      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00253-CV



          Jim L. Walden, as Next Friend of Ashley G. Walden, a Minor, Appellant

                                                 v.

   Rex G. Baker, III, Justice of the Peace, Precinct No. 4, Hays County, Texas, Appellee




              FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
              NO. 7709-C, HONORABLE FRED J. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Jim L. Walden, as next friend of Ashley G. Walden, a minor, appeals the

county court’s denial of his petition for writ of mandamus. Walden challenges the jurisdiction of

the justice court, arguing that once an order deferring disposition was revoked by a judgment of

conviction, the justice court could not sua sponte set the judgment aside and reinstate the deferred

disposition order. For the reasons explained below, we will affirm the denial of the petition.


                                        BACKGROUND

               In November 2002, seventeen-year-old Dripping Springs High School senior Ashley

Walden was charged with the class C misdemeanor offense of failing to attend school. See Tex.

Educ. Code Ann. §§ 25.094, 25.0951 (West Supp. 2005) (if student fails to attend school without
excuse on ten or more days or parts of days within six-month period in same school year, school

district shall file complaint in county, justice, or municipal court or refer student to juvenile court).

On December 2, 2002, Ashley and her parents appeared before the justice of the peace, and Ashley

entered a plea of nolo contendere. The court entered a deferred disposition order, deferring a finding

of guilt and assessment of a $10,500 fine. However, certain conditions were imposed such as the

performance of twenty hours’ community service and submission to random drug testing. The

disposition of her case was deferred until May 31, 2003. She did not appeal the order.

                On January 8, 2003, Ashley failed a court-ordered drug test. On Friday, January 10,

the court held a hearing and issued a “confinement order,” ordering Ashley confined in the Hays

county jail. Both parties agree that the court notified Ashley and her parents that it would reconsider

the order after Ashley had been confined for forty-eight hours.1 The order of confinement was not

appealed.

                On Monday, January 13, the court held another hearing. Walden states that at the

hearing, the court set aside the January 10 order on its own motion, released Ashley from

confinement, and “reinstated” the December 2 deferred disposition order. Appellee asserts in his

brief that the “reinstatement” was effectuated at a hearing and “with the consent of [Ashley] and her

parents.” Neither the January 10 order nor the “reinstatement” of the December 2 order was

appealed.




        1
        Appellee states that the court “limited [Ashley’s] confinement to non-school time so that
she would not miss any classes.”

                                                   2
               However, on April 19, Ashley failed another drug test. She appeared in court again

on April 22 and the court pronounced that it was amending the December 2 order to impose

additional conditions. The amended order was memorialized in a written order signed May 5, 2003.2

               Walden then filed a petition for writ of mandamus in county court, arguing that the

January 10 order revoked the December 2 deferred disposition order and acted as a final sentence

so that the justice court lacked jurisdiction to enter the May 5 order. After a hearing, the writ was

denied. This appeal followed.


                                          DISCUSSION

               In two issues, Walden argues that the county court should have granted the writ

because the May 5 order was void and because the fine that was deferred in the December 2 order

was impermissibly excessive.

               This is an appeal from the denial of a writ of mandamus rather than an original

proceeding seeking mandamus relief. See Tex. Gov’t Code Ann. § 22.221(b) (West 2004); see also

Casner v. Rosas, 943 S.W.2d 937, 938 (Tex. App.—El Paso 1997, orig. proceeding) (court of

appeals lacks jurisdiction to issue mandamus against justice of peace); Easton v. Franks, 842 S.W.2d

772, 773 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (same). This case is subject to

appeal on substantive law issues and the rules of procedure just as any other civil suit. See Anderson




       2
          The justice court imposed a curfew of 6 p.m. every night except graduation night and
allowed her to attend her graduation ceremony, but prohibited her from attending her senior prom
or certain other senior graduation celebrations. The court did not change the May 31 date of
disposition originally set in the December 2 deferral order.

                                                  3
v. City of Seven Points, 806 S.W.2d 791, 792 (Tex. 1991). We will review the county court’s

decision for an abuse of discretion. See In re University Interscholastic League, 20 S.W.3d 690,

691-692 (Tex. 2000); In re Missouri Pacific R.R. Co., 998 S.W.2d 212, 215 (Tex. 1999). To

determine if there is an abuse of discretion, we review the entire record. See In re University

Interscholastic League, 20 S.W.3d at 691-692 (citing Simon v. York Crane & Rigging Co., Inc., 739

S.W.2d 793, 795 (Tex. 1987)). The party challenging the trial court’s decision must establish that

the facts and law permit the trial court to make but one decision. See In re University Interscholastic

League, 20 S.W.3d at 691-692 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985)).


Failure to attend school

                An individual commits the class C misdemeanor offense of failure to attend school

if the individual: (1) is required to attend school under section 25.085 of the education code; and (2)

fails to attend school on ten or more days or parts of days within a six-month period in the same

school year or on three or more days or parts of days within a four-week period. Tex. Educ. Code

Ann. § 25.094(a). In proceedings based on complaints under section 25.094 of the education code,

the court is generally required to use the procedures and exercise the powers authorized by chapter

45 of the code of criminal procedure. See id.; see also id. § 25.0952 (West Supp. 2005) (procedures

applicable to school attendance-related offenses); Tex. Code Crim. Proc. Ann. arts. 45.001-.203

(West Supp. 2005) (justice and municipal courts). On a finding by a justice court that an individual

has committed the offense of failure to attend school, the court may enter an order that includes one



                                                  4
or more of the requirements in article 45.054 of the code of criminal procedure. See Tex. Educ.

Code Ann. § 25.094(c); Tex. Code Crim Proc. Ann. art. 45.054 (failure to attend school

proceedings). The court has jurisdiction to enter a dispositional order that is effective up to “the

180th day after the date of the order or beyond the end of the school year in which the order was

entered, whichever period is longer.” Tex. Code Crim. Proc. Ann. art. 45.054(g). Additionally,


       On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a
       misdemeanor case punishable by fine only and payment of all court costs, the judge
       may, at the judge’s discretion, defer further proceedings without entering an
       adjudication of guilt and place the defendant on probation for a period not to exceed
       180 days.


Id. art. 45.051. The court is further authorized, at its discretion and during the deferral period, to

impose certain conditions on the defendant. Id. art. 45.051(b).

               Generally, the “true objective” of deferred adjudication “is to divert the accused from

the gauntlet run of the criminal justice system” and to allow the judge to “enter into a clearly

understood pact with the accused that will induce and persuade him to follow the diversionary road.”

Taylor v. State, 131 S.W.3d 497, 499-500 (Tex. Crim. App. 2004) (quoting Ex parte Hernandez, 705

S.W.2d 700, 702 (Tex. Crim. App. 1986)). During that time, there is no finding of guilt and no final

conviction. Taylor, 131 S.W.3d at 500. Instead, the judge has deferred the adjudication. Id. The

case is “temporarily stilled and the accused . . . [is] permitted an opportunity to demonstrate his

capacity for prescribed good behavior during a specified period.” Id. (quoting Hernandez, 705

S.W.2d at 702). If the defendant succeeds, the case, for most purposes, “disappears.” Taylor, 131

S.W.3d at 500. If he fails, the case continues on as if it had never been interrupted. Id.



                                                  5
               We will first consider whether the May 5 order amending the December 2 deferred

disposition order was effective to continue the deferral of her sentence and fine or whether the

January 10 order constituted a final sentence.


Whether the May 5 order is void

               Walden argues that the January 10 “confinement order” revoked the December 2

deferred disposition order and was an entry of final judgment and sentence. Furthermore, he asserts,

the court had no authority to set aside the January 10 order sua sponte. Thus, according to Walden,

the January 10 order was effective and the May 5 order, which was issued after the court’s plenary

jurisdiction expired, was void. See Tex. Code Crim. Proc. Ann. arts. 45.037 (motion for new trial

must be made within one day after rendition of judgment and sentence), 45.038 (West Supp. 2004-

05) (not later than tenth day after date judgment entered, judge may, for good cause shown, grant

defendant new trial whenever judge considers that justice has not been done defendant in trial of

case).

               Walden never appealed any of the orders to county court. See id. art. 45.042(b) (West

Supp. 2005) (appeal from justice court shall be heard by county court; trial is de novo unless appeal

is taken from municipal court of record and appeal is based on error reflected in record). However,

because Walden has sufficiently pleaded that the May 5 order is void, he is entitled to seek

mandamus relief without a showing that he did not have an adequate remedy on appeal. See In re

Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (because order was void, relator need

not show it did not have adequate appellate remedy and mandamus relief is appropriate) (citing In

re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)); but see Grimm v. Garner, 589 S.W.2d 955, 957

                                                 6
(Tex. 1979) (right to de novo appeal is adequate remedy). An order signed after the court’s plenary

jurisdiction has expired is void. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).

                  First, we note that the record does not include transcripts from any hearing other than

the mandamus hearing before the county court. Thus, we must interpret the orders as they appear

in the record.3

                  Walden urges us to hold that the January 10 confinement order was a final judgment

of conviction in this case and that the order’s lack of an explicit final determination of guilt would

elevate form over its substance. We disagree. The January 10 order does not reference a violation

of any statute or find Ashley guilty of the failure to attend school or any other offense. See Tex.

Educ. Code Ann. § 25.094. Instead, it recites that on December 2, the court entered an order

whereby Ashley agreed to comply with specific terms of deferred adjudication and that Ashley failed

to satisfy the requirements of her agreement. Although this language imposes conditions in addition

to those included in the original deferral order, the order as a whole does not act as a final sentence.

Under the facts in this case and the record presented on appeal, we hold that the January 10 order did

not act as a final sentence that revoked Ashley’s deferred disposition as a matter of law.4

Accordingly, the May 5 order was not void. We overrule Walden’s first issue.




        3
         In criminal cases, where there is a conflict between the oral pronouncement of sentence and
the sentence in the written judgment, the oral pronouncement controls. Taylor v. State, 131 S.W.3d
497, 500 (Tex. Crim. App. 2004). The parties agree that on January 10, the court pronounced that
Ashley would be confined for forty-eight hours and that it would reconsider its decision at that time.
It appears that the order is in conflict with that pronouncement.
        4
          The issue of whether a justice court has the authority to confine an individual for the failure
to attend school or violation of a deferred disposition order was not appealed and is not before us.

                                                    7
               Next, because the deferred disposition order has not been revoked, Ashley has not yet

been subjected to payment of a fine. In future proceedings, the justice court may dismiss the

complaint without a final conviction and without requiring Ashley to pay the $10,500 fine. See Tex.

Code Crim. Proc. Ann. art. 45.051(c). Therefore, we do not reach his second issue.5


                                         CONCLUSION

               The January 10 order did not act as a final sentence in this case. Therefore, the May

5 order was entered by the justice court within its jurisdiction. Because the disposition of Ashley’s

case was deferred and no fine was actually imposed, we do not reach the question of whether the fine

would be illegal. The county court did not abuse its discretion by denying the petition for writ of

mandamus. We affirm the denial of the petition.




                                              __________________________________________

                                              W. Kenneth Law, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 15, 2005




       5
          We note that the record only includes one complaint alleging one violation for failing to
attend school ten or more days or parts of days within a six-month period. See Tex. Educ. Code
Ann. § 25.094.

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