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my juvenile judge granted respondent's motion to dismiss my petition at a pre-trial setting. i disagree with his reasoning for the dismissal and would like to appeal it. however, the case law seems emphatic that, with the exception of a few determinate sentence issues, the state has zero appeal power.

is this right?

if so, does this mean that a juvenile judge could, theoretically, sua sponte dismiss a state's delinquent petition without any basis, and the state would have no legal remedy?

[This message was edited by John E. Cruickshank III on 05-03-07 at .]
Posts: 12 | Location: Richmond | Registered: December 28, 2005Reply With QuoteReport This Post
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State's appeals are covered by TFC 56.03. If you have a petition that was approved by the grand jury under 53.045 you should be able to appeal.

If you don't fit under 56.03 you could consider a mandamus but I would expect the appeals court to say that the dismissal was a matter of discretion.

For mandamus purposes, ministerial acts are those for which �the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.� Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004).

I guess the Legislature has decided that only the most serious juvenile cases are worthy of a State's appeal. I've got a State's appeal in a juvenile case that was just submitted in the Texas Supreme Court where we filed the notice of appeal on about January 4, 2004. So these State's appeals can take a long, long time.
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001Reply With QuoteReport This Post
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