OPINION DISSENTING FROM THE DENIAL OF EN BANC RECONSIDERATION Opinion by Justice Schenck This case involves the State’s effort to transfer a minor accused of having committed capital murder from the juvenile court system, which is geared towards providing measures of guidance and rehabilitation, to what will be capital proceedings against him for plenary disposition in the adult criminal justice system. The State’s right to seek such a transfer is beyond question. See TEX. FAM. CODE ANN. § 54.02. The findings necessary to support the transfer are laid out in a statute. See id. § 54.02(h) (juvenile court waiving jurisdiction must make findings and state specifically in the order its “reasons” for waiver). The findings in this case are described as “boilerplate,” listing those factors that support transfer with no substantive discussion of other factors or any of the competing evidence that weighed against transfer. Because of the seriousness of the posture of the case before us, and because the Texas Supreme Court has not addressed the method of analysis and review of orders transferring jurisdiction in juvenile cases, I believe reconsideration en banc would be helpful to develop this question. I write separately to urge the Texas Supreme Court, in this or some other case, to further explain what appellate courts should do to acquit themselves of the serious task laid out before them on a direct appeal such as this. PROOF AND REVIEW—MOON V. STATE AND IMPACT OF EX PARTE THOMAS The standard of proof and review that historically applied in the lower court and this Court, respectively, is less than clear. The Texas Court of Criminal Appeals attempted to draw those lines in Moon v. State and, as I read that opinion, appeared to impose a far more reaching obligation on the trial court than the State urges in this case or the panel opinion embraced. 451 S.W.3d 28, 47 (Tex. Crim. App. 2014) (limiting appellate review to reasons explicitly stated in the transfer order). Recently, however, the court of criminal appeals vacated its decision in Moon. See Ex parte Thomas, No. WR-89,128-01, 2021 WL 1204352 (Tex. Crim. App. Mar. 31, 2021) (case-specific fact-findings to support the reasons for transfer not required by the text of former statute or constitution). I pause to note that Thomas looked at the issue on collateral, not direct review. As the court of criminal appeals was careful to point out, Thomas did not appeal his transfer order but allowed “decades [to] pass” before seeking habeas relief on the theory that the court that tried him lacked jurisdiction as a result of infirmities in the transfer order. Id. at *1. Applying Moon in that context would have subjected that, and all other like convictions, no matter how stale, to collateral, jurisdictional attack on habeas corpus review, which is much narrower than our review in this case on plenary, direct appeal. Shortly after Moon, the legislature repealed Article 44.47 of the Code of Criminal Procedure and added Section 56.01(c)(1)(A) to the Family Code. That statute took review of transfer orders away from the court of criminal appeals and created a vehicle for immediate, interlocutory appeal to the courts of appeals and then to the Texas Supreme Court. See Act of May 12, 2015, 84th Leg., R.S., ch. 74 § 3, 2015 Tex. Gen. Laws 1065, 1065–66. While the legislature completely altered the review mechanism, it made no attempt to change the standard or the operative language in the transfer statute that had recently been read by a terminal court to require a trial court to “show its work” to acquit itself of the obligation to give its “reasons” for the transfer and to facilitate “meaningful” appellate review. Thus, what doomed Moon in the eyes of Thomas—namely the lack of any prior supporting judicial interpretation—may be seen to compel a contrary result here. Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex. 1984) (“The legislature may reasonably be presumed to have been aware of these decisions construing [the statute] and to have consented to those interpretations “); Chakrabarty v. Ganguly, 573 S.W.3d 413, 416 (Tex. App.—Dallas 2019, no pet) (en banc). Regardless of the statutory-construction questions, I believe that the interests at stake from the perspective of the accused and the State alike are better served in reading the vesting of jurisdiction in the intermediate courts of appeal to signal an intention to have the transfer meaningfully scrutinized before trial and thus avoid the potential for collateral attack of the type raised in Thomas. DUE PROCESS CONSIDERATIONS AND MEANINGFUL REVIEW The United States Supreme Court in Kent v. United States reviewed the procedures in the District of Columbia for the transfer of juveniles to the adult system in capital cases, such as this, as against the federal due process guarantee. 383 U.S. 541, 553–54, 557 (1966). Two holdings stand out from the Court’s decision in that case and should inform the reading of our own transfer statute. First, the process in the juvenile court must reflect the seriousness of the charge and the implications of the decision to surrender jurisdiction: “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons.” Id. at 554 (emphasis added). Second, the appellate review must be “meaningful.” Id. at 561. In order to undertake such meaningful review, particularly where, as here, the ultimate decision is subject to a deferential abuse of discretion standard of review, the appellate court should have access to “a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts.” Id. (emphasis added). As noted supra, in Thomas, the court of criminal appeals read the review provisions of the transfer statute (and the Supreme Court’s Kent decision) not to compel the “show your work” rule it had announced in Moon. As read by Thomas, Kent (and our review provisions) required only a recitation of what in the civil context we would understand as the equivalent of recitations that would satisfy the pre-City of Keller[1] no-evidence sufficiency review. Under that standard, the findings made by the trial court need not be weighed against other evidence before it and would stand as sufficient so long as they are supported on their face without regard to other evidence. City of Keller changed that standard, holding that it was not the proper rule for civil cases, and required, instead, that the reviewing court look at all of the evidence because “the lack of supporting evidence may not appear until all the evidence is reviewed in context.” City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005). That said, putting the review provisions in the civil system, after Moon, could also have been seen as both (1) necessary to satisfy the meaningful- review requirements that would be unique to direct review, but not a basis for collateral attack years or decades later,[2] and (2) signaling acceptance of the modern City of Keller analysis of the underlying decision. Requiring the Transferring Court to State “Reasons” for Transfer Can Be Read Either as in Moon or as in Thomas The operative statute here requires a transferring court to “state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court.” TEX. FAM. CODE ANN. § 54.02(h). The word “reason” can be understood to be synonymous with a free-standing rational justification, per Thomas, or “explanation.” See WEBSTER’S THIRD NEW INT’L DICTIONARY 1891 (1981). As noted, civil litigants challenging the results at trial were, before City of Keller, left to attack only that evidence in favor of the judgment. That is thus certainly one plausible reading of a “reasoned” judgment, and one I would understand in the context of Thomas. On the other hand, consider the scenario where a party to an arbitration commits to pay for a “reasoned decision.” Clearly, under those circumstances he would expect more than a selective recitation of one side of the case. See Stephen L. Hayford, A New Paradigm for Commercial Arbitration: Rethinking the Relationship Between Reasoned Awards and the Judicial Standards for Vacatur, 66 GEO. WASH. L. REV. 443, 445 (1998). Likewise, when a court performs a “rule of reason” analysis in an antitrust case, it looks at all of the evidence that bears on the ultimate conclusion. See Cont’l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 (1977). Thus, Moon‘s reading was not wholly implausible. As I understand the due process considerations at issue here, it would be hard to explain why the defendant in a civil case involving perhaps a very low money damage award would be entitled to consideration and review of all of the evidence that bore on an issue, while a minor facing transfer for capital sentencing would be entitled to less—with the reviewing court deferring so long as the trial court cited “some evidence” in support of its conclusion with no indication that it was aware of or weighed contrary evidence. As the United States Supreme Court explained in Addington v. Texas, 441 U.S. 418 (1979), due process compels different standards of proof (and presumably review) along a “continuum” with “private disputes” over monetary issues at the lowest end and criminal proceedings at the highest. Id. at 423. Capital proceedings involving juveniles are surely among the most sensitive. See, e.g., Jones v. Mississippi, 141 S. Ct. 1307 (2021) (stressing states’ role). Habeas corpus and other collateral attacks present serious finality concerns that necessitate their rejection in many cases, even those involving serious constitutional errors, Teague v. Lane,[3] especially where the problem would have (or should have) been subject to redress by direct appeal. Coleman v. Thompson, 501 U.S. 722, 729 (1991). Errors that would be readily redressed by direct appeal, such as this one, should thus be brought by direct appeal and should not generally be served up later as a basis for collateral attack, as in Thomas. The question presented in this case is whether our current direct-review obligation reaches the error asserted here—that explanation of the “reasons” for the transfer are incomplete—and whether, after Moon, the transfer statute should be viewed in light of the due process interests involved to permit or require us to remand to the trial court for further explanation. 2. Best Practices When Faced with an Order that Does Not Adequately Set Forth the “Reasons” for Transfer Even if a statute does not compel the broader form of review previously acknowledged in Moon, our rules clearly permit us to remand for further proceedings where we deem it necessary and “in the interests of justice.” TEX. R. APP. P. 43.3. We are also plainly authorized, in routine civil or criminal cases alike, to abate a case and insist on more detailed findings where findings are “required,” as here. State v. Martinez, No. 03-19-00133-CR, 2021 WL 1170098, at *2 (Tex. App.— Austin Mar. 24, 2021, no pet. h.) (mem. op., no designated for publication); Clinton v. Gallup, No. 14-19-00202-CV, 2021 WL 1186861 (Tex. App.—Houston [14th Dist.] Mar. 30, 2021, no pet. h.) (Jewell, J., dissenting). We generally cannot assume what a trial court found when its findings are both necessary and missing. In re S.M.R., 434 S.W.3d 576, 581 (Tex. 2014). The question here, of course, is what findings are necessary for the juvenile court to explain its “reasons” and for us to acquit ourselves of our direct review obligation and whether we can exercise discretion to remand for further findings where, on direct appeal, we are presented with findings that minimally identify a justification for the result, but do not, for example, acknowledge the presence of any competing evidence or attempt any explanation for the weighing. I am inclined to believe that the trial court’s obligations in explaining its reasons in this setting should at least approximate our obligation under Texas Rule of Appellate Procedure 47.1 to explain the basis for a decision on evidentiary sufficiency that alters the status quo. E.g., In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 211 (Tex. 2009) (orig. proceeding); Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 296 (Tex. 1988). Regardless of how one reads the “reasons” requirement in Texas Family Code Section 54.02(h), the better practice would seem to be to provide a broad review on direct appeal allowing the reviewing court to insist on a record that affords a meaningful appellate review and requiring the juvenile court to explain how it got to the conclusion it did, not just cite the facts in support of its ultimate determination. Failing to do so may leave convictions after transfer vulnerable to collateral attack. In a case such as this one, where we are reviewing a decision of this magnitude and undertaking “meaningful review” of an order with “reasons” consisting of a recitation of factual determinations that do not purport to be a reckoning of the evidence and inferences supporting the transferring court’s ultimate conclusions, I suspect that the able judge of the transferring court was aware of all the evidence before her and made a conscious, rational weighing of it in arriving at her decision. But, supposition of this sort is neither necessary nor helpful when the occasion presents itself to conduct direct appellate review. For example, the juvenile court in this case had evidence of social studies that may have simultaneously been seen both to support transfer and to oppose it under the factors listed in the controlling statute. This same push and pull vexed our capital jurisprudence for more than a decade following Penry v. Lynaugh, 492 U.S. 302 (1989).[4] Again, I assume the trial court was able to weigh this evidence to the extent it pointed in both directions; but, leaving that prospect uncertain at this stage and while we have plenary appellate review appears to be unnecessary and likely to create a potential stream of future habeas cases should this jurisprudence further develop after Thomas. CONCLUSION As we have the benefit of full, direct review at this stage and are not limited to the irreducible minimum of jurisdiction at issue in Thomas, I see the question as whether we may or should ask for more from the transferring court than we have laid out in the order before us when we encounter the issue on direct appeal. As doing so at this stage protects critical due process rights of the accused and protects the State against avoidable subsequent challenges, I believe the better practice would be to do so. Recognizing that Thomas opens the door to that question but (perhaps) leaves it unaddressed, I believe that further development of it in the Texas Supreme Court may be proper. /David J. Schenck/ DAVID J. SCHENCK JUSTICE Pedersen, and Goldstein, J.J., join in this dissenting opinion. 200920DF.P05
