                                          NO. 12-07-00322-CV

                               IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                              TYLER, TEXAS

                                                         §        APPEAL FROM THE 307TH
IN THE INTEREST OF R.D.G.
                                                         §        JUDICIAL DISTRICT COURT
AND G.L.G., MINOR CHILDREN
                                                         §        GREGG COUNTY, TEXAS


                                            MEMORANDUM OPINION
          Deborah T. appeals the trial court’s order terminating her parental rights to her two children.
In her sole issue, she contends that Texas Family Code Section 263.405 denies constitutionally
guaranteed due process of law to indigent parents who are appointed new counsel on appeal. We
affirm.


                                                     BACKGROUND
          On December 12, 2005, the Department of Family and Protective Services filed a petition
for protection of a child, for conservatorship, and for termination of the parent-child relationship
between parents Deborah T. and Jimmy G. and their two children. The Department was named
temporary managing conservator of the children and they were placed in foster homes. Within eight
months, the children were returned to their parents in a monitored placement. By mid-November
2006, Deborah had moved out of the home. In February 2007, the children were again placed in
foster care. On August 10, 2007, the trial court entered a final order terminating Deborah’s and
Jimmy’s1 parental rights. Deborah timely filed a motion for new trial complaining of the sufficiency
of the evidence to support the trial court’s order and contending that portions of Texas Family Code


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              Jimmy is not a party to this appeal.
Section 263.405 are unconstitutional. The trial court held a hearing at which no evidence was
presented. The court noted that Deborah had previously been found indigent and entered a finding
that, as to the sufficiency points, the appeal is frivolous. The trial court refused to make a finding
regarding the constitutional complaints.

                                            DUE PROCESS
        In her sole issue, Deborah asserts that Section 263.405 of the Texas Family Code denies due
process of law under the Fourteenth Amendment to the United States Constitution to indigent parents
who are appointed new counsel on appeal. She argues that the statutory procedures governing a
parent’s appeal from a decree that terminates the parent-child relationship violates the parent’s right
to procedural due process. Under the statute, a parent must file a statement of points to be appealed
before a record of the trial has been produced. This limits appellate counsel’s ability to know the
points that should be included, thus preventing him from preserving those issues for appeal and
impairing his ability to argue those points at the frivolousness hearing, especially if appellate counsel
was not involved at the trial level. Thus, application of Section 263.405 might result in ineffective
assistance of counsel in addition to waiver of other error.
Applicable Law
        Section 263.405 of the Texas Family Code applies to appeals from final orders rendered in
parental rights termination suits and imposes strict deadlines for the process. See TEX . FAM . CODE
ANN . § 263.405 (Vernon Supp. 2007). A party intending to appeal a final order terminating parental
rights must file with the trial court, no later than fifteen days after the final order is signed, a
statement of points on which the party intends to appeal. Id. § 263.405(b). An appellate court may
not consider any issue that was not specifically presented to the trial court in a timely filed statement
of points. Id. § 263.405(i). The trial court must hold a hearing not later than the thirtieth day after
the date the final order is signed to determine whether a new trial should be granted, whether a
party’s claim of indigence should be sustained, and whether the appeal is frivolous as provided by
Texas Civil Practice and Remedies Code Section 13.003(b). Id. § 263.405(d). The test for
determining if a party is indigent and therefore entitled to a free record is set forth in Section 13.003
of the Texas Civil Practice and Remedies Code and requires, among other things, a finding that the


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appeal is not frivolous. See TEX . CIV . PRAC. & REM . CODE ANN . § 13.003(a) (Vernon 2002).
Therefore, the determination by the trial court that the appeal of the order of termination of parental
rights is frivolous has the consequence of denying the indigent parent the right to a free clerk’s
record and reporter’s record of the underlying trial. See TEX . CIV . PRAC. & REM . CODE ANN .
§ 13.003(a)(2)(A).
Discussion
        Deborah asserts that the operation of Section 263.405 is circular. She argues that “it prevents
an indigent parent from obtaining a record until after the trial court rules on points that require a
record to formulate and present.” In other words, an indigent parent cannot obtain a free record until
the trial court finds her appeal is not frivolous, a finding made after reviewing her points for appeal,
which require assessment of the record to formulate. While it appears that application of the statute
ordinarily creates such a conundrum, in this case the court reporter’s record of the termination
proceeding was filed in this court and Deborah had access to it before her brief was filed. Yet
Deborah does not indicate how she personally was harmed by application of Section 263.405. That
is, even though she had access to the record, she does not suggest any appellate issue that she was
prevented from raising as a result of Section 263.405 and does not show how any constitutional
violation resulted in an improper judgment. See In re J.J., No. 02-06-333-CV, 2008 Tex. App.
LEXIS 1714, at *1 (Tex. App.–Fort Worth March 6, 2008, no pet. h.).
        We must avoid constitutional decisions until the issues are presented with clarity, precision,
and certainty. See Rescue Army v. Mun. Court, 331 U.S. 549, 576, 67 S. Ct. 1409, 1423, 91 L. Ed.
1666 (1947). Thus, we cannot decide abstract, hypothetical, or contingent questions. The subject
matter jurisdiction of courts rests, in part, on the ripeness of the issues. Patterson v. Planned
Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Ripeness is one of
several categories of justiciability. See Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001).
Justiciability requires a concrete injury, a requirement based on the judicial prohibition against
issuing advisory opinions. See Patterson, 971 S.W.2d at 442-43.
        In some cases, upon studying the record of the trial court proceedings, an appellate attorney
might uncover additional issues not previously raised that he would want to present for appellate
review. However, we cannot declare a statute invalid based on a hypothetical possibility that the law


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may be unreasonable. See United States v. Coastal Ref. and Mktg., Inc., 911 F.2d 1036, 1044 (5th
Cir. 1990). Here, Deborah had access to the record on appeal and yet did not brief any issues she
was unable to raise in the trial court due to unavailability of the record at the time her statement of
points was due. Deborah’s sole complaint on appeal is hypothetical rather than definite and
concrete. We overrule Deborah’s sole issue.


                                                    DISPOSITION
         Because Deborah’s sole issue is not ripe for review, we affirm the trial court’s order of
termination.



                                                                   SAM GRIFFITH
                                                                      Justice




Opinion delivered May 21, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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