







COURT OF APPEALS








COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 




 
 
 
 
IN
  THE MATTER OF E.D.C., A Juvenile.
 
                             


 
 '
 
'
 
'
 
'
 
'


 
No. 08-01-00508-CV
 
Appeal from the
 
327th District Court
 
of El Paso County, Texas
 
(TC# 0101100)
 
 




O
P I N I O N
This is an appeal from an Order of
Adjudication which found appellant E.D.C. (AE.C.@) had engaged in delinquent
conduct.  We affirm.
Summary
of the Evidence
On the evening of  August 7, 2001, E.C. attempted to cross into
the United States at the Paso Del Norte Bridge between Juarez, Mexico and El
Paso, Texas driving a Honda CRX.  While waiting
to enter the United States, E.C. was stopped by U.S. Customs Service officials
(ACustoms@) on pre-primary patrol.  Pre-primary roving occurs before persons
entering into the United States reach primary inspection booths.




The CRX is commonly used to smuggle
contraband, including drugs, into this country. 
E.C.=s CRX was extremely clean both inside
and out--a characteristic common to vehicles used for smuggling
contraband.  Her car also had temporary
Kansas license plates that appeared to be counterfeits.  The appearance of the CRX thus raised Customs
officers suspicions concerning the vehicle.
Although E.C. answered questions put
to her by Customs, she appeared extremely nervous.  She stated she owned the vehicle.  Customs did a cursory visual inspection of
the car and discovered that two storage compartments which should have been in
the vehicle were missing.  E.C. was asked
to step out of the car and the keys to the vehicle were taken by Customs.
Customs= inspection of the car revealed a
large sealed false compartment. 
Suspecting contraband was contained within the compartment, Customs
followed their safety routine, handcuffed E.C., and took her to a holding
facility.  Customs= inspection of the CRX at secondary
revealed twenty-four bundles of marijuana that weighed 34.5 pounds.  E.C. was ultimately turned over to the El
Paso County Sheriff=s Department who processed her at a juvenile probation
detention facility in El Paso.




E.C. was charged with intentionally
and knowingly possessing a usable amount of marijuana in the amount of fifty
pounds or less but more than five pounds. 
Tex. Health & Safety Code Ann.
' 481.121(b)(4) (Vernon Supp.
2002).  A Petition Based on Delinquent
Conduct was filed by the State in August 2001 alleging that E.C. A[A]t the time of the conduct alleged
. . . [was] a female ten years of age or older and under 17 years of age, to
wit:  15 years of age . . . .@ 
No answer to the State=s Petition Based on Delinquent Conduct was filed on her
behalf.
With the advice of counsel, E.C.
requested trial by a jury which began on November 5, 2001.  The case was heard in the 327th Judicial
District Court in El Paso County, Texas by a Juvenile Court Referee and a jury.  Although E.C.=s parents were served in their home
state of Colorado with summons and notice of the trial, both refused to
appear.  At trial, the State attempted to
introduce evidence of E.C.=s age from several sources, but E.C.=s objections to that evidence were
sustained by the trial court.  The jury
found that E.C. had engaged in delinquent conduct as charged by the State.  This appeal timely ensued.
Discussion
In a single point of error, E.C.
contends her adjudication as a delinquent must be reversed and her case
remanded for a new trial because the State failed to prove she was a juvenile
within the age limit of the court=s statutory grant of authority.  For those reasons discussed below, we affirm
the order of adjudication of the trial court.




The Texas Family Code defines a child
as Aa person who is:  ten years of age or older and under 17 years
of age . . . .@ 
Tex. Fam. Code Ann. ' 51.02(2)(A)
(Vernon 2002).  A juvenile court retains exclusive original
jurisdiction over a person defined as a child within the meaning of the Family
Code.  Tex.
Fam. Code Ann. ' 51.04(a)(Vernon 2002).
Prior to 1996, courts construed these
provisions as jurisdictional in nature.  In
re J.T., 526 S.W.2d 646, 647 (Tex. Civ. App.--El Paso 1975, no writ); Mingus
v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1089 (1926).  These same courts therefore concluded that
the State was required to plead and prove the juvenile=s age to properly invoke the subject
matter jurisdiction of the court.  Id.
More recently however, it has been
held that the juvenile court=s subject matter jurisdiction is initially invoked simply by
pleading the requisite Ajurisdictional facts.@ 
In re A.D.D., 974 S.W.2d 299, 303 (Tex. App.--San Antonio 1998,
no writ).  To reach this conclusion, the A.D.D. court
interpreted section 53.04 of the Family Code only to require the State to
plead, not prove, a juvenile=s age in order to invoke the court=s juvenile jurisdiction.  Id.
In 1996, however, the Legislature
amended the Family Code by adding section 51.042.  Verbatim, this section appears as follows:
'
51.042. Objection to Jurisdiction Because of Age of the Child
 
(a)       A child
who objects to the jurisdiction of the court over the child because of the age
of the child must raise the objection at the adjudication hearing or
discretionary transfer hearing, if any.
 
(b)       A child
who does not object as provided by Subsection (a) waives any right to object to
the jurisdiction of the court because of the age of the child at a later
hearing or on appeal.
 




Tex. Fam. Code Ann. ' 51.042 (Vernon 2002).  At first blush we are confronted by the
following question--does the Ajurisdiction@ to which the statute refers mean the trial court=s in personam or subject
matter jurisdiction?
We begin this discussion cognizant of
the well-established rule of statutory construction that, where two or more
separate statutory provisions pertain to the same subject, appellate courts
should construe those provisions to harmonize with the entire statutory scheme.  Lenhard v. Butler, 745 S.W.2d 101, 105
(Tex. App.--Fort Worth 1988, writ denied). 
The purpose of this rule is to ensure that statutory provisions are Ain pari materia,@ that is, that the full intent of the
Legislature is given effect to all laws and provisions bearing upon the same
subject.  Trinity Universal Insurance
Co. v.  McLaughlin, 373 S.W.2d 66, 69
(Tex. Civ. App.‑‑Austin 1963, writ ref=d n.r.e.); Texas & N.O.R. Co.
v. W.A. Kelso Building Material Co., 250 S.W.2d 426, 430 (Tex. Civ. App.‑‑Galveston
1952, writ ref=d n.r.e.).
We therefore construe section 51.042
as a provision controlling the in personam jurisdiction of the juvenile
court for the following reasons.  First,
although in personam jurisdiction can be waived, subject matter
jurisdiction cannot be waived under any circumstances.  Dubai Petroleum Co. v. Kazi, 12 S.W.3d
71, 76 (Tex. 2000) (subject matter jurisdiction can never be waived).  Section 51.042, however, explicitly provides
for a jurisdictional waiver.  The only
way to harmonize section 51.042 with these black letter jurisdictional concepts
is thus to conclude that it contemplates in personam jurisdiction.




Second, other portions of the Family
Code reinforce our conclusion.  Section
53.04 provides that if no answer to the petition for an adjudication is made by
the juvenile, a general denial of the conduct will be assumed.  Tex.
Fam. Code Ann. ' 53.04(e) (Vernon 2002). 
Under normal circumstances, a challenge to the trial court=s in personam jurisdiction
must be made by filing a special appearance before an answer is
filed.  Tex.
R. Civ. P. 120a; 121.  Stated another way, the filing of a general
denial automatically waives all challenges to the court=s in personam jurisdiction.
In this case, if section 51.042 were
construed to apply only to subject matter jurisdiction, the unrepresented and
unknowing juvenile would have permanently waived any challenge to the court=s in personam jurisdiction
simply by failing to answer.  By interpreting
section 51.042 as an in personam provision, the unrepresented juvenile=s rights are protected until such
time as she can appear before a trial judge who can properly admonish her and
appoint counsel to make any necessary objections to the court=s jurisdiction.  In essence then section 51.042 acts to
reserve the juvenile=s right to a special appearance to challenge the trial court=s assertion of personal jurisdiction
over her.




As stated above, we are aware that
prior precedent in this Court and others holds that the State must not only
plead, but must also prove, the age of the juvenile in order to sustain an
adjudication against the child.  See
In re A.S., 875 S.W.2d 402, 403 (Tex. App. --Corpus Christi 1994, no writ) relying
on Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1089 (1926); J.T.,
526 S.W.2d at 647 (also relying on Mingus).  We distinguish these cases on two
grounds.  First, these decisions issued
prior to the enactment of section 51.042 in 1996.
Second, and perhaps more importantly,
both rely on the Mingus case which has recently been explicitly
overruled by the Texas Supreme Court.  Dubai
Petroleum Co., 12 S.W.3d at 76. 
Indeed, the Dubai court specifically held that it overruled Mingus
Ato the extent that it characterized
the plaintiff=s failure to establish a statutory
prerequisite as jurisdictional.@  Id.  The Dubai case also abrogated the
holding of Cunningham which the San Antonio court relied upon in A.D.D.
to find that age was an issue of subject matter jurisdiction in a juvenile
case.  See A.D.D., 974 S.W.2d at
303.
One rationale for the Dubai
court=s decision to overrule Mingus
was its concern that the characterization of statutory requirements for the
maintenance of suit as subject matter jurisdictional issues destroys the
finality of judgments because a judgment can Anever be considered final if the
court lacked subject-matter jurisdiction.@ 
Dubai Petroleum Co., 12 S.W.3d at 76.  The Dubai court also noted that this
result runs counter to the Amodern direction of policy [which] is to reduce the
vulnerability of final judgments to attack on the ground that the tribunal
lacked subject matter jurisdiction.@ 
Id.




This case implicates the same
concerns expressed by the Dubai court. 
As previously discussed, section 51.042 can only be interpreted as a
provision concerning in personam, not subject matter, jurisdiction
because subject matter jurisdiction can never be waived.  Dubai Petroleum Co., 12 S.W.3d at
76.  To interpret it otherwise would
leave juvenile adjudications unnecessarily vulnerable to attack for no
particular reason or statutorily mandated jurisdictional requirement.  We also find a significant parallel between
the statute at issue in Dubai, and sections 51.04 and 53.04 which the
parties to this appeal and the A.D.D., J.T., and A.S.
courts rely on to support the contention that proof of age implicates the
subject matter jurisdiction of the juvenile court.
In Dubai, the Supreme Court
construed section 71.031(a)(4) of the Civil Practice and Remedies Code.  The provision extends the jurisdiction of
Texas courts over wrongful death and personal injury cases to include a Acitizen of a foreign country [whose]
country has equal treaty rights with the United States on behalf of its
citizens.@ 
Tex. Civ. Prac. & Rem. Code
Ann. ' 71.031(a)(4) (Vernon Supp.
2002).  Stated another way, section
71.031, like section 53.04 of the Family Code, ostensibly creates special
jurisdiction for a court of otherwise general jurisdiction.  Dubai Petroleum Co., 12 S.W. 3d at
75-76; J.T., 526 S.W.2d at 647 (juvenile courts are courts of limited
jurisdiction).




However, the Dubai court
specifically refused to adopt the general versus specialized subject matter
jurisdiction dichotomy.  Dubai
Petroleum Co., 12 S.W.3d at 76. 
Instead it found that A[t]he trial court in this case had jurisdiction because a
claim for wrongful death was within its constitutional jurisdiction, not
because the plaintiffs satisfied all the grounds listed in [the statute].@ 
Id.  We find the same
analysis applies here because sections 51.042 and 53.04 of the Family Code rest
within the constitutional jurisdiction of the trial court.
Finally, we observe that the express
purpose of section 51.042 is to ensure that the juvenile is of an age that
falls within the ambit of the statutory jurisdiction of the juvenile
courts.  The only time that an objection
to the trial court=s jurisdiction can therefore be made concerning the child=s age is when the juvenile is less than
ten or more than seventeen years of age. 
Tex. Fam. Code Ann. ' 51.02(2) (Vernon 2002) (defining the
word Achild@ for the purposes of the Family
Code).  In this case, however, E.C.
admits in her Notice of Appeal that she was within the jurisdictional age limit
of the juvenile court.  We therefore find
that E.C. did not, and indeed never could, make a proper objection pursuant to
section 51.042 because she was within the jurisdictional age limits of the
court.  Were we to hold otherwise, we
would be condoning an attempt to manipulate the jurisdiction of the trial court
for a purpose not intended by statute.
E.C.=s sole point of error is therefore
overruled, and the trial court=s adjudication is affirmed. 
Having approved the trial court=s action, we decline to address the
State=s cross-point concerning the trial
court=s refusal to admit other evidence of
E.C.=s age.
Conclusion
The trial court=s judgment is affirmed.
 
                                                                        

SUSAN
LARSEN, Justice
October 3, 2002
 
Before Panel No. 1
Larsen, McClure, and Chew,
JJ.
 
(Publish)
 

