Ex Parte Alberto Rodriguez
WR-58,474-02
Case Summary written by Eric Clinton, Staff Member.
JUDGE KELLER delivered the opinion of the court in which JUDGES MEYERS, KEASLER, HERVEY, RICHARDSON, YEARY, and NEWELL joined. JUDGE JOHNSON concurred. JUDGE ALCALA did not participate.
On March 15, 1995, Alberto Rodriguez, then 16 years old, shot and killed Alexander Lopez. One month later, on April 26th, the state moved to certify Rodriguez as an adult and waive the jurisdiction of the juvenile court. The juvenile court later scheduled a transfer hearing for July 27.
On July 27 the prosecution and defense both appeared and announced, “ready.” The witnesses and parties were sworn in and forced to return on August 1 at 10:00 a.m. for trial. When the parties appeared on August 1, the court again reset the hearing for August 4. Rodriguez was served with summons that stated that the hearing would begin on August 1 at 9:30 a.m. The return on the summons, however, stated that he was not served until 11:45 that day, two hours after the hearing was scheduled to begin. Rodriguez did not receive another summons for the August 4th hearing.
The juvenile court granted the state’s petition to certify Rodriguez as an adult during the August 4 transfer hearing. While Rodriguez had the right to appeal this decision immediately, he did not do so. The court records of the proceedings held on August 1 and 4 were unavailable during this appeal, but handwritten notes on the docket entries stated “[a]ny further notice waived by Resp.” He was later sentenced to life in prison for murder. His appeal of the conviction was then upheld and Rodriguez did not seek discretionary review.
On May 18, 2011 Rodriguez filed a habeas application, claiming that the trial court lacked jurisdiction due to the juvenile court’s failure to provide proper summons. The habeas judge found that Rodriguez was entitled to relief because “the record d[id] not show positively or affirmatively that a valid, or timely summons was ever served upon any party. . . .” pursuant to the prevailing mandatory notice requirements.
The court was faced with two issues in this case. First, the Court of Criminal Appeals questioned whether Rodriquez, who was personally served with a defective summons for his juvenile transfer hearing, had the ability to waive any defects in the summons. The court then inquired as to whether Rodriguez did in fact waive the defects in summons.
Section 53.06(e) of the Family Code unambiguously prevents juveniles from waiving the right to service. However, the court noted that Rodriguez did in fact receive actual notice, but that the service was defective. The notice of summons in this case was found insufficient under the Family Code for one of two reasons.
The summons was either served upon defendant too late for the August 1 hearing date, in violation of § 53.07(a) of the Family Code, or it contained the incorrect time and date for the August 4 hearing—violating § 53.06(b) of the Family Code.
In finding that a juvenile could waive defects in service, the court relied upon § 51.09 of the Family Code. This provision allows a juvenile to waive, in writing or in the record, any right provided to him by the Family Code “[u]nless contrary intent clearly appears elsewhere.” The court found that while “contrary intent clearly appears” with respect to a juvenile’s ability to waive service of the summons, a juvenile’s right to waive a defect in summons is not clearly restricted by the code. Thus, juvenile defendants may waive a defect in the service of the summons.
Next, the court was forced to decide whether or not Rodriguez did in fact waive the defects in his summons. In deciding this issue, the court noted the distinction between the standard for reviewing a direct attack on the court’s jurisdictional verses a collateral attack. In Dicta, the court stated that upon a direct attack there must be “an affirmative showing of service of summons in the record,” for the juvenile court’s jurisdiction to be affirmed. Upon a collateral attack, however, the record must affirmatively reflect a lack of jurisdiction. In this context, a finding that the juvenile court lacked jurisdiction to transfer the case would require that the record reflect a lack of waiver. This stricter standard is in place to improve the finality of judgments when jurisdictional issues are not immediately appealed.
As stated above, the court would typically look to the record to determine whether it reflects a lack of waiver or proper service. Here, however, the juvenile court reporter’s record was unavailable. Because of this, it could not be determined whether or not this record contained a waiver of the service defects. As a result, the court held that Rodriguez failed to prove that the juvenile court lacked jurisdiction to transfer the case.