STATE of Texas, Petitioner, v. George Rivera SANTANA, Respondent, 444 S.W.2d 614

GREENHILL, Justice. The problem in this juvenile proceeding is the quantum of proof required. The jury found, from a preponderance of the evidence, that George Santana, age 14 at the time of the trial, committed rape upon Frone Mintz and that he was a delinquent child. He was committed to the Texas Youth Council. The contention is that the use of “the preponderance of the evidence” is no longer permissible; and that under the Gault decision of the Supreme Court of the United States, the findings must be beyond a reasonable doubt as in criminal cases. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

The Court of Civil Appeals agreed with the contention. It reversed in the light of Gault. 431 S.W.2d 558. We granted a writ of error to review that holding. A second point, not reached by the Court of Civil Appeals, is whether the State could amend its petition before trial. We must deal with that contention also.

Counsel for Santana did not object to the wording of the jury issues on the ground that they called for answers based upon a “preponderance of the evidence.” Nor did counsel ask for or submit requested issues for the jury based upon the quantum of proof “beyond a reasonable doubt.” The point was raised for the first time on motion for new trial as fundamental error. In the ordinary civil case, the alleged error in the charge to the jury would be considered as waived.

But in view of the constitutional importance of this case to the public generally, and in view of the fact that juvenile proceedings are not designed to be conducted as ordinary adversary proceedings, the point raises a question of fundamental error, and it will be so treated. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947) ; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). The opinion in Gault made a wide and critical analysis of juvenile proceedings. The tone of the opinion is that minors as well as adults are entitled to basic constitutional protection.

It dealt with six subjects; and as to the first four, it was held that the minor was entitled to constitutional protection: notice of charges; right to counsel; right to confrontation of witnesses and of cross-examination; and privilege against self-incrimination. It reserved the questions of a right to a transcript of the proceedings, and right to an appellate review. The only one of these elements raised here deals with adequate notice of the charges. This relates to the amendment of the State’s petition before trial.

Moreover, Santana had a trial by jury, a right still withheld in some states in juvenile cases. In Gault, the minor was committed for a maximum of six years; while for the same offense (obscene phone calls) the punishment for an adult was a fine of $50 and two months in jail. The maximum here for Santana is seven years of detention. For an adult the maximum punishment for the same offense (rape) is death or life imprisonment. The minor involved in Gault was not tried under the “beyond a reasonable doubt” rule.

The Arizona law called for findings by “clear and convincing evidence.” When the United States Supreme Court remanded the cause for the equivalent of a new trial, it expressly did not pass upon whether “beyond a reasonable doubt” was required by the Constitution of the United States. It said, “We shall not consider other issues which were passed upon by the Supreme Court of Arizona.

We emphasize that we indicate no opinion as to whether the decision of that court with respect to such other issues [including “beyond a reasonable doubt”] does or does not conflict with requirements of the Federal Constitution.” The Supreme Court also declined to pass upon the question in In re Whittington, 391 U.S. 341, 88 S.Ct. 1507, 20 L.Ed.2d 625 (1968).

It is strongly urged here and in some contemporaneous writings that the opinion in Gault means that a juvenile proceeding which may end in depriving a person of his liberty is, in reality, a criminal trial; and that to satisfy the due process and equal protection clauses, juvenile proceedings must be accompanied by all of the same measures and protections afforded in criminal trials. We do not so read Gault. The Gault opinion goes out of its way to say it does not mean to so hold. It quotes from Kent v.

United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). “We do not mean * * * to indicate that the [juvenile] hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” The Gault opinion then states, “We reiterate this view. * * *” The Court sets out many of the desirable features of juvenile hearings such as the processing and treatment of juveniles separately from adults and the special juvenile court procedures which avoid classifying the juvenile as a “criminal.” The conclusion stated in Gault is that “the features of the juvenile system which its proponents have asserted are of unique benefit will not be impaired by constitutional domestication”; and “There is no reason why the application of due process requirements should interfere with such provisions.” The facts in Gault were extreme, and the material reviewed by the Supreme Court of the United States indicated to it that much of the good intended by juvenile proceedings was being poorly carried out at least in some areas including Arizona.

The Court reviewed the history of juvenile treatment and recalled that as the juvenile acts were designed, it was not the goal of the State to determine whether a child was guilty or innocent, but to determine what is he, how has he become what he is, and what had best be done in his interest and in the interest of the State to save him from a downward career. The child, essentially good, was to be made to feel that he was the object of the State’s care and solicitude, not that he was under arrest or on trial. The rigidities, technicalities, and harshness of the criminal law were altogether inapplicable.

The idea of crime and punishment was to be abandoned. The child was to be treated and rehabilitated. Moreover, no permanent public record was made of his hearing or trial so that the child would not be branded as a criminal simply because he was subject to the help and discipline of the state. Under the Texas act, no adjudication of the status of any child may operate to impose any civil disabilities ordinarily imposed by conviction, “nor shall any child be deemed a criminal * * *, nor shall any child be charged with or convicted of a crime in any court.

The disposition of a child or any evidence given in the court shall not be admissible as evidence against the child in any case * * * other than another Juvenile Court, nor shall such disposition or evidence operate to disqualify a child in any future civil service examination, appointment, or application.” Art. 2338-1 § 13(3). The Gault opinion recognized, or at least reserved judgment on, the policy of the juvenile court system. It declined to announce that they were either criminal or civil courts, rather recognizing that they were sui generis.

It did make it plain that the system was being badly abused in some areas so that many children, not properly treated as juveniles, were not given the protection of adults, and got “the worst of both worlds.” And, on many occasions, instead of getting the kindly father approach from the judge, a child was often whisked away to the equivalent of a prison in what amounted to Star Chamber proceedings. “His world becomes ‘a building of whitewashed walls, regimented routine and institutional laws * * * ’ Instead of mother and father * * * his world is peopled by guards, custodians, state employees, and ‘delinquents’ confined with him for anything from waywardness to rape and homicide.” 387 U.S. at 27, 87 S.Ct. at 1443.

At the darkest point in this bleak picture masterfully painted by Mr. Justice Fortas is the thundering statement that “Under our Constitution, the condition of being a boy does not justify a kangaroo court.” To correct the kangaroo court approach, the Gault opinion announced basic constitutional guarantees for juvenile proceedings, whether they be civil, criminal, or sui generis: adequate notice, right to counsel, confrontation and cross-examination of witnesses, and the privilege against self-incrimination.

We ascribe to the Gault court not a desire to abolish the attempt of the state to treat and rehabilitate the child through juvenile proceedings, but a laudable mandate that in juvenile proceedings, the rights of the child be preserved; that the proceedings be conducted with basic fairness.

Instead of the worst of both worlds under the abused juvenile proceedings, the Gault court, it is thought, desired to preserve the best of both worlds for the minor; i. e., the individual, particularized treatment of the disturbed, rebellious or wayward minor, while at the same time, insuring that the hearings be conducted with dignity and fairness and with the essentials of due process being observed. We accept this view. This Court originally upheld the validity of the Texas Juvenile Act upon this basis in Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217 (1944).

And while recognizing the benefits of the separate treatment of juveniles, this Court there held that the rights of the minors were there violated because they were compelled to give testimony against themselves. Similarly in Steed v. State, 143 Tex. 82, 183 S.W.2d 458 (1944), while holding that the rules of civil, rather than criminal, procedure would be applicable to juvenile proceedings, we again reversed the particular proceedings because the charges filed against the juvenile were not definite enough to afford fair notice to the minor and his parents.

And while we must accept as true much of the dismal picture painted in Gault as to the abuses of the juvenile system, we are not prepared to condemn out of hand the Texas Youth Council, the juvenile judges, and other trained people working in this field. The policy of the juvenile laws has been fixed by the Texas Legislature; and we conceive it to be our duty to uphold the spirit of that law while at the same time insuring to minors the basically fair proceedings required by Gault and the constitutions of Texas and of the United States.

So it boils down to this: are juvenile proceedings hereafter to be true adversary proceedings like the ordinary criminal trial? Must the juvenile be “convicted” upon a finding of guilt beyond a reasonable doubt? Is the quantum of proof “beyond a reasonable doubt” so essential that its absence, in a juvenile case involving loss or curtailment of liberty, is a denial of constitutional rights?

Or may the State be able to assist youth in these sui generis proceedings where the finder of fact, the judge or jury, is convinced by a preponderance of the evidence that acts have been committed, that the child is a delinquent, and that he needs the help of the State? The problem now before us has been before the highest courts of other states, and the United States Supreme Court has noted jurisdiction in one of the cases. The courts of our sister states are not uniform; and in most instances, there is a dissent among the justices.

The Supreme Court of Illinois in In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716 (1968), absorbed the dark picture of Gault, equated juvenile trials to adversary criminal trials, and held that it would be a denial of due process and equal protection to afford less safeguards to minors than to adults who were on trial for crimes. It recognized that it was adopting “what has heretofore been the minority view point as to the quantum of evidence required in delinquency hearings,” but it was persuaded by the implications of Gault. The holding was that the proof must be “beyond a reasonable doubt.” Similarly the U. S.

Court of Appeals for the 4th Circuit in United States v. Costanzo, 395 F.2d 441 (1968) stated the question and answered it as follows: “Our precise question then is whether for purposes of the required quantum of evidence, no less than for notice, counsel, cross-examination, and the privilege against self-incrimination, a federal juvenile proceeding which may lead to institutional commitment must be regarded as ‘criminal.’ We hold that it must be so regarded. No verbal manipulation or use of a benign label can convert a four-year commitment following conviction into a civil proceeding.

See Gault, supra at 50, 87 S.Ct. 1428. The Government’s burden in a juvenile case, therefore, is to prove all elements of the offense ‘beyond a reasonable doubt,’ just as in a prosecution against an adult. We see a compelling similarity between the enumerated safeguards due a juvenile in as full measure as an adult and the requirement of proof beyond a reasonable doubt.

In practical importance to a person charged with crime the insistence upon a high degree of proof ranks as high as any other protection; and if young and old are entitled to equal treatment in the one respect, we can think of no reason for tolerating an inequality in the other.” 395 F.2d at 444 (1968). It is interesting that the Court of Appeals of New York observed that “the question [of “beyond a reasonable doubt”] was not decisive in United States v.

Costanzo, 4 Cir. (395 F.2d 441), where the judgment of adjudication was affirmed, and the Trial Judge had applied what the court regarded as a proper standard of proof.” In the Matter of Samuel W., 24 N.Y.2d 196, 299 N.Y.S.2d 414, 247 N.E.2d 253 (Opinion of March 6, 1969). Holding to the contrary are the highest courts of New York, California and Oregon and the Court of Appeals for the District of Columbia.

In In re Wylie (D.C.App.1966), 231 A.2d 81, that court, after reviewing Gault, concluded that, “We adhere to our ruling in In re Bigesby [D.C.App., 202 A.2d 785] * * * that ‘the strictly criminal law concept of guilt beyond a reasonable doubt’ is unnecessary and im proper in a Juvenile Court proceeding.” That same court has very recently reaffirmed the holding of Wylie in In re Ellis, D.C.App., 253 A.2d 789 (May 1969).

The court there held: “While we have not failed to follow the ruling of Gault in those cases where it clearly applies, Gault did not decide the question of the quantum of proof required in juvenile cases. We are therefore not persuaded at this time that we should apply the philosophy of Gault in order to predict what the Supreme Court might decide if faced with the same question.

We are reluctant to condemn or abandon a longstanding and useful practice unless the unconstitutionality of that practice is plain and manifest, [citing case] “Concededly there are points of similarity between a juvenile proceeding and a criminal trial. Nonetheless, hearings held before the Juvenile Court remain civil in nature and differ significantly from their criminal counterpart. By statute, the records of juvenile cases are not open to public inspection. Hearings are also closed to the public. Furthermore, a child adjudged delinquent is neither deemed nor treated as a criminal.

No civil disabilities are imposed upon him and he is not disqualified from civil service. The purpose and rationale behind such safeguards and, indeed, the very procedure governing treatment of such juveniles is the care, needs and protection of the minor and his rehabilitation and restoration to useful citizenship, [citing authority] A flexible approach to juvenile proceedings is the best manner in which to achieve these ends.

The safeguards which surround him do not inherently derive from the Constitution but from the social welfare philosophy which forms the historical background of the Juvenile Court Act. “Subsequent to the Gault decision, we had occasion to deal with the same question presented on this appeal. In re Wylie, D.C.App., 231 A.2d 81, 84 (1967).

There we noted that, although Gault had alluded to but not passed upon the standard of proof required in Juvenile Court cases, we determined to adhere to our prior ruling in In re Bigesby, D.C.App., 202 A.2d 785, 786 (1964), that ‘the strictly criminal law concept of guilt beyond a reasonable doubt’ was unnecessary and improper in a Juvenile Court proceeding. We find no justification for abandoning or reversing that ruling under the facts and circumstances of this case. As was stated in Creek v.

Stone, 126 U.S.App.D.C. 329, 379 F.2d 106 (1967), the clear congressional purpose was to establish a professionally staffed, specialized court, equipped with broad powers to implement the rehabilitative purposes of the Juvenile Court Act.” In May of this year, the Oregon Supreme Court made a similar holding in State v. Arenas, 453 P.2d 915. It observed that individual writers, agencies and commissions had differed on the advisability of such a quantum of proof as a requirement.

It concluded: “If the constitution requires that a juvenile cannot come within the jurisdiction of the court unless criminal conduct is proved beyond a reasonable doubt, the great juvenile experiment is over. “If such a burden of proof is constitutionally required, it logically follows that subsections (b), (

c) and (

f) of the statute are in violation of the constitution. Such subsections do not describe conduct which is necessarily criminal. These subsections concern delinquency, not child dependency. In the event the court finds such conduct has occurred, the legislature has empowered the juvenile court to deprive the juvenile of his freedom if that is believed desirable.

ORS 419.509. “If the Constitution is held to prohibit the juvenile court from depriving a juvenile of his freedom unless it is proved beyond a reasonable doubt that he committed a criminal act, the Constitution would have to be interpreted to prohibit depriving a juvenile of his freedom when he was found to have engaged in conduct not amounting to a crime. “The logical end of such reasoning would be the conclusion that regardless of how apparent the need for intervention for the good of the child, the community, the judiciary and every other institution or agency would be powerless to act until and unless criminal conduct could be proved beyond a reasonable doubt. “We are of the opinion that such a result is not a requirement which logically extends from Gault.” The highest court of New York painstakingly reviewed the history of the problem in the light of Gault in In the Matter of Samuel W., 24 N.Y.2d 196, 299 N.Y.S.2d 414, 247 N.E.2d 253 (March 6, 1969).

The opinion recognizes a distinct need for a separate type of hearing or trial for minors, and that “[N]othing could be farther removed in temper and purpose than this [juvenile proceeding] from the criminal court for adults.” It observed that the juvenile court system “has had the singular misfortune of being impaled on the sharp points of a few hard constitutional cases” such as Gault and Kent v. United States, 383 U.S, 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

It is observed that hard cases were easily dramatized, but that they “were not typical of the vast mass of juvenile proceedings in the United States.” On the particular point as to the constitutionality of the New York Family Court Act which prescribed “a preponderance of the evidence” standard, the Court held: “It is not easy to define for the purposes of practical application the tenuous difference between ‘beyond a reasonable doubt’ as a quantitative or qualitative test of proof, and ‘by a fair preponderance of the evidence’.

It is enough to say that for a very long time one has been used in the criminal law and the other in civil law, and that the profession accepts the view that beyond a reasonable doubt is a ‘higher’ standard. “But the standard is in the present case expressly stated by statute; and, indeed, by a statute which goes very far in providing due process safeguards for children in delinquency proceedings in Family Court. The delinquency status is not made a crime; and the proceedings are not criminal.

There is, hence, no deprivation of due process in the statutory provision; and, since the proceeding is quite different from a criminal prosecution, it seems reasonable to think there is no substantial equal protection question in the case. “The decision in Gault, in which there was almost a total absence of due process, is not necessarily to be read as an interdiction of this standard of proof required by the New York statute. It is not an absence of procedural due process that a noncriminal status determination have a different measure of proof than that required for conviction of crime * * * »

The California Supreme Court squarely confronted the problem in In re Dennis M., 75 Cal.Rptr. 1, 450 P.2d 296 (Feb.1969). It held, with one judge [Peters] dissenting, that Gault did not require “beyond a reasonable doubt.” The opinion states: “We meet at the outset a contention advanced by appellant at oral argument: i. e., that the United States Supreme Court decision in In re Gault * * * compels the state to establish the facts supporting a charge of juvenile delinquency by the criminal standard of proof ‘beyond a reasonable doubt.’ We do not so read Gault.

It is true, of course, that the decision inaugurated a sweeping constitutional reform of the rights of juveniles in this country. It drew from the teaching of earlier cases the fundamental proposition that ‘neither the Fourteenth Amendment nor the Bill of Rights is for adults alone’ * * *, and laid down specific guidelines for implementing those guarantees in juvenile proceedings. Yet in so doing the court took repeated pains to limit its holding by warning that ‘We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state.

We do not even consider the entire process relating to juvenile “delinquents.” ’ * * * First, the decision was intended to affect only the adjudicatory state of juvenile proceedings, and then only when the outcome may be commitment to a state institution. * * * Secondly, the court made it clear that even if the foregoing conditions are met, the Constitution does not require that the full panoply of rights accorded to an adult accused of crime be erected in the juvenile court. * * * Rather, the opinion * * * adopts for juvenile court adjudications of delinquency the holding of Kent v.

United States * * *, that ‘the hearing must measure up to the essentials of due process and fair treatment.’ Those essentials, as the remainder of the opinion spells out, are (1) adequate notice of the charges, (2) assistance of counsel, (3) opportunity for confrontation and cross-examination, and (4) the privilege against self-incrimination * * tc ⅛Í ;ji * “We infer that at least for the present the Supreme Court has left this matter to the states and the lower federal courts * * * tt * * * “ * * * We do not deny that Gault casts doubt on the traditional parens patriae theory, and exposes many defects in its practice; but we also take the high court at its word when it reiterates that under the Constitution the juvenile court hearing need not ‘conform with all of the requirements of a criminal trial or even of the usual administrative hearing’ * * *.

Indeed, the opinion is replete with language admonishing that the new rules there laid down should not be taken to spell the end of the juvenile court process per se, and that many of its unique attributes can and should be preserved * * *. it * * * “Although the consequences of adopting the reasonable doubt standard in juvenile court would perhaps be less drastic than adopting a jury system, to do so would nevertheless introduce a strong tone of criminality into the proceedings.

The high degree of certainty required by the reasonable doubt standard is appropriate in adult criminal prosecutions, where a major goal is corrective confinement of the defendant for the protection of society. But even after Gault, as we have seen, juvenile proceedings retain a sui generis character: although certain basic rules of due process must be observed, the proceedings are nevertheless conducted for the protection and benefit of the youth in question.

In such circumstances, factors other than ‘moral certainty of guilt’ come into play: e. g., the advantages of maintaining a non-criminal atmosphere throughout the hearing, and the need for speedy and individualized rehabilitative services. Indeed, the youth’s alleged crime may often be only the latest or most overt symptom of an underlying behavioral or personality disorder which could equally well warrant a declaration of wardship pursuant to other provisions of the code.

Thus a. determination whether or not the person committed the particular misdeed charged — although the very heart of an adult criminal prosecution — may not in fact be critical to the proper disposition of many juvenile cases. On the contrary, in the latter the best interest of the youth may well be served by a prompt factual decision at a level short of ‘moral certainty.’ ” In DeBacker v.

Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968), the question discussed at length and with vigor was whether, under Gault, there is a constitutional requirement of a trial by jury, a problem not relevant here since Santana had a jury. The DeBacker opinion in its final paragraph, however, also says that four [of the seven] judges were of the opinion that a commitment in a juvenile proceeding must be proved, as in criminal cases, beyond a reasonable doubt; and that the Nebraska statute providing for “a preponderance of the evidence” was unconstitutional.

Three of the seven judges thought the “preponderance of the evidence” statute was constitutional. However, a provision of the Nebraska Constitution says that no legislative act shall be declared unconstitutional “except by the concurrence of five judges.” So the holding of DeBacker is that the “preponderance of the eyidence” juvenile statute is constitutional, even though the judges stood 4 to 3 to the contrary. On February 24, 1968, the United States Supreme Court noted probable jurisdiction in the DeBacker case, and the case was placed on the

summary calendar. 393 U.S. 1076, 89 S.Ct. 856, 21 L.Ed.2d 770. While a main problem in DeBacker is right to a trial by jury, the Supreme Court will have the opportunity also to pass upon the other point, “beyond a reasonable doubt.” We recognize able arguments and writings on both sides of this question. We have concluded that Gault does not require that the juvenile trial be adversary and criminal in nature, and that the “beyond a reasonable doubt” test is not required.

We are therefore persuaded to follow the reasoning of the opinions of the Court of Appeals of the District of Columbia, and the highest courts of New York, California and Oregon. The other point is that the State could not amend its petition before trial. The State first filed its petition on December 13, 1966, alleging that Santana had committed an assault with intent to rape. Santana pleaded a denial to the charges and alibi; i. e., he was at home with his family when the alleged event took place.

On February 2, 1967, the day of the trial, the State amended its petition to change its allegation from assault to rape to the charge of rape. Santana objected in writing to the amendment.

The trial judge qualified the written objection as follows: “The above and foregoing objections to State’s Trial Amendment, having been duly and timely presented to the Court before any pleadings were read to the jury, and having been considered by the Court, the said objections as above stated are hereby qualified by the Court as follows: “Prior to the commencement of the hearing on February 2, 1967, and before the case had been called, the State filed said Trial Amendment now objected to, and the Court informed the child’s counsel in open Court, that the Court would consider any objection, but that if counsel for the child were surprised and/or had not had time to prepare for the child’s case, that the Court would continue this case and set it down for trial at a later time before a jury, and the child’s counsel did decline to ask for a continuance of the trial of this case, and it proceeded to trial.” [Tr. 10-11] The point is this: in criminal cases, the State may not amend the substance of its charges.

Article 28.10, Vernon’s Ann. Texas Code of Criminal Procedure. In civil cases, pleadings may be amended “at such time as not to operate as a surprise to the opposite party”; provided that if the amendment is tendered within seven days of the trial, leave to amend may be granted by the trial court “[unless] such amendment will operate as a surprise to the opposite party.” Rule 63, Texas Rules of Civil Procedure.

As we understand the record in this case the trial court offered Santana a postponement of the trial if he was surprised or needed additional time to prepare his case, and counsel did not request a postponement. He apparently chose to stand on the rule of criminal procedure that no amendment was permissible. Holding as we have that juvenile proceedings are not strictly adversary criminal proceedings but are, under Gault, sui generis and to be tried under our statutes as civil cases, it was not error for the court to grant the State the leave to amend.

And, under Gault, it is our opinion that the granting of the leave to amend, while at the same time offering Santana an opportunity to postpone the trial to some later date if he so desired, did not deprive the minor of an essentially fair trial so as to offend the due process clause. The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed. POPE, SMITH and STEAKLEY, JJ., dissent.