## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00038

- CV

IN THE MATTER OF X.S., A JUVENILE

On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 5105

- J

Before Morriss, C.J., St evens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
In this accelerated appeal, X

. S . challenges the juvenile court’s order waiving jurisdiction and transferring his case to a criminal district court for trial as an adult on char ges of murder, engaging in organized criminal activity, and participating in a riot

. 1 X

. S . argues that the ju venile
court lacked jurisdiction to transfer the case to criminal court because , contrary to the requirements of the Texas Family Code, it did not serve him with a proper summons and petition

. Because we agree, we reverse the transfer order and remand thi s case to the ju venile
court for further proceedings. 2
I. The Juvenile Court Lacked Jurisdiction to Enter the Transfer Order The State filed an “ADJUDICATION PETIT ION” alle ging that X.S. engaged in delinquent conduct when he was sixteen by committing murder, participating in a riot, and engaging in organized criminal activity

. See T EX
. P ENAL C ODE A NN
. §§ 19.02, 42.02 , § 71.02 (S upp.)

. Because the offense was not adjudicated, the State also filed an original and an amended “PETITION FOR DISCRETIONARY TRANSFER TO CRIMINAL COURT

. ” A juvenile’s discretionary transfer to criminal court is authorized by S ection 54.02 of the Texas Family Code

. T EX
. F AM
. C ODE A NN
. § 54.02. That section mandate s that the “petition and notice requirements of Section[]

. . . 53.06 ” must be complied with and that “ the summons must state that the hearing is for the purpose of considering discretionary transfe r to cr imina l cou rt. ”
T EX
. F AM
. C ODE A NN
. § 54.02(b). Section 53.06 requires the summons to contain the date and

1 See T E X
. F AM
. C ODE A NN
. § 54.02

.
2 Because w e find that t he juvenile court lacked jurisdiction to ente r the transfer order, we need not decide X.S.’s remaining points of error

.3

time that the persons served are required to appear and further requ ires that “ [a] copy of the petition must accompany the summons.” T EX
. F A M
. C ODE A NN
. § 53 .06(b). Both the Te xas Court of Criminal Appeals and “ the Texas Supreme Court have held that the failure to comply with § 54.02(b) deprives the juvenile court of jurisdiction to transfer the case.” Ex parte Rodriguez , 466 S.W.3d 846, 850 (Tex. Crim. App. 2015) (orig. procee ding) (citing Grayless v.
State , 567 S.W.2d 216, 219 (Tex. Crim. App. [Panel Op.] 1978); In re D.W.M

. , 562 S.W.2d 851, 852 (Tex. 1978) (per curiam) ) ; see In re M.D.R

. , 113 S.W.3d 552, 553 (Tex. App.

— Texarkana
2003 , no p et. ) ; I

n re A.B

. , 938 S.W.2d 537, 538 (Tex. App.

— Texarkana 1997 , writ denied )

. This is because “ t he juvenile cannot waive the service of the summons for the transfer hearing, even if the juvenile attends the transfer hearing. ” Ex parte Rodriguez , 466 S.W .3d at 850 ( “ a mi nor does

n ot possess the legal capacity to waive service of summons, nor can anyone waive it for him ”);

see T EX
. F AM
. C ODE A NN
. § 53.06(e)

. The clerk’s record here establishes that the summons did not comply with either Section 54.02(b) or Sect ion 5 3.06

. First, the summons failed to specify “ that the hearing [wa] s for the purpose of considering discretionary transfer to criminal court. ” T EX
. F AM
. C ODE A NN
. § 54.02(b). Instead, the summons indicated that X.S. was “to answer the allegation s o f the
p etition filed by TAYLOR PRIOR, Assistant District Attorney, Harrison County, Texas, in which [X.S.] is alleged to have engage d in delinq uent contact/conduct.” Next, t he summon s also indicated that the petition was attached, but the clerk’s record co ntains n o such attachment

. That omission is problematic since the first petition filed by Taylor Prior was an “A DJUDICATION PETITION,” which made no reference to any discretionary transfer. As a result, it appears that4

th ere was a failure to attach to the summ ons a ny petition f or discretionary transfer to criminal
court. Last, the summons contained the wrong date and time. The summons required X.S.’s
presence on “WEDNESDAY, MAY 4, 2022 at 3:00 PM.” However, the hearing on the pet ition for discretionary trans fer was held on Fr iday, May 6. “The proceeding to declare a juvenile a delinquent

. . . and the proceeding to waive jurisdiction and to certify a juvenile as an adult for criminal prosecution

. . . are separate a nd distinc t proceedings.” In re T.L

. , No. 02

- 19

- 00200

- CV , 2019 WL 4678565, at *1 n. 2 (Tex. Ap p.

— Fort Worth Sept. 26, 2019 , no pet. ) (mem. op.) (quoting Grayless v. State , 567 S.W.2d 216, 219 (Tex. Crim. App. [Panel Op.] 1978 ) ) . As a result, even whe n a j uvenile i s served with a summons that h a d a petition to adjudicate delinquency attached , the recor d must also s how that a juvenile received a summons attaching a subsequent petition to certify the juvenile as an adult. Grayless v. State , 567 S.W. 2d 216, 21 9 (Tex. Crim. App. [ Panel Op.] 1978 )

. Absent such a showing , even when the juvenile and his pare nts are present and there is no objection to the hearing, “ [f]ailure of the summons to comply with Sec. 54.02(b) deprives the juvenile court of juris diction to consider discretionary transfer.” Id

. (citing In re D.W.M

. , 562 S.W.2d 851, 852 (Tex. 1978) (pe r curiam) ) ; see In re M.D.R. , 113 S.W.3d at 553; In re A.B

. , 938 S.W.2d at 539

. We sustain X.S.’s point of error.5

II. Conclusion
W e reverse the ju venile cou rt’s order of transfer to criminal cou rt and remand the matt er
to the juvenile court for further proceedings consistent with this opinion.

Scott E. Stevens Justice Date Submitted: September 1, 2022 Date Decided: September 2 , 202 2