecting the community welfare,” the Texas Legislature amended Title 3 in 1987 to
permit juvenile courts to assess determinate sentences when a juvenile has committed
an enumerated first-degree felony offense. Id. at 215 (citing Tex. Fam. Code
Ann. § 51.01, § 54.04(d)(3)). Under the determinate-sentencing scheme, the Juvenile
Department could transfer the juvenile to the Criminal Department to serve the
remainder of his sentence. Id. Transfer is not automatic, however, and the transfer
hearing is the juvenile’s “second chance to persuade the court that he should not be
imprisoned.” Id. at 215–16 (quoting In re D.S., 921 S.W.2d 383, 386 (Tex. App.—Corpus
Christi–Edinburg 1996, writ dism’d w.o.j.)).
The court found that H.V.R.’s statutory interpretation was “unreasonable and
entirely inconsistent with the legislative intent” to entrust a juvenile to the Juvenile
Department, rather than state prison, “during his juvenile years” but then transfer him
to “the adult criminal justice system to complete his determinate sentence as soon as
possible after he becomes an adult if and when imprisonment becomes appropriate and
necessary for the protection of the public welfare.” Id. at 217. Thus, the court held that
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the hearing deadline was not jurisdictional and that “a juvenile court’s failure to hold a
[timely transfer] hearing . . . constitutes error but not fundamental error.” Id.
Addressing H.V.R.’s harm argument, the court noted that the only harm asserted
was that the error “deprived [H.V.R.] of his right to remain in [the Juvenile Department]
until he is discharged on his twenty-first birthday.” Id. Under the applicable version of
the Human Resources Code, the Juvenile Department was required to “discharge from
its custody a person not already discharged or transferred on the person’s 21st
birthday.” Act of June 15, 1991, 72nd Leg., R.S., ch. 574, 1991 Tex. Gen. Laws
2054 (originally codified at Tex. Hum. Res. Code Ann. § 61.084(d)) (current version at
Tex. Hum. Res. Code Ann. § 245.151(e)) (requiring any person not already transferred
or discharged to be transferred to the Criminal Department on the person’s nineteenth
birthday to serve the remainder of his determinate sentence on parole). The court
rejected H.V.R.’s argument because it implicitly assumed that the juvenile court’s
transfer order was void for lack of jurisdiction, and H.V.R. did not allege any other
harm. H.V.R., 974 S.W.2d at 217. Thus, the court affirmed the juvenile court’s transfer
order. Id.Although J.R. does not raise the same jurisdictional issue as H.V.R. did, he alleges
the same harm: being deprived of the “right” to avoid prison. See id. The State contends
that this is tantamount to a jurisdictional issue because the relief would be the same:
voiding the juvenile court’s transfer order because the hearing was untimely. We agree
with the H.V.R. court’s reasoning that voiding a transfer order solely because of an
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untimely transfer hearing would contradict public policy. See id. J.R. has alleged no harm
other than the transfer order itself. Thus, he has failed to establish a reversible error. See
id.Regardless, J.R.’s harm allegation incorrectly assumes that he would be
automatically released on parole if the transfer order was voided. The State makes this
same error and argues that “it would not be in the best interest of justice to allow the
person to serve the remainder of the person’s sentence on parole.” To the contrary,
J.R.’s release was not automatic.
J.R. was committed to the Juvenile Department on May 14, 2021, for a ten-year
determinate sentence for committing three first-degree felonies. Under Section
245.051(c)(2), if a juvenile is committed to the Juvenile Department under a determinate
sentence such as J.R.’s, the Juvenile Department “may not release the [juvenile] under
supervision without approval of the juvenile court that entered the order of
commitment unless the child has served at least . . . 3 years, if the child was sentenced
to commitment for conduct constituting . . . a felony of the first degree.” Tex. Hum.
Res. Code Ann. § 245.051(c)(2). Thus, J.R.’s minimum sentence was three years. See id.The record reflects that J.R. would not complete his minimum sentence by his
nineteenth birthday. Thus, the Juvenile Department could not release J.R. on his
nineteenth birthday without the juvenile court’s approval. See id.; see also In re J.B.L.,
318 S.W.3d 544, 549 (Tex. App.—Beaumont 2010, pet. denied) (holding under the
prior version of the statute that court approval was required for the Juvenile
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Department to release a juvenile on parole if he had not served the minimum sentence);
In re D.A.B., No. 06-10-00069-CV, 2010 WL 4922995, at *1 (Tex. App.—Texarkana
Dec. 2, 2010, no pet.) (mem. op.) (same). Accordingly, J.R. was not “entitled to serve
the remainder of his determinate sentence on parole upon his 19th birthday,” as he
contends. Because J.R. has failed to establish that he was harmed by the juvenile court’s
untimely transfer hearing, we overrule his sole issue.
V. Conclusion
Having overruled J.R.’s sole issue, we affirm the juvenile court’s transfer order.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: October 12, 2023
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