October 16, 2020 OPINION Before QUINN, C.J., and PARKER and DOSS, JJ. Appellant, I.A., a juvenile, appeals the denial of his petition for writ of habeas corpus, which challenges his detention while awaiting an adjudication hearing before the juvenile court. Appellant presents two issues by his appeal. We affirm the trial court’s denial of the petition. Factual and Procedural Background On July 23, 2019, the State filed a petition for adjudication against appellant, alleging he participated in an aggravated robbery and murder. Appellant was taken into custody on July 25, 2019. On August 5, a detention hearing was held before Lubbock County Magistrate Melissa McNamara. At the conclusion of this hearing, Judge McNamara entered an order extending appellant’s detention for a period of no longer than ten business days. Judge McNamara appears not to have submitted a report of her recommendations to the juvenile court judge, Judge Ruben Reyes. Prior to the next detention hearing, appellant filed a written objection to the detention hearings being held before a referee or associate judge. At the subsequent detention hearing, appellant again advanced this objection claiming that Judge McNamara was a referee or associate judge and could not hear the case over appellant’s objection. Judge McNamara overruled appellant’s objection. The evidentiary detention hearing was held and, at the conclusion of the hearing, Judge McNamara ordered that appellant’s detention be continued for no more than ten additional business days. She specified that the grounds for his detention were that suitable supervision, care, or protection is not being provided by a parent, guardian, custodian, or other person; and appellant may be dangerous to himself or may threaten the safety of the public if released. Appellant filed another written objection to a referee or associate judge holding detention hearings in his case. After holding another evidentiary hearing, Judge McNamara again ordered appellant detained for a period of not more than ten days on the same bases she stated at the prior hearing. The record does not indicate that Judge McNamara submitted a report, order, or recommendations to the juvenile court. This process, wherein appellant has consistently objected to a referee or associate judge holding his detention hearings and has contested his continuing detention, has continued. Likewise, Judge McNamara has consistently continued to order appellant detained on the bases that suitable supervision, care, or protection is not being provided by a parent, guardian, custodian, or other person; and appellant may be dangerous to himself or may threaten the safety of the public if released. Appellant filed a petition for writ of habeas corpus on September 25, 2019, and an amended petition on October 3. The juvenile court held an evidentiary hearing on appellant’s petition for habeas relief on October 17. At the conclusion of the hearing, the trial court signed a written order denying appellant’s petition for writ of habeas corpus. Appellant timely filed his notice of appeal from this order. By his appeal, appellant presents two issues. By his first issue, appellant contends that Judge McNamara held the detention hearings as a referee or associate judge and, as such, must comply with the requisites of chapters 54 and 201 of the Texas Family Code. By his second issue, appellant contends that his continued detention has extended past the time allotments found in the Juvenile Justice Code, making his continued detention a pre-adjudication punishment that violates his due process rights under the United States and Texas constitutions. Analysis Issue One Appellant’s first issue contends that an associate judge appointed to juvenile matters and a magistrate must either have co-equal authority to that of a district court judge or must comply with the requirements imposed on a referee under Title 3 of the Juvenile Justice Code, including the requirements to notify the juvenile of his right to be heard by a district court judge and to send all detention orders to the referring court for its approval. The State responds contending that Judge McNamara acted in her capacity as Lubbock County Magistrate and, as such, the obligations placed upon a referee by the Juvenile Justice Code do not apply to this case. A referee may be appointed to conduct a juvenile detention hearing. TEX. FAM. CODE ANN. § 54.01(l) (West 2014). However, the referee is required to inform the parties, before commencing the detention hearing, that they have the right to have the detention hearing before the juvenile court judge. Id. If a party objects to the referee conducting the hearing, an authorized judge must conduct the hearing within 24 hours. Id. If a hearing before an authorized judge is not held within 24 hours, the child is to be released by operation of law. Id. A Lubbock County Magistrate can also conduct juvenile detention hearings. TEX. GOV’T CODE ANN. § 54.876(d) (West 2013). Nothing in the statute establishing and authorizing the Lubbock County Magistrate provides any mechanism for parties to object to a referral to the magistrate. See id. §§ 54.871-.885 (West 2013). The only express limitation on the power of Lubbock County Magistrates applicable to juvenile cases is that they cannot preside over trials on the merits. Id. § 54.876(c). A “trial on the merits” is “any final adjudication from which an appeal may be taken to a court of appeals.” TEX. FAM. CODE ANN. § 201.306(b) (West 2020). A juvenile detention hearing does not result in a final adjudication from which an appeal may be taken to this Court. See id. § 56.01(c) (West 2013) (identifying the orders from which an appeal may be taken); In re J.R., No. 07-01-00003-CV, 2003 Tex. App. LEXIS 224, at *3-4 (Tex. App.—Amarillo Jan. 10, 2003, no pet.) (mem. op.) (per curiam) (“errors in the [juvenile] detention process are not subject to appeal under section 56.01 of the Code.”); In re M.C., 915 S.W.2d 118, 119 (Tex. App.—San Antonio 1996, no pet.) (“a detention order under section 54.01 . . . is an interlocutory order and not appealable . . . .”). Consequently, a Lubbock County Magistrate is authorized to hear juvenile detention hearings and the parties are not empowered to require that the hearing be heard by the district court designated as the juvenile court by making a timely objection. In the present case, appellant contends that Judge McNamara heard appellant’s juvenile detention hearing as a referee and, in this capacity, she was obligated under section 54.01(l) of the Family Code to transfer the hearing to the juvenile court judge upon appellant’s objection. TEX. FAM. CODE ANN. § 54.01(l). Because the juvenile court did not hold the hearing within 24 hours of appellant’s objection, appellant contends that he must be released by operation of law. Id. However, Judge McNamara has signed all of her orders, including the juvenile detention orders, in this case in her capacity as Lubbock County Magistrate. As addressed above, a Lubbock County Magistrate has the authority to hear and rule on juvenile detention proceedings. Further, parties are not authorized to object to a Lubbock County Magistrate hearing a juvenile detention hearing. As such, appellant was not entitled to a hearing before the juvenile court judge based on his objection to Judge McNamara hearing his juvenile detention proceeding. Because of this, appellant was not entitled to release by operation of law due to the juvenile court judge not hearing his case within 24 hours of his objection to Judge McNamara hearing his detention proceeding. Appellant asserts that his constitutional right to a hearing before the district court judge is implicated in this case because the Lubbock County Magistrate is not an elected official. According to appellant, he is entitled to have the “head honcho” make the ultimate detention determination. As previously stated, Government Code section 54.876 grants the Lubbock County Magistrate authority over any proceeding over which a juvenile court has exclusive original jurisdiction under the Juvenile Justice Code, including any matters ancillary to those proceedings. See TEX. GOV’T CODE ANN. § 54.876(d). However, a Lubbock County Magistrate is prohibited from performing ultimate judicial functions, i.e., presiding over a trial on the merits or ruling on any issue of law or fact which could result in dismissal of the case. See id. §§ 54.876(c); 54.878(b). A juvenile detention hearing is not a trial on the merits. See TEX. FAM. CODE ANN. § 56.01(c); In re J.R., 2003 Tex. App. LEXIS 224, at *3-4; In re M.C., 915 S.W.2d at 119. A magistrate acts as a surrogate of the duly elected judge or judges. Kelley v. State, 676 S.W.2d 104, 107 (Tex. Crim. App. 1984). “No act of the magistrate is legally binding unless and until the magistrate’s actions are adopted by the referring court. They have no power of their own and are unable to enforce any ruling.” Id.; see TEX. GOV’T CODE ANN. § 54.882(b) (if the court does not modify, correct, reject, reverse, or recommit an action of the magistrate, the action becomes the decree of the court). “The Magistrate’s Act does not increase or diminish the constitutional jurisdiction of the district court.” Fennell v. State, 958 S.W.2d 289, 291 (Tex. App.—Fort Worth, 1997 no pet.). “If the district judge has authority over the case, and the magistrate is qualified to be a magistrate, and [she] performs acts authorized under the Government Code, [her] acts are not void.” Id. at 292. A juvenile case can be referred to a Lubbock County Magistrate to exercise all powers authorized by section 54.878 of the Government Code but, ultimately, the juvenile court has final authority over the trial on the merits. As such, it was not a violation of appellant’s constitutional right to a hearing before the district court for Judge McNamara to hold detention hearings and enter detention orders in cases properly referred to her by the juvenile court. For the foregoing reasons, we overrule appellant’s first issue. Issue Two By his second issue, appellant contends his detention past the time limits identified in the Juvenile Justice Code constitutes a pre-adjudication punishment in violation of his due process rights and, consequently, he must be released from custody. The State responds contending that the law has established that the timeframes identified by the Juvenile Justice Code are not jurisdictional and, therefore, a violation of those timeframes does not violate appellant’s due process rights nor require his immediate release. Section 53.05 of the Family Code provides that an adjudication hearing “shall” be set no later than ten working days after the day the petition was filed if the child is in detention. TEX. FAM. CODE ANN. § 53.05 (West 2014). However, this statutory ten-day deadline “is directory rather than jurisdictional, and the juvenile court does not lose jurisdiction absent a timely setting.” Melendez v. State, 873 S.W.2d 723, 724 (Tex. App.— San Antonio 1994, no pet.); see In re J.L.W., 919 S.W.2d 841, 843 (Tex. App.—El Paso 1996, no pet.) (“we . . . conclude that [section] 53.05′s ten-day requirement is directory, rather than mandatory, and the juvenile court does not lose jurisdiction in the absence of a timely setting.”); L.L.S. v. State, 565 S.W.2d 252, 255 (Tex. App.—Dallas 1978, writ ref’d n.r.e.) (“We do not interpret section 53.05 as imposing a jurisdictional limitation requiring dismissal of the proceeding unless a proper waiver or ground for postponement is shown by the record.”). In the present case, the State filed its Original Adjudication Petition on July 23, 2019. Under section 53.05(b), an adjudication hearing should have been set on or before August 6, 2019. Instead, a detention hearing was held on August 5, 2019. Consequently, the record reflects that appellant had not had a final adjudication hearing in this case by the time of the hearing on his habeas petition on October 17, 2019, a period of 86 days or 62 working days.[1] The State alleges that appellant is not entitled to relief based on the juvenile court’s failure to hold an adjudication hearing within the ten-day deadline because appellant did not request that a hearing be set within that time period. See In re J.L.W., 919 S.W.2d at 843; Williams v. State, 834 S.W.2d 613, 615 (Tex. App.—San Antonio 1992, no writ); In re M.I.L., 601 S.W.2d 175, 177 (Tex. App.—Corpus Christi 1980, no writ). However, each of these cases cited by the State specify that the failure to object is material only because the appellants in those cases did not contend that their continued detentions were in violation of their due process rights. In re J.L.W., 919 S.W.2d at 844; Williams, 834 S.W.2d at 615; In re M.I.L., 601 S.W.2d at 177. Here, appellant contends that his continued detention constitutes a violation of his due process rights. Appellant concedes that the deadlines contained within the Juvenile Justice Code are not jurisdictional but argues that they should be considered as a factor in assessing whether a juvenile’s due process rights have been violated. Due process rights apply in juvenile proceedings. Schall v. Martin, 467 U.S. 253, 263, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984). While states have legitimate regulatory purposes in detaining juveniles prior to trial, due process requires that the pretrial detention not amount to a punishment. Id.; Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (“In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.”). In the absence of a showing of an express intent to punish, the determination of whether a pretrial detention is a punishment turns on whether the detention is rationally related to a legitimate regulatory purpose and whether the detention appears excessive in relation to that purpose. Schall, 467 U.S. at 269. The legislature has determined that, at the conclusion of a juvenile detention hearing, a juvenile shall be released from detention unless the court finds one of five specific conditions are present. TEX. FAM. CODE ANN. § 54.01(e). Among the conditions that will justify continued detention is that suitable supervision, care, or protection is not being provided to the juvenile by a parent, guardian, custodian, or other person; and the juvenile may be dangerous to himself or may threaten the safety of the public if released. Id. § 54.01(e)(2), (4). Nothing in the statute indicates that its allowance for preventative detention is used or intended as a punishment. The statute provides protections for the detained juvenile because detention hearings must be held every ten working days, unless waived, where the court must make a new determination whether one or more of the grounds justifying continued detention exists. Id. § 54.01(h). Further, Judge McNamara has concluded that appellant may be a danger to himself and the safety of the public “based on the seriousness, circumstances, planning, and execution of the alleged offense . . . .” Judge McNamara has found this ground justifying appellant’s continued detention after every detention hearing reflected in the record. While appellant takes issue with this finding, the record reflects that the alleged offenses are indeed serious, reflect considerable planning, and appear to have been executed by a group of individuals that traveled from the Dallas area for the sole purpose of committing this crime. Appellant contends that his continued detention constitutes a punishment based on his argument that “[i]t cannot be constitutional to hold [appellant] without bail or hope of release because of the ‘nature of his crime’ while simultaneously allowing the [State] an indefinite timeframe in which to try its case.” Appellant’s second issue, liberally construed, presents a challenge to his continued detention based solely on Judge McNamara’s finding that appellant be detained because he may be dangerous to himself or may threaten the safety of the public if released. However, appellant makes no argument regarding Judge McNamara’s finding that appellant remain in detention because “Suitable supervision, care[,] or protection for him/her is not being provided by a parent, guardian, custodian, or other person.” The supervision of a juvenile that stands accused of aggravated robbery and murder is a legitimate regulatory purpose supporting appellant’s continued detention. Because either of these grounds justify a continuation of appellant’s detention, see id. § 54.01(e)(2), (4), and appellant does not challenge one of these independent grounds, we must overrule appellant’s second issue. See Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.—San Antonio 1996, writ denied) (“When a separate and independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm.”). “The purpose of [s]ection 53.05 is, of course, to prod the juvenile court into giving calendar preference to cases in which the child is held in detention pending adjudication or a transfer hearing and into moving expeditiously toward deciding them.” Robert Dawson, Texas Juvenile Law 131 (9th ed. 2018). While we do not condone the failure of the trial court to schedule an expeditious hearing, appellant’s argument and this record do not show that appellant is entitled to the relief he seeks. Conclusion Having overruled both of appellant’s issues, we affirm the trial court’s denial of appellant’s writ. Judy C. Parker Justice Quinn, C.J., concurring.
