Opinion issued August 28, 2012.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00146-CV
                           ———————————
                                  IN RE B.R.H.



                   On Appeal from the 315th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-03924



                                  OPINION

      Relator, B.R.H., seeks mandamus relief from the trial court’s November 22,

2011 order denying his motion to dismiss the juvenile complaint against him. We

conclude that the trial court did not abuse its discretion in denying the motion.

Accordingly, we deny his request for mandamus relief.
                                   Background

      B.R.H. was born on August 4, 1993. In September 2009, on the date of the

alleged offense, B.R.H. was sixteen years old. In June 2011, approximately two

months before B.R.H.’s eighteenth birthday, the State filed an original petition

alleging that he had engaged in delinquent conduct. The State amended its original

petition in September 2011. The amended petition was approved by the Grand

Jury for Determinate Sentencing.

      In September 2011, B.R.H. moved to dismiss the case against him,

contending that the juvenile trial court lacked jurisdiction because he had turned

eighteen the month before. After a hearing, the trial court denied the motion to

dismiss.   The trial court’s order denying the motion to dismiss includes the

following findings:


      1. The Petition . . . was filed on June 6, 2011, alleging that the
         offense occurred prior to the Respondent’s eighteenth birthday,
         which was August 4, 2011, the Respondent having been born on
         August 4, 1993.

      2. The Respondent was detained on the offense . . . and released from
         detention on May 19, 2011 . . . . The State of Texas filed its
         petition on June 6, 2011 and the first setting on this case was
         August 18, 2011, after the date that the respondent turned eighteen
         years old.

      3. The State of Texas was in possession of the offense report in this
         case in December 2010 and did not charge the Respondent until
         May 18, 2011. The State of Texas failed to request that the case be
         docketed prior to Respondent turning eighteen years old.

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      4. On September 30, 2011 the State of Texas filed an Amended
         Petition which was approved by the Grand Jury for Determinate
         Sentencing . . . .

      5. The State of Texas has used due diligence in prosecuting
         Respondent.

                                      Discussion

      We review a trial court’s interpretation of the law de novo.             State v.

Shumake, 199 S.W.3d 279, 284 (Tex. 2006). A trial court has no discretion in

determining what the law is or properly applying the law. In re Tex. Dep’t of

Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006). A trial court abuses

its discretion if it fails to properly interpret the law or applies the law incorrectly.

Id. Mandamus relief is available to correct a clear abuse of discretion when there

is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135–36 (Tex. 2004).

      B.R.H. contends that the trial court abused its discretion in denying his

motion to dismiss. Relying on the Texas Supreme Court’s decision in In re N.J.A.,

997 S.W.2d 554 (Tex. 1999), he maintains that the trial court lacks jurisdiction

over the underlying case because he turned eighteen in August 2011, and the State

failed to act with diligence in prosecuting the case. B.R.H. also contends that the

trial court’s order is not supported by the record because the State’s amended

petition, filed after his eighteenth birthday, “extinguished” the original petition.


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      A juvenile court has exclusive, original jurisdiction over all proceedings

involving a person who has engaged in delinquent conduct as a result of acts

committed before age seventeen. See TEX. FAM. CODE ANN. §§ 51.02, 51.04 (West

2011). A juvenile court does not lose jurisdiction when a juvenile turns eighteen,

but its jurisdiction becomes limited. The juvenile court retains limited jurisdiction

to either transfer the case to an appropriate court or dismiss the case. N.J.A., 997

S.W.2d at 556; In re T.A.W., 234 S.W.3d 704, 705 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied). However, the Texas Family Code provides an exception

to this rule, which applies to incomplete proceedings. In re V.A., 140 S.W.3d 858,

859 (Tex. App.—Fort Worth 2004, no pet.).             Section 51.0412, which the

legislature enacted after the Court decided N.J.A., provides:

      The court retains jurisdiction over a person, without regard to the age
      of the person, who is a respondent in an adjudication proceeding, a
      disposition proceeding, a proceeding to modify disposition, or a
      motion for transfer of determinate sentence probation to an
      appropriate district court if:

      (1) the petition or motion to modify was filed while the respondent
      was younger than 18 years of age or the motion for transfer was filed
      while the respondent was younger than 19 years of age;
      (2) the proceeding is not complete before the respondent becomes 18
      or 19 years of age, as applicable; and
      (3) the court enters a finding in the proceeding that the prosecuting
      attorney exercised due diligence in an attempt to complete the
      proceeding before the respondent became 18 or 19 years of age, as
      applicable.


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TEX. FAM. CODE ANN. § 51.0412 (West Supp. 2011). The State filed its original

petition before B.R.H. turned eighteen, and the proceedings were incomplete at the

time of B.R.H.’s eighteenth birthday. After a hearing, the trial court entered a

finding that the prosecutor used due diligence in attempting to complete the

proceedings before B.R.H.’s eighteenth birthday, and concluded that section

51.0412 authorized it to retain jurisdiction.

      B.R.H. objected to the trial court’s jurisdiction in September 2011, before

any adjudication hearing. See id. (requiring respondent to object to jurisdiction

due to age at adjudication hearing or discretionary transfer hearing, if any). B.R.H.

contends that, despite section 51.0412’s exception for incomplete proceedings, the

Supreme Court’s holding in N.J.A. requires dismissal of the suit against him for

lack of jurisdiction. Under N.J.A., a juvenile court retains jurisdiction over the

person after he turns eighteen, but that jurisdiction is limited to either dismissing

the case or transferring the case to another court under Texas Family Code section

54.02(j). See 997 S.W.2d at 555–56. Enacted after the Supreme Court’s decision

in N.J.A., section 51.0412 abrogated N.J.A. by expanding juvenile court

jurisdiction for cases that meet the statutory criteria.

      B.R.H. contends that this proceeding fails to meet the statutory criteria for

two reasons. First, citing Texas Rule of Civil Procedure 65, B.R.H. maintains that

the State’s amended petition, filed in September 2011, “extinguishes” the original

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petition—filed before his eighteenth birthday. Second, he challenges the trial

court’s finding that the State exercised due diligence in prosecuting the case

against him.

      Texas Rule of Civil Procedure 65 provides that a substituted instrument

takes the place of prior pleadings and “the instrument for which it is substituted

shall no longer be regarded as a part of the pleading in the record of the cause,

unless some error of the court in deciding upon the necessity of the amendment, or

otherwise in superseding it, be complained of, and exception be taken to the action

of the court, or unless it be necessary to look to the superseded pleading upon a

question of limitation.” TEX. R. CIV. P. 65. Amended pleadings relate back to the

time of filing of the original petition. See id.; TEX. FAM. CODE ANN. 51.17 (rules of

civil procedure apply to juvenile cases unless in conflict with juvenile justice

code); cf. Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972) (observing that strict

prohibition against amended pleadings applicable to criminal cases does not apply

to juvenile proceedings); In re J.A.D., 31 S.W.3d 668, 671 (Tex. App.—Waco

2000, no pet.) (relation back doctrine inapplicable to motion to modify filed after

end of probation period in juvenile case because rules of civil procedure conflicted

with juvenile justice code provision permitting modifications only during term of

probation). The amendment in this case, containing an approval by the Grand Jury

for Determinate Sentencing, relates back to the date of the original petition—June

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2011. It is undisputed that the State filed the original petition before B.R.H.’s

eighteenth birthday. Because the amended petition relates back to the filing date of

the original petition—before B.R.H. turned eighteen years old—the statute’s

requirement that suit be filed before age eighteen has been met. See TEX. FAM.

CODE ANN. § 51.0412(1).

      B.R.H.’s challenge to the trial court’s finding that the prosecutor acted

diligently in attempting to complete the proceeding before B.R.H.’s eighteenth

birthday is similarly unavailing. The Texas Family Code does not define diligence

as it is used in section 51.0412. “Due diligence” has been defined, however, in

other contexts. See e.g., Bawcom v. State, 78 S.W.3d 360, 363 (Tex. Crim. App.

2002) (holding due diligence may be shown by pre-capias diligence); In re N.M.P.,

969 S.W.2d 95, 100 (Tex. App.—Amarillo 1998, no pet.) (explaining that due

diligence generally requires that party not simply sit on their rights or duties). Due

diligence requires the State to “move ahead” or “reasonably explain delays.” In re

N.M.P., 969 S.W.2d at 100; see also In re C.B., No. 2-05-341-CV, 2006 WL

1791731, at *2 (Tex. App.—Fort Worth June 29, 2006, no pet.) (mem. op., not

designated for publication).    Due diligence does not require the State to “do

everything perceivable and conceivable to avoid delay.” In re N.M.P., 969 S.W.2d

at 100; In re C.B., 2006 WL 1791731, at *2.




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      Diligence is usually a question of fact that the trial court determines in light

of the circumstances of each case. See In re J.C.C., 952 S.W.2d 47, 49–50 (Tex.

App.—San Antonio 1997, no pet.) (reviewing trial court’s findings on diligence for

abuse of discretion). When reviewing factual issues, we defer to the trial court’s

findings unless the record contains no evidence to support them. Marcus v. Smith,

313 S.W.3d 408, 417 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Even if we

would have decided the matter differently, we may not disturb the trial court’s

decision unless it is shown to be arbitrary and unreasonable.           Id.   This is

particularly the case with requests for mandamus relief. “[A]n appellate court may

not deal with disputed areas of fact in an original mandamus proceeding.” Brady v.

Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). Mandamus relief

will not lie if the record contains legally sufficient evidence both against and in

support of the trial court’s decision; weighing conflicting evidence is a trial court

function.   In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex. 2007, orig.

proceeding); Marcus, 313 S.W.3d at 417.

      B.R.H. maintains that a two-month delay in setting the first hearing—after

an approximately five-month delay in bringing charges against him—does not

demonstrate diligence in prosecution. But the record contains ample evidence that

the State has moved forward with its prosecution by filing charges within the

limitations period and about eighteen months after the alleged delinquent conduct

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took place, and by promptly amending the petition to request determinate

sentencing upon grand jury approval. We hold that some evidence supports the

trial court’s finding that the State used due diligence in its prosecution of the case.

See e.g., Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991) (court

of appeals may not disturb trial court ruling on disputed fact question in mandamus

proceeding); Brady, 795 S.W.2d at 714; West v. Solito, 563 S.W.2d 240,245 (Tex.

1978).

                                     Conclusion

      We conclude that the juvenile court did not abuse its discretion in denying

B.R.H.’s motion to dismiss and in retaining the case for adjudication as a pending

action under Texas Family Code section 51.0412. We therefore deny the request

for mandamus relief.




                                              Jane Bland
                                              Justice

Panel consists of Justices Bland, Massengale and Brown.




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