      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-04-00086-CV



                                      In the Matter of D. H.




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
         NO. J-23,893, HONORABLE ALLISON BENESCH, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The district court found beyond a reasonable doubt that D.H. committed criminal

trespass and adjudicated him delinquent. The court placed him on probation in his father’s custody

for six months.

               D.H. stipulated at trial that he intentionally and knowingly entered the premises of

a middle school with notice that such entry was forbidden and without the permission of the assistant

principal, who is the owner of the school for this purpose. By his sole issue on appeal, D.H.

contends that the district court lacked jurisdiction over him because he should have been tried under

a more specific statute with a less severe punishment range. Compare Tex. Educ. Code Ann.

§ 37.107 (West 1996) (trespass on school grounds, Class C misdemeanor), with Tex. Pen. Code Ann.

§ 30.05 (West 2004-05) (trespass, Class B misdemeanor). He argues that because the lesser offense

is a Class C misdemeanor and is not within the definition of delinquent conduct, the district court
lacked jurisdiction. See Tex. Fam. Code Ann. § 51.03(a) (West Supp. 2004-05); see also Tex.

Const. art. V, § 19 (justice court has original jurisdiction over offenses punishable by fine only).

                This Court has recently concluded in a similar juvenile case that these statutes are not

in pari materia, that the State could charge the juvenile under either statute, and that the district court

had jurisdiction over the allegation of criminal trespass against the juvenile. See In the Matter of

J.M.R., No. 03-03-00749-CV, slip op. at 8, 2004 WL 2357887, at *4 (Tex. App.—Austin Oct. 21,

2004, no pet. h.). This appeal is controlled by that decision.

                We affirm the judgment of the district court.




                                                 __________________________________________

                                                 Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: November 12, 2004




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