In re D.L.M.

COHEN, Justice,

concurring.

After an evidence hearing before Master Judge Molder, District Judge Shelton signed a judgment finding D.L.M., a juvenile, had engaged in delinquent conduct and committed him to the Texas Youth Commission.

I agree that the judgment must be reversed because D.L.M. never waived his right to be heard by the district judge. I do not agree with the majority, however, that masters and referees are the same or that the source of D.L.M.’s right to be heard by a district judge, instead of by a master, is Family Code section 54.10(a). Therefore, I concur in the judgment.

D.L.M. contends he had a right, which he never waived, to have evidence at his adjudication hearing heard by a judge, rather than by a “master.”¹ He relies on Tex. Fam.Code Ann. § 54.10(a) (Vernon 1996). That section does not mention masters, however. It mentions referees only. Section 54.10(a) authorizes a hearing by

... a referee appointed in accordance with Section 51.04(g) of this code provided:

(1) the parties have been informed by the referee that they are entitled to have a hearing before the juvenile court judge ...; or²

(2) the child and the attorney for the child have ... waived the right to have the hearing before the juvenile court judge....

Tex. Fam.Code Ann. § 54.10(a) (Vernon 1996) (emphasis added).

The State contends that § 54.10(a) does not apply because this case was not heard before “a referee appointed in accordance with Section 51.04(g)_” See id. The State contends that Molder was a master, not a referee, and no statute requires' a master to warn the parties or obtain a waiver, as § 54.10(a) requires of referees. I agree. Section 51.04(g) provides:

The juvenile board, or ... the juvenile court, may appoint a referee to conduct hearings under this title and in accordance with Section 54.10 of this code.

Tex. Fam.Code Ann. § 51.04(g) (Vernon 1996). Nothing indicates Molder was ever appointed a referee under this or any statute. The record states that D.L.M.’s trial was held before “the Honorable Master Judge Robert Molder.” All references to Molder are as a “master.” Molder signed the judgment as “Associate judge ³/master.” Everything indicates he was a “master.” Nothing indicates Molder was serving as a “referee.” See Tex. Gov’t Code Ann. §§ 54.700, 54.820 (Vernon Supp.1998). That distinguishes this case from E.B.S., where it was undisputed that the magistrate was a referee, not a master. E.B.S., 756 S.W.2d at 853.

Juvenile law masters in Harris County are designated by juvenile court judges, and they are referred cases as prescribed by local rules or written orders. Tex. Gov’t Code Ann. §§ 54.681, 54.689 (Vernon Supp.1998).⁴ Unless limited by local rules, written orders, or the order of referral, a Harris County juvenile law master “may perform all acts and take all measures necessary and proper to perform the tasks assigned in a referral.” Tex. Gov’t Code Ann. §§ 54.690, 54.810 (duplication) (Vernon Supp.1998). Such a master has no power to render judgment, however, and Molder did not do so here. A Harris County master must submit written findings to the referring judge, who may adopt, modify, correct, reverse, or reject the master’s report and may order further hearings. Tex. Gov’t Code Ann. § 54.696-.698 (Vernon Supp.1998); accord Tex. Gov’t Code Ann. §§ 54.816 — .818 (Vernon Supp.1998) (duplicate of §§ 54.696 — .698); see Tex. FaM.Code Ann. § 54.10(b) (Vernon Supp.1998) (similar provision for referees).

D.L.M. cites no statute that requires a Harris County master to tell a juvenile he may be heard before a judge. He cites no statute giving a juvenile the right to be heard before a judge instead of a master. Family Code chapter 54, which requires referees to warn or obtain a waiver of the right to trial before a judge, does not even mention masters.

But in Texas, judicial power is vested in judges who are elected,⁵ not appointed. Tex. Const, art. V, §§ 1, 7, 30. I believe these provisions give all persons a waiveable right to be tried before an elected judge. Without a waiver requirement for masters, we will have created an exception to that law: all except juveniles have a right to be tried before an elected judge. That would violate article V, section one of the Texas Constitution, which provides, “The judicial power of this State shall be vested in ... District Courts_,” not in masters, referees, associate judges, or anyone else. Master Molder, who heard the evidence in this case, was not a district judge. Thus, unless D.L.M.’s silence waived his right to be heard by an elected judge, this case must be reversed.

D.L.M.’s silence did not waive this right. A juvenile’s Texas constitutional right to appear before an elected judge must be expressly waived in the record and must be joined by counsel, unless a contrary intent clearly appears in Title 3 of the Family Code. Tex. Fam Code ANN. § 51.09 (Vernon Supp. 1998). No contrary intent clearly appears in Title 3.

Thus, a waiver is required, but not because a master and a referee are the same under Family Code sections 51.04(g) and 54.10 and Government Code section 54.700. It is required by Tex. Const, art. V, §§ 1, 7, and 30, and by Tex. FamCode Ann. § 51.09.1 therefore concur in the judgment.

1 . D.L.M. never objected to a hearing before the master, and he never expressly waived a hearing before a judge. See generally Tex. Fam.Code Ann, § 51.09(a) (Vernon 1996) (requiring express written waiver by juvenile, joined by counsel).

2 . This must be a drafting error. The legislature must have intended this word to be "and.” Under this language, a warning alone, without a waiver, would allow a trial before a referee. See In the Matter of E.B.S., 756 S.W.2d 852, 855 (Tex.App.—Austin 1988, no writ).

3 . Molder was not acting as an associate judge under Family Code chapter 201, which allows referrals to associate judges for cases under Family Code Titles 1, 4, and 5 only. Chapter 201 does not authorize referrals to associate judges under Family Code Title 3, the Juvenile Justice Code, which governs this case.

4 . The same thing is provided again by identical statutes. Tex Gov’t Code Ann. §§ 54.801, 54.809 (Vernon Supp.1998). I do not know why there are two subchapters, I and K, in Government Code chapter 54 both pertaining to juvenile court masters in Harris County. The two subchapters are almost identical, except for (1) insignificant language differences between section 54.700 and its counterpart section 54.820, and (2) a slight' difference in subchapter titles. Subchapter I is entitled "Juvenile Law Masters in Harris County." Subchapter K is entitled "Juvenile Court Masters in Harris County." There is one important difference. Section 54.693(a) provides a court reporter "need not be provided during a hearing conducted by a master." Section 54.813 provides a court reporter "must be provided during a hearing conducted by a master.” This case does not require us to resolve that conflict because a court reporter recorded these proceedings.

5 . This includes both former and retired elected judges and also newly appointed judges who have not yet reached their first election date.