in the Matter of R.S.

              In the
         Court of Appeals
 Second Appellate District of Texas
          at Fort Worth
        ___________________________
             No. 02-22-00165-CV
        ___________________________

           IN THE MATTER OF R.S.



     On Appeal from the 323rd District Court
             Tarrant County, Texas
         Trial Court No. 323-118013-22


   Before Sudderth, C.J.; Birdwell and Walker, JJ.
     Memorandum Opinion by Justice Birdwell
Dissenting Memorandum Opinion by Justice Walker
                           MEMORANDUM OPINION

      R.S. appeals from an order committing him “to the care, custody[,] and control

of the Texas Juvenile Justice Department [(TJJD)] . . . [f]or an indeterminate period of

time not to exceed the time” he turns nineteen or is “duly discharged in compliance

with the supervision of [the] Human Resources Code.” See 

(a)(1), 54.03. See generally 

.001–.151.

R.S. does not list a specific issue on appeal but contends in his argument that the

evidence is legally and factually insufficient to support committing him to TJJD

instead of putting him on probation and placing him either at home or outside the

home in one of two non-TJJD placement facilities to which he had been accepted. We

reverse the trial court’s order and remand this case for a new disposition hearing.

                              Procedural Background

      After the State filed a petition to adjudicate R.S. guilty of delinquent conduct,

R.S. signed a judicial confession stipulating that in 2021 he had engaged in delinquent

conduct by––on the same day––committing one first-degree-felony aggravated

robbery and four second-degree-felony aggravated assaults with a deadly weapon. See

(a)(2), 29.03(a)(2). Based on R.S.’s judicial confession

and subsequent pleas of true to the delinquent-conduct allegations in the State’s

petition, the trial court found that R.S. had engaged in delinquent conduct. See 

(a)(1), 54.03.



                                           2
      The trial court then held a disposition hearing. See 

 § 54.04(a). After hearing

testimony from three witnesses, the trial court ultimately found that R.S. is a child in

need of rehabilitation; that even though reasonable efforts had been made to prevent

or eliminate the need for him to be removed from his home, he could not be

provided the quality of care and level of supervision in the home that he would need

to be able to meet the conditions of probation; that he has specific behavioral-health

or other special needs that cannot be met with the community’s resources; and that it

would be in R.S.’s best interest to be placed outside the home. Id. §§ 54.04(c), (d)(2),

(i)(1), 54.04013. Despite hearing evidence that two potential alternative placements––

one at a secure facility and another at a nonsecure facility––would be able to meet

R.S.’s needs, the trial court determined that he should be committed to TJJD.

                     Standard of Review and Applicable Law

      A juvenile court has considerable discretion to determine the suitable

disposition for a child who has been adjudicated as having engaged in delinquent

conduct. In re D.T., No. 02-20-00312-CV, 

, at *1 (Tex. App.—Fort

Worth Oct. 28, 2021, no pet.) (mem. op.). A juvenile court abuses that discretion

when it acts arbitrarily or unreasonably or without reference to guiding rules or

principles. 

 It does not abuse its discretion simply by basing its decision on

conflicting evidence. 

 Thus, we may not conclude that a juvenile court abused its

discretion so long as some evidence of substantive and probative character exists to

support its decision. 

 However, a juvenile court abuses its discretion if it orders a

                                           3
child committed to TJJD without evidence to support the statutorily required

predicate findings. See In re J.C., No. 02-18-00038-CV, 

, at *2 (Tex.

App.––Fort Worth June 5, 2018, no pet.) (mem. op.).

       In conducting our review of a disposition order, we engage in a two-pronged

analysis: (1) did the juvenile court have sufficient information upon which to exercise

its discretion, and (2) did it err in its application of discretion? D.T., 

, at *1. In doing so, we apply the civil standards of review for legal and factual

evidentiary sufficiency. In re B.R., No. 02-19-00328-CV, 

, at *2 (Tex.

App.—Fort Worth June 18, 2020, no pet.) (mem. op.).

       When determining whether legally sufficient evidence supports the finding

under review, we consider evidence favorable to the finding if a reasonable factfinder

could and disregard evidence contrary to the finding unless a reasonable factfinder

could not. In re M.E., No. 02-14-00051-CV, 

, at *2 (Tex. App.—

Fort Worth Dec. 23, 2014, no pet.) (per curiam) (mem. op.). Anything more than a

scintilla of evidence supporting a finding renders the evidence legally sufficient. 

       When reviewing whether factually sufficient evidence supports a finding, we set

aside the finding only if, after considering and weighing all of the evidence in the

record pertinent to that finding, we determine that the credible evidence supporting

the finding is so weak or so contrary to the overwhelming weight of all the evidence

that the answer should be set aside and a new trial ordered. 

                                             4
       Upon making the required findings that R.S. should be subject to a hearing to

determine disposition, the trial court was authorized by the Family Code to either

(1) place him on probation at home or outside the home or (2) commit him to TJJD.

See 

(d)(1)–(2). No disposition placing a child on

probation outside the child’s home or committing a child to TJJD is permitted unless

the factfinder finds that it is in the child’s best interest to be placed outside the child’s

home; reasonable efforts were made to prevent or eliminate the need for the child’s

removal from the home and to make it possible for the child to return to the child’s

home; and the child, in the child’s home, cannot be provided the quality of care and

level of support and supervision that the child needs to meet the conditions of

probation. 

 §§ 54.04(c), (d)(1)(B), (i). 1 Probation outside the home may be in a

suitable foster home, a suitable public or private residential treatment facility, or a

suitable public or private post-adjudication secure correctional facility as permitted

under the Texas Family Code. See id. § 54.04(d)(1)(B)(i), (ii), (iii); In re J.V.M., 

 (Tex. App.—El Paso 2010, no pet.).




       1
         The Stipulation of Evidence and Judicial Confession R.S. signed stated that he
“agree[d] to a disposition of . . . OPEN [to] DISPOSITION,” but then it also
included stipulations to the three required findings for placement outside the home;
thus, it is unclear whether he agreed to a truly open disposition. Nevertheless, because
R.S. challenges the trial court’s ultimate decision to commit him to TJJD, we address
his complaint.

                                             5
       But to place a child in TJJD custody, Section 54.04013 requires another

finding, 2 which the trial judge made in this case:

       Notwithstanding any other provision of this code, after a disposition
       hearing held in accordance with Section 54.04, the juvenile court may
       commit a child who is found to have engaged in delinquent conduct that
       constitutes a felony offense to the Texas Juvenile Justice Department
       without a determinate sentence if the court makes a special commitment
       finding that the child has behavioral health or other special needs that cannot be met
       with the resources available in the community. The court should consider the
       findings of a validated risk and needs assessment and the findings of any
       other appropriate professional assessment available to the court.

 (emphasis added); see 

 § 54.04(d)(2) (listing, as one

of three possible dispositions, commitment to TJJD without a determinate sentence

“if . . . the court or jury made a special commitment finding under Section 54.04013”

(emphasis added)); In re J.M.G., No. 06-16-00011-CV, 

, at *1 (Tex.

App.––Texarkana Nov. 29, 2016, no pet.) (mem. op.) (stating that Section 54.04013

       2
         This section applies to conduct that occurred on or after September 1, 2017. See
Act of May 31, 2015, 84th Leg., R.S., ch. 962, § 8, 

, 3407.
Legislative history for the bill in which Section 54.04013 was enacted states that “[i]t
establishes a new sentence scheme for sending indeterminate youth to the state
facilities, requiring a valid needs assessment and determination that the needs of the
youth cannot be met with the resources available within the community.” Tex. S.
Comm. on Crim. Just., Bill Analysis, Tex. S.B. 1630, 84th Leg., R.S. (2015). This “new
sentence scheme” was enacted in response to a Justice Center of the Council for State
Government study that found “juveniles under community-based supervision are far
less likely to reoffend than youth with very similar profiles who are confined in Texas
Juvenile Justice Department (TJJD) facilities.” 

 The bill analysis recites that “the
study results show that youth incarcerated in state facilities are 21 percent more likely to
be rearrested than those who remain under supervision closer to home in local county
programs.” 

 Accordingly, Section 54.04013 and other changes in the bill were
intended to “continue the movement of the Texas juvenile justice system from the
1950’s model of large rural institutions into a regional system that supervises and treats
a youth closer to the youth’s home community.” 

                                                 6
requires the trial court to make the special commitment finding before committing a

juvenile to TJJD without a determinate sentence); see also In re T.A.W., 

 (Tex. App.––Houston [14th Dist.] 2007, pet. denied) (op. on reh’g) (Frost, J.,

concurring) (noting that Section 54.04(d) “outline[s] the different options for

disposition and the findings required for each” (emphasis added)).3

      “The [TJJD] is the most severe form of incarceration in the juvenile justice

system, and it is neither reasonable nor appropriate in the area of juvenile law to use

the final, most restrictive form of detention in all situations.” In re W.B.G., 

, 372 (Tex. App.—Texarkana 2020, no pet.) (quoting J.M.G., 

, at

*2). Nevertheless, for purposes of the best-interest, reasonable-efforts, and

unsuitability-of-the-home-for-probation findings, a trial court is not required to

exhaust all possible alternatives before committing a juvenile to TJJD custody. In re

K.L., No. 02-17-00226-CV, 

, at *5 (Tex. App.—Fort Worth Apr.

12, 2018, no pet.) (mem. op.). 4 But cf. In re J.E.N., No. 11-21-00189-CV, 

, at *6–7 (Tex. App.––Eastland Sept. 29, 2022, no pet.) (mem. op.) (holding

that trial judge abused discretion by ordering J.E.N. committed to TJJD when no



      3
       R.S. does not expressly challenge this finding, but he does so implicitly by
arguing that the factfinder should not have ordered him committed to TJJD.
      4
        In other parts of the Family Code, the best interests of children are often
paramount, but in the Juvenile Justice Code, the best interests of children who engage
in serious and repeated delinquent conduct are superseded to the extent they conflict
with public safety. In re J.P., 

 (Tex. 2004).

                                            7
alternative-placement efforts were made; thus, insufficient evidence supported trial

court’s reasonable-efforts finding).

                          Evidence at Disposition Hearing

      The trial judge took judicial notice of the court’s file5 and of prior hearings in

the case over which he had presided, “to the exclusion of any statements made by

[R.S.] during any detention hearings.” Therefore, the judge knew the nature of the

offenses to which R.S. had judicially confessed. Additionally, the State explored the

nature of those offenses at the disposition hearing.

      R.S. had used Instagram on his iPhone6 to meet a group of people, ostensibly

to buy shoes. Instead, R.S. robbed the driver at gunpoint, stealing the victim’s car and

ten pairs of shoes. R.S. also held the other occupants of the car, some of whom were

juveniles, at gunpoint. R.S. claimed to have bought the gun, a Glock, from a homeless

man for $350; he said he sold some different shoes for the money to buy the gun.

      R.S. admitted that after committing the robbery and aggravated assaults––but

before being detained for them––he had been involved in another incident in which

he tried to sell the Glock outside his school. The man to whom he tried to sell the gun



      5
       The trial court also took judicial notice of the sealed social history, which we
have reviewed. See 

(b), 54.04013. The report includes a
victim statement, placement summary, and detailed description of R.S’s background
and the results of his psychological testing.
      6
       The State got R.S. to agree during cross-examination that he could have sold his
iPhone for extra money “instead of holding a family at gunpoint.”

                                           8
took it without giving R.S. any money; when R.S. grabbed his phone and the gun, the

man shot R.S. in the finger.7

      Shelly Brasel, R.S.’s assigned court-intake officer, testified that R.S. lived with

his grandmother, who was supportive of him. His grandfather––who was divorced

from his grandmother and with whom R.S. did not live––had attended several of

R.S.’s hearings, and his basketball coaches had spoken on his behalf. Thus, Brasel

opined that R.S. had support at home and at school.

      Brasel testified that R.S. was “of low cognitive ability.” R.S.’s counsel asked the

trial judge to take into account the discussion of R.S.’s “cognitive proficiency” in the

social history provided to the court, which counsel stated “may shed some light on

some of this very poor decision-making this young man has made.” R.S. explained

that he was far behind in school because he and his mother had been homeless before

he moved in with his grandmother.

      Before committing the delinquent conduct to which he pleaded true, R.S. had

successfully completed probation 8 for unlawfully carrying a firearm. But Brasel



      7
       At the time of the disposition hearing, the man had been charged with
aggravated robbery. R.S. claimed that the Glock was not loaded when he brought it to
school––on a weekend while he was at basketball practice––but that the man buying it
had brought the ammunition and loaded the gun while sitting in his own car.
      8
       During that probation, he was “part of the TCAP program,” performed
community service, and wore an electronic monitor “for a period of time.” See In re
G.L.C.P., No. 2-06-293-CV, 

, at *1 n.2 (Tex. App.—Fort Worth May
10, 2007, no pet.) (per curiam) (mem. op.) (“TCAP is a home-based program which

                                           9
admitted that, based on the delinquent conduct to which R.S. had pleaded, he had not

been rehabilitated successfully after his probation. She admitted that R.S.’s successful

completion of probation showed that “he has the capability to behave when he wants

to.” At the time of the disposition hearing, R.S. had been in detention almost five

months and was on a “Level 1 outstanding,” meaning he was “following all the

instructions and following all the rules.” He had not committed any new offenses and

had been respectful.

      R.S. testified and first apologized to his grandparents: “I’m sorry for doing

something that y’all hadn’t raise[d] me to do.” He claimed to be “serious and sincere

in [his] apology.” R.S. said that his grandparents had always taught him to work for

what he wanted. Instead, he said that he committed the offenses because he wanted to

buy his grandfather and younger siblings Christmas presents.

      R.S. testified that he had learned “a different way” since being detained: to “try

to buy nothing at all or get a job.” Although he had briefly worked as a cook and

dishwasher and had quit that job because basketball was interfering with his work, he

was willing to do that job again.

      Shequita Burrell, a placement officer for Tarrant County Juvenile Services,

testified that she had conducted a placement search for R.S. He had been accepted

into a nonsecure facility where he would participate in weekly group and individual


utilizes paid, trained adults (advocates) who live in the same communities as the youth
to develop relationships with at-risk youth and families.”).

                                          10
therapy and monthly family therapy; would be enrolled in school; and would have the

opportunity to enroll in programs that would allow him to work, get on-the-job

training, prepare for jobs and interviews, and obtain identification and a food

handler’s license. 9 R.S. had also been accepted into a secure facility similar to the

Tarrant County juvenile detention center where he would also do weekly individual

and group therapy, monthly family therapy, and recover school credits. He would also

be able to complete any ordered community-service hours and have his medications

managed. In other words, both facilities provided essentially the same services except

that vocational training was available only at the nonsecure facility.

      Burrell agreed that getting work experience would be valuable for R.S. Brasel

also agreed; she thought that, in light of R.S.’s being from a low- to mid-income

family, he would benefit from job training and would have better opportunities at the

nonsecure facility. Although Brasel acknowledged that the offenses R.S. committed

are of the type that would “make the community feel unsafe,” she nevertheless

thought that both the secure and nonsecure facility could contribute to R.S.’s

rehabilitation. R.S. wanted the judge to “make the right decision” and send him to the

nonsecure facility so that he would have more opportunities. He was willing to “stick

it out” and do what he needed to do to be successful there. R.S. agreed to ask for help

when things got hard or when he felt like giving up.


      The record also shows that at this facility, his medications and medical needs
      9

would be managed.

                                            11
       The State advocated that R.S. be placed in the secure facility where the

community would be safe from him and where his cognitive issues and mental health

could be addressed. The State emphasized R.S.’s good behavior while in detention as

evidence that “he can thrive in a secure environment.” R.S. argued that the job-training

programs at the nonsecure facility made it the better choice for him. He also argued

that being there would keep “him away from the really bad kids.” R.S. did not advocate

being placed back in his grandmother’s home.

       The behavioral evaluation in the social-history report included the psychologist’s

conclusion that R.S. has antisocial tendencies and was thus at a high risk for future

violence “without successful intervention.” However, the psychologist also concluded

that R.S. was at “potential risk of . . . having adjustment problems to institutional living”

and recommended that he “be considered for placement in a long-term residential

treatment program where he might receive strict supervision in a structured and

supportive therapeutic environment. The psychologist further recommended individually

tailored therapy, psychiatric care, “academic remediation services,” and participation in a

violence-prevention program “through a strict behavioral conditioning program that

utilizes a social learning modality in reinforcing prosocial attitudes in community

living.”10


       10
         Although we note that TJJD is required to provide an educational program for
residents, the record does not contain evidence about any services available to R.S. at
TJJD. See In re D.J.P., No. 02-13-00156-CV, 

, at *7 (Tex. App.—Fort
Worth Jan. 16, 2014, no pet.) (per curiam) (mem. op.) (“While . . . there was little

                                             12
       Notably, there was no evidence that the level of security at the secured facility

was insufficient to protect either the public or––relevant to Section 54.04013––to

meet R.S.’s need for a “long-term residential treatment program where he might

receive strict supervision in a structured and supportive therapeutic environment.”

Nor was there any evidence comparing or contrasting that security level with TJJD’s.

In fact, the evidence showed that the secure facility was “a lockdown facility kind of

like [the Tarrant County] detention center,” where R.S. had been “following all the

instructions and following all the rules.”




evidence presented at the disposition hearing about the educational programs available at
TJJD or the treatment that he could receive there, the TJJD is statutorily required to
provide an educational program that requires all residents to participate.” (citing 2013
version of 

 (2022) (Tex. Juvenile Justice Dep’t,
Educational Program), which requires facility administrator to “ensure there is an
educational program that requires all residents to participate”)); cf. In re J.P., No. 01-20-
00072-CV, 

, at *5–6 (Tex. App.––Houston [1st Dist.] June 3, 2021, no
pet.) (mem. op.) (holding evidence sufficient to support educational-need and best-
interest findings despite lack of TJJD-specific testimony when J.P. had been unable to
control himself in detention, and probation officer testified generally that J.P.’s behavioral
problems and mental-health issues could be addressed by TJJD, and also citing cases with
similar facts); In re J.F.S., No. 2-04-059-CV, 

, at *1–3 (Tex. App.––Fort
Worth Feb. 17, 2005, no pet.) (per curiam) (mem. op.) (holding same when juvenile had
“received every rehabilitative resource available in Tarrant County” and “continued to
engage in criminal conduct and violate the terms of his court-ordered probation”). But cf.
In re J.R.D., No. 07-21-00174-CV, 

, at *3 (Tex. App.––Amarillo
June 22, 2022, no pet.) (mem. op.) (recounting TJJD-specific testimony supporting TJJD-
commitment disposition); In re A.W.B., 

 (Tex. App.––Amarillo 2010,
no pet.) (affirming commitment order when evidence showed that applicable services
from Texas Youth Commission were the same as locally available rehabilitative services).

                                             13
                                       Analysis

      Generally, a trial court does not abuse its discretion in rendering a commitment

order when a delinquent juvenile has engaged in some type of violent activity that

makes the juvenile potentially dangerous to the public. B.R., 

, at *6

(reviewing trial court’s “reasonable efforts” finding but not a Section 54.04013

finding). Here, R.S. threatened five people at gunpoint to steal a car and shoes. Within

the preceding year, he had completed probation for unlawfully carrying a gun; both

offenses occurred while he was living with his grandmother.11 The evidence shows that

instead of being rehabilitated by his prior at-home probation, he escalated his behavior.

Thus, the public’s need for protection was high, and the evidence supported the trial

court’s Section 54.04(i) findings that in-home probation would not be appropriate.

      But to uphold the trial court’s order committing R.S. to TJJD, we must also

consider whether the evidence supports the trial court’s finding that R.S.’s behavioral-

health or other special needs could not be met with non-TJJD community resources.

The evidence showed that R.S. had a strong need for long-term structure and direct

      11
        R.S. distinguishes this case from In re A.G.N., No. 07-07-00312-CV, 

, at *1 (Tex. App.––Amarillo June 24, 2008, pet. denied) (mem. op.), in which
the court affirmed an order committing A.G.N. for an indeterminate time. In that
case, the appellate court had noted that A.G.N. “lacked family support”; R.S. notes
that, here, although he has “a long history of being in an unstable home
environment,” his environment had “changed when his grandmother more recently
took custody of him,” showing that R.S. “had a home where he could be properly
supervised now.” But this argument ignores that R.S.’s most serious delinquent
conduct (from which the trial court determined the public had a high need for
protection and which involved firearms possession, display, and threats) occurred
while he was living with his grandmother.

                                           14
supervision and that he had done well in juvenile detention. He also had a high need

for psychiatric care, behavioral correction, and academic remediation, rather than job-

specific training. Thus, the evidence supports a disposition at a secure facility rather

than a nonsecure facility.

      But nothing in this record showed that the secure facility could not meet R.S.’s

behavioral-health or other special needs, particularly his needs for strict supervision and

intensive therapy in a “supportive therapeutic environment.” Unlike in the two other

reported cases affirming TJJD commitment based on a Section 54.04013 finding, see In

re H.C., Nos. 02-18-00230-CV, 02-18-00231-CV, 02-18-00232-CV, 

,

at *18–19 (Tex. App.—Fort Worth Mar. 14, 2019, no pet.) (per curiam) (mem. op.);

J.M.G., 

, at *2–4,12 the evidence here did not show that R.S. had been

offered or had participated in the same or similar recommended community services

without success. In fact, the evidence showed that his need for supervision had been

met while in detention. And no evidence showed that he had ever been placed in a

secure environment where he also had the recommended intensive therapy available to

him. The evidence instead showed that such a facility was available that was capable of

meeting R.S.’s needs for a secure, structured environment as well as for education and


      12
        Cf. In re H.A., No. 02-19-00192-CV, 

, at *4 (Tex. App.––Fort
Worth Dec. 19, 2019, no pet.) (mem. op.) (rejecting, for purposes of reasonable-efforts
finding, argument that “a juvenile court always lacks legally or factually sufficient
evidence to make a reasonable-efforts finding if the State does not present evidence at
the disposition hearing showing what specific services or outside-the-home placement
options the juvenile department could offer to the delinquent juvenile”).

                                            15
intensive therapy. In other words, all of the evidence showed that R.S.’s needs could be

met in the secure facility, and there was no controverting evidence on which the trial

court could have based its Section 54.04013 finding.

       Although a trial court is not required to exhaust all possible alternatives before

committing a juvenile to TJJD, the trial court cannot commit a juvenile to TJJD based

upon a record that does not support the required juvenile-specific (as opposed to

community-safety specific) Section 54.04013 finding. Here, the evidence is insufficient

to support the trial court’s finding that community resources could not meet R.S.’s

behavioral-health or other special needs, given the then availability of the secure

facility that had programs available according to the psychological evaluation’s specific

recommendations.

                                       Conclusion

       Because no evidence supports the trial court’s Section 54.04013 finding, we

therefore conclude that the trial court abused its discretion by committing R.S. to

TJJD. We reverse the trial court’s order and remand the case for a new disposition

hearing. See 

(i) (requiring remand when reversing

disposition); In re L.F.R., No. 02-12-00454-CV, 

, at *1 (Tex. App.––

Fort Worth May 2, 2013, no pet.) (mem. op.) (remanding even when holding evidence

legally insufficient to support disposition finding).

                                                        /s/ Wade Birdwell
                                                        Wade Birdwell


                                            16
                                   Justice
Delivered: December 8, 2022




                              17