I have a child who was adjudicated for a misdemeanor on 4/00 and given SL3 for 6 months probation. While on probation, the child committed another misdemeanor, for which he was adjudicated on 10/00, and given an additional 6 months probation on SL3. In March, his was modified to SL4 for technical violations. We have recently filed another petition to modify his probation (for numerous technical violations). I would like to send the child to TYC. There is a dispute in our office as to whether Section 54.05(k) would allow the child in this situation to be sent to TYC. One reading of 54.05(k)seems to suggest that a child must have 3 prior misdemeanor adjudications before being eligible for TYC commitment (see In the matter of A.N., WL 921480). Another reading seems to suggest that if child has two misdemeanor adjudications (adjudicated on separate dates), and who then violates his probation may be eligible for TYC commitment (see 45 S.W. 3rd 797).

Is the child in my scenario eligible for TYC?

Thank you
TTS

I've spent scores of hours working on A.N.

My reading of 54.05(k) (was 54.05(j)) is that 2 misd. plus a revocation is enough. The Legislative history of 54.05(j) strongly supports this -- the first draft of the bill said "three" everyone agreed that this first draft would require three adjudication -- not four. The bill was changed from "three" down to "two" because it was felt that "three" would have been too expensive on the counties.

Reading 54.05(k) to require only two misd. adjudications is the reading made by ALL of the commentators and by the agency responsible for the provision.

Of course, A.N. and Q.D.M. reject this reading. Q.D.M. does so based upon a typo that was corrected when the provision was moved to 54.05(k) (insering "one of" into 54.05(k)(2)). A.N. does so by asserting that the most recent adjudication is not an adjudication on a "previous" occasion.

Petitions in A.N. and Q.D.M. are pending and responses have been requested in A.N. (probably Q.D.M. too but I don't know). With any luck these cases will be fixed 3 or 4 months.

The petitions for review were denied today in QDM and AN. Looks like we'll have to get the legislature to fix this.

For anybody who is interested -- it looks like sec. 54.05(k) of the Family Code has a good chance of being fixed this session. Please see sec. 19 in the bill linked below:


http://www.capitol.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=78&SESS=R&CHAMBER=H&BILLTYPE=B&BILLSUFFIX=02319&VERSION=1&TYPE=B