












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.  2-06-191-CV
 
 
IN
THE INTEREST OF 
D.W.,
T.W., AND S.G., CHILDREN
 
 
                                              ------------
 
           FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                              OPINION
 
                                                        ------------




Appellant Betty W. appeals a
final order terminating her parental rights to her three children, D.W., T.W.,
and S.G.  In four issues, she complains
that (1) the one-year dismissal deadline imposed by section 263.401(a) of the
Texas Family Code violates the Separation of Powers Clause of the Texas
constitution; (2) the trial court erred by denying her motion to extend the
one-year dismissal deadline; (3) section 263.405(i) of the family code, barring
review by appellate courts of issues not listed in a statement of points in the
trial court, violates the Separation of Powers Clause of the Texas
constitution; and (4) section 263.405(i) also violates due process under the
United States Constitution.  We hold that
Betty failed to preserve her first issue under the rules of appellate
procedure; that section 263.405(i) violates the Separation of Powers Clause of
the Texas constitution; but that, on the merits of Betty=s second issue, the trial court did not abuse its discretion by
overruling Betty=s motion to
extend the one-year dismissal deadline. 
Accordingly, we affirm. 
I.      Procedural
Background
Betty is the biological
mother of D.W., T.W., and S.G.[1]  The Texas Department of Family and Protective
Services (ADepartment@) filed a petition seeking to terminate the parent-child relationship
between Betty and her two older children, D.W. and T.W., on June 6, 2005.  Betty gave birth to S.G. on July 12, 2005.  The Department subsequently filed an amended
petition adding S.G.




The trial court set a final
hearing in this case for April 3, 2006. 
Betty filed a AMotion For
Extension Of Time To Dismiss Suit Or Render Final Order And Alternative Motion
For Continuance@ on March
22, 2006.  She sought to extend the final
hearing deadline by 180 days or, alternatively, to continue the trial date
until a time closer to the original dismissal deadline.[2]  The trial court=s docket sheet reflects that the trial court granted Betty a
continuance but only reset the final hearing to May 16, 2006, still within the
existing one-year dismissal deadline. 
Prior to the beginning of the termination hearing on May 16, 2006, Betty=s trial counsel re-urged her motion requesting a 180-day extension,
but the trial court denied it.
After a hearing on the
merits, the trial court found that Betty knowingly placed or knowingly allowed
the children to remain in conditions or surroundings which endangered their
physical or emotional well-being, that Betty engaged in conduct or placed the
children with persons who engaged in conduct which endangered their physical or
emotional well-being, and that termination of the parent-child relationship was
in the best interest of the children. 
The trial court rendered its final order terminating Betty=s parental rights to all three children on May 16, 2006.




On May 31, 2006Cthe fifteenth day after the trial court entered its termination orderCBetty=s trial
counsel filed a notice of appeal and statement of points for appeal, raising
only insufficient-evidence points.[3]  On June 1Cthe sixteenth dayCthe trial court granted trial counsel=s motion to substitute and appointed appellate counsel to represent
Betty.
On June 6Cthe twenty-first day after the trial court signed its final orderCappellate counsel filed a AMotion for New Trial and Supplemental Statement of Points on Appeal.@  In her supplemental points,
Betty contended that the evidence was factually insufficient to support the
trial court=s order and
that family code section 263.405(i) violates the separation of powers provision
of the Texas constitution and the Due Process Clause of the United States
Constitution.  This appeal followed.
II.     Discussion




As previously noted, Texas
Family Code section 263.401 provides a one-year dismissal deadline for a suit
affecting the parent‑child relationship filed by the Department that
requests termination or conservatorship, with a one-time extension of 180 days
based upon proof of Aextraordinary
circumstances@:
(a)
Unless the court has rendered a final order or granted an extension under
Subsection (b), on the first Monday after the first anniversary of the date the
court rendered a temporary order appointing the department as temporary
managing conservator, the court shall dismiss the suit affecting the parent‑child
relationship filed by the department that requests termination of the parent‑child
relationship or requests that the department be named conservator of the child.
 
(b)
The court may not retain the suit on the court=s
docket after the time described by Subsection (a) unless the court finds that
extraordinary circumstances necessitate the child remaining in the temporary
managing conservatorship of the department and that continuing the appointment
of the department as temporary managing conservator is in the best interest of
the child.  If the court makes those
findings, the court may retain the suit on the court=s
docket for a period not to exceed 180 days after the time described by
Subsection (a).[4]
 
The version of family code section 263.405(i)
applicable to this suit provides:
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.[5]
 




Thus, section 263.401 deals
with the dismissal deadline while section 263.405(i) deals with what issues we
may consider on appeal.
A.     Section 263.401's Dismissal Deadline and Separation of
Powers
In her first issue, Betty
argues that the legislative dismissal deadline found in section 263.401
violates the separation of powers provision of the Texas constitution by
interfering with the trial courts= judicial power to determine the timing and speed of disposition of
causes.  But Betty failed to raise this
issue in the trial court.
To preserve her complaint for
our review under the Texas Rules of Appellate procedure, Betty must have
presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling, if the grounds are not apparent
from the context of the request, objection, or motion, and she must have
obtained an explicit or implicit ruling from the trial court.[6]  If a party fails to do this, error is not
preserved, and the complaint is waived.[7]  Even a constitutional challenge to the facial
validity of a statute may apparently be waived if not properly raised in the
trial court.[8]




Betty argues the Separation
of Powers Clause renders the dismissal statute void so that preservation of her
first issue in the trial court was not required.  But the cases she relies upon involved
challenges to void judgments, which can be attacked at any time, not
void statutes.[9]  Betty is not contending that the judgment is
void; she is complaining that the judgment is erroneous because the statute in
question imposes arbitrary deadlines that prevented her from properly
presenting her defense.[10]  Thus, Betty=s complaint does not involve the type of challenge of facial
unconstitutionality of a statute that may be asserted for the first time on
appeal.




Betty also concedes in her
brief that neither her original nor her supplemental statement of points
contained a complaint regarding the constitutionality of section 263.401.  Because Betty never raised the constitutionality
of section 263.401 in the trial court, she cannot raise that issue on appeal.[11]  Therefore, we overrule her first issue.
B.     Trial Court=s Denial of Betty=s Motion to Extend Dismissal Deadline
1.     Preservation of Error
In her second issue, Betty
argues that the trial court erred by denying her motion for a 180-day extension
of the dismissal deadline because she showed extraordinary circumstances.  Unlike Betty=s first issue, this issue was preserved for appeal not just once but
twice pursuant to appellate rule33.1Cfirst by her pretrial motion for extension of the final hearing
deadline by 180 days and second by her action in re-urging that motion before
trial beganCand she
obtained a ruling by the trial court on both occasions.[12]
2.     New Section 263.405(i) as
a Bar to Considering Betty=s
Second Issue




Nevertheless, the Department
contends that section 263.405(i) bars us from considering Betty=s second issue because she failed to list it in her original statement
of points filed within fifteen days after the judgment was signed as required
by section 263.405(b).  This brings us to
Betty=s third issue, in which she contends that, to the extent section
263.405(i) bars our consideration of her issue on the merits, it violates the
Separation of Powers Clause of the Texas constitution.[13]
As a threshold matter, we
must determine whether we are precluded from considering Betty=s third issue challenging the constitutionality of section 263.405(i)
because that issue was likewise not included in her original statement of
points.  As we have already noted, while
Betty did not challenge section 263.405(i)=s constitutionality in her original statement of points, she did list
that Apoint@ in her
supplemental statement of points and motion for new trial.[14]




Nevertheless, because her
supplemental statement of points was not filed within the fifteen-day period
required by section 263.405(b), the Department argues that section 263.405(i)
bars us from even considering Betty=s complaints about that section=s constitutionality.  But our
ability to consider points not filed in the trial court within fifteen days did
not even come into question until after the appeal reached this court.
Specifically, Betty=s complaint of the unconstitutionality of section 263.405(i) under the
Separation of Powers Clause raises the question of whether that statute unduly
interferes with this Court=s own power and authority to exercise its core judicial
functions.  This issue could not have
been addressed by the trial court in the first instance and thus need not have
been preserved in the trial court to be raised here.[15]




We hold that Betty properly
preserved her complaint that the statute violates the Separation of Powers
Clause by raising the issue in her brief in this court.
a.      History of Section
263.405(i)
Chapter 263 of the family
code provides for hearings for temporary and permanent placement,
conservatorship, and termination of parental rights in cases involving
dependent and neglected children removed from their homes and placed in foster
care by the Department.  In 1997, the
legislature enacted amendments to chapter 263 to reduce delays in the time
spent in foster care by a child awaiting a final decision in a proceeding to
terminate parental rights by imposing a one-year limitation for a final order
with the possibility of a one-time 180-day extension.[16]




In 2001, the legislature
passed additional amendments to the family code to expedite both the hearing
and appeals processes.  Section 109.002
was amended to provide that all termination appeals are to be Aaccelerated@ and
governed by the procedures for an accelerated appeal under the Texas Rules of
Appellate Procedure.[17]  Section 263.405 was amended to require
additional postjudgment and appellate steps regarding final orders
involuntarily terminating parental rights.[18]  The stated intent of these amendments was,
again, to accelerate the appeal process and thereby Ahelp to minimize the time that a child has to be subject to lengthy
and distressing court proceedings.@[19]  Specifically, section
263.405(b), added in 2001, provides:
Not
later than the 15th day after the date a final order is signed by the trial
judge, a party intending to appeal the order must file with the trial court a
statement of the point or points on which the party intends to appeal.  The statement may be combined with a motion
for new trial.[20]
 




This court and several of our
sister courts of appeals have recognized that the purposes of section
263.405(b) were to eliminate frivolous appeals in termination cases, reduce the
costs associated with such appeals, and reduce appellate delays.[21]  However, we and other courts of appeals also
held that failure to file a statement of points or to list a complaint in the
statement of points does not deprive us of jurisdiction over the appeal[22]
nor necessarily waive review of an issue on appeal.[23]  Specifically, this court held that such
failure does not constitute a waiver when the appellee does not establish prejudice,
following the liberal approach adopted by the supreme court when an appellant
has requested only a partial reporter=s record but has failed to file a statement of points as required by
appellate rule 34.6(c).[24]




Expressing its disapproval of
this line of cases as seeming to Aeffectively repeal@ the statute=s effort to
address postjudgment delay, the legislature enacted section 263.405(i),
effective September 1, 2005, instructing us that we may not consider any issue
not presented to the trial court in a timely filed statement of points.[25]  The House Bill Analysis for that statute
states that cases interpreting section 253.405(b) have frustrated the
legislature=s goal to speed
up the postjudgment process by Abog[ging] down the [system] with mistakes@ that could have been easily corrected at the trial level by the
granting of a new trial.[26]  The Bill Analysis further states that section
263.405(i) clarifies the legislature=s intent by conclusively establishing that Athe Legislature expects litigants to comply with Section 263.405(b)@ because compliance as intended Awould correct any wrongs 30 days after trial, as opposed to extending
reversals months or years after trial.@[27]
b.     Separation of Powers




A court will not pass on the
constitutionality of a statute if the particular case before it may be decided
upon independent alternative grounds.[28]  But section 263.405(i) by its own terms bars
us from considering Betty=s issues
challenging the constitutionality of that section as well as her second issue
on the merits because those issues were not listed in her original statement of
points.  Nor are we at liberty to
determine that any unconstitutionality was Aharmless@ because the
statute says we may not Aconsider@ Betty=s second
issue to determine whether she would be entitled to prevail on the merits if
the statute did not preclude us from reviewing her complaint.[29]  Therefore, we are directly confronted with
the issue of the constitutionality of section 263.405(i).[30]




We start with the presumption
that the legislature intended to comply with the United States and Texas
constitutions.[31]  If possible, we must interpret a statute in a
manner that renders it constitutional.[32]  Mindful of these admonitions, we turn to the
question of whether section 263.405(i) is unconstitutional as a violation of
the Separation of Powers Clause.  Since
its enactment, several courts of appeals have questioned the practical
application and constitutionality of the statute, but we are aware of no case
that has addressed its constitutionality under the Separation of Powers Clause.[33]
Section I of article II of
the constitution provides: 
The
powers of the Government of the State of Texas shall be divided into three
distinct departments, each of which shall be confided to a separate body of
magistracy, to-wit:  Those which are Legislative
to one; those which are Executive to another, and those which are Judicial to
another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the
others, except in the instances herein expressly permitted.[34]




The Separation of Powers
Clause is violated (1) when one branch of government assumes power more
properly attached to another branch or (2) when one branch unduly interferes
with another branch so that the other cannot effectively exercise its
constitutionally assigned powers.[35]  Any attempt by one branch of government to
interfere unduly with the powers of another is null and void.[36]  As stated in a landmark case on this subject
by the Supreme Court of Texas:
The
separation of powers was believed by Montesquieu, by Blackstone, and by
American Constitution makers of the eighteenth century to be one of the chief
and most admirable characteristics of the English Constitution.
 
A principle which is the very
foundation of the government of the United States and of the several states
must be deemed one essential to the preservation and liberties of the people,
and should be thoughtfully and faithfully observed by all clothed with the
powers of government.[37]




The judicial power is vested
in the courts created by the constitution and, as provided in the Separation of
Powers Clause, is not subject to change by the legislature Aexcept in the instances herein expressly permitted.@[38]  Article V, section 1 of the
Texas constitution vests A[t]he
judicial power of this State . . . in one Supreme Court, in one
Court of Criminal Appeals, in Courts of Appeals, in District Courts
. . . and in such other courts as may be provided by law.[39]  Article V, section 6(a) of the
constitution expressly grants the courts of appeals appellate jurisdiction
co-extensive with the limits of their respective jurisdictions, which shall
extend to Aall cases of
which the District Courts or County Courts have original or appellate
jurisdiction, under such restrictions and regulations as may be prescribed by
law.  Provided, that the decision of said
courts shall be conclusive on all questions of fact brought before them on
appeal or error.@[40]




Article V, section 6(a)
of the constitution also grants courts of appeals Aoriginal or appellate jurisdiction , under such restrictions and
regulations as may be prescribed by law.@[41]  Thus, our jurisdiction over an
appeal may arise from either (1) the general constitutional grant, or (2) a
specific statutory grant of jurisdiction as may be prescribed by the
legislature.[42]
The Department first argues
that our jurisdiction in termination cases is purely statutory and not
constitutional because the right to appeal in a termination suit in Texas is
expressly granted by the family code.[43]  Thus, the Department contends, the
legislature may place such restrictions on the right of appeal as it
chooses.  We disagree.[44]




Our judicial power is
conferred by the constitution.[45]  Our constitutional jurisdiction extends to
appeals in all cases of which the district courts have original jurisdiction,
which includes termination cases.[46]  Appeals in termination cases have long
predated section 109.002 of the family code and its predecessor statutes.[47]  Family code section 109.002(a) merely
recognizes our existing appellate jurisdiction in termination cases, i.e., Aas in civil cases generally.@[48]




The Department next posits
that the legislature still retains the power to impose restrictions and
regulations on our appellate jurisdiction, which it has done by enacting
section 263.405(i).  This is so, the
Department argues, because our constitutional jurisdiction is granted subject
expressly to Asuch
restrictions and regulations as may be prescribed by law.@[49]  Thus, the Department contends,
our jurisdiction is not absolute but is subject to limitation by the
legislature.




We agree that our
constitutionally granted jurisdiction is not absolute.  But neither is the legislature=s power to restrict and regulate the appellate courts= jurisdiction unlimited.[50]  Specifically, A[i]t is [] when the functioning of the judicial process in a field
constitutionally committed to the control of the courts is interfered with by
the executive or legislative branches that a constitutional problem arises.@[51]  We recently acknowledged that
the legislature may restrict and regulate our constitutional jurisdiction over
appeals from orders terminating parental rights.[52]  But in the same paragraph, we pointed out
that the legislature cannot interfere with our constitutionally granted
powers and that any attempt to do so would be null and void.[53]  The legislature plainly may not interfere
with the functions and powers of the judicial branch so as to usurp those
functions and powers.[54]




The Department also asserts
that section 263.405(i) is a permissible restriction on our judicial power,
relying upon cases holding that the legislature may not only restrict or limit but
may even deny altogether the right of appeal. 
But Texas already provides the right of appeal from a judgment
terminating parental rights.[55]  Where appellate court review is permitted,
the avenues for appeal must be kept free of unreasonable restrictions that
hinder the exercise of our power of appellate review.[56]  Moreover, restricting the individual right
of appeal of a litigant is not the same as restricting our judicial power.
 While due process prevents undue
restriction on parents in exercising their right of appeal, it is restrictions
on our judicial power that implicate the doctrine of separation of powers.[57]







All but one of the cases
relied upon by the Department merely involved questions of statutory
construction of language of statutes limiting the right of appeal; in none of
those cases was the separation of powers doctrine raised.[58]  The last case relied on by the Department, Rushing
v. State, is also distinguishable.[59]  The court of criminal appeals held in that
case that the claim in question was merely a Aparticular kind of jurisdictional claim of legislative creation@ under the juvenile court system that had been created by the
legislature, so that the legislature retained power to prescribe the
requirement for preservation of error as to the claim without violating the
Separation of Powers Clause.[60]  The court also based its holding, in part, on
its own precedent that rules of appellate procedure could not trump statutes in
criminal cases.[61]  But terminations of parental rights are not
criminal cases.  And, as we have
previously noted, both the district courts= and the appellate courts= power in parental termination suits is constitutional rather than
statutory.[62]  And, finally, neither section 263.405(b) nor
(i) is a preservation of error statute like the statute in Rushing.
The Department argues that
section 263.405(i) does not interfere with the Aappellate [c]ourt=s discretion or power to rule on issues once they are properly before
the court.  It merely creates a process
which litigants must follow to bring an issue before the [c]ourt.@  We agree that section
263.405(i) is intended as a procedural rule.[63]  But this is not the end of our inquiry.




Nothing in section 263.405(i)
suggests that the legislature intended by that statute to substitute the
statement of points for the rules of civil and appellate procedure in order to
preserve error in cases involving involuntary termination of parental rights.  No one would suggest that Betty could have
preserved error regarding her complaint of the denial of an extension of the
one-year dismissal deadline only after trial by listing it in a statement of
points filed fifteen days after the final order was signed.  Nothing in either (b) or (i) suggests that
timely filing a statement of points listing all of the issues to be raised on
appeal will bring an issue listed in that statement before the appellate court.  A prospective appellant must still have
timely and properly complied with all applicable rules of procedure governing
preservation of error in order for any complaints to be considered on
appeal.  Contrary to the Department=s position, neither section 263.405(b) nor (i) Acreates a process which litigants must follow to bring an issue before
the [appellate c]ourt.@




In order to be properly
before the appellate court, any complaints must have been timely called to the
trial court=s attention
before or during trial (including complaints related to pleadings, voir dire,
admissibility of evidence, charge errors, or improper jury argument), or they
must be listed in a timely filed postjudgment motion (for complaints seeking
rendition) or in a motion for new trial (for complaints seeking remand such as
factual insufficiency of evidence to support jury findings and complaints that
require evidence to be produced at the new trial hearing).[64]
The rules of civil and
appellate procedure have the force and effect of statutes and as binding
supreme court decisions.[65]  Accordingly, we must continue to observe and
follow those rules; we have no authority to deviate from them.[66]  Under appellate rule 47.1, a court of appeals
must hand down a written opinion that addresses Aevery issue raised and necessary@ to the final disposition of an appeal.[67]  Therefore, pursuant to appellate rule 33.1,
we must address and decide the merits of Betty=s second issue because she properly preserved it for appeal by her
motion for extension of the dismissal deadline that she timely presented and
then re-urged prior to trial.[68]




Section 263.405(i) prohibits
us from considering Betty=s second
issue even though it was properly preserved. 
But for the reasons stated below, we hold that section 263.405(i) is
void because it violates the Separation of Powers Clause of the constitution to
the extent that it forecloses our power to review issues properly preserved for
appeal because the statute unduly interferes with our substantive power as an
appellate court to rehear and determine issues on the merits that were decided
in the court below.[69]




The legislature may not Ainfringe upon the substantive power of the Judicial department
under the guise of establishing >rules of court,= thus
rendering the separation of powers doctrine meaningless.@[70]  Even in the period before the
Rule Making Act of 1939 when rules of procedure were prescribed by statute,[71]
the supreme court held that A[t]he legislature [may] regulate the procedure by which jurisdiction
conferred by the constitution may be exercised . . . and procedure in
the appellate courts, but it [may] not substantially impair the constitutional
jurisdiction granted nor practically defeat its exercise.@[72]
In Meshell v. State,
the court of criminal appeals was faced with whether the version of the Speedy
Trial Act then in effect encroached upon the substantive powers of the judicial
branch in violation of the Separation of Powers Clause or whether by that Act
the legislature legitimately provided a statutory procedural rule to guide in
enforcement of a substantive right.[73]  The court held the Act unconstitutional by
imposing a deadline on readiness for trial by county attorneys, as members of
the judicial branch, although the Act purported to establish only a procedural
guideline for enforcement of a defendant=s right to a speedy trial.[74]




The court=s analysis in Meshell focused, first, on the nature of the
legislative action complained of and, second, on whether that action encroached
on the power of the judicial branch.[75]  The court first identified the substantive
right the legislature intended to enforce by imposing procedural guidelines,
i.e., the right to a speedy trial, but observed that, from its plain language,
the Act was directed only at expediting the prosecutor=s preparation and readiness for trial, not at expediting actual
commencement of trial.[76]  The court concluded the Act thus did not
accomplish the stated objective, even incidentally, of speeding a case to trial,
but only guaranteed a dismissal to the defendant if there was prosecutorial
delay in preparing for trial.  In so
doing, the court concluded, the legislature encroached upon the exclusive
prosecutorial discretion of the county attorney and thereby violated the
Separation of Powers Clause.[77]




In Williams v. State,
the court of criminal appeals focused on the effect of legislative
encroachment on the judicial power.[78]  The court held that a statute requiring a
ninety-five percent remittitur of a judgment forfeiting bond if statutory
requirements were met within two years after judgment, in effect, was a
modification of a final judgment and thus violated the separation of powers
provision because it usurped the judicial branch=s function and power over final judgments.[79]  In Armadillo Bail Bonds v. State, the
court of criminal appeals considered a similar statute that the legislature
apparently enacted in an attempt to circumvent the holding in Williams,
limiting a trial court=s authority
to enter a final judgment until eighteen months after a forfeiture was entered.[80]




The court in Armadillo
Bail Bonds observed that certain judicial functions are so fundamental that
courts alone may determine when and how those functions are to be exercised.[81]  The court concluded that there must remain
some realm of judicial Aactivity so
fundamental and so inherent in its very nature as a court that to divest it of
its absolute command within these spheres is to make meaningless the very
phrase judicial power.@[82]  Looking to decisions of other
states, the court found a consensus of opinionCwith which it agreedCthat when and how cases shall be decided may not be
dictated by the legislature but are matters solely for the judicial branch of
government.[83]




The Armadillo Bail Bonds court
reasoned as follows:  the statute would
compel the trial court to refrain from exercising a part of its Acore power,@ i.e., entry
of final judgment, for a year and a half; and if that requirement were valid,
then Anothing prohibits the legislature from imposing an interminable
delay in obtaining final judgment.@[84]  In short, if the statute were
valid, then the legislature would have the power to Arender the Judiciary impotent with respect to entry of final
judgments;@ therefore,
the statute unduly interfered with the judiciary=s effective exercise of its constitutionally-assigned power and was
invalid as a violation of the Separation of Powers Clause.[85]
We first apply the Meshell
analysis to section 263.405(i).  As
we have seen, that section was added in an effort to enforce the requirement of
a timely statement of points in order to give the trial court an opportunity to
correct its own errors by granting a new trial, thereby minimizing postjudgment
and appellate delays.  We share the
legislature=s concern
with postjudgment and appellate delays as well as its desire to reduce the time
children removed from their parents must spend in foster care. We also share
its concern with eliminating frivolous appeals and reduction in costs, two
other stated purposes of section 263.405(b) in requiring the statement of points.




But section 253.405(i) is not
directed at those goals, even incidentally. 
Instead, it is directed at simply prohibiting exercise of our appellate
power to review issues.  Rather than
expediting the postjudgment and appellate process and cutting down on delay, it
merely guarantees the Department an affirmance of all errors not listed in a
statement of points, regardless of merit. 
The consequence of sections 263.405(b) and (i) together is that, if
complaints are not listed in a timely filed statement of points, even
meritorious complaints otherwise timely and properly preserved for appeal under
the rules are forever barred from appellate review.




Moreover, neither section
263.405(b) nor (i) expedites the postjudgment or appellate process; the
appellate rules and the family code already provide for an accelerated appeal
process for judgments terminating parental rights.[86]  The fifteen-day filing deadline for a
statement of points neither accelerates nor expedites any timetable for
postjudgment motions or for the necessary steps for appeal.  Because the termination order is a final
judgment, the appealing party still has thirty days under rule of civil
procedure 329b to file a motion for new trial, an additional fifteen days after
the statement of points is due.[87]  The times for filing other postjudgment
motions and for perfecting an appeal still begin with the signing of the final
termination order, and the accelerated appellate timetable still begins to run
from the date the final order is signed, with the notice of appeal still due
twenty days after the order is signed,[88]
the reporter=s record and
clerk=s record still due sixty days after the notice of appeal is filed,[89]
and the appellate briefing schedule still beginning twenty days thereafter.[90]




The House Bill Analysis for
section 263.405(i) also states that the new section, by prohibiting courts of
appeals from considering issues not included in the statement of points,
accomplishes the purpose of allowing the trial court Ato correct any errors within thirty days after trial or grant a new
trial, thereby avoiding lengthy appeals.@[91]  But new section 263.405(i)
does no such thing.[92]  Making the statement of points mandatory upon
pain of waiver does not ensure errorless judgments nor eliminate the necessity
for an appeal.  Nothing in the statute
provides any guarantee that filing a statement of points will cause a trial
court to be any more likely to correct its errors or to grant a new trial so as
to eliminate the requirement for an appeal than when error is timely and
properly presented to the trial court pursuant to the rules of procedure.  If a statement of points in the trial court
sufficed to obtain correction of errors, our existence as an appellate court as
contemplated by the constitution would be rendered totally unnecessary.
Thus, section 263.405(b)
creates a duplicative procedural hurdle over and above the long-established
procedural rules for preservation of error; yet compliance with that statute
does not preserve error for appeal.  The
statute merely adds additional cost and delay instead of reducing it while
section (i) ultimately precludes our review of claims that have otherwise been
properly preserved, resulting in affirmance in otherwise meritorious appeals as
well as frivolous ones.




Our existing civil trial and
civil appellate procedural schemes designed and promulgated by the supreme
court already carry out the stated goals of the legislature.  The existing rules minimize delay, they
assure that parties must bring every complaint of error to the attention of the
trial court in a timely manner, and they provide the trial court ample
opportunity at every step of the trial proceedings to cure its own errors and
grant new trials when needed, so as to eliminate unnecessary appeals.  But they also allow meritorious claims to be
reviewed and corrected on appeal.[93]




Why is the statutory mandateCthat an issue cannot be considered on appeal if not listed in a timely
filed statement of pointsCdifferent
from preservation of error requirements imposed by the rules of civil and
appellate procedure?  After all, doesn=t the statute, like the rules, provide that appellate courts cannot
consider issues not properly and timely raised in the trial court?  Yes, but there are significant
differences.  First, as already discussed
above, a statement of points does not preserve error for appeal, unlike
preservation of error rules.  The
statement of points only serves a purpose in the trial court to allow it to
consider whether issues are frivolous. 
Second, unlike preservation of error rules that require presentation of
a motion, objection, or request to and a ruling by the trial court, there is no
requirement that the trial court even rule on the statement of points. 




Third, appellate courts
interpret and apply the rules of procedure promulgated by the supreme court
liberally so as to resolve issues on the merits whenever possible.[94]  In contrast, by the statute clearly
prohibiting appellate courts from considering any issue not listed in a
statement of points, appellate courts are deprived of any discretion to allow consideration
of issues even when literal application of the terms of the statute defeats the
aim of resolving appeals on the merits.[95]  Finally, as the supreme court has pointed
out, while the civil and appellate rules promulgated by that court do place
restrictions upon the right of access to an appellate tribunal, those
restrictions Aserve to
provide a more orderly and efficient judicial system.@[96]  For the reasons so well
articulated by our sister courts, we are unable to see how sections 263.405(b)
or (i) serve to provide a more orderly or efficient judicial system.[97]  Thus, under the Meshell analysis,
section 263.405(i) is not directed at the goals the legislature seeks to
accomplish.  Instead, it merely
guarantees that the Department wins by blocking the exercise of our appellate
judicial function.  As in Meshell,
under the guise of establishing a procedural rule by the statute in question,
the legislature has unduly interfered with our substantive appellate powers.




This conclusion is reinforced
by utilizing the Armadillo Bail Bonds approach.  Section 263.405(i) interferes with our power
to exercise discretion in determining whether to consider issues not listed in
a statement of points, even in absence of prejudice to the Department.  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 Acore 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.




3.     Review of denial of motion to extend
dismissal deadline
Because section 263.405(i) is
void, we are not barred by that statute from considering points that were not
listed in a statement of points so long as they were properly preserved for
appellate review.  Thus, we are now able
to turn to the merits of Betty=s second issue, whether the trial court erred by denying her motion to
extend the dismissal deadline under section 263.401(b).
a.      Factual background
On June 4, 2005, in response
to a 9-1-1 call made by Betty, eleven-month-old T.W. was taken to the Cook
Children=s Medical Center emergency room, unconscious and suffering from severe
head trauma.  A CT scan revealed T.W. had
suffered a parietal skull fracture with subdural and epidural bleeding.  Dr. Tom Haddock, who saw T.W. in the
emergency room, testified that her injuries were consistent with her head
having been slammed against a hard object, and the amount of bleeding indicated
extreme force had been used.  Dr. Haddock
also testified that he observed scabbed-over linear stripes on T.W.=s right forearm, consistent with her having been struck with a rope or
wire.  T.W. also had linear striping and
bruising to her upper back.  T.W. was
admitted to the pediatric intensive care unit and remained there for almost a
month.




On the same date that T.W.
was admitted to the hospital, the Department took three-year-old D.W. to Cook
Children=s for an evaluation because his sibling had been admitted to intensive
care.  D.W.=s body displayed numerous old scars on his back, buttocks, and hands,
all indicative of physical abuse.  Betty
told a Department investigator that Stevie G., by whom she was eight months
pregnant with another child, had inflicted all of the marks on D.W. and T.W.
and that, during the eleven months she and Stevie had been together, Stevie had
been hitting D.W. and T.W. with a switch or belt until he left marks.  Betty later admitted to Detective Ezelle that
her mother, Janice W., as well as Stevie, hit the children.  Betty went on to tell the Department
investigator that around 1:45 a.m. of the day T.W. was taken to the emergency
room, Stevie had hit T.W.=s head
against the wall twice, yelling at her to go to sleep.  She also said Stevie had inflicted the linear
marks on T.W.=s arm.
Betty told Detective Ezelle
at least two different stories concerning T.W.=s injuries.  She first said that
T.W. woke up in the middle of the night, vomiting, and that she did not realize
Stevie had injured T.W.  Betty later said
that T.W. woke up around 2:00 a.m. and began vomiting around 3:00 or 4:00
a.m.  She also said Stevie hit T.W. with
a belt, and when he put her back on a pallet on the floor, her head hit the
wall more than once.  When Detective
Ezelle visited Betty=s house, he
found an indentation in the wall above a pallet.




At the time of the
termination hearing, T.W., then twenty-three months old, had just begun walking
with the assistance of braces on both legs. 
T.W. suffers ataxia, which affects the parts of the nervous system that
control balance and movement, and because her balance is so poor, she needs a
compression suit to walk on her own. 
T.W. also suffers from frequent seizures, has problems swallowing clear
liquids, and has some loss of vision.  In
July of 2005, Betty gave birth to S.G., who was placed in foster care the day
after her birth.  At the time of the
termination hearing, all three children had been placed together in one foster
home.[100]
April Hawkins was the
Department caseworker assigned to Betty=s case.  She testified that all
three children had medical and physical issues. 
Hawkins said that Betty had stopped attending Department-funded
counseling on March 23, 2006, about seven weeks before trial.  Based on her observations of Betty with the
children, Hawkins did not think Betty could raise the children on her own.  During the visits, Betty would hold the baby
and not interact with the other two children. 
Although Betty had completed a parenting-skills class, Hawkins said that
she did not see Betty use any such skills except on the baby.  All three children were in pull-ups or
diapers, and on one occasion it took Betty thirty minutes to change two
diapers.




Hawkins testified that Betty
had substantially complied with her service plan except for obtaining stable housing.  One factor out of Betty=s control was the recent influx of hurricane victims, which made
obtaining housing through the housing authority more difficult.  Betty lived with her mother, Janice, and
Betty had identified Janice as one of the people who was hitting the
children.  Also, Janice had failed to
protect Betty from sexual abuse by Betty=s stepfather.  According to
Betty, who said she was a teen at the time, Janice was aware of the abuse but
did nothing to stop it.  Moreover,
Hawkins testified that Betty continued to see Stevie, the man who had injured
T.W.
As part of her service plan,
Betty underwent an assessment at MHMR, but MHMR denied her any services because
Betty functioned below the minimum level necessary to qualify for
services.  Hawkins testified that the
Department thought Betty should make another attempt to obtain MHMR services,
and she thought that Betty had an appointment to be reassessed in the month
following trial. 
b.     Standard of review




Because an extension of the
dismissal date is similar to a continuance and because section 263.401(b) does
not indicate which appellate standard of review to apply, we apply the abuse of
discretion standard.[101]
To determine whether a trial
court abused its discretion, we must decide whether the trial court acted
without reference to any guiding rules or principles; in other words, we must
decide whether the act was arbitrary or unreasonable.[102]  Merely because a trial court may decide a
matter within its discretion in a different manner than an appellate court
would in a similar circumstance does not demonstrate that an abuse of
discretion has occurred.[103]
An abuse of discretion does
not occur where the trial court bases its decisions on conflicting evidence.[104]  Furthermore, an abuse of discretion does not
occur as long as some evidence of substantive and probative character exists to
support the trial court=s decision.[105]
c.      Discussion




Betty argues that the trial
court abused its discretion by failing to find that her upcoming appointment
with MHMR and the influx of hurricane victimsCa factor beyond Betty=s control that made it impossible for her to find stable housing
through the housing authorityCwere extraordinary circumstances that justified an extension of the
dismissal deadline.[106]  We disagree.
The trial court first
considered Betty=s motion to
extend the dismissal deadline on March 28, 2006.  But there is no record of that hearing or the
evidence.  Because no record was made of
the March 28 hearing, we must presume that the evidence supported the trial
court=s ruling and, therefore, we hold that the trial court did not abuse
its discretion in denying Betty=s pre-trial motion.[107]




Betty re-urged her motion at
the beginning of the final hearing. 
Betty presented no evidence pertaining to the motion, but trial counsel
asserted that Betty needed a 180-day extension because MHMR had provided her
with the name of an entity that was willing to provide services to her
beginning a month later and because Ashe=s still
receiving difficulty from the Housing Authority in terms of having an apartment
available to her.@  Because Betty presented no evidence when she
re-urged her motion, she cannot show that the trial court abused its discretion
when it denied her motion.[108]
To the extent Betty=s second issue encompasses the overruling by operation of law of her
motion for new trial, in which she argued that the trial court erred by failing
to grant her 263.401(b) motion, after the trial court heard evidence pertinent
to her motion to extend the dismissal deadline, we hold that the trial court
did not abuse its discretion.  The
evidence presented to the trial court during the final hearing did not render
the denial of the motion arbitrary or unreasonable.  Hawkins testified that, contrary to counsel=s pretrial assertion, Betty=s upcoming appointment with MHMR was merely for reassessment, not for
definite placement in a service program. 
In light of all of the other evidence presented at trial, we cannot say
that the trial court abused its discretion by failing to find extraordinary
circumstances that justified a 180-day extension of the dismissal
deadline.  We overrule Betty=s second issue.
III.     Conclusion




Having sustained Betty=s third issue in part and overruled it in part,  having overruled her first and second issues,
and not reaching her fourth issue, we affirm the trial court=s final order terminating her parental rights to D.W., T.W., and S.G.
 
 
ANNE GARDNER
JUSTICE
 
EN
BANC
 
CAYCE,
C.J. filed a dissenting and concurring opinion in which HOLMAN, J. joins.
MCCOY, J. filed a concurring opinion.
 
DELIVERED:  February 19, 2008

















 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-06-191-CV
 
 
IN
THE INTEREST OF 
D.W.,
T.W., AND S.G., CHILDREN
 
 
                                              ------------
 
           FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                   DISSENTING
AND CONCURRING OPINION
 
                                              ------------
I respectfully dissent to the
majority=s dicta opinion holding that section 263.405(i) of the Texas Family
Code violates the separation of powers clause of the Texas Constitution.1  I
concur in the judgment only.




Generally, a reviewing court
determines constitutional questions only when the court cannot resolve the
issues on nonconstitutional grounds.2  Betty=s only complaint on appeal concerning the trial court=s actions in this case is that the trial court abused its discretion
by denying her section 263.401(b) motion for an extension of the dismissal
deadline.  Betty, however, failed to make
a record of the hearing on her motion to extend the deadline.  Consequently, the majority affirmed the trial
court=s ruling without reaching the merits of Betty=s complaint.3  It was, therefore, unnecessary to the
disposition of this appeal for the majority to decide the question of whether
section 263.405(i) violates the separation of powers clause because it bars us
from reviewing the merits of Betty=s complaint.  The majority=s opinion on that issue is dicta. 
It is also wrong.




The right to appeal a
termination order is statutory, not constitutional.4  While
the constitution confers on the appellate courts the general power to review
appeals in civil cases, including termination proceedings, this power is
expressly subject to Asuch
restrictions and regulations as may be prescribed by law.@5  As the Supreme Court of Texas
stated in Seale v. McCallum, A[T]he principle is fixed that the Legislature has the power to limit
the right of appeal . . . .@6  Thus, our constitutional power
to review an appeal from a termination order may be limited by the Legislature.7
The applicable version of
section 263.405 of the family code provides in pertinent part:
(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. . .
.
 
(b) Not later than the 15th day after the date a
final order is signed by the trial judge, a party intending to appeal the
order must file with the trial court a statement of the point or points on
which the party intends to appeal. 
The statement may be combined with a motion for a new trial.
 
. . . . 
 




(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. . . .8
Under section 263.405, an
appellant has the right to appellate review of any issue that is presented to
the trial court in a timely-filed statement of points pursuant to section
263.405(b) and that is otherwise preserved in accordance with the rules of the
Supreme Court of Texas.9  The Legislature has declared in section
263.405(i), however, that there is no right to appellate review of an issue
that is not preserved in accordance with the procedures provided by the
section.10  Because the right to appeal a termination
order is statutory, the limitation of section 263.405(i) on an appellant=s right to appellate review of a termination order constitutes a
proper exercise of the Legislature=s constitutional power to regulate and restrict such appeals.  It does not interfere with our power to
review and decide issues that have been preserved in accordance with the rules
and procedures governing section 263.405.




In comparing section 263.405
to court-made preservation of error rules, the majority performs a legislative
function under the guise of judicial decision making.  The majority holds that appellate rule
33.1(a) bars us from reviewing Betty=s first issue because it was not timely presented to the trial court,
but then the majority strikes down section 263.405(i) as having Aunduly interfered with our substantive appellate powers@ because it bars us from reviewing two other issues that were,
likewise, not timely presented to the trial court.11  The
only explanation the majority offers for its deference to the court-made rules
over the statutory rules is that, in the majority=s view, the court-made rules better serve the policy goals of the
statute.12  This is a matter for the Legislature to
decide, not the courts.  While we may
question the wisdom and efficacy of the statute, we may not refuse to follow
its procedures merely because we believe they are flawed or that they fail to
promote the Legislature=s
objectives.13




The test for whether the
separation of powers clause is violated by a procedural statute is not whether
the legislative purpose of the statute is served effectively by the statute or
whether court-made rules achieve the policy goals of the statute better than
the statute itself.  As the majority
notes, A[i]t is [only] when the functioning of the judicial process in a
field constitutionally committed to the control of the courts is interfered
with by the . . . legislative branch[] that a constitutional problem arises.@14  Appeals from termination
orders have not been constitutionally committed to the control of the
courts.  The right of appeal in a
termination case is subject to the restrictions and regulations of the
Legislature, and the mere possibility that a statute regulating this right may
fail, in whole or in part, to accomplish its legislative purpose does not
render the statute unconstitutional under the separation of powers clause.







The majority claims that,
contrary to the statute=s
legislative history, section 263.405(i) is not Adirected at@ the
legislative goals of reducing post judgment delay and frivolous appeals but,
instead, is exclusively directed at Aprohibiting exercise of our appellate power to review issues.@15  The majority provides no
support for what it perceives to be such a sinister legislative motive, other
than the majority=s own
criticisms of the statute in favor of court-made rules that similarly prohibit
us from reviewing issues that are not preserved.16 
Nothing in the language of section 263.405(i), its legislative history,
or its practical application suggests that the statute is directed at
accomplishing any purpose other than the goals expressed by the Legislature
when it enacted the statute.17  As this court sitting en banc unanimously
held in In re M.R.J.M.,18 A[Section 263.405] is not intended to bar appeals that raise
meritorious complaints, nor is it intended to prevent appellate courts from
conducting meaningful review of such complaints.@19  But, even assuming the
Legislature=s only
purpose in enacting section 263.405(i) was to limit our appellate review power
to issues preserved in accordance with the procedures provided by subsection
(b), the Legislature has the constitutional power to place this restriction on
us.20




In
conclusion, unlike the statutes in the three inapposite criminal law cases on
which the majority misplaces its reliance,21
section 263.405(i) does not tell us how to perform our judicial function or Ahow we must rule on issues brought before us.@22  It simply limits appellate
review of termination orders to issues that are preserved in accordance with
the procedures provided by the statute. 
This limitation is well within the Legislature=s constitutional power to regulate and restrict the right to appeal a
termination order.




Because there is no record of
the hearing on Betty=s motion to
extend the dismissal deadline under section 263.401(b), we must affirm the
trial court=s denial of
the motion without reviewing the merits of Betty=s complaint that it should have been granted.  I would, therefore, not address Betty=s argument that section 263.405(i) violates the separation of powers
clause because it bars us from reviewing the merits of her complaint.  Otherwise, I would overrule Betty=s separation of powers argument, dismiss her other issues because they
were not preserved in her timely-filed statement of points,23 and affirm the judgment of the trial court.24




 




 
JOHN CAYCE
CHIEF JUSTICE
HOLMAN,
J., joins.
 
DELIVERED:  February 19, 2008
 
















 
 
 
 
 
 
                                COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.  2-06-191-CV
 
 
IN
THE INTEREST OF 
D.W.,
T.W., AND S.G., CHILDREN
 
                                              ------------
 
           FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                  CONCURRING
OPINION
 
                                              ------------




I agree with the dissent that
A[i]t was, therefore, unnecessary to the disposition of this appeal for
the majority to decide the question of whether section 263.405(i) violates the
separation of powers clause because it bars us from reviewing the merits of
Betty=s complaint.  The majority=s opinion on that issue is dicta.@  Dissenting and concurring op.
at 2.  I concur only with the majority=s affirmance of the trial court=s final order terminating parental rights.  Because I would hold that it was not
necessary to reach the constitutional question concerning section 263.405(i) of
the Texas Family Code, I do not join in either opinion=s analysis of the constitutionality of that statute.
 
 
BOB MCCOY
JUSTICE
 
DELIVERED:
February 19, 2008




[1]Ricardo
R., D.W.=s
biological father, was never located. 
The trial court appointed an attorney ad litem to represent him.  Randy F., T.W.=s
biological father, filed an affidavit of waiver of interest.  Stevie G., S.G.=s
biological father, was served with a copy of the petition and notified of the
hearing date but failed to appear.


[2]Family
code section 263.401(a) provides that unless the trial court has rendered a
final judgment, on the first Monday after the first anniversary of the date the
court appointed the Department as temporary managing conservator, it shall
dismiss the Department=s suit.  Tex.
Fam. Code Ann. ' 263.401(a)
(Vernon Supp. 2006).  The trial court may
retain the suit on its docket for an additional 180 days under extraordinary
circumstances.  Id. ' 263.401(b).


[3]See id.
' 263.405(b)
(Vernon Supp. 2006) (providing that a party intending to appeal a termination
order must file a statement of points for appeal not later than the fifteenth
day after the date of the final order). 
Effective for cases filed after June 16, 2007, the Legislature amended
section 263.405(b) to add a requirement that a party intending to request a new
trial Amust
file a request not later than 15 days after the date a final order is signed.@  Act of May 21, 2007, 80th Leg., R.S., ch. 526,
' ' 2,
6, 2007 Tex. Sess. Law Serv. 931, 931-32 (Vernon) (to be codified as an
amendment of Tex. Fam. Code Ann. ' 263.405(b)).  The amended version is not applicable to this
case.


[4]Tex. Fam. Code Ann. ' 263.401(a).



[5]Id. ' 263.405(i)
(Vernon Supp. 2007).  


[6]Tex. R. App. P. 33.1(a).


[7]Bushell
v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh=g).


[8]In re
Doe 2, 19 S.W.3d 278, 284 (Tex. 2000) (holding facial constitutional
challenge based on Separation of Powers Clause not properly considered on
appeal where not raised in trial court); see In re R.B., 225 S.W.3d 798,
802 (Tex. App.CFort
Worth 2007, no pet.) (holding constitutional challenge based on facial
invalidity of statute in parental termination case waived when not raised in
trial court); see also In re B.L.D., 113 S.W.3d 340, 354B55
(Tex. 2003) (holding courts of appeals must not retreat from error preservation
standards to review unpreserved error in parental rights termination cases), cert.
denied, 541 U.S. 945 (2004).


[9]Compare In
re Doe 2, 19 S.W.3d at 284 (holding preservation of error required for
complaint of void statute) and Meshell v. State, 739 S.W.2d 246, 252
(Tex. Crim. App. 1987) (holding statute void as violating separation of
powers provision) with In re Nash, 13 S.W.3d 894, 899 (Tex. App.CBeaumont
2000, no pet.) (holding void judgment subject to collateral attack at
any time).


[10]Nor
is Betty contending that the judgment here is based on a void statute.
See Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987) (holding
voidness of statute on which conviction is based may be raised for first time
on appeal); see also Barnett v. State, 201 S.W.3d 231, 232 (Tex. App.CFort
Worth 2006, no pet.) (discussing rationale for Rabb exception to general
rule that failure to object at trial waives any complaint on appeal); 43A
George E. Dix et al., Texas Practice:
Criminal Practice & Procedure, '' 42.253B54
(2d ed. 2001).


[11]See
In re K.A.S., 131 S.W.3d 215, 231 (Tex. App.CFort
Worth 2004, pet. denied) (holding that because constitutional attacks on
section 263.401 were not raised in the trial court, the parent had waived the
right to assert them on appeal).


[12]Tex. R. App. P. 33.1(a); see In re
B.L.D., 113 S.W.3d at 349.


[13]Betty
also contends that we should utilize rule 2 to suspend the statement of points
requirement.  Tex. R. App. P. 2.  We
disagree.  Rule 2, by its own terms,
applies only to suspend appellate rules, not statutes.  Moreover, the rule does not provide for
retroactive suspension of a rule governing events that have already
occurred.  See State v. Garza, 931
S.W.2d 560, 563 (Tex. Crim. App. 1996). 
We overrule that portion of Betty=s third issue contending that
rule 2 may be used to suspend operation of section 263.405(i).


[14]No
court appears to have considered whether a timely filed statement of points may
be supplemented or amended to add additional points after expiration of the
fifteen-day deadline of section 263.405(b). 
But see In re M.N., 230 S.W.3d 248, 249B50
(Tex. App.CEastland
2007, no pet.) (holding issue waived that was only contained in motion for new
trial filed after fifteen-day deadline expired, even though trial court granted
motion to extend time to file statement of points).


[15]See
In re K.A.F., 160 S.W.3d 923, 928 (Tex.) (acknowledging
constitutional issues related to provisions of family code governing appeals
could not have been raised in trial court and, therefore, were required to be
raised in court of appeals to preserve error for consideration by supreme
court), cert. denied, 546 U.S. 961 (2005); see also Mercer v.
Phillips Natural Gas Co., 746 S.W.2d 933, 936 (Tex. App.CAustin
1988, writ denied) (recognizing general rule that constitutional question Amust
be raised at earliest opportunity@).


[16]See House Comm. on Juvenile Justice and Family
Issues, Bill Analysis, Tex. H.B. 2249, 77th Leg., R.S. (2001).  


[17]Tex. Fam. Code Ann. ' 109.002
(Vernon 2002); see Tex. R. App. P.
26.1(b) (providing notice of appeal must be filed within twenty days after
judgment is signed in an accelerated appeal).


[18]Id. ' 263.405.  


[19]See House Comm. on Juvenile Justice and Family
Issues, Bill Analysis, Tex. H.B. 2249, 77th Leg., R.S. (2001).


[20]Tex. Fam. Code Ann. ' 263.405(b);
In re D.R.L.M., 84 S.W.3d 281, 291 (Tex. App.CFort
Worth 2002, pet. denied). 


[21]In re
M.R.J.M., 193 S.W.3d 670, 675 & n.21 (Tex. App.CFort
Worth 2006, no pet.) (citing In re S.J.G., 124 S.W.3d 237, 242B43
(Tex. App.CFort
Worth 2003, pet. denied); In re M.G.D., 108 S.W.3d 508, 516  (Tex. App.CHouston [14th Dist.] 2003,
pet. denied)).


[22]In re
W.J.H., 111 S.W.3d 707, 712 & n.12 (Tex. App.CFort
Worth 2003, pet. denied) (citing In re J.B.W., 99 S.W.3d 218, 221 (Tex.
App.CFort
Worth 2003, pet. denied)); see also In re S.J.G.,124 S.W.3d at
243 (holding failure to file statement of points not a jurisdictional bar to
appeal); In re S.E., 203 S.W.3d 14, 15 (Tex. App.CSan
Antonio 2006, no pet.) (same).


[23]In re
W.J.H., 111 S.W.3d at 712.


[24]Id. at
712, n.13 (discussing Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.
2002), rejecting strict compliance with the rule when a Arigid
application@
would result in denying review on the merits, even though the appellee has not
demonstrated prejudice); In re B.T., 154 S.W.3d 200, 205 (Tex. App.CFort
Worth 2004, no pet.); see also Wall v. Dep=t of
Family Servs., 173 S.W.3d 178 (Tex. App.CAustin
2005, no pet.); In re S.P., 168 S.W.3d 197, 201B02
(Tex. App.CDallas
2005, no pet.); In re T.A.C.W., 143 S.W.3d 249, 251 (Tex. App.CSan
Antonio 2003, no pet.); In re M.G.D., 108 S.W.3d at 516; In re K.M., No.
07-04-0442-CV, 2004 WL 2826851, at *2 (Tex. App.CAmarillo
Dec. 8, 2004, no pet.).


[25]Tex. Fam. Code Ann. ' 263.405(i).


[26]See
In re E.A.R., 201 S.W.3d 813, 814B15
& n.2 (Tex. App.CWaco
2006, no pet.) (Vance, J., concurring) (quoting House Comm. on Juvenile Justice and Family Issues, Bill Analysis,
Tex. H.B. 409, 79th Leg., R.S. (2005)).


[27]Id.


[28]State
v. Windham, 837 S.W.2d 73, 78, n.4 (Tex. 1992).


[29]See Tex. R. App. P. 44.1(a) (defining
harmful error in civil cases as error that probably resulted in an improper
judgment or that Aprobably
prevented the appellant from properly presenting the case in the court of
appeals@).


[30]Accord,
In re S.K.A., 236 S.W.3d 875, 887 (Tex. App.CTexarkana
2007, pet. filed) (holding it necessary to address constitutional due process
complaint as to section 263.405(i), which would otherwise prevent court from
addressing issues that might be dispositive of appeal). 


[31]Tex Gov=t Code Ann. ' 311.021 (Vernon 2005); In
re B.L.D., 113 S.W.3d at 352.


[32]See
Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Tex. Mun.
League Intergovernmental Risk Pool v. Tex. Workers=
Comp. Comm=n, 74
S.W.3d 377, 381 (Tex. 2002).  If
possible, we Ainterpret
legislative enactments in a manner to avoid constitutional infirmities.@  Barshop v. Medina County Underground Water
Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996).


[33]See
In re T.R.F., 230 S.W.3d 263, 264B65
(Tex. App.CWaco
2007, pet. filed) (collecting cases expressing due process concerns as to
section 263.405(i)).  However, two courts
have now held section 263.405(i) violates due process as applied to the
circumstances presented by those cases.  See
In re D.M., No. 10-06-00407-CV, 2007 WL 4357665, at *10 (Tex. App.CWaco
Dec. 12, 2007, no pet. h.) (op. on reh=g) (holding statute as
applied to indigent mother violated her due process rights); In re S.K.A.,
236 S.W.3d at 894 (same).


[34]Tex. Const. art. II, ' 1.


[35]See
Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.
Crim. App. 1990) (adopting undue interference test); Rose v. State, 752
S.W.2d 529, 535 (Tex. Crim. App. 1987) (same); Meshell, 739 S.W.2d at
252 (same); Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1973)
(analyzing assumption of power more properly attached to another branch).


[36]Ex
parte Giles, 502 S.W.2d at 780.


[37]Langever
v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1035 (1934).  The 1824 constitutions of both Mexico and the
State of Coahuila and Texas contained similar language, as did the constitution
of the Republic of Texas.  Harold H.
Bruff, Separation of Powers Under the Texas Constitution, 68 Tex. L. Rev. 1337, 1340B41
& nn.24, 26 (1990).


[38]Tex. Const. art. V, ' 1(1).


[39]Id.  In other words, the Texas constitution also
grants the legislature the ability to establish Asuch
other courts as it may deem necessary and prescribe the jurisdiction and
organization thereof . . . .@ Id. 


[40]Tex. Const. art. V, ' 6(a).


[41]Id.


[42]Tune
v. Tex. Dep=t of
Pub. Safety, 23 S.W.3d 358, 361 (Tex. 2000) (jurisdiction
vested in court of appeals by virtue of general constitutional grant where
statute, granting appeal from denial of handgun license to justice court and
then to county court at law, was silent as to grant of further right of appeal
to courts of appeals).


[43]See Tex. Fam. Code Ann. ' 109.002(a)
(providing that appeals from final orders in termination suits shall be Aas in
civil cases generally@); see
also In re E.A.R., 201 S.W.3d at 815 (Vance, J., concurring).


[44]Cf.
In re E.A.R., 201 S.W.3d at 815 (Vance, J., concurring)
(stating Aright
to appeal@ in
termination cases is statutory, not constitutional).


[45]See
Tune, 23 S.W.3d at 360 (stating constitution grants courts of
appeals general jurisdiction over all cases specified in art. V, ' 6);
see also Dean, Rule-Making in Texas, 20 St. Mary=s L.J. 139, 152 (1988).


[46]See Tex. Const. art. V, ' 6,
and the general enabling legislation, Tex.
Gov=t
Code ann. ' 22.220(a)
(Vernon 2004) (AEach
court of appeals has appellate jurisdiction of all civil cases within its
district of which the district courts or county courts have jurisdiction when
the amount in controversy or the judgment rendered exceeds $100, exclusive of
interest and costs.@); Tex. Civ. Prac. & Rem. Code '51.012
(Vernon 1997) (same).


[47]See,
e.g., Pattison v. Spratlan, 539 S.W.2d 60 (Tex.), cert. denied,
429 U.S. 1001 (1976); DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687
(1944), cert. denied, 325 U.S. 862 (1945); see also former Tex. Fam. Code ' 11.19(a),
Act of May 25, 1973, 63rd Leg., R.S., ' 11.19(a), 1973 Tex.
Gen. Laws 1419-20 (stating appeals in suit affecting parent-child relationship
shall be as Ain
civil cases generally . . .@), repealed by Act of
April 6, 1995, 74th Leg., R.S., ch. 20, ' 2, 1995 Tex. Gen. Laws
282.


[48]Craft
v. Craft, 579 S.W.2d 506, 509 (Tex. Civ. AppCDallas
1979) (stating provisions of subsection allowing appeal from an order entered
under chapter 15 of former family code, governing termination of the
parent-child relationship, Alike many other provisions of
the Code, declare the law as it previously existed@)
(emphasis added), writ ref=d n.r.e.,
580 S.W.2d 814 (Tex. 1980).  And  final orders Awould
be appealable anyway under article 2249 [general enabling
legislation].@  Id. (emphasis added); see also McKnight,
Commentary on the Texas Family Code, Title 1, 5 Tex. Tech. L. Rev. 281, 407 (1974).


[49]Tex. Const. art. V, ' 6(a).  


[50]See
Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284, 287 (1942)
(appellate jurisdiction subject to control by legislature but only Awithin
constitutional limitations@); Langever, 124 Tex.
80, 76 S.W.2d at 1029 (legislature authorized to Apass
such laws as may be necessary to carry into effect the provisions of this
Constitution,@
subject to limitations on the legislature=s own powers contained
elsewhere in the constitution).


[51]State
Bd. of Ins. v. Betts, 158 Tex. 82, 308 S.W.2d 846, 851 (1958)
(emphasis added).


[52]In re
M.R.J.M., 193 S.W.3d at 676, n.26 (citing Sultan v.
Mathew, 178 S.W.3d 747, 752 (Tex. 2005); see also Seale v. McCallum,
116 Tex. 662, 287 S.W.45, 47 (1926) (holding legislature had power to limit
jurisdiction of courts of appeals in primary election contests); Tune, 23
S.W.3d at 362 (holding legislature limited courts of appeals=
jurisdiction to causes in which amount in controversy exceeds $100); Maddox
v. Covington, 87 Tex. 454, 29 S.W. 465, 469 (1895) (holding legislature
acted within its constitutional power in limiting jurisdiction of supreme court
under identical language of Tex. Const. art.
V, ' 3).


[53]In re
M.R.J.M., 193 S.W.3d at 676, n.26.


[54]Williams
v. State, 707 S.W.2d 40, 45 (Tex. Crim. App. 1986) (holding
statute unconstitutional that required ninety-five percent remittitur of amount
of bond if defendant was produced within two years after judgment, thus
altering or nullifying final judgment rendered by a court); see also
Harbison, 138 Tex. 192, 158 S.W.2d at 287; Langever, 124 Tex. 80, 76
S.W.2d at 1029.


[55]In re
M.S., 115 S.W.3d 534, 546 (Tex. 2003) (noting Texas already provides the
right of appeal from a judgment involving parental rights termination, citing
family code section 109.002). 


[56]Id.  A[I]t is now fundamental that,
once established, [avenues of appellate review] must be kept free of unreasoned
distinctions that can only impede open and equal access to the courts.@  Id. at 547(quoting M.L.B. v. S.J.L.,
519 U.S. 102, 111, 117 S. Ct. 555, 561 (1996)).


[57]The
supreme court has, however, also held that the right of appeal is protected by
the open courts provision of the constitution, article I, section 13.  Doctors Hosp. Facilities v. Fifth Court of
Appeals, 750 S.W.2d 177, 179 (Tex. 1988) (recognizing right of access to an
appellate tribunal is a substantial right protected against arbitrary and
unreasonable abrogation); Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303,
304 (1890).


[58]Three
of the Department=s
cases involved only interpreting the statutes in question that limited appellate
jurisdiction.  See Sultan, 178
S.W.3d at 749 (interpreting statute declaring judgment of county court on de
novo appeal from small claims court Afinal@); Tune,
23 S.W.3d at 361 (interpreting statute establishing minimum amount in
controversy for appeal from county court); Seale, 116 Tex. 662, 287 S.W.
at 47 (holding statute declaring judgment of district court in primary election
contest to be Afinal,@
precluding appeal).  A fourth case dealt
with the statutory limitation of jurisdiction of courts of civil appeals to Acivil
cases,@
which is also contained in the constitution. 
Harbison, 138 Tex. 192, 158 S.W.2d at 287.


[59]85
S.W.3d 283, 286B87
(Tex. Crim. App. 2002). 


[60]Id.  The court thus avoided the issue of whether
the legislature had unduly interfered with the powers of the appellate
courts.  The court of appeals in Rushing
had held that the statute violated the Separation of Powers Clause by denying a
court of appeals the power to review whether the trial court had jurisdiction,
which it characterized as an Aarea of minimum functional
integrity of the courts.@  Rushing v. State, 50 S.W.3d 715, 723B25
(Tex. App.CWaco
2001) (quoting from Armadillo Bail Bonds, 802 S.W.2d at 240B41).


[61]Id.


[62]See
id. at 286 (citing Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim.
App. 1993)); see also Tex. Gov=t Code Ann. ' 22.008;
Tex. Code Crim. Proc. art. 44.33
(providing court of criminal appeals shall make rules of posttrial and
appellate procedure as to criminal actions Anot inconsistent with this
code@); see
also Pope & McConnico, Texas Civil Procedure Rule Making, 30 Baylor L. Rev. 5 at 10B11
& n.38 (1978) (noting legislature retained rule making power in criminal
cases, unlike civil cases in which such power has been fully conferred on
supreme court).


[63]In In
re S.J.G., we held that section 263.405(b)=s
requirement that an appellant must file a statement of points not later than
fifteen days after judgment is procedural and not jurisdictional.  124 S.W.3d at 240.  When the legislature thereafter added section
263.405(i) directing courts of appeals not to consider issues not listed in a
timely filed statement of points, it did not alter the language of section
263.405(b).


[64]See Tex. R. Civ. P. 324(a); Tex. R. App. P. 33.1.


[65]See
In re City of Georgetown, 53 S.W.3d 328, 332 & n.2 (Tex. 2001);
Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 872 (Tex. 1973); Freeman
v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959).


[66]N.N.
v. Inst. for Rehab. & Research, No. 01-02-01101-CV, 2006 WL
3513809, at *10 (Tex. App.CHouston [1st Dist.] Dec. 7,
2006, no pet. h.); see Sherrill v. Estate of Plumley, 514 S.W.2d 286,
287 (Tex. Civ. App.CHouston
[1st Dist.] 1974, writ ref=d n.r.e.) (holding
court-promulgated rules have force and effect of supreme court opinions); Beach
v. Runnels, 379 S.W.2d 684, 686 (Tex. Civ. App.CDallas
1964, writ ref=d).


[67]Tex. R. App. P. 47.1.


[68]See Tex. R. App. P. 33.1.


[69]See
Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 646 (1933)
(defining appellate judicial power as Athe power and authority
conferred on a superior court to rehear and determineCthat
is, to reviewCcauses
which have been tried in inferior courts.@) (emphasis added).


[70]Meshell, 739
S.W.2d at 255 (emphasis added).


[71]Section
22.004(a) of the government code vests the supreme court with full rulemaking
authority in civil cases, subject to the limitation that the rules not abridge,
enlarge, or modify the substantive rights of a litigant. See Tex. Gov=t Code Ann. ' 22.004(a)
(Vernon Supp. 2007).  Such rules shall
remain in effect Aunless
disapproved by the legislature.@  Id. 
But see Dean, Rule-Making in Texas, 20 St. Mary=s L.J. at 141 n.9, 161 nn.101B02
(noting legislature has never exercised power of disapproval).  Section 31 of article V of the constitution,
like former section 25, limits the supreme court=s
power to promulgate rules Anot inconsistent with the
laws of the state.@  Tex.
Const. art. V ' 31.  This has been interpreted to mean that, in
the event of a conflict between a statute and a rule, the statute prevails
unless the rule was adopted subsequent to the statute.  Johnstone v. State, 22 S.W.3d 408, 409
(Tex. 2000); Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex.
1971) (construing identical language in former article V, section 25).  Even assuming there is a conflict here, we do
not need to determine its effect because we hold the statute is void.


[72]Langever,
124 Tex. 80, 76 S.W.2d at 1029.


[73]739
S.W.2d at 254B55.


[74]Id.


[75]Contrary
to the Department=s
brief, the Meshell court considered the county attorney part of the
judicial branch, not the executive.  Id.
at 253.


[76]Id. at
256.


[77]Id.


[78]707
S.W.2d at 47.


[79]Id.  (A[T]he Legislature has no
power to alter a final judgment rendered by the court in a bond
forfeiture.  Otherwise, the power of the
judicial branch would be a mockery, subject to the whim of the
Legislature.  The finality of judgments
would not exist and courts would be Legislative forums.@).


[80]802
S.W.2d at 239 (also applying former article V, section 25 of the Texas
constitution granting rulemaking power both to the supreme court and the
legislature).


[81]Id. at
240 (quoting A. Leo Levin & Anthony G. Amsterdam, Legislative Control
Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. Pa. L. Rev. 1, 31B32
(1958)).


[82]Id. at
241; see also State v. Williams, 938 S.W.2d 456, 458 (Tex. Crim. App.
1997) (citing both Meshell and Armadillo Bail Bonds in
considering the validity of a legislatively enacted procedural rule under
current section 31 of article V of the constitution).


[83]Armadillo
Bail Bonds, 802 S.W.2d. at 240 (quoting Coate v. Omholt,
662 P.2d 591 (Mont. 1983), and citing A. Leo Levin & Anthony G. Amsterdam, Legislative
Control Over Judicial Rule-Making, 107 U.
Pa. L. Rev. at 31B32).


[84]802
S.W.2d at 241 (emphasis in original).


[85]Id.; see
also Williams, 938 S.W.2d at 458. 
Nor may the legislature exercise judicial powers under the guise of its
retained power to regulate and restrict the courts=
jurisdiction.  Langever, 76 S.W.2d
at 1036 (noting legislature may not set aside the construction of a law already
applied by courts to actual cases, compel courts to adopt a particular
construction of a law, set aside or alter judgments, nor compel courts to grant
new trials).


[86]Tex. R. App. P. 26.1(b); Tex. Fam. Code Ann. '
263.405(a).


[87]Tex. R. Civ. P. 329b(a).


[88]Tex. R. App. P. 26.1(b)


[89]Tex. Fam. Code Ann. ' 263.405(f)
(altering time record would otherwise be due to ten days after notice of appeal
is filed as stated in Tex. R. App. P.
35.1(b)).


[90]Tex. R. App. P. 38.6(a).


[91]House Comm. On Juvenile Justice and Family Issues,
Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005).


[92]We
note that the Astatement
of points@
required to be filed by section 263.405(b) is not a motion, request, or other pleading
seeking any relief from the trial court. 
Although section 263.405(b) requires that the statement of points be
presented to the trial court, no provision is made for a hearing or a ruling by
that court.


[93]See,
e.g., Tex. R. Civ. P. 324
(requiring as prerequisite for appeal a point in a motion for new trial for
certain complaints); Tex. R. App. P.
33.1(a) (requiring timely request, objection, or motion, and explicit or
implicit ruling by trial court); Tex. R.
Evid. 103(a)(1) (requiring preservation of error as to admission or
exclusion of evidence by Atimely@
objection with an offer of proof as to evidence claimed to be wrongfully
excluded).  Numerous other rules of civil
procedure require objection at appropriate stages of pretrial, trial, and
posttrial proceedings in order to preserve error for appeal, including defects
in pleadings, objections to written discovery, challenges for cause, objections
and requests as to jury charge and omissions from charge, directed verdicts and
motions for judgment n.o.v. for legal insufficiency, and the types of error for
which motions for new trial are required to preserve error.  See, e.g., Tex. R. Civ. P. 90, 193.2, 229, 268, 274, 279, 301, and
324(a).


[94]Smirl
v. Globe Labs., Inc., 144 Tex. 41, 188 S.W.2d 676 (1945)
(distinguishing rules promulgated by supreme court from former statutes,
stating a court Ain
its discretion@ need
not in all cases dismiss an appeal for failure to observe and comply with the
rules prescribed for bringing a case before the appellate courts); Tex.
Employer=s
Ins. Ass=n v.
Evans, 117 Tex. 113, 123, 298 S.W. 516, 520 (1927) (AThe
office of a rule of procedure is to facilitate, rather than hinder, a speedy
and final determination of all lawsuits in that way which will secure to
litigants their substantial rights . . . .@).


[95]See
Michiana Easy Livin= Country, Inc. v. Holten, 168
S.W.3d 777, 784 (Tex. 2005) (reiterating that the appellate rules Aare
designed to resolve appeals on the merits and we must interpret and apply them
whenever possible to achieve that aim@); Bennett, 96 S.W.3d
at 229B30
(same); Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997) (noting Apolicy
embodied in our appellate rules that disfavors disposing of appeals on harmless
procedural defects@ and
holding courts of appeals must construe rules liberally so that the right to
appeal is not lost Aby
imposing requirements not absolutely necessary to effect the purpose of a rule@); Gallagher
v. Fire Ins. Exch., 950 S.W.2d 370, 370B71 (Tex. 1997) (reiterating Acommitment
to ensuring that courts do not unfairly apply the rules of appellate procedure
to avoid addressing a party=s meritorious claim@).


[96]Doctors
Hosp. Facilities, 750 S.W.2d at 179.


[97]See,
e.g., In re M.N., 230 S.W.3d 248, 249 (Tex. App.CEastland
2007, pet. filed) (questioning due process implications of section 263.405(i));
see also In re R.J.S., 219 S.W.3d 623, 627B28
(Tex. App.CDallas
2007, pet. denied) (noting section 263.405(b) is Atrap
for the unwary@); In
re D.M., No. 10-06-00407-CV, 2007 WL 2325815, at *6, n.2 (Tex. App.CWaco,
August 15, 2007, no pet. h.) (Vance, J., dissenting) (collecting decisions of
seven other courts of appeals questioning due process implications of sections
263.405(b) and (i)); In re R.M., No. 04-07-00048-CV, 2007 WL 1988149, at
*1 (Tex. App.CSan
Antonio, July 11, 2007, pet. denied) (questioning practical effects and
constitutional implications of section 263.405(i) and urging legislature to
revisit scope of statute); In re R.C., 
No. 07-06-0777-CV, 2007 WL 1219046, at *2 (Tex. App.CAmarillo
Apr. 25, 2007, no pet. h.) (Quinn, J., concurring) (same).


[98]See
Armadillo Bail Bonds, 802 S.W.2d at 240 (A[W]hen
cases shall be decided and the manner in which they shall be decided is
a matter solely for the judicial branch of government.@
(emphasis added)); see also A. Leo Levin & Anthony G.
Amsterdam, Legislative Control Over Judicial Rule-Making, 107 Pa. L. Rev. at 31B32
(collecting cases holding that any statute that moves so far into realm of
judicial activity Aas to
dictate to a judge how he shall judge . . . clearly offends
the constitutional scheme of the separation of powers and will be held invalid@)
(emphasis added).


[99]Because
we conclude that Betty=s
third issue should be sustained in part, we need not consider her fourth issue complaining
of violation of due process.  See Tex. R. App. P. 47.1.


[100]Stevie
pleaded guilty to reckless injury to a child and was incarcerated at the time
of the final hearing.


[101]See
In re J.A., No. 02‑05‑00454‑CV, 2006 WL
3114434, at *9 (Tex. App.CFort
Worth Nov. 2, 2006, no pet.) (mem. op.).


[102]Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).


[103]Id.


[104]In re
Barber, 982 S.W.2d 364, 365 (Tex. 1998) (orig. proceeding).


[105]Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).


[106]See Tex. Fam. Code. Ann. ' 263.401(b).


[107]In re
J.A., 2006 WL 3114434, at *9 (presuming evidence supported trial court=s
ruling and holding trial court did not abuse its discretion in denying a motion
for extension of dismissal date where appellant failed to provide record of
hearing).


[108]See
In re A.S.J., No. 04‑06‑00051‑CV, 2006 WL
1896335, at *2 (Tex. App.CSan
Antonio July 12, 2006, no pet.) (mem. op.) (holding appellants could not show
abuse of discretion under section 263.401(b) where they Afailed
to provide any evidence of an extraordinary circumstance that would warrant an
extension of time@).


1Tex. Const. art. II, ' 1.


2In re
B.L.D., 113 S.W.3d 340, 349 (Tex. 2003), cert. denied by Dossey
v. Tex. Dep=t of
Protective & Regulatory Servs., 541 U.S. 945 (2004).


3Maj.
op. at 46; see In re A.R., No. 02-03-00235-CV, 2004 WL 40627, at
*1 (Tex. App.CFort
Worth Jan. 8, 2004, pet. denied) (mem. op.).


4See Tex. Fam. Code Ann. '
109.002 (Vernon 2002); see also Sultan v. Mathew, 178 S.W.3d 747, 752
(Tex. 2005) (stating that legislature has power to restrict right to appeal;
open courts provision does not guarantee right to appeal); accord Doleac v.
Michalson, 264 F.3d 470, 492B93 (5th Cir. 2001) (holding
that there is no due process right to appellate review in U.S. Constitution); Able
v. Bacarisse, 131 F.3d 1141, 1143 (5th Cir. 1998) (noting that Athe
right to appeal is a statutory right, not a constitutional right@).


5Tex. Const. art. V, '
6(a); see Seale v. McCallum, 116 Tex. 662, 667, 287 S.W. 45, 47 (1926)
(stating that legislature had power to limit jurisdiction of courts of appeals
in primary election contests); Maddox v. Covington, 87 Tex. 454, 459, 29
S.W. 465, 466 (1895) (stating that legislature acted within its constitutional
power in limiting jurisdiction of supreme court under identical language of
Texas Constitution article V, section 3).


6Seale, 116
Tex. at 667, 287 S.W. at 47.


7Sultan, 178
S.W.3d at 752.


8Tex. Fam. Code Ann. '
263.405(a), (b), (i) (Vernon 2002 & Supp. 2006) (emphasis added).  Effective for cases filed after June 16,
2007, the Legislature amended section 263.405(b) to add a requirement that a
party intending to request a new trial Amust file a request not later
than 15 days after the date a final order is signed.@  Act of May 21, 2007, 80th Leg., R.S., ch.
526, '' 2,
6, 2007 Tex. Sess. Law. Serv. 931, 931B32 (Vernon) (to be codified
as an amendment of Tex. Fam. Code Ann. '
263.405(b)).  The amended version is not
applicable to this case.  Id.


9Tex. Fam. Code Ann. '
263.405(a), (b), (i).


10Id. '
263.405(i).


11Maj.
op. at 6B8, 39B41; see
Tex. R. App. P. 33.1(a).


12Maj.
op. at 33B39.


13See
Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757B58
(Tex. 1993) (upholding and applying procedure mandated by Texas=s
venue statute notwithstanding the fact that it was deemed by the court to be Afundamentally
flawed@).  Even if we had this discretion, the majority=s
conclusion that section 263.405(i) does not expedite the appellate process is
belied by data within this court=s own records showing that
within the last two fiscal years, the average disposition rate for termination
appeals involving one or more issues that were dismissed due to noncompliance
with the procedures of section 263.405(b) is 26% faster than the average rate
of disposition for other termination appeals. 
Case Management System, State of Texas Office of Court Administration
(Jan. 4, 2008) (on file with court). Thus, the Legislature=s
primary goal of disposing of appeals Awith the least possible delay@ has
been achieved by the procedures provided by section 263.405 in appeals filed in
this court.  House Comm. on Juvenile Justice and Family Issues, Bill Analysis, Tex. H.B. 409, 79th Leg.
R.S. (2005); see Tex. Fam. Code
Ann. ' 263.405(a).


14Maj.
op. at 21B22
(quoting State Bd. of Ins. v. Betts, 158 Tex. 83, 90, 308 S.W.2d 846,
851B52
(1958)) (emphasis added).


15Maj.
op. at 34.


16See
id. at 33B39.


17This
distinguishes section 263.405 from the Speedy Trial Act that the court of
criminal appeals found to be unconstitutional in Meshell v. State, 739
S.W.2d 246 (Tex. Crim. App. 1987), a case on which the majority heavily
relies.  According to the court in Meshell,
the Act was expressly directed at controlling a Ajudicial@
functionCprosecutorial
preparation and readiness for trial.  Id.
at 255.  The court held that the Act
violated the separation of powers clause not because it intruded into the
prosecutor=s
discretion to prepare for trial, which the court said was necessary to enforce
a defendant=s
constitutional right to a speedy trial, but because it did so without taking
into account factors assuring the speedy Acommencement of trial,@ such
as a defendant=s
assertion of his right to a speedy trial. 
Id. at 256.  Thus, the Act
encroached upon a prosecutorial function Awithout the authority of an
express constitutional provision.@  Id. 
Here, not only is there no intrusion into our power to decide issues
that are preserved in accordance with the procedural requirements of section
263.405, but there is an express constitutional provision that empowers the
Legislature to regulate and restrict the right of appellate review in
termination cases.  See Tex. Const. art. V, '
6(a); Sultan, 178 S.W.3d at 752; Seale, 116 Tex. at 667, 287 S.W.
at 47.


18193
S.W.3d 670 (Tex. App.CFort
Worth 2006, no pet.) (en banc).


19Id. at
675.  The issue presented here is much
different than the potential issue we were confronted with in In re M.R.J.M.,
where, notwithstanding the provision in section 263.405(g) requiring an
indigent parent to appeal a trial court=s frivolousness finding with
only the record of the frivolousness hearing, we ordered that a free reporter=s
record of the evidence admitted at trial to be prepared and filed to enable us
to exercise our constitutionally assigned judicial power of reviewing factual
sufficiency complaints.  Id. at
672B76; see
Tex. Fam. Code Ann. '
263.405(g).  Unlike section 263.405(g),
there is nothing in section 263.405(i) that would potentially hinder us in
exercising our constitutionally assigned power to review issues that are
appealed in accordance with the procedural requirements of the statute.


20See
supra at 2B4, 6,
7 n.17.


21Armadillo
Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990); Meshell,
739 S.W.2d at 246; Williams v. State, 707 S.W.2d 40 (Tex. Crim App.
1986). 


22Maj.
op. at 39B40.


23The
majority does not reach Betty=s complaint that subsections
(b) and (i) of section 263.405 violate her due process rights under the United
States Constitution as applied to her case, and neither do I.  Two of our sister courts, however, have
recently decided that question, and both courts held that the statute as
applied did violate the due process rights of the appellants in those
cases.  See In re D.M., No.
10-06-00407-CV, 2007 WL 2325815, at *10 (Tex. App.CWaco
Dec. 12, 2007, no pet.) (op. on reh=g); In re S.K.A., 236
S.W.3d 875, 894 (Tex. App.CTexarkana 2007, pet.
filed).  Both D.M. and S.K.A.
involved late appointments of counsel that hindered or prevented the appellants
from filing a timely statement of points. D.M., 2007 WL 2325815, at *6; S.K.A.,
236 S.W.3d at 885.  In this case,
however, Betty was represented by appointed counsel during the critical period
before the deadline for filing her statement of points, and her counsel filed a
timely statement of points raising insufficiency points, which she did not
assert in this appeal.


24See Tex. Fam. Code Ann. '
263.405(i); In re J.J., No. 05-06-01472-CV, 2008 WL 223841, at *7 (Tex.
App.CDallas
Jan. 29, 2008, no pet. h.) (mem. op. on reh=g) (refusing to consider
points not contained in a timely filed statement of points alone or in
combination with a motion for new trial); In re A.A.A., No.
01-07-00160-CV, 2008 WL 201033, at *11 (Tex. App.CHouston
[1st Dist.] Jan. 24, 2008, no pet. h.) (op. on reh=g)
(same); In re D.L.G., No. 05-07-00787-CV, 2007 WL 4375793, at *1 (Tex.
App.CDallas
Dec. 17, 2007, no pet. h.) (mem. op.) (same); In re A.R., No.
04-07-00292-CV, 2007 WL 4180208, at *1B2 (Tex. App.CSan
Antonio Nov. 28, 2007, no pet.) (mem. op.) (same); In re S.M.T., No.
09-06-00525-CV, 2007 WL 4208743, at *1, 3B4 (Tex. App.CBeaumont
Nov. 29, 2007, no pet.) (same); In re N.Z.B., No. 13-07-00316-CV, 2007
WL 3225886, at *1 (Tex. App.CCorpus Christi Nov. 1, 2007,
no pet.) (mem. op.) (same); Mikowski v. Dep=t of
Family & Protective Servs., No. 01-07-00011-CV, 2007 WL
3038099, at *2B3
(Tex. App.CHouston
[1st Dist.] Oct. 18, 2007, no pet.) (mem. op.) (same); In re C.R., No.
11-07-00060-CV, 2007 WL 2948916, at *1 (Tex. App.CEastland
Oct. 11, 2007, no pet.) (mem. op.) (same); In re K.C.B., 240 S.W.3d 454,
455 (Tex. App.CAmarillo
2007, pet. filed) (same); In re F.C.G., No. 11-07-00068-CV, 2007 WL
2823685, at *1 (Tex. App.CEastland
Sept. 27, 2007, pet. filed) (mem. op.) (same); In re T.R.F., No.
10-07-00086-CV, 2007 WL 2325818, at *1 (Tex. App.CWaco
Aug. 15, 2007, no pet.) (mem. op.) (same); In re L.F.B., No.
06-07-00010-CV, 2007 WL 2001643, at *4 (Tex. App.CTexarkana
July 12, 2007, pet. denied) (mem. op.) (same); In re R.M., No.
04-07-00048-CV, 2007 WL 1988149, at *1B2 (Tex. App.CSan
Antonio July 11, 2007, pet. denied) (same); In re K.A.J., No.
10-07-00110-CV, 2007 WL 1704815, at *2 (Tex. App.CWaco
June 13, 2007, no pet.) (mem. op.) (same); In re I.C., No.
04-06-00846-CV, 2007 WL 1608971, at *1 (Tex. App.CSan
Antonio June 6, 2007, no pet.) (mem. op.) (same); In re T.T., 228 S.W.3d
312, 316B17
(Tex. App.CHouston
[14th Dist.] 2007, pet. denied) (same); In re B.S., No. 09-06-00293-CV,
2007 WL 1441273, at *2, 4B5
(Tex. App.CBeaumont
May 17, 2007, no pet.) (mem. op.) (same); In re M.D., No.
05-06-00779-CV, 2007 WL 1310966, at *1 (Tex. App.CDallas
May 7, 2007, no pet.) (same); In re F.D.D., No. 04-06-00692-CV, 2007 WL
1267235, at *1 (Tex. App.CSan
Antonio May 2, 2007, no pet.) (mem. op.) (same); In re S.C., No. 06‑07‑00051‑CV,
2007 WL 1223880, at *1 (Tex. App.CTexarkana Apr. 27, 2007, no
pet.) (mem. op.) (same); In re R.J.S., 219 S.W.3d 623, 626B27
(Tex. App.CDallas
2007, pet. denied) (same); In re R.M.R., 218 S.W.3d 863, 864 (Tex. App.CCorpus
Christi 2007, no pet.) (same); In re J.F.R., No. 09-06-00115-CV, 2007 WL
685640, at *1B2
(Tex. App.CBeaumont
Mar. 8, 2007, no pet.) (mem. op.) (same); In re M.D.L.E., No.
09-05-00514-CV, 2007 WL 685562, at *3 (Tex. App.CBeaumont
Mar. 8, 2007, no pet.) (mem. op.) (same); Pool v. Tex. Dep=t of
Family & Protective Servs., 227 S.W.3d 212, 215 (Tex.
App.CHouston
[1st Dist.] 2007, no pet.) (same); Adams v. Tex. Dep=t of
Family & Protective Servs., 236 S.W.3d 271, 278 (Tex.
App.CHouston
[1st Dist.] 2007, no pet.) (same); In re R.A.P., No. 14‑06‑00109‑CV,
2007 WL 174376, at *1 (Tex. App.CHouston [14th Dist.] Jan. 25,
2007, pet. denied) (mem. op.) (same); In re J.H., No. 12-06-00002-CV,
2007 WL 172105, at *1 (Tex. App.CTyler Jan. 24, 2007, no pet.)
(mem. op.) (same); In re C.B.M., 225 S.W.3d 703, 706 (Tex. App.CEl
Paso 2006, no pet.); In re N.L.G., No. 06‑06‑00066‑CV,
2006 WL 3626956, at *1, 3, 5 (Tex. App.CTexarkana Dec. 14, 2006, pet.
denied) (mem. op.) (same); In re R.W., No. 06‑06‑00106‑CV,
2006 WL 3391420, at *1 (Tex. App.CTexarkana Nov. 22, 2006, no
pet.) (mem. op.) (same); In re S.B., 207 S.W.3d 877, 881B82
(Tex. App.CFort
Worth 2006, no pet.) (same); In re A.H.L., 214 S.W.3d 45, 53 (Tex. App.CEl
Paso 2006, pet. denied) (same); In re C.M., 208 S.W.3d 89, 92 (Tex. App.CHouston
[14th Dist.] 2006, no pet.) (same); In re E.J.W., No. 04‑06‑00219‑CV,
2006 WL 2871570, at *1 (Tex. App.CSan Antonio Oct. 11, 2006, no
pet.) (mem. op.) (same); In re H.H.H., No. 06-06-00093-CV, 2006 WL
2820063, at *1 (Tex. App.CTexarkana
Oct. 4, 2006, no pet.) (mem. op.) (same); In re D.A.R., 201 S.W.3d 229,
231 (Tex. App.CFort
Worth 2006, no pet.) (same); In re E.A.R., 201 S.W.3d 813, 813B14
(Tex. App.CWaco
2006, no pet.) (same); In re A.C.A., No. 13-05-00610-CV, 2006 WL
1172331, at *1 (Tex. App.CCorpus
Christi May 4, 2006, no pet.) (mem. op.) (same); In re S.E., 203 S.W.3d
14, 15 (Tex. App.CSan
Antonio 2006, no pet.) (same); In re J.M.S., No. 06-05-00139-CV, 2005 WL
3465518, at *1 (Tex. App.CTexarkana
Dec. 20, 2005, no pet.) (mem. op.) (same); see S.M.T., 2007 WL
4208743, at *1, 3B4
(refusing to consider appellate points where statement of points was untimely
filed); In re F.A., No. 13-07-00438-CV, 2007 WL 3293664, at *1B2
(Tex. App.CCorpus
Christi Nov. 8, 2007, no pet.) (mem. op.) (same); In re J.L.W.M., No.
07-07-00043-CV, 2007 WL 2962933, at *1 (Tex. App.CAmarillo
Oct. 11, 2007, no pet.) (mem. op.) (same); In re T.R.F., 230 S.W.3d 263,
265 (Tex. App.CWaco
2007, pet. filed) (same); In re M.N., 230 S.W.3d 248, 249B50
(Tex. App.CEastland
2007, pet. filed) (same); In re R.C., No. 07-06-00444-CV, 2007 WL
1219046, at *1B2
(Tex. App.CAmarillo
Apr. 25, 2007, no pet.) (same); In re K.R., No. 09-06-00056-CV, 2007 WL
117738, at *1 (Tex. App.CBeaumont
Jan. 18, 2007,  pet. denied) (mem. op.)
(same); In re C.R., No. 02-06-00099-CV, 2006 WL 3114468, at *1 (Tex.
App.CFort
Worth Nov. 2, 2006, no pet.) (mem. op.) (same); Coey v. Tex. Dep=t of
Family & Protective Servs., No. 03-05-00679-CV, 2006 WL
1358490, at *2 (Tex. App.CAustin
May 19, 2006, no pet.) (mem. op.) (same); see also In re J.W.H.,
222 S.W.3d 661, 662 (Tex. App.CWaco 2007, no pet.) (refusing
to consider points where statement of points was not sufficiently specific); Cisneros
v. Tex. Dep't of Family & Protective Servs., No. 13‑06‑00321‑CV,
2006 WL 3824939, at *1 (Tex. App.CCorpus Christi  Dec. 29, 2006, no pet.) (mem. op.) (same);
N.L.G., 2006 WL 3626956, at *1, 3, 5 (same); A.C.A., 2006 WL
1172331, at *1 (same).


