I'm working on an appeal where my juvenile is contending that due process requires us to plead, in some way, the prior adjudications available for use under Fam. Code sec. 54.04(s)(TYC commitment based upon misdemeanor adjudication is authorized if child has two previous sequential misdemeanor adjudications).

This argument is based upon Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) and the adult treatment of "enhancements." It seems to me that to the extent Brooks is based upon due process, it is wrong to require pre-trial notice or some form of written pleading. See Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501 (1962); United States v. Martinez, 30 Fed. Appx. 900, 907-08 (10th Cir. 2002). However, it may be a long shot to convice my coa of this.

My questions: (1) do any of you prosecutors in other counties plead these prior adjudications when TYC commitment is possible under 54.04(s)?; and (2) is there some good reason why Brooks and adult enhancement law would not apply here?

Thanks.

This argument compares apples to oranges. Regular criminal enhancement law should not apply in this situation because 54.04(s) has nothing to do with enhancements. Brooks is about enhancements. Section 54.04(s) is about sending a kid to TYC. It says nothing about enhancements, and has nothing to do with enhancements. It is instead a decision as to disposition that the juvenile judge can make under certain circumstances. Unlike with a typical enhancement, the juvenile judge is not bound by anything other than his discretion. I sometimes argue that a juvenile?s prior record shows that the reasonable efforts have not worked, but this issue is not one of enhancement, it is one of discretion. Any argument about the criminal law about enhancements is arguably irrelevant, and any analogy is a false analogy...until he gets to due process. I'd like to say that if the defense attorney does not know his own client's record, either through discovery or through communication with his client, he is probably committing malpractice. We shouldn't have the burden to do their job for them under the guise of due process of law. However, the issue here could be easier to analogize. I think that the more you differentiate enhancements from discretion, the weaker the argument will be.

I always get the prior juvenile record of the juvenile into the reporters record like I do evidence for the judge to base his findings on reasonable efforts, inability to supervise, etc. I have never pled it like an enhancement nor (until now) seen any reason to do so. If you clearly differentiate this situation, and the COA doesn?t get goofy, things should be ok, if this is all the argument is. I always at least get testimony or documentary proof of the prior misdemeanors (or felonies).

There are so few state appellate judges with any background in juvenile law, and very few law clerks with any background either. There are so few juvenile appeals, and fewer that raise substantive issues of law. I think that this is part of what makes Texas juvenile law more eccentric and unpredictable than other areas of the law. If we educate our judges, hopefully they will be less likely to write bad law.

[This message was edited by A.Walker on 09-03-03 at .]