












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-05-392-CV
 
 
IN THE INTEREST OF M.R.J.M., A CHILD                                                 
 
                                                    
            FROM
THE COUNTY COURT AT LAW OF PARKER COUNTY
 
------------
 
 
NO.
2-05-074-CV
 
 
IN
THE INTEREST OF T.C. AND G.C., CHILDREN
 
 
FROM
THE 367TH DISTRICT COURT OF DENTON COUNTY
 
------------
 
                                   OPINION AND
ORDER
 
                                              ------------




In separate appeals, Michael
Glenn M., Timothy Paul C., and Trina Kay C. (collectively, appellants) appeal
the termination of their parental rights to their children.  After appellants filed their motions for new
trial, statements of points on appeal, and notices of appeal, the respective
trial courts held the hearings required by section 263.405(d) of the family
code.[1]  Each of the appellants= statements of points challenged the factual sufficiency of the
evidence to support the juries= findings that one or more grounds for termination exist and that
termination is in the best interest of the children.[2]  Both trial courts denied the appellants= motions for new trial, found that appellants are indigent, and
determined that an appeal of the issues raised in their statements of points
would be frivolous.[3]  After these appeals were filed, we
consolidated them for the limited purpose of determining whether we have
adequate records for reviewing the trial courts= frivolousness determinations on appellants= factual sufficiency complaints.







Appellants assert, among
other complaints, that the provision in section 263.405(g) requiring an
indigent party to appeal a trial court=s frivolousness determination with only the record of the frivolousness
hearing violates the separation of powers clause of the Texas Constitution,[4]
because it interferes with the power courts of appeals are assigned under
article V, section 6(a) of the constitution to decide factual sufficiency
complaints.[5]  For the reasons discussed below, we hold that
the statute is not unconstitutional under the separation of powers clause of
the constitution.  




Under section 263.405(d), if
an indigent parent timely files a statement of points or issues the parent intends
to raise on appeal, the trial court must hold a hearing within thirty days
after a termination order is signed to determine (1) whether a new trial should
be granted;[6]
(2) whether the parent=s claim of
indigence should be sustained; and (3) whether the appeal is frivolous as
provided by section 13.003 of the civil practice and remedies code because it
does not present Aa
substantial question for appellate review.@[7]  If the trial court determines
that the appeal is frivolous, the indigent parent is not entitled to obtain a
free record on appeal.[8]  The parent may, however, appeal the trial
court=s frivolousness determination by filing with the appellate court the
record of the frivolousness hearing, which shall be provided without advance
payment.[9]  The appellate court is then required to
review the record of the hearing and the appellate briefs, if any, without the
benefit of oral argument, and render Aappropriate orders.@[10]  We review a trial court=s determination that an appeal is frivolous under an abuse of
discretion standard.[11]  




Article V, section 6(a) of
the Texas Constitution provides that Athe decision of [the] courts [of appeals] shall be conclusive on all
questions of fact brought before them on appeal or error.@[12]  This Afactual conclusivity clause@ has remained constant in our state constitution since courts of
appeals were granted appellate jurisdiction in 1891.[13]  Under it, we have the duty to make the final,
Aconclusive@
determination whether fact findings in cases over which we have appellate
jurisdiction are supported by all of the evidence.[14]





In the cases before us,
appellants have complained that, in light of all the evidence, they should be
granted new trials because the evidence is factually insufficient to support
the juries= findings
that appellants= parental
rights should be terminated.  The trial
courts determined that an appeal raising these complaints would be frivolous.
Having carefully reviewed the records from the trial courts= frivolousness hearings, however, we cannot determine whether or not
the trial courts acted within their discretion in making this
determination.   To decide whether a trial court has abused its discretion in
determining that the evidence supporting a termination order is factually
sufficient, and, therefore, that an appeal complaining that the evidence is
factually insufficient is frivolous, we engage in a two‑pronged
inquiry:  First, we decide whether the
trial court had sufficient information upon which to exercise its discretion,
and, second, we determine whether the trial court erred in the application of
its discretion.[15]  The factual sufficiency review comes into
play with regard to the first question.[16]





 




In conducting a factual
sufficiency review, Awe must
weigh all of the evidence in the record.@[17]  Thus, to decide whether a
substantial question exists regarding whether the juries= termination findings in the cases before us are supported by
factually sufficient evidence, and, therefore, whether the trial courts abused
their discretion in determining that appellants= factual insufficiency complaints are frivolous, we need a record of
all of the evidence in both cases.[18]  Accordingly, we hold that an Aappropriate@ order under
section 263.405(g) is to order that the reporters= records of all of the evidence admitted in both termination cases be
prepared and filed in these appeals, without advance payment by appellants.[19]




We believe that this result
gives effect to the Legislature=s intent as evidenced by the plain language of section 263.405.[20]  The express purpose of the statute is to
eliminate frivolous appeals in termination cases, reduce the costs associated
with such appeals, and dispose of the appeals Awith the least possible delay.@[21]  The statute 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.  Rather, section 263.405(g) imposes upon
appellate courts a duty to issue orders that are Aappropriate,@ which we
presume includes orders for a sufficiently complete record of the evidence to
review an appellant=s challenge
to a trial court=s
determination that a factual sufficiency complaint is frivolous.[22]




Moreover, we believe our
interpretation of section 263.405(g) avoids an interpretation that would render
the statute unconstitutional.  Statutes
are presumed to be constitutional, and we are required to construe them in a
manner that renders them so.[23]





Under the Texas Constitution,
the courts of appeals have been granted the power to conduct conclusive
appellate review of all factual sufficiency questions that are properly
presented on appeal.[24]  In cases where an indigent appellant timely files
a statement of points complaining that the evidence is factually insufficient
to support a termination finding, and challenges on appeal the trial court=s determination that an appeal raising such a complaint is frivolous,
this constitutionally assigned power requires us to review all of the evidence
to determine whether a substantial question exists as to whether the
termination finding is supported by factually sufficient evidence.[25]  The legislature cannot take away this power
or interfere with our exercise of it.[26]  Any attempt to do so would be null and void.[27]
Because the Aappropriate orders@ language of section 263.405(g) recognizes our authority to order the
preparation of a record of all of the evidence in a termination case when
necessary to review a trial court=s determination that an appeal raising a factual sufficiency complaint
is frivolous, the statute does not interfere with our factual sufficiency
review power.  We, therefore, hold that
the statute is not unconstitutional under the separation of powers clause of
the Texas Constitution.




For the foregoing reasons, it
is ORDERED that the court reporters of the respective trial courts shall, on or
before sixty (60) days from the date of this opinion and order, and without cost
to the appellants, prepare and file reporter=s records containing all of the evidence admitted at each of the
termination trials.[28]  Upon receiving these reporter=s records, we will unconsolidate the appeals and address the merits of
appellants= remaining
complaints.[29]
 
 
JOHN CAYCE
CHIEF JUSTICE
 
EN BANC
DELIVERED: 
April 13, 2006




[1]See generally Tex. Fam. Code Ann. '
263.405(b), (d)-(g) (Vernon Supp. 2005) (providing procedures for determining
indigency and right to obtain free record for appeal of judgment terminating
parental rights).


[2]Appellants
also raised other issues.  Each of the
appellants complains that the trial courts erred in determining that their
appeals are frivolous.  In addition,
Michael Glenn M. complains about voir dire and the jury charge and argues that
family code section 263.405 violates the separation of powers doctrine and due
process; Trina Kay C. complains about the admission of evidence and that
section 263.405 and civil practice and remedies code section 13.003 violate
state and federal due process and equal protection; and Timothy Paul C.
challenges the legal sufficiency of the evidence. 


[3]The
trial court did not rule on Trina Kay C.=s motion for new trial, but
did find that her appeal is frivolous. 


[4]Article
II, section 1 governs separation of powers and provides as follows:
 
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
magistry, . . . 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.
 
Tex. Const. art. II, ' 1.


[5]Article
V, section 6(a) provides in pertinent part as follows:
 
[The]
Court[s] of Appeals shall have appellate jurisdiction co-extensive with the
limits of their respective districts, which shall extend to all 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.  Said courts shall have such other
jurisdiction, original and appellate, as may be prescribed by law.
 
Tex. Const. art. V, '
6(a).  On our own motion, we ordered the
cases submitted en banc and requested that the parties brief this and other
issues. Originally, Cause No. 2-05-074-CV was submitted before a panel
consisting of Chief Justice Cayce, Justice Walker, and Justice McCoy.  Cause No. 2-05-392-CV was assigned to a panel
consisting of Justice Gardner, Justice Walker, and Justice McCoy.


[6]The
statement of points or issues may be combined with a motion for new trial;
however, neither the trial court nor the appellate court may consider any issue
not presented in a timely filed statement of points.  Tex.
Fam. Code  Ann. '
263.405(b), (i).


[7]Id. '
263.405(d); Tex. Civ. Prac. & Rem.
Code Ann. '
13.003(b) (Vernon 2002); see also Neitzke v. Williams, 490 U.S. 319,
325, 109 S. Ct. 1827, 1831 (1989) (A[A] complaint . . . is
frivolous where it lacks an arguable basis either in law or in fact.@); accord
Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990); De La Vega v. Taco
Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.CSan
Antonio 1998, no pet.) (op. on reh=g).


[8]Tex. Fam. Code Ann. '
263.405(f); Tex. Civ. Prac. & Rem.
Code Ann. '
13.003(a); In re H.D.H., 127 S.W.3d 921, 923 (Tex. App.CBeaumont
2004, no pet.).


[9]Tex. Fam. Code. Ann. ' 263.405(g).


[10]Id.


[11]See
H.D.H., 127 S.W.3d at 923; In re D.C., No. 04-04-00928-CV, 2005 WL
1750130, at *1 (Tex. App.CSan
Antonio July 27, 2005, pet. denied) (mem. op.); Salinas v. Tex. Dep=t of
Protective & Reg. Servs., No. 03-04-00065-CV, 2004 WL
1896890, at *4 (Tex. App.CAustin
Aug. 26, 2004, no pet.) (mem. op.) (all applying abuse of discretion standard
in appeals from frivolousness determinations in termination cases); see also
De La Vega, 974 S.W.2d at 154 (holding that abuse of discretion standard is
appropriate for reviewing frivolousness findings under section 13.003 because
Texas courts generally apply an abuse of discretion standard to trial court
decisions involving both factual determinations and legal conclusions); cf.
Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728, 1734 (1992) (holding
that an abuse of discretion standard of review applies to a federal district
court=s
determination that an indigent defendant=s lawsuit is frivolous under
28 U.S.C. '
1915(d)); Donwerth v. Preston II Chrysler‑Dodge, Inc., 775 S.W.2d
634, 637 n.3 (Tex. 1989) (holding that the propriety of a trial court=s
determination that a DTPA claim is groundless in fact or law is a question of
law that appellate courts review under an abuse of discretion standard).


[12]Tex. Const. art. V, '
6(a).


[13]See
Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex.
1988); Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W.
69, 70 (1898).  The original purpose of
the factual conclusivity clause was to limit the supreme court=s
jurisdiction, not to enlarge courts of appeals=
jurisdiction.  Cropper, 754 S.W.2d
at 648; see Choate, 44 S.W. at 69-70 (explaining that factual
conclusivity clause did not grant courts of appeals authority to substitute
their fact findings for those of the jury). 
By creating courts of appeals and vesting them with appellate
jurisdiction, the 1891 constitutional amendment transferred to the courts of
appeals the power over fact questions that the supreme court had exercised
prior to the amendment.  Cropper,
754 S.W.2d at 649; Choate, 44 S.W. at 70.


[14]See,
e.g., Cropper, 754 S.W.2d at 649; In re King=s
Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).
 
Article
5, s[ection] 6 of the Constitution . . . requires the Court of Civil Appeals, upon
proper assignment, to consider the fact question of weight and preponderance of
all the evidence and to order or deny a new trial accordingly as to the verdict
may thus appear to it clearly unjust or otherwise.
 
In re
King=s
Estate, 244 S.W.2d at 662; see also Tex.
Gov=t
Code Ann. '
22.225(a) (Vernon Supp. 2005) (providing that a court of appeals=
judgment is Aconclusive
on the facts of the case in all civil cases@).


[15]See
In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.CFort
Worth 2002, pet. denied) (op. on reh=g) (discussing how legal and
factual sufficiency are relevant factors for determining whether a trial court
has abused its discretion).


[16]Id.  When conducting a factual
sufficiency review in a termination case, we apply a heightened standard of
review in which we consider whether the evidence supporting termination rises
to the level of being clear and convincing; that is, whether, in light of the
entire record, the evidence is such that a fact finder could reasonably form a
firm belief or conviction that the grounds for termination were proven.  In re C.H., 89 S.W.3d 17, 25 (Tex.
2002); see Tex. Fam. Code Ann.
'
101.007 (Vernon 2002).  If the evidence
contrary to the findings supporting termination is so significant that a fact finder
could not reasonably have formed a firm belief or conviction in the truth of
the findings, then the evidence is factually insufficient.  In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002).


[17]Ortiz
v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); see also
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert.
denied, 525 U.S. 1017 (1998).


[18]See
J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 28.  The trial courts attempted to take Ajudicial
notice@ of
all the testimony offered during the jury trials.  A judicially noticed fact, however, Amust
be one not subject to reasonable dispute in that it is (1) generally known . .
. or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.@  Tex.
R. Evid. 201(b).  Because the
untranscribed testimony offered in appellants=
contested jury trials is subject to reasonable dispute, we do not believe the
trial courts had the discretion to take judicial notice of the testimony for
the purpose of determining whether appellants=
factual sufficiency complaints would be frivolous.


[19]Tex. Fam. Code Ann. '
263.405(g); see Tex. Civ. Prac.
& Rem. Code Ann. ' 13.003(c) (providing that,
in deciding whether an appeal is frivolous, the trial judge may order the trial
court clerk to prepare all or part of the transcript as necessary for making
the frivolousness determination); see also Tex. R. App. P. 34.5(c), 34.6(d) (providing that, if anything
relevant is omitted from the clerk=s or reporter=s
records, the appellate court may direct the trial court clerk and court
reporter to file supplemental records containing the omitted items).  But cf. In re R.C., No.
04-05-00397-CV, 2005 WL 2367758, at *2 (Tex. App.CSan
Antonio Sept. 28, 2005, no pet.) (mem. op.) (AAt this
stage on appeal, in considering whether the trial court abused its discretion
[in determining that an appeal would be frivolous], we have only the reporter=s
record from the hearing on [appellant=s] motion for new trial and
statement of appellate points.@); H.D.H., 127 S.W.3d
at 923 (AWe
must determine whether, on the record before us [i.e., from the frivolousness
hearing], the trial court abused its discretion in finding appellant presented
no substantial question for appellate review and in finding the appeal to be
frivolous . . . .@).


[20]See Tex. Gov=t Code Ann. '
312.002(a) (Vernon 2005) (providing that words used in statutes shall be given
their ordinary meaning); Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002) (AWhen
construing a statute, we ascertain the Legislature=s
intent from the plain meaning of the actual language used.@).


[21]Tex. Fam. Code. Ann. '
263.405(a); see In re S.J.G., 124 S.W.3d 237, 242-43 (Tex. App.CFort
Worth 2003, pet. denied) (stating that the statute is designed to address
postjudgment delays in termination appeals by making them accelerated,
shortening appellate deadlines, and authorizing trial courts to make preappeal
frivolousness determinations); In re M.G.D., 108 S.W.3d 508, 516 (Tex.
App.CHouston
[14th Dist.] 2003, pet. denied) (A[T]he purpose of the statute
generally is to the reduce post‑judgment appellate delays.@); In
re D.R.L.M., 84 S.W.3d 281, 290 (Tex. App.CFort
Worth 2002, pet. denied) (same).


[22]Tex. Fam. Code Ann. '
263.405(g); see Tex. Gov=t Code Ann. ' 311.016(2)
(Vernon 2005) (providing that Ashall@
imposes a duty); see also De La Vega, 974 S.W.2d at 154 (A[W]hile
the federal Constitution does not guarantee an appellant a free record to
pursue a frivolous appeal, it does require that she receive a sufficient
record, without charge, to establish the trial court erred in finding that her
appeal is frivolous.@)
(citing Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917,
921-22 (1962)).  This result may also
serve judicial economy by eliminating bifurcated appeals in cases in which the
trial court=s
frivolousness determination is erroneous and the parties are required to
rebrief with a full record.


[23]E.g., Tex. Gov=t Code Ann. '
311.021(1) (Vernon 2005); Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998);
Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 191 (Tex. App.CFort
Worth 1995, writ denied).


[24]Tex. Const. art. V, '
6(a); see also Tex. Gov=t Code Ann. '
22.225(a). 


[25]See Tex. Fam. Code Ann. '
109.002(a) (Vernon 2002) (providing that appeals from final orders in
termination suits Ashall
be as in civil cases generally@).


[26]See
Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.
Crim. App. 1990); Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.2d 817,
819 (1933); accord Lord v. Clayton, 163 Tex. 62, 352 S.W.2d 718, 721
(1961).  The legislature may restrict and
regulate our jurisdiction over termination appeals.  See Tex.
Const. art. V, ' 6(a)
(providing that our appellate jurisdiction is subject to Asuch
restrictions and regulations as may be prescribed by law@); Sultan
v. Mathew, 178 S.W.3d 747, 752 (Tex. 2005) (interpreting article V, ' 6(a)
as providing for legislative restrictions on appellate courts=
jurisdiction).  Once it has granted us jurisdiction
over the appeals, however, it cannot interfere with our constitutionally
assigned powers for reviewing them.  See
Armadillo Bail Bonds, 802 S.W.2d at 239; Meshell v. State, 739
S.W.2d 246, 252 (Tex. Crim. App. 1987).


[27]Meshell, 739
S.W.2d at 252; Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App.
1973); see Tex. Const.
art. II, ' 1.


[28]See Tex. R. App. P. 34.6(d).  This order does not require the court
reporters to prepare reporter=s records of any
nonevidentiary portions of the trials, such as pretrial hearings, voir dire,
closing arguments, and postjudgment proceedings.  We are unpersuaded by appellants=
arguments that these nonevidentiary portions of the record are necessary for
appellants to receive meaningful appellate review of their complaints.  Nevertheless, should we later determine that
other portions of the trial court record are, in fact, needed to properly
review the trial courts=
frivolousness determinations on appellants= other issues, we may deem it
appropriate to supplement the appellate record with any relevant, omitted
items.  See Tex. Fam. Code Ann. '
263.405(g); Tex. R. App. P.
34.5(c)(1), 34.6(d).


[29]In
light of our holding, we need not reach appellants=
complaints that sections 263.405(g) and 13.003 violate their rights to due process
and equal protection by requiring us to review the trial courts=
frivolousness determinations without the benefit of the evidence admitted at
trial.  See Tex. R. App. P. 47.1 (providing that
appellate court need only address issues necessary to disposition of appeal).


