
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS






 

IN THE MATTER OF J.T., A Juvenile




 
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No. 08-05-00346-CV

Appeal from the

65th District Court 

of El Paso County, Texas 

(TC# 04,00902) 


O P I N I O N

	This appeal is from a commitment to the Texas Youth Commission (TYC).  In his sole
issue, the juvenile contends that the trial court abused its discretion when it found sufficient
evidence to revoke the suspended commitment.
	On December 9, 2004, J.T. was adjudicated a juvenile engaged in delinquent conduct, 
criminally negligent homicide, a state jail felony, after stipulating to the charges brought against
him by the State.  Appellant drove through a stop sign, and collided with another car, killing the
other driver.
	J.T. was ordered committed to TYC, but given suspended commitment conditioned upon
successful completion of the Challenge Boot Camp, and his parents completing parenting classes
and family counseling.  He was released from the residential portion of Challenge, and placed on
intensive supervised probation.  His probation terms included that he not be suspended or
expelled from school.
	J.T. received a three day in-school suspension as discipline for an incident at school.  On
September 8, 2005, the State filed a Motion to Revoke Suspended Commitment to TYC to
modify the disposition order for violating the terms of probation.  The modification was granted
after a hearing where his probation officer, an assistant principal, and his girlfriend testified.
	The only issue on appeal is whether the trial court abused its discretion by finding
sufficient evidence to enter the orders modifying the disposition and committing him to TYC.
	The Family Code provides that if the juvenile court commits the child to the Texas Youth
Commission, the court:
	(1)	shall include in its order its determination that:

		(A)	it is in the child's best interests to be placed outside the child's
home;

		(B)	reasonable efforts were made to prevent or eliminate the need for
the child's removal from the home and to make it possible for the
child to return to the child's home; and

		(C)	the child, in the child's home, cannot be provided the quality of
care and level of support and supervision that the child needs to
meet the conditions of probation . . . .

Tex.Fam.Code Ann. § 54.04(i)(1)(Vernon Supp.2007).
	At the original disposition hearing, the juvenile court made those findings.  To modify the
disposition to commit a child outside the home, the trial court must find, by a preponderance of
the evidence, that the child violated a reasonable and lawful order of the court.  Tex.Fam.Code
Ann. § 54.05(f), (j); In re E.R.L., 109 S.W.3d 123, 127 (Tex.App.--El Paso 2003, no pet.), citing
In re L.R., 67 S.W.3d 332, 335 (Tex.App.--El Paso 2001, no pet.).  Juvenile courts have broad
discretion in determining the proper disposition of children adjudicated to have engaged in
delinquent conduct, and this is especially true in hearings to modify dispositions.  In re T.K.E., 5
S.W.3d 782, 784 (Tex.App.--San Antonio 1999, no pet.).  The juvenile court abuses its discretion
when it acts arbitrarily or unreasonably.  Matter of C.L., Jr., 874 S.W.2d 880, 886 (Tex.App--Austin 1994, no writ).  There is no abuse of discretion when some evidence of substantive and
procedural character supports the trial's court decision.  In re E.R.L., 109 S.W.3d at 128.  Absent
an abuse of discretion, we will not disturb the juvenile court's determination.  Id. 
	Our review uses a two-pronged analysis:  (1) Did the trial court have sufficient
information upon which to exercise its discretion; and (2) did the trial court err in its application
of discretion?  In re M.A.C., 999 S.W.2d 442, 446 (Tex.App.--El Paso 1999, no pet.). 
Traditional sufficiency of the evidence review helps answer the first question.  Id.  For the second
prong, we look to whether the trial court acted without reference to any guiding rules or
principles.  Id., citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985),
cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).
	In considering a legal insufficiency point, we consider only the evidence that tends to
support the findings of the trier of fact and disregard all evidence and inferences to the contrary.
In re C.J.H., 79 S.W.3d 698, 703 (Tex.App.--Fort Worth 2002, no pet.).  If more than a scintilla
of evidence exists to support the questioned finding, the point fails.  In re E.R.L., 109 S.W.3d at
128.  Review of the factual sufficiency requires an examination of all of the evidence in
determining whether the finding in question is so against the great weight and preponderance of
the evidence as to be manifestly unjust.  In re E.R.L., 109 S.W.3d at 129, citing In re L.R., 67
S.W.3d at 339.  The evidence must be so weak or the contrary evidence so overwhelming that the
findings should be set aside and a new trial ordered.  In re E.R.L., 109 S.W.3d at 129, citing In re
C.J.H., 79 S.W.3d at 698.
	The essence of Appellant's argument is that there was no evidence or insufficient
evidence to base a finding that J.T. violated a order of the court in the terms and conditions of
probation that forbade him from being suspended from school.  At the hearing to revoke
suspended commitment to TYC, J.T.'s probation officer, Monique Hatten testified that J.T. and
his parents were aware of the conditions of his probation.  An assistant principal at J.T.'s school,
Ms. Elaine Acosta testified that she had disciplined him by giving him a three day in-school
suspension.  The school has two options when suspending a student, either an in-school or out-of-school suspension.  In an in-school suspension, the student is placed in a discipline room with
an adult present, and is not allowed to attend regular classes.  The out-of-school suspension does
not allow the student to be present on school grounds.  There is legally sufficient evidence to
support the finding that J.T. violated the terms of his probation, which allowed for the revocation
of his suspended commitment to TYC.
	The only evidence was the testimony of his girlfriend, Ana Delgado, that J.T. was
physically present at school.  Appellant argues in his brief that an in-school suspension is not a
real suspension; rather it is a form of detention or study hall.  He argues that the only reasonable
interpretation of the prohibition of suspension from school would not include an in-school
suspension.  Appellant cites no cases to this effect nor have we found any to support his position. 
The evidence is neither so weak nor is the contrary evidence so overwhelming as to require the
findings to be set aside and a new trial ordered.  We find the evidence to be factually sufficient.
	We next consider whether the juvenile court abused its discretion in committing J.T. to
TYC.  Appellant contends that there is an abuse of discretion because of insufficient evidence to
modify the disposition revoking the suspended sentence to TYC.  However, there was enough
substantive evidence supporting the juvenile court's decision to warrant a modification of the
disposition thereby revoking the suspended commitment to TYC.  With such evidence present,
there was no abuse of discretion by the court.  Appellant's sole issue is overruled.
	We affirm the trial court's order.


December 20, 2007
						DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., concurring




C O N C U R R I N G    O P I N I O N

	Upon successful completion of Challenge Boot Camp, J.T. was placed on intensive
supervised probation.  One of the conditions of his probation was that J.T. must "Attend school
and not be truant, not be suspended or expelled from any public school during his probationary
period."  (Emphasis supplied).
	J.T. was thereafter given a three-day "in-school suspension" as discipline for an incident
at school. (1)  During the "in-school suspension," he attended his regular school and was given
instructional assignments, but not in his regular classroom.  His presence was counted toward the
school's average daily attendance, upon which the school district's state-tax reimbursement is
calculated.
	Relying upon the dictionary definition, J.T. argues that he was not "suspended . . . from"
school during this period.  Specifically, he cites Merriam-Webster's definition of the noun,
"suspension," as a "temporary forced withdrawal from the exercise of office, powers,
prerogatives, . . .," (2) and its definition of the verb form, "suspend," as "to debar or cause to
withdraw temporarily from any privilege, office, or function . . . ." (3)  In both cases, the dictionary
cites suspending a student from school as an example of the usage.
	In Chapter 37, Subchapter A, of the Texas Education Code, labeled "Alternative Settings
for Behavior Management," (4) the legislature has distinguished three types of discipline (5) to which
a student may be subjected:  suspension, (6) removal to a disciplinary alternative education
program, (7) or expulsion.
	Since J.T. was not expelled from school, we are faced with the question of whether his
"in-school suspension" constituted a "suspension" or a "removal to a disciplinary alternative
education program."  We have located only two references in subchapter A to "in-school
suspension."  The first is in sec. 37.002:
		If a teacher removes a student from class . . ., the principal may place the
student into another appropriate classroom, into in-school suspension, or into a
disciplinary alternative education program as provided by Section 37.008.

Tex. Educ. Code Ann. § 37.002(c).  The other reference is contained in sec. 37.021:
		If a school district removes a student from the regular classroom and
places the student in in-school suspension or another setting other than a
disciplinary alternative education program, the district shall offer the student the
opportunity to complete before the beginning of the next school year each course
in which the student was enrolled at the time of the removal.

Tex. Educ. Code Ann. § 37.021(a).
	The Education Code thus distinguishes, in some locations, between a "suspension" and
assignment to a disciplinary alternative education program.  In these two locations, it draws a
similar distinction between an "in-school" suspension and assignment to a disciplinary
alternative education program.  I therefore conclude that a "suspension," within the meaning of
the Education Code, includes an "in-school suspension" of the sort to which J.T. was assigned.
	I therefore concur in the result.


December 20, 2007
						KENNETH R. CARR, Justice
1.   Nothing in its order sheds any light on the question of whether the trial court intended its order precluding
J.T.'s "suspension . . . from" school to extend to the sort of "in-school suspension" to which he was assigned.
2.   Webster's Third New Int'l Dictionary 2303 (Philip Babcock Gove, ed. in chief, 1993)(emphasis supplied
in Appellant's Brief).
3.   Id.
4.   Tex. Educ. Code Ann. §§ 37.001-.022.
5.   Id. at §§ 37.001(a)(4) and (6).
6.   See id. at § 37.005.
7.   See id. at § 37.008.
