THE ISSUE: Does Texas Family Code Section 263.405(i) pass constitutional muster?
TEXAS SUPREME COURT DECIDES NOT TO DECIDE
Appellants in termination cases are required to file statements of points they intend to appeal no
later than fifteen days after the judgment is signed. Tex. Fam. Code Ann. § 263.405(b) (West
Supp. 2007). Appellate courts "may not consider any issue that was not specifically presented to
the trial court in a timely filed statement of the points on which the party intends to appeal or in a
statement combined with a motion for new trial." Id. § 263.405(i). Rollins-El v. Texas Department
of Family and Protective Services, No. 03-07-00010-CV (Tex.App. - Austin, May 8, 2008)
(Opinion by Justice Waldrop) (termination of parental rights, TDFPS, DFPS)
Untimely statement cannot be considered. Tex. Fam. Code Ann. § 263.405(i); Pool v. Texas
Dep't of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.--Houston [1st Dist.] 2007,
no pet.).
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In Interest of SKA, MA, and SA, No. 07-1045 (Tex. July 25, 2008)(per curiam)(constitutionality
of statutory requirement that respondent in parental rights termination case file statement of points to be
raised on appeal within 15 days after judgment to preserve right to pursue appeal not decided)
IN THE INTEREST OF S.K.A., M.A. AND S.A., CHILDREN; from Gregg County; 6th district
(06-07-00003-CV, 236 SW3d 875, 10-17-07)
2 petitions
Per Curiam Opinion
PER CURIAM
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding
of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).
OPINION DELIVERED: July 25, 2008
Opinion below:
In the Interest of S.K.A., M.A., and S.A., Minor Children (Tex.App.- Texarkana, October 17, 2007, pet.
filed)
Holding: We find subsection (i)'s procedural bar to review unconstitutional as applied to an indigent
parent, who after proper request, was not provided appointed counsel during the critical period before
the deadline established in subsection (b). Therefore, we have addressed issues raised in the points of
appeal filed immediately after counsel was appointed. On reaching the issues raised on appeal as
presented in the statement of points, we overrule each of the points of error.
Casenotes and Commentary:
Constitutional Problem with the Family Code, by Jeff Rambin on Tyler Appeals Blog
Texas Supreme Court delivers batch of non-opinions, on The Jefferson Court Blog
Other links: 2008 Family Law Decisions of the Texas Supreme Court | Texas Opinions |
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COMPANION CASES
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In Interest of KW and MA, No. 08-0254 (Tex. July 25, 2008)(per curiam)
IN THE INTEREST OF K.W. & M.A., CHILDREN; from Tarrant County; 2nd district
(02-06-00461-CV, ___ SW3d ___, 02-28-08)
Per Curiam Opinion
PER CURIAM
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding
of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).
OPINION DELIVERED: July 25, 2008
Opinion below: In the Interest of K.W., No. 02-06-00461-CV (Tex. App.- Fort Worth, Feb. 28, 2008, pet.
filed)(mem. op.)
Holding: In her first issue, Natasha argues that section 263.405(i) violates the separation of powers
doctrine and the Due Process Clause. In a recent en banc decision, this court held that section 263.405
(i) is void as a violation of the separation of powers provision of the Texas constitution. See In re D.W.,
No. 02-06-00191-CV, 2007 WL 467328, at *12 (Tex. App.- Fort Worth Feb. 19, 2008, no pet. h.). We
therefore sustain Natasha's first issue.[5]
* * *
Having sustained Natasha's first issue, but having overruled her second through fourth issues and not
reaching her fifth issue, we affirm the trial court's order terminating her parental rights to K.W. and M.A.
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In Interest of DW, TW, and SG, No. 08-0258 (Tex. July 25, 2008)(per curiam)
IN THE INTEREST OF D.W., T.W. AND S.G., CHILDREN; from Tarrant County; 2nd district
(02-06-00191-CV, 249 SW3d 625, 02-19-08)
Per Curiam Opinion
PER CURIAM
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding
of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).
OPINION DELIVERED: July 25, 2008
Opinion below: In the Interest of D.W., T.W., and S.G., Children, No. 02-06-00191-CV (Tex.App.- Fort
Worth, Feb. 19, 2008, pet. filed)
Holding of the Court of Appeals: The statute bars our consideration of all issues not listed even when
they were properly preserved for review under the rules of procedure. In effect, the legislature decides
for us that complaints not listed in a timely statement of points are waived. In so doing, section 263.405
(i) infringes upon our ability to exercise a "core power" reserved for the judicial branch by telling us not
only how we must rule on issues brought before us but that we cannot consider those issues at all.[98]
We hold that section 263.405(i) is, therefore, void as a violation of the separation of powers provision of
the Texas constitution.[99] We sustain Betty's third issue in part.
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In Interest of JJ, No. 08-0299 (Tex. July 25, 2008)(per curiam)
IN THE INTEREST OF J.J., A CHILD; from Tarrant County; 2nd district
(02-06-00333-CV, ___ SW3d ___, 03-06-08)
2 petitions
Per Curiam Opinion
PER CURIAM
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding
of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).
OPINION DELIVERED: July 25, 2008
Opinion below: In Interest of J.J. (Tex.App.- Fort Worth, Mar. 3, 2008, pet. filed)
Holding: In his first two points, Robert contends that subsections (b) and (i) of section 263.405 of the
Texas Family Code violate the equal protection and due process provisions of the federal constitution
and the equal protection and due course of law provisions of the state constitution. This court recently
held "that section 263.405(i) is . . . void as a violation of the separation of powers provision of the Texas
constitution."[3] However, Robert does not indicate how he personally was harmed by either subsection
(b) or subsection (i). That is, he does not suggest any appellate issue that he was prevented from
raising as a result of section 263.405 and does not show how any constitutional violation resulted in an
improper judgment.
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In Interest of DF, No. 08-0378 (Tex. 25, 2008)(per curiam)
IN THE INTEREST OF D.F., A CHILD; from Tarrant County; 2nd district
(02-07-00056-CV, ___ SW3d ___, 03-27-08)
Per Curiam Opinion
PER CURIAM
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding
of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).
OPINION DELIVERED: July 25, 2008
Case below:
In Interest of D.F., a Child, No. 02-07-00056-CV (Tex.App.- Fort Worth, March 27, 2008, pet. filed)
Holding of the court of appeals: TDFPS argues that David has waived his sufficiency arguments
because he failed to file a statement of points with the trial court. See Tex. Fam. Code Ann. ' 263.405(i)
(Vernon Supp. 2007). TDFPS further argues that David's motion for new trial does not constitute a valid
statement of points because it is too vague to satisfy the requirement that the statement of points be
"sufficiently specific" to preserve error for appeal. See id. However, in a recent en banc decision, this
court held that family code section 263.405(i) is void as a violation of the separation of powers provision
of the Texas Constitution. See In re D.W., No. 02-06-00191-CV, 2008 WL 467328, at *12 (Tex. App.-
Fort Worth Feb. 19, 2008, no pet. h.). We are bound to follow our own precedent, so we hold that
David's sufficiency arguments are not waived and proceed to the merits of David's appeal.
* * *
Having carefully reviewed the record and considering the evidence supporting the Holley factors, we hold
that the evidence is factually sufficient to support the trial court's best interest finding. The trial court
could have formed a firm conviction or belief, based on the evidence set forth above, that terminating
David's parental rights was in D.F.'s best interest. Accordingly, we overrule David's second point.
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TEXAS FAMILY CODE
Sec. 263.405. APPEAL OF FINAL ORDER
(a) An appeal of a final order rendered under this subchapter is governed by the rules of the supreme
court for accelerated appeals in civil cases and the procedures provided by this section. The appellate
court shall render its final order or judgment with the least possible delay.
(b) Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends
to request a new trial or appeal the order must file with the trial court:
(1) a request for a new trial; or
(2) if an appeal is sought, a statement of the point or points on which the party intends to appeal.
(b-1) The statement under Subsection (b)(2) may be combined with a motion for a new trial.
(c) A motion for a new trial, a request for findings of fact and conclusions of law, or any other post-trial
motion in the trial court does not extend the deadline for filing a notice of appeal under Rule 26.1(b),
Texas Rules of Appellate Procedure, or the deadline for filing an affidavit of indigence under Rule 20,
Texas Rules of Appellate Procedure.
(d) The trial court shall hold a hearing not later than the 30th day after the date the final order is signed
to determine whether:
(1) a new trial should be granted;
(2) a party ’s claim of indigence, if any, should be sustained; and
(3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.
(e) If a party claims indigency and requests the appointment of an attorney, the court shall require the
person to file an affidavit of indigency and shall hear evidence to determine the issue of indigency. If the
court does not render a written order denying the claim of indigence or requiring the person to pay
partial costs before the 36th day after the date the final order being appealed is signed, the court shall
consider the person to be indigent and shall appoint counsel to represent the person.
(f) The appellate record must be filed in the appellate court not later than the 60th day after the date the
final order is signed by the trial judge, unless the trial court, after a hearing, grants a new trial or denies
a request for a trial court record at no cost.
(g) The appellant may appeal the court ’s order denying the appellant ’s claim of indigence or the court ’s
finding that the appeal is frivolous by filing with the appellate court the reporter ’s record and clerk ’s
record of the hearing held under this section, both of which shall be provided without advance payment,
not later than the 10th day after the date the court makes the decision. The appellate court shall review
the records and may require the parties to file appellate briefs on the issues presented, but may not hear
oral argument on the issues. The appellate court shall render appropriate orders after reviewing the
records and appellate briefs, if any.
(h) Except on a showing of good cause, the appellate court may not extend the time for filing a record or
appellate brief.
(i) The appellate court may not consider any issue that was not specifically presented to the trial court in
a timely filed statement of the points on which the party intends to appeal or in a statement combined
with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to
the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve
an issue for appeal.
Added by Acts 2001, 77th Leg., ch. 1090, Sec. 9, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 176, Sec. 1, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 526, Sec. 2, eff. June 16, 2007.