







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
                                                                              )
                                                                              )              
No.  08-04-00039-CV
                                                                              )
                                                                              )                    Appeal from the
                                                                              )
IN THE MATTER OF U.G.V., A
Juvenile             )                 
65th District Court
                                                                              )
                                                                              )           
of El Paso County, Texas
                                                                              )
                                                                              )                    (TC# 0200268)
                                                                              )
 
 
O
P I N I O N
 
This is an appeal
from an order of commitment to the Texas Youth Commission.  In his sole issue, U.G.V. contends the trial
court abused its discretion by applying the 2003 version of Section 54.05(k) of
the Texas Family Code (ASection
54.05(k)(2003)@) to
determine his eligibility for placement in the Texas Youth Commission and that
this ex post facto or retroactive application of Section 54.05(k)(2003)
violated his federal and Texas constitutional rights.  We affirm.




The State filed
its first petition based on delinquent conduct against U.G.V. on February 18,
2002 for the offense of aggravated assault allegedly committed on or about
February 14, 2002.  The petition was
amended to allege a misdemeanor assault and on February 21, 2002, U.G.V.
stipulated to the misdemeanor assault allegation in an adjudication
hearing.  On March 19, 2002, U.G.V.
was placed on supervised probation.  
On September 4,
2003, the State filed its second petition based on delinquent conduct.  On September 11, 2003, U.G.V. stipulated to
counts 3, 4, and 8 in the State=s
amended petition, namely the following allegations:  (1) possession of inhalant substances on or
about March 27, 2003; (2) misdemeanor graffiti on or about April 1, 2003; and
(3) misdemeanor graffiti on or about June 13, 2003.  The remaining counts of the amended petition
were dismissed.  On September 24, 2003,
the court placed U.G.V. on intensive supervised probation under the serious
offender habitual offender comprehensive action program (ASHOCAP@).
On October 23,
2003, the State filed a motion to modify disposition for violation of the terms
and conditions of U.G.V.=s
probation.  That same day, the State also
filed a petition based on delinquent conduct for the alleged offense of
possession of inhalants.  At the hearing,
U.G.V. plead true to one of the allegations in the motion to modify
disposition--four instances of truancy occurred between September 26, 2003 and
October 14, 2003.  The trial court
accepted U.G.V.=s plea of
true, dismissed the remaining allegation in the motion to modify disposition,
and dismissed the State=s
petition based on delinquent conduct.




On January 15,
2004, the trial court held a disposition hearing.  Noemi Ramos, U.G.V.=s
probation officer, testified at the hearing. 
Ms. Ramos prepared the modification disposition report in this case,
which was admitted into evidence.  A
psychiatric evaluation report and a psychological evaluation report were also
admitted into evidence at the hearing. 
Ms. Ramos stated that she believed U.G.V. was in need of rehabilitation
and that it was the recommendation of the El Paso County Juvenile Probation
Department that U.G.V. be committed to the care, custody, and control of the
Texas Youth Commission (TYC).  This
recommendation was based upon the juvenile=s
lengthy probation history as detailed in Ms. Ramos=
report.  In particular, Ms. Ramos
testified to U.G.V.=s history
of inhalant abuse, marijuana abuse, and prior gang membership.  In her report, Ms. Ramos found that U.G.V.=s problems included poor school
performance, truancies, several school suspensions, and twice failing to
complete local drug rehabilitation through Aliviane.  Ms. Ramos believed that the TYC could address
U.G.V.=s
educational needs and his substance abuse problems through individual and group
substance abuse counseling.
According to Ms.
Ramos, U.G.V. was a danger to himself due to his frequent inhalant abuse.  Ms. Ramos testified that there was a
deviation in the sanction level for this case because U.G.V. is not a United
States citizen.  Because of his alienage
and his diagnosis of slight mental retardation, U.G.V. was found not eligible
for Challenge Boot Camp Program and the department did not consider another
out-of-home placement.  Ms. Ramos
believed that the department had exhausted all of its resources with regard to
this juvenile, that his parents had contributed to his delinquency, and that
her recommendation was in the best interest of U.G.V. and the community. 




At the hearing,
the State offered a memorandum from the general counsel of the El Paso County
Juvenile Probation Department on U.G.V.=s
eligibility for placement in the TYC. 
U.G.V. objected, arguing that he was not eligible for TYC placement
because when he was placed on probation, the eligibility standard was three
adjudications, but had since changed to two adjudications and a
modification.  U.G.V. argued that
applying the change in law to him would amount to an ex post facto violation.[1]  The trial court, however, found that U.G.V.
was eligible for placement and denied the objection.
The trial court
followed the department=s
recommendation and in its order of commitment found that U.G.V. was in need of
rehabilitation; that the juvenile and the public requires that disposition be
made; and that the disposition was in U.G.V=s
best interest because he had no parents to supervise, control, or discipline
him nor does he lend himself to suitable supervision, control, or
discipline.  The trial court also found
that reasonable efforts had been made to prevent removal from his home,
specifically:  supervised probation;
intensive supervised probation, psychological and psychiatric services; and
substance abuse counseling through Aliviane. 
The stated reasons for the disposition included:  (1) that the juvenile needed to be held
accountable and responsible for his delinquent behavior; (2) that he poses a
risk to the safety and protection of the community if no disposition was made;
(3) that there was no community-based intermediate sanctions available that
would adequate address the needs of the juvenile or adequately protect the
needs of the community; and (4) the juvenile=s
prior record required that he be confined in a secure facility.  U.G.V. now brings this appeal.
In his sole issue,
U.G.V. contends the trial court abused its discretion in its modification of
his disposition to the TYC by applying Section 54.05(k)(2003) to determine his
eligibility for placement in the TYC instead of the 2001 version of Section
54.05(k)(ASection
54.05(k) (2001)@).  U.G.V. asserts that Section 54.05(k)(2001)
was the applicable law in his case because the conduct giving rise to the
previous adjudication occurred before the effective date of Section
54.05(k)(2003).  Further, U.G.V. contends
the trial court=s ex
post facto or retroactive application of Section 54.05(k)(2003) subjected
him to increased punishment and violated his federal and state constitutional
rights.




We review a
juvenile court=s
determination concerning a suitable disposition for a child who has been found
to have engaged in delinquent conduct under an abuse of discretion
standard.  In the Matter of A.S.,
954 S.W.2d 855, 861 (Tex.App.--El Paso 1997, no pet.).  An abuse of discretion does not occur as long
as some evidence of substantive and procedural character exists to support the
trial court=s
decision.  In re E.R.L., 109
S.W.3d 123, 128 (Tex.App.--El Paso 2003, no pet.).  Absent an abuse of discretion, we will not
disturb the juvenile court=s
determination.  Id.




Modifications of
disposition proceedings are governed by Section 54.05 of the Texas Family
Code.  See Tex.Fam.Code Ann. '
54.05 (Vernon Supp. 2004-05).  Prior to
September 1, 2003, Section 54.05(k) provided that the court may modify a
disposition under Subsection (f)[2]
that is based on a finding that the child engaged in delinquent conduct that
violates a penal law of the grade of misdemeanor if:  (1) the child has been adjudicated as having
engaged in delinquent conduct violating a penal law of the grade of felony or
misdemeanor on at least two previous occasions; and (2) of the previous
adjudications, the conduct that was the basis for one of the adjudications
occurred after the date of another previous adjudication.[3]  Several courts, including this Court, have
held that Section 54.05(k)(2001) requires a total of three adjudications in
order to modify a disposition to commit a juvenile to the TYC.  See e.g., In re C.E.T., No.
08-03-00125-CV, 2004 WL 596219, at *2 (Tex.App.--El Paso Mar. 26, 2004, no
pet.)(not designated for publication); In re J.W., 118 S.W.3d 927, 929
(Tex.App.‑-Dallas 2003, pet. denied); In re S.B., 94 S.W.3d 717, 719
(Tex.App.--San Antonio 2002, no pet.); In re A.I., 82 S.W.3d 377, 380-81
(Tex.App.--Austin 2002, pet. denied); In re. N.P., 69 S.W.3d 300, 302
(Tex.App.--Fort Worth 2002, pet. denied).
In 2003, the Texas
Legislature amended Section 54.05 (k) to require only one previous
adjudication, thus, a total of two adjudications, not three, are required in
order to modify a disposition to commit a juvenile to the TYC.[4]  See Acts of 2003, 78th Leg., R.S., ch.
283, ' 21, 2003
Tex.Gen.Laws 1221, 1227.  The amendment took effect on September 1,
2003.  See Acts of 2003, 78th
Leg., R.S., ch. 283, '
62, 2003 Tex.Gen.Laws 1221,
1245.  Sections 62(b) and (c) of the
amendatory act provide the following savings provision clauses:




(b)        Except as provided by Subsections (d),
(e), and (g) of this section, this Act applies only to conduct that occurs on
or after the effective date of this Act. Conduct violating the penal law of
this state occurs on or after the effective date of this Act if any element of
the violation occurs on or after that date.
 
(c)        Conduct that occurs before the effective
date of this Act is governed by the law in effect at the time the conduct
occurred, and that law is continued in effect for that purpose. 
 
Acts of 2003, 78th Leg., R.S., ch.
283, ' 62(b)
& (c), 2003 Tex.Gen.Laws
1221, 1245. 
U.G.V. asserts
that Section 54.05(k)(2003) was not the applicable law in his case because the
conduct that gave rise to his second adjudication occurred before September 1,
2003, the effective date of the amended statute.  Consequently, U.G.V. contends, the trial
court abused its discretion in its modification of his disposition because the
applicable law was Section 54.05(k) (2001). 
The State, however, argues that Section 54.05(k)(2003) is the
controlling law because the  modification
of disposition was based on conduct which occurred after September 1, 2003,
that is, the violations of probation that occurred in September and October
2003.  Since the amendatory act includes
a savings provision clause which makes the amended statute only applicable to Aconduct that occurs on or after the
effective date of [September 1, 2003],@
this Court must decide what the Legislature intended would constitute Aconduct@
in the context of Section 54.05 modifications of disposition proceedings.




Statutory
construction issues are legal questions reviewed de novo.  Johnson v. City of Fort Worth, 774
S.W.2d 653, 656 (Tex. 1989).  In
construing a statute, our primary objective is to ascertain and give effect to
the Legislature=s
intent.  See McIntyre v. Ramirez,
109 S.W.3d 741, 745 (Tex. 2003), citing Tex. Dep=t of Transp. v. Needham, 82 S.W.3d
314, 318 (Tex. 2002).  We look first to
the statute=s plain
and common meaning; if the statutory language is unambiguous, we will interpret
the statute according to its plain meaning. 
McIntyre, 109 S.W.3d at 745. 
However, if the statute is ambiguous, we then consider other matters to
ascertain the Legislature=s
intent, including the objective of the law, the legislative history, and the
consequences of a particular construction. 
See McIntyre, 109 S.W.3d at 745; In re Bay Area Citizens
Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex. 1998); Tex. Gov=t Code Ann. '
311.023 (Vernon 2005).  In addition, an
interpretation of a statute which would produce Aabsurd@ results is to be avoided.  Sharp v. House of Lloyd, Inc., 815
S.W.2d 245, 249 (Tex. 1991).




Under Section
54.05, a juvenile court may modify any disposition, except a commitment to the
Texas Youth Commission, until the child reaches his 18th birthday or is earlier
discharged by the court or operation of law. 
See Tex.Fam.Code Ann.
' 54.05(a).  In order to modify a disposition so as to
commit the child to the Texas Youth Commission, that disposition must be: (1)
based on a finding that the child engaged in delinquent conduct that violates a
penal law of this state or the United States of the grade of felony or (2) if
the requirements of Subsection (k) are met, of the grade of misdemeanor.  See Tex.Fam.Code
Ann. ' 54.05(f).  Further, in order to modify a disposition the
court, after a modification of disposition hearing, must find by a
preponderance of the evidence that the child violated a reasonable and lawful
order of the court.  See id.  As discussed above, Section 54.05(k)(2003)
allows the court to modify a disposition that is based on an adjudication that
the child engaged in delinquent conduct that violates a penal law of the grade
of misdemeanor if:  (1) the child has one
previous adjudication (felony or misdemeanor) before the adjudication that
prompted the disposition that is being modified; and (2) the conduct that was
the basis for the adjudication that prompted the disposition that is being
modified occurred after the date of the previous adjudication.  See Tex.Fam.Code
Ann. ' 54.05(k).  Clearly, the Subsection (k) requirements
serve to qualify the court=s
ability to modify a disposition such as to commit the juvenile to the TYC when
the adjudication that is the basis for the disposition to be modified is a
misdemeanor level offense.  Thus, the
requirements of Subsection (k) do not stand alone, but rather must be read in
the context of Subsection (f).  
Importantly, under
Subsection (f), in order to modify a disposition to commit a juvenile to the
TYC, the court must find by a preponderance of the evidence that the child
violated a reasonable and lawful order of the court.  See Tex.Fam.Code
Ann. ' 54.05(f).  By the plain language of the statute, the
court=s finding
of a violation is the relevant conduct that may result in modification of a
disposition to commitment in the TYC. 
Subsection (k), in contrast, merely places certain requirements on the
court=s ability
to modify a disposition of an adjudication that is based on a misdemeanor level
offense, that is, by requiring a previous and separate adjudication (felony or
misdemeanor).  See Tex.Fam.Code Ann. ' 54.05(k).




In this case, the
State filed a motion to modify disposition on October 23, 2003.  The motion alleged that U.G.V. had violated
the terms and conditions of his probation, namely, four instances of truancy
which occurred between September 26, 2003 and October 14, 2003.  U.G.V. pled true to the truancy allegation
and the court accepted the plea of true. 
Since the violation of probation occurred after September 1, 2003, the
Subsection (k) requirements, as amended, had to be met in order for the court
to modify U.G.V.=s second
misdemeanor adjudication.  Under
Subsection (k), the conduct that was the basis of the second adjudication need
only occur after the date of the previous adjudication.  See Tex.Fam.Code
Ann. '
54.05(k).  Despite U.G.V.=s contentions, we conclude that the Legislature
intended that the savings provision clause of the 2003 amendatory act would
apply to conduct which was the subject of the modification of disposition
hearing under Subsection (f), that is, the conduct which formed the basis for
the trial court=s finding
that the juvenile violated a reasonable and lawful order of the court.  Since U.G.V.=s
violation of probation occurred after September 1, 2003, Section 54.05(k)(2003)
was the applicable law.
Within his sole
issue, U.G.V. also asserts that the application of Section 54.05(k)(2003)
violated his federal and Texas constitutional rights because it is an ex
post facto or retroactive law. 
Specifically, U.G.V. argues that his federal constitutional rights were
disregarded during the disposition hearing because the application of the 2003
statute increased punishment for conduct occurring before the effective
date.  U.G.V. also contends that he was
entitled to rely on the 2001 statute=s
explicit restriction on the collateral consequences of his previous
adjudication.




Within the
criminal context, Aex post
facto@ refers
to any law passed after the commission of an act which retrospectively changes
the consequences of the act.  Bowers
v. State, 914 S.W.2d 213, 216 (Tex.App.--El Paso 1996, pet. ref=d), citing Grimes v. State,
807 S.W.2d 582, 583-84 (Tex.Crim.App. 1991). 
Although juvenile delinquency proceedings are nominally considered civil
proceedings, they are indisputably quasi-criminal in nature.  In re R.S.C., 940 S.W.2d 750, 751
(Tex.App.--El Paso 1997, no writ); see also In re M.A.F., 966 S.W.2d
448, 450 (Tex. 1998)(recognizing the quasi-criminal nature of juvenile
cases).  Accordingly, a juvenile is
guaranteed the constitutional rights he would have as an adult in a criminal
proceeding, because the juvenile delinquency procedures seek to deprive him of
his liberty.  C.E.J. v. State, 788
S.W.2d 849, 852 (Tex.App.--Dallas 1990, writ denied), citing Smith v.
Rankin, 661 S.W.2d 152, 153 (Tex.App.‑‑Houston [1st Dist.]
1983, no writ)(orig. proceeding). 
Therefore, we find it appropriate to consider U.G.V.=s federal constitutional claim.[5]  
Federal
Constitutional Claim
The United States
Constitution prohibits ex post facto laws, that is, laws which:  (1) punish as a crime an act previously
committed which was innocent when done; (2) change the punishment and inflict a
greater punishment than the law attached to a criminal offense when committed;
(3) deprive a person charged with a crime of any defense available at the time
that the act was committed; or (4) alter the legal rules of evidence and
receive less or different evidence to convict than the law required at the time
the act was committed.  Collins v.
Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990); Rodriguez
v. State, 93 S.W.3d 60, 66-7 (Tex.Crim.App. 2002); see also U.S. Const. art. I, ' 9. 
U.G.V. argues that the application of the 2003 statute increased
punishment for conduct he committed before the effective date, therefore, he
asserts his ex post facto rights were violated under the second
category.




U.G.V.=s first adjudication was for a
misdemeanor assault committed on or about February 14, 2002.  As a result of this adjudication, U.G.V. was
placed on supervised probation.  On September
4, 2003, the State filed its second petition based on delinquent conduct.  U.G.V. stipulated to various misdemeanor
offenses which occurred on or about March 27, 2003, April 1, 2003, and June 13,
2003.  On September 24, 2003, U.G.V. was
placed on intensive supervised probation. 
As discussed above, Section 54.05(k)(2001) provided that a juvenile must
have at least two adjudications prior to the one which the State was seeking to
modify in order for the court to commit the juvenile to the TYC in a
modification of disposition proceeding, but the 2003 version requires only one
previous and separate adjudication prior to the adjudication to be modified.[6]   By applying Section 54.05(k)(2003), U.G.V.
was eligible to commitment to the TYC because he had one previous and separate
adjudication prior to the September 2003 adjudication of which the State sought
to modify the disposition.  Application
of the 2003 statute, however, did not change or increase the punishment imposed
for his first and second adjudication. 
Rather, modification of disposition was sought for conduct that occurred
after the effective date of the 2003 statute. 
As a result of U.G.V.=s
status of having a previous and separate adjudication prior to the adjudication
to be modified, he was eligible for commitment to the TYC.  The application of the 2003 statute did not
increase punishment for U.G.V.=s
prior conduct, therefore, in this respect there was no ex post facto violation.
Relying on Scott
v. State, 55 S.W.3d 593 (Tex.Crim.App. 2001), U.G.V. further contends that
he was entitled to rely on the statutory restriction provided in Section
54.05(k)(2001), because it limited the collateral consequences of his
adjudication.  In so arguing, U.G.V.
asserts that the removal of the statutory restriction increased the punishment
and such an increase constitutes an ex post facto law.




In Scott,
the defendant pleaded guilty to indecency with a child in exchange for deferred
adjudication.  Scott, 55 S.W.3d at
595.  At the time Scott entered his plea,
the deferred adjudication statute prohibited use of a successfully completed
deferred adjudication to enhance punishment for a subsequent offense.  Id. at 595-96.  The Legislature later amended the deferred
adjudication statute and the Penal Code such that a dismissal and discharge of
a deferred adjudication counted as a previous conviction for purposes of
enhancing the punishment for aggravated sexual assault to life
imprisonment.  See id. at
595-96.  Subsequently, Scott was
convicted for aggravated sexual assault and his discharged deferred
adjudication was deemed a conviction for enhancement purposes.  Id. at 595.  The Court of Criminal Appeals, however, held
that the enhancement of punishment was an ex post facto violation
because when Scott entered his guilty plea, he was entitled to rely on the
language in the prior statute that explicitly limited the collateral
consequences of deferred adjudication.  Id.
at 597.
Although Section
54.05(k)(2003), in conjunction with Section 54.05(f), operates in a manner that
we agree is somewhat analogous to enhancement of punishment statutes, unlike Scott,
Section 54.05 does not contain any explicit restriction on the collateral
consequences of U.G.V.=s
adjudication in modification of disposition proceedings.  Instead, Section 54.05(k) (2003) is more
similar to enhancement statutes that penalize the new criminal offense being
enhanced rather than the prior offense used for enhancement, which the United
States Supreme Court and the Texas Court of Criminal Appeals have declined to
find violative of the ex post facto prohibition.  See Scott, 55 S.W.3d at 597.  We conclude that application of Section
54.05(k) (2003) in this case did not violate U.G.V.=s
ex post facto constitutional right. 
U.G.V.=s sole
issue is overruled.




Finding no abuse
of discretion by the trial court, we affirm the trial court=s commitment order.
 
July
14, 2005
DAVID WELLINGTON
CHEW, Justice
 
Before Barajas, C.J., McClure, and Chew, JJ.




[1]
U.G.V. also raised the same objections in a motion for new trial, which was
denied by operation of law.


[2]
Subsection (f) provides that A[A]
disposition based on a finding that the child engaged in delinquent conduct
that violates a penal law of this state or the United States of the grade of
felony or, if the requirements of Subsection (k) are met, of the grade of
misdemeanor, may be modified so as to commit the child to the Texas Youth
Commission if the court after a hearing to modify disposition finds 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)(Vernon Supp. 2004-05).


[3]
Acts of 1999, 76th Leg., R.S., ch. 1448, '
2, 1999 Tex.Gen.Laws 4919,
4920-21, amended by Acts of 2001, 77th Leg., R.S., ch. 1297, ' 28, 2001 Tex.Gen.Laws 3142, 3154 (redesignated as Section 54.05(k)),
amended by Acts of 2003, 78th Leg., R.S., ch. 283, '
21, 2003 Tex.Gen.Laws 1221, 1227,
eff. date Sept. 1, 2003 (current version at Tex.Fam.Code
Ann. '
54.05(k)(Vernon Supp. 2004-05)).


[4]
Section 54.05(k) now provides that:
 
The court may modify a disposition
under Subsection (f) that is based on an adjudication that the child engaged in
delinquent conduct that violates a penal law of the grade of misdemeanor if:
 
(1)        the child has been adjudicated as having
engaged in delinquent conduct violating a penal law of the grade of felony or
misdemeanor on at least one previous occasion before the adjudication that
prompted the disposition that is being modified; and 
 
(2)        the conduct that was the basis of the
adjudication that prompted the disposition that is being modified occurred
after the date of the previous adjudication. 

 
Tex.Fam.Code Ann. '
54.05(k)(Vernon Supp. 2004-05).


[5]
U.G.V. also asserts that Article I, '
16 of the Texas Constitution may provide greater protection from ex post facto
or retroactive laws in a juvenile case because it covers civil as well as
criminal matters.  See In re Shaw,
966 S.W.2d 174, 179 (Tex.App--El Paso 1998, no pet.) (prohibition against ex
post facto laws found in the Texas Constitution applied both to civil and
criminal laws).  U.G.V. cites no
authority in support of this contention nor does he present any argument that
the Texas Constitution may provide greater protection in the criminal context.  Since we have decided to review U.G.V.=s federal constitutional claim and
U.G.V. does not argue that his ex post facto right differs under the
Texas Constitution, we only reach his federal claim.  See Heitman v. State, 815 S.W.2d 681,
690-91 n.23 (Tex.Crim.App. 1991).


[6]
See Acts of 1999, 76th Leg., R.S., ch. 1448, '
2, 1999 Tex.Gen.Laws 4919,
4920-21, amended by Acts of 2001, 77th Leg., R.S., ch. 1297, ' 28, 2001 Tex.Gen.Laws 3142, 3154 (redesignated as Section 54.05(k)),
amended by Acts of 2003, 78th Leg., R.S., ch. 283, '
21, 2003 Tex.Gen.Laws 1221, 1227,
eff. date Sept. 1, 2003 (current version at Tex.Fam.Code
Ann. '
54.05(k)(Vernon Supp. 2004-05)).


