
Opinion issued September 11, 2008

 










In The
Court of Appeals
For The
First District of Texas



NO. 01-07-00584-CV



TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Appellant

V.

TRAVIS REID DICKENSHEETS AND ANDREA LIGUORI, Appellees



On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 35600



O P I N I O N

	In this accelerated appeal, appellant, the Texas Department of Family and
Protective Services ("DFPS") challenges the validity of Family Code section 263.401. 
In two issues, DFPS argues that (1) the deadline for dismissal of suits brought by
DFPS in section 263.401 invades the exclusive function of a district or county
attorney to represent DFPS and thus violates the Separation of Powers Clause and (2)
an order dismissing a termination suit under section 263.401 is a final and appealable
order.
	We affirm.
Background

	On February 6, 2006, DFPS filed a suit affecting the parent-child relationship
("SAPCR") under Chapter 263 of the Texas Family Code against appellees, Travis
Dickensheets and Andrea Liguori, regarding their children, R.L.D., T.R.D., S.S.W.,
T.R.W., and T.A.D. (1)  On February 14, 2006, the trial court held a hearing, and, after
hearing evidence from DFPS, the trial court awarded temporary managing
conservatorship to DFPS. 
	The case was originally set for trial on January 9, 2007.  Pursuant to former
section 263.401(a) of the Family Code, providing for the dismissal of suits to
terminate parental rights if a final order was not rendered within one year after filing
of the suit, the trial court had set the proceedings' dismissal date as February 12,
2007.  On January 5, 2007, DFPS filed a motion under section 263.401(b) of the Code
requesting a 180-day extension of the final order date to comply with section
263.401.  
	On January 9, 2007, the trial court signed an order extending the dismissal date
to August 10, 2007 and set the case for trial on April 23, 2007.  The trial court's
extension order noted that the parents of the children, Andrea and Travis, did not
appear in person at the January 9 hearing. (2)  On April 13, 2007, DFPS filed an
amended SAPCR petition that named only S.S.W., T.R.W., and T.A.D.  
	On June 19, 2007, Travis filed a motion to dismiss for DFPS's failure to
exercise due diligence in locating placement for the children.  Travis asked the trial
court to dismiss the suit or to order DFPS to look at home studies of three relatives
whom he designated.  On the same date, Travis filed a motion to set aside the trial
court's order extending the final order deadline because DFPS failed to give him
proper notice of the January 9 hearing, which would have enabled him to voice an
objection to the extension sought by DFPS. 
	Another dismissal hearing occurred on June 25, 2007, in which Travis and
Andrea argued that they did not get six days notice of the hearing to consider DFPS's
motion for extension.  The trial court ordered the parties to an informal settlement
conference before proceeding with trial.  The parties reached an agreement regarding
all of the children except T.A.D.  
	When the parties reconvened before the trial court, appellees continued to
argue their motion to dismiss the termination proceeding.  Appellees contended that
they did not get proper notice of the January 9 extension hearing and, therefore, the
extension of the trial court's dismissal date was invalid.  DFPS argued that the parties
were apprised of the hearing and waived any objections.  The parties entered into a
Rule 11 agreement whereby the paternal grandparents would have temporary
managing conservatorship over T.A.D.  The trial court then dismissed DFPS's suit. (3)
	On July 11, 2007, DFPS filed a notice of appeal, seeking to challenge the trial
court's order that dismissed the termination proceedings.  On August 8, 2007,
appellees filed a motion to dismiss DFPS's appeal on the ground that the order
dismissing DFPS's suit was interlocutory.  By order dated August 21, 2007, we
ordered that appellees' motion to dismiss the appeal be carried with the case.
Jurisdiction
	In its second issue, DFPS argues that an order dismissing a termination suit is
a final and appealable order as defined by Family Code section 263.401(d).  We
agree.
	Sections 109.002 and 263.401 of the Family Code allow for accelerated
interlocutory appeal of an order dismissing parental termination proceedings.  See
Tex. Fam. Code Ann. § 109.002(b) (Vernon 2002); id. § 263.405(a) (appeal of final
order rendered under chapter 263 "is governed by the rules of the supreme court for
accelerated appeals in civil cases and the procedures provided by this section"). 
Former subsection 263.401(d) provided:
	(d)	For purposes of this section, a final order is an order that:

		(1)	requires that a child be returned to the child's parent;

		(2)	names a relative of the child or another person as the child's
managing conservator;

		(3)	without terminating the parent-child relationship, appoints the
department as the managing conservator of the child; or 

		(4)	terminates the parent-child relationship and appoints a relative of
the child, another suitable person, or the department as the
managing conservator of the child.

See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108,
2113, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex.
Gen. Laws 2395, 2396, amended by Act of May 29, 2005, 79th Leg., R.S., ch. 268,
§ 1.40, 2005 Tex. Gen. Laws 621, 636 [hereinafter Former Tex. Fam. Code Ann.
§ 263.401] (amended 2007) (current version at Tex. Fam. Code Ann. § 263.401
(Vernon Supp. 2008).  (Emphasis added.)
	Here, the dismissal order resulted in T.A.D.'s paternal grandparents being
named managing conservators of T.A.D.  Thus, the order was a final appealable order
as defined by section 263.401(d)(2) of the Family Code.
	We sustain DFPS's first issue on appeal.
	We deny Andrea's and Travis's motion to dismiss DFPS's appeal.
Separation of Powers
	In its first issue, DFPS argues that former section 263.401 and, by extension,
current section 263.401, (4) is facially unconstitutional because it violates the separation
of powers clause of the Texas Constitution. (5) 
 1.  Former Section 263.401
	Former subsections (a) through (c) of section 263.401 of the Family Code
provided:
	(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 retain the suit on the court's docket for a
period not to exceed 180 days after the time described by
Subsection (a), if the court finds that continuing the
appointment of the department as temporary managing
conservator is in the best interest of the child.  If the court
retains the suit on the court's docket, the court shall render
an order in which the court:

		(1)	schedules the new date for dismissal of the suit not
later than the 180th day after the time described by
Subsection (a).

		(2)	makes further temporary orders for the safety and
welfare of the child as necessary to avoid further
delay in resolving the suit; and

		(3)	sets a final hearing on a date that allows the court to
render a final order before the required date for
dismissal of the suit under this subsection.

	(c)	If the court grants an extension but does not render a final
order or dismiss the suit on or before the required date for
dismissal under Subsection (b), the court shall dismiss the
suit.  The court may not grant an additional extension that
extends the suit beyond the required date for dismissal
under Subsection (b). 

	. . . .

See Former Tex. Fam. Code Ann. § 263.401.  Because the only issue preserved for
review was the constitutionality of section 263.401, we necessarily reach that issue. 
See In re D.W., T.W. and S.G., 249 S.W.3d 625, 634 (Tex. App.--Fort Worth 2008,
pet. denied) (court will not pass on constitutionality of statute if case may be decided
upon alternative grounds). (6)
 Separation of Powers Challenges to Constitutionality
	Parties may challenge the constitutionality of a statute by contending that the
statute is facially invalid or is invalid as applied to that party.  See Tex. Workers'
Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995).  Settled statutory
law and common law precedent, however, presume that statutes are constitutional and
impose a heavy burden on the challenger to demonstrate unconstitutionality.  See
Tex. Gov't Code Ann. § 311.021(1) (Vernon 2005) (stating that compliance with
constitutions of Texas and United States is intended); In re Commitment of Fisher,
164 S.W.3d 637, 645 (Tex. 2005); Tex. Mun. League Intergovernmental Risk Pool
v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 381 (Tex. 2002); Brady v.
Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); Tex. Nat'l Guard
Armory Bd. v. McCraw, 132 Tex. 613, 624-25, 126 S.W.2d 627, 634 (Tex. 1939).  
	A separation of powers challenge is a challenge to the facial constitutionality
of a statute.  See Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988).  To
prevail on a facial invalidity challenge, the complaining party "must establish that the
statute, by its terms, always operates unconstitutionally."  City of Corpus Christi v.
Public Utility Comm'n, 51 S.W.3d 231, 240-41 (Tex. 2001) (citing Barshop v.
Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 627 (Tex.
1996)).  Facial invalidity cannot be premised on "hypothetical facts that have not yet
arisen."  Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 463
(Tex. 1997) (citing Garcia, 893 S.W.2d at 518).  A facially unconstitutional statute
is void from its inception.  Reyes, 753 S.W.2d at 383.  
	DFPS argues that section 263.401 is facially unconstitutional because it
invades the exclusive power of a district or county attorney to represent DFPS in civil
court and thus violates the Separation of Powers Clause in the same way the Court
of Criminal Appeals found the Speedy Trial Act unconstitutional in Meshell v. State,
739 S.W.2d 246 (Tex. Crim. App. 1987).  Specifically, DFPS contends that "Family
Code section 263.401 encroaches on the district attorney's prosecutorial discretion
in representing the State in termination cases by focusing solely on the prosecutor's
ability to obtain a final order within the limited time constraints of the statute." (7) 
	Article II, section one of the Texas Constitution, governing the separation of
powers, 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.

Tex. Const. art. II, § 1.  The Separation of Powers provision thus prohibits one
branch of government from exercising a power inherently belonging to another
branch.  Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex.
2001).  Courts in Texas have recognized two varieties of violation of the separation
of powers provision:
	First, it is violated when one branch of government assumes, or
is delegated, to whatever degree, a power that is more "properly
attached" to another branch.  The provision [Article II, § 1] is also
violated when one branch unduly interferes with another branch so that
the other branch cannot effectively exercise its constitutionally assigned
powers. 

Jones v. State, 803 S.W.2d 712, 715-16 (Tex. Crim. App. 1991) (quoting Armadillo
Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990)) (internal citations
omitted).  "The power and authority of a state legislature is plenary and its extent is
limited only by the express or implied restrictions thereon contained in or necessarily
arising from the Constitution itself."  Government Servs., 368 S.W.2d at 563.  Any
time the Legislature promulgates a statute, it exercises a power "properly attached"
to itself.  Jones, 803 S.W.2d at 716.  However, a constitutional problem arises when
the core 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.  Id.;
see also Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
(legislature may not interfere in core judicial functions).
	In Meshell, relied upon by the State, the Court of Criminal Appeals invalidated
former Article 32A.02 of the Texas Code of Criminal Procedure, which required the
State to be ready for trial within 120 days after commencement of a felony criminal
action or risk dismissal of the indictment with prejudice.  The court acknowledged
that "the Legislature could establish a new right under its general plenary power if
that right did not infringe upon another department's separate power."  739 S.W.2d
at 255, n.13.  It also acknowledged that the Legislature has "ultimate control over
establishment of procedural rules of court."  Id. at 255; see also Gov't Servs., 368
S.W.2d at 563.  It further stated that the Legislature has "complete authority to pass
any law regulating the means, manner, and mode of assertion of any of [a
defendant's] rights in the court," so long as its exercise of its powers does not so
interfere with another branch that the other branch cannot effectively exercise its own
constitutionally assigned powers.  See Meshell, 739 S.W.2d at 255 (quoting Johnson
v. State, 42 Tex. Crim. 87, 58 S.W. 60, 71 (1900)).
	The court also held, however, that, under Article II, section 1, "the Legislature
may not remove or abridge a district or county attorney's exclusive prosecutorial
function, unless authorized by an express constitutional provision."  739 S.W.2d 246,
254-55 (Tex. Crim. App. 1987).  The Court reasoned that a prerequisite to the
exercise of legislative authority to establish rules of court, which then was provided
by Article V, section 25 of the Texas Constitution (since repealed), was the existence
of a right for which the Legislature could provide procedural guidelines. (8) Id. at 255. 
If it were otherwise, it reasoned, "the procedural legislation would itself create a
substantive 'right,' and exceed the grant of power in Article V, § 25, supra, thereby
encroaching upon another department."  Id.  The Court stated that in enacting article
32A.02 of the Texas Code of Criminal Procedure, the Speedy Trial Act, the
Legislature had "attempted to provide procedural guidelines for statutory enforcement
of a defendant's constitutional right to a speedy trial," thus apparently satisfying the
requirement that a right exist before a procedural guidelines could be enacted to
enforce it.  Id.  However, the provisions of the Act were not actually "directed at
providing procedural guidelines for the speedy commencement of trial," but at
"speeding the prosecutor's preparation and ultimate readiness for trial." (9) Id.  In
other words, the Act's provisions were not directed at achieving the stated purpose
of the Act but at the performance of a core judicial function, the prosecutors
preparation for trial.
	The Court pointed out that article 32A.02 failed to incorporate considerations
directly related to the speedy commencement of trial, at which the speedy trial clauses
in the Texas and United States constitutions were directed. (10) Id. at 256; see Barker
v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 2192-93 (1972) (holding that in speedy trial
claim, court considers (1) length of delay; (2) reasons for delay; (3) timeliness of
assertion of right to speedy trial; and (4) any prejudice caused by delay).  Nor did
article 32A.02 take into account the reason for the delay between accusation and trial,
whether the accused asserted the right to a speedy trial, or whether denial of the right
worked to his prejudice.  Meshell, 739 S.W.2d at 256.  Because article 32A.02
required that prosecutions be set aside, with prejudice, after 120 days, without due
regard for the constitutional objective of the speedy trial clauses or the
constitutionally relevant factors in meeting that objective, the court held the Act to
be an impermissible encroachment upon prosecutorial discretion, in violation of the
separation of powers provision in the Constitution.  Id. at 257.  
	DFPS acknowledges that the Texas Constitution provides for legislative
control over the establishment of procedural rules of court.  See Meshell, 739 S.W.2d
at 255; Gov't Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex. 1963). 
However, in this case, it argues that the Legislature overstepped its bounds and that
section 263.401(a)'s one-year dismissal date for termination proceedings initiated by
the State was not directed at achieving the purpose of the statute but at the State's
performance of its prosecutorial function, with which it unconstitutionally interfered. 
 3.  Constitutionality of Section 263.401
	Section 263.401 of the Family Code is a statute passed pursuant to the
Legislature's constitutional authority to legislate, and thereby to regulate, "the means,
manner, and mode of assertion" of SAPCRs seeking to terminate parental rights.  See
Meshell, 739 S.W.2d at 255.  Under that authority, the Legislature has provided in
Chapter 263 of the Family Code a comprehensive statutory scheme for terminating
parental rights, the purpose of which is to "facilitate permanence and stability in the
lives of children subjected to [DFPS's] involvement" by ensuring a speedy resolution
of child custody issues in accordance with long-standing Texas policy.  See In re
L.J.S., 96 S.W.3d 692, 693 (Tex. App.--Amarillo 2003, no pet.); see also Proffer v.
Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (providing for mandamus
proceedings in child custody cases and stating, "Justice demands a speedy resolution
of child custody and child support issues").  The essential questions, therefore, are
whether the provisions in section 263.401 further that objective and whether those
provisions prevent the judicial branch from effectively exercising its core function of
adjudicating termination proceedings by unduly interfering with the ability of
prosecutors to prepare their cases.  See Armadillo Bail Bonds, 802 S.W.2d at 839;
Meshell, 739 S.W.2d at 255.
 4.  Purpose of Section 263.401
	In 1996, by executive order, Governor George W. Bush established the
Governor's Committee to Promote Adoption to discover strategies to speed up the
adoption process.  Tex. Gov. Exec. Order No. GWB 96-7 (1996), reprinted in
Governor's Committee To Promote Adoption, Final Report.  The Governor
charged this committee with the task of "identifying ways to reduce legal, judicial and
administrative barriers to adoption" for children in the custody of DFPS. 
Governor's Committee To Promote Adoption, Final Report app. at 26.
According to the data on which the Governor's Committee relied, approximately
1,400 children in the custody of DFPS were eligible for adoption as of July 31, 1996. 
Of these 1,400 children, about one-third had been waiting more than two years to be
adopted and sixteen percent had been waiting more than three years.  In addition,
about 2,300 children in foster care still awaited termination of parental rights as a
prerequisite for adoption eligibility.  Governor's Committee To Promote
Adoption, Final Report at 6.  The Governor's Committee made the following
recommendation pertinent to this case: "For children in [DFP]S conservatorship,
require concurrent planning with clearly defined responsibilities and deadlines for the
birth parents and either termination of parental rights or reunification with the family
within 12 months of removal." (11) Id. at 19 (emphasis added). 
	With the Committee's recommendation in mind, (12) the Texas Legislature
established the time limitation in section 263.401 to effectuate the recommendations
of the Governor's Committee that parental rights be terminated or families reunified
within 12 months.  See Senate Committee Report, Bill Analysis, Tex. S.B. 34,
75th Leg., R.S. (1997) ("The Report of the Governor's Committee to Promote
Adoption has suggested various revisions to Title 5, Family Code, relating to the
parent-child relationship, suits affecting the parent-child relationship, and the
protection of children, in order to promote adoption in Texas.  This bill would amend
Title 5, Family Code, to reflect the changes suggested by the Governor's Report to
promote adoption."); In re Bishop, 8 S.W.3d 412, 417 (Tex. App.--Waco 1999, pet.
denied). 
	As shown by the Governor's Committee, the recommendation of a 12-month
deadline to either reunify children with their parents or terminate parental rights was
viewed as a necessary step to speed up adoptions and minimize trauma to Texas
children.  Governor's Committee To Promote Adoption, Final Report at 19.
The Texas Legislature also recognized that this statutory deadline would expedite the
trial of these cases to help provide a modicum of certainty for children whose family
situations are subject to the outcomes in these proceedings.  In re Texas Dep't of
Family and Protective Servs., 210 S.W.3d 609, 514 (Tex. 2006).  Moreover, "[j]ustice
demands a speedy resolution" in cases involving child custody.  See Proffer, 734
S.W.2d at 673.  
	In enacting former section 263.401, the Legislature exercised its power to
expedite the trial of termination of parental right cases initiated by the State to help
provide certainty for children whose family situations were subject to such
proceedings.  Specifically, the Legislature provided that a parent may timely seek
dismissal of the termination proceedings and reunion with his or her children unless
a final order is rendered within a year of the date the State initiated the termination
proceedings unless a statutorily provided extension is obtained.  See Former Tex.
Fam. Code Ann. § 263.401(a), (b).  The Legislature's intent in enacting the statute
was to "[m]inimize trauma" to the child and to place the child "in a permanent family
as quickly as possible."  Governor's Committee To Promote Adoption, Final
Report at 19.  
	We conclude that in enacting the 12-month dismissal date for State-initiated
termination proceedings set out in section 263.401(a) the Legislature was not
attempting to speed up the prosecutor's preparation and ultimate readiness for trial,
as it was with the Speedy Trial Act.  See Meshell, 739 S.W.2d at 255.  Rather, the
Legislature was attempting to provide guidelines for assuring that Texas children in
the custody of the State are either returned to their parents or adopted as quickly as
possible.  The statute thus furthers the state policy of facilitating permanence and
stability in the lives of children subject to DFPS's involvement.  See In re L.J.S., 96
S.W.3d at 693. (13)
 Interference with Case Preparation
	The only remaining question then is whether section 263.401 "unduly
interferes" with the prosecutor's discretion as a judicial officer in the preparation of
cases.  See Armadillo Bail Bonds, 802 S.W.2d at 239.  We conclude that section
263.401 does not unduly interfere with the prosecutor's function.  
	DFPS primarily relies on equating the deadline in section 263.401(a) with the
deadline in the Speedy Trial Act, which was declared unconstitutional.  The two
statutes are distinguishable in at least two important respects.  
	First, the Speedy Trial Act provided that the State must be ready for trial within
120 days after commencement of a felony criminal action with no consideration given
to the reasons for a speedy trial or factors that might justify delay.  See Meshell, 739
S.W.3d at 256.  DFPS argues that, likewise, former section 263.401 "guarantees a
dismissal for a moving party if the statute's deadline is not met, without focusing on
any factors that are directly related to the entry of a final order" in termination
proceedings.  
	Contrary to DFPS's characterization of the statute, however, former section
263.401 does not guarantee either party a dismissal if a final order is not rendered
(not 'entered,' as DFPS states) within one year from the initiation of termination
proceedings.  The section plainly provides that the one-year deadline for rendition of
a final order can be extended by 180 days if the court "finds that continuing the
appointment of the department as temporary managing conservator is in the best
interest of the child." See Former Tex. Fam. Code Ann. § 263.401(b).  In addition,
the fact that the trial court's decision to extend the case must take into consideration
the best interest of the child weakens DFPS'S argument that the statute does not take
into account "any factors that are directly related to the entry of a final order."  See
id.  Moreover, if the court grants an extension, it must render an order scheduling the
new date for dismissal of the suit, "make further temporary orders for the safety and
welfare of the child as necessary to avoid further delay in resolving the suit," and set
a final hearing date that allows the court to render a final order before the expiration
of its extended jurisdiction. (14) Id.  All of these requirements directly relate to the
rendition of a final order as expeditiously as possible, consistent with the protection
of the best interest of the child.
	Additionally, section 263.403 of the Family Code, applicable when this suit
was filed and still applicable, provides that, "[n]otwithstanding Section 263.401, the
court may retain jurisdiction and not dismiss the suit or render a final order" if the
court "finds that retaining jurisdiction under this section is in the best interest of the
child."  Act of May 22, 2001, 77th Leg., R.S., ch. 1090, 2001 Tex. Gen. Laws 2395,
2397 [hereinafter Former Tex. Fam. Code Ann. § 263.403] (amended 2007)
(current version at Tex. Fam. Code Ann. § 263.403 (Vernon Supp. 2008) (emphasis
added).  Id.  In such a case, however, the court must order DFPS to return the child
to the parent, to continue to serve as temporary managing conservator, and "to
monitor the child's placement to ensure that the child is in a safe environment."  Id. 
If the court renders such an order, the court must include in it "specific findings
regarding the grounds for the order."  Id.  Thus, contrary to DFPS's arguments, the
fact that the trial court fails to render a final order at the one year anniversary of its
initiation of termination proceedings does not equate to a "guaranteed dismissal"
directed at forcing DFPS to speed up its preparation for trial.  Therefore, section
263.401 does not unduly interfere with the prosecutorial function by mandating a one
year dismissal date without regard to factors directly related to the entry of a final
order.
	Second, the Speedy Trial Act provided that if the trial had not started within
120 days of the beginning of the case, the trial court must dismiss the suit with
prejudice.  A dismissal with prejudice has been recognized as a "remedy which
necessarily causes a serious disruption in a prosecutor's ability to perform his duties
by conclusively terminating the prosecution."  State v. Condran, 977 S.W.2d 144, 146
(Tex. Crim. App. 1998) (Keller, J., dissenting) (dissenting opinion adopted in Ex
parte Young, 213 S.W.3d 327, 331 (Tex. Crim. App. 2006)).  Unlike the Speedy Trial
Act, a dismissal in accordance with former section 263.401 is without prejudice.  The
fact that the dismissal is without prejudice bolsters our conclusion that section
263.401 does not unduly interfere with the prosecutor's function, as a SAPCR can be
refiled.  
	DFPS recognizes that a dismissal order under section 263.401 is without
prejudice, but it argues that it "cannot keep a child in foster care absent new facts
supporting removal from the home."  See In re Ruiz, 16 S.W.3d 921, 927 (Tex.
App.--Waco 2000, orig. proceeding).  DFPS again overstates the case.  In Ruiz, the
Waco Court of Appeals held that, because a dismissal under section 263.401(a) is
without prejudice, DFPS may "re-file the case asserting the same ground for
termination as originally alleged," but that to keep a child in foster care after
dismissal of termination proceedings, it must rely on facts warranting removal that
have occurred after the date the child was removed from the parent's home.  Id.;
accord In re M.N.G., 147 S.W.3d 521, 528 (Tex. App.--Fort Worth, 2004, pet.
denied).  Similarly, in the instant case, DFPS was required to show, on the basis of
facts that occurred after T.R.W. was removed from his parents' custody on February
6, 2006, that returning him to his parents would endanger him.  Presumably, DFPS
met this burden, since the trial court awarded temporary managing conservatorship
of T.R.W. to his grandparents pursuant to a Rule 11 agreement that satisfied the
requirements of a final order under section 263.401(d)(2).
	We conclude that DFPS has not shown that refiling the SAPCR with new facts
demonstrating that returning T.A.D. to his parents would still endanger him, in
compliance with section 263.403 of the Family Code, would unduly interfere with its
prosecutorial function.  We further conclude that DFPS has not shown that the
requirement that it file a new SAPCR under Chapter 263 of the Family Code when
a final order has not been rendered by the 12-month deadline in section 263.401(a)
unduly interferes with its prosecutorial function.
	For all the foregoing reasons, we hold that former section 263.401 does not
violate the Separation of Powers Clause in the Texas Constitution. (15)
 Conclusion

	We affirm the judgment of the trial court. 



						Evelyn V. Keyes
						Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.
1. The children have different biological mothers and fathers.  The only child affected
in this proceeding is T.A.D, who was 3 in June 2007.  Andrea Ligouri is the mother
of S.S.W., T.R.W. and T.A.D.  Travis Dickensheets and Liguori have been monitored
by DFPS since 1995 and were required to complete drug/alcohol assessments and
follow all CPS recommendations. 
2. The record reflects that the Travis and Andrea appeared for the 9:00 a.m. trial setting,
but the setting was moved to 1:00 p.m.  Andrea admitted that she and Travis were
informed that the trial setting had been moved to 1:00 p.m., but Travis testified that
they were told "there was no longer a trial, there was going to be a hearing," for which
their presence was not needed, and that he "had to get to work." 
3. On appeal, DFPS does not raise any complaints about the trial court's decision to
implicitly deny its motion for extension.
4. The trial court dismissed the proceedings pursuant to former section 263.401.  Thus,
we analyze DFPS's arguments in reference to the former statute.
5. The amended version does not alter jurisdictional requirements other than to provide
that the trial court must have commenced the trial on the merits before the dismissal
date but that it need not have rendered a final order.  See Tex. Fam. Code Ann.
§ 263.401 (Vernon Supp. 2008). 
6. DFPS contends that its constitutional challenge to section 263.401 was argued in its
motion for new trial.  Although the appellate record does not include DFPS's motion
for new trial, appellees do not argue waiver.  Moreover, DFPS was not required to
argue that the statute was facially invalid in the trial court because a party may raise
a constitutional challenge to the facial validity of a statute for the first time on appeal. 
Toma v. State, 126 S.W.3d 528, 529 (Tex. App.--Houston [1st Dist.] 2003, pet.
ref'd); see Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994).
7. We note that the statute has since been amended to allow a trial to continue if the final
deadline occurs during trial.  See Tex. Fam. Code Ann. § 263.401(a) (Vernon Supp.
2008).
8. Article V, section 25, of the Texas Constitution provided:

	The Supreme Court shall have power to make and establish rules of
procedure not inconsistent with the laws of the State for the government of
said court and the other courts of this State to expedite the dispatch of business
therein.  

Tex. Const. art. V, § 25 (repealed). 
9. See Speedy Trial Act of 1977, 65th Leg., R.S., ch. 787, 1977 Tex. Gen. Laws 1970,
1970-73, repealed by, Act of May 19, 2005, 79th Leg., R.S., ch. 1019, sec. 2, 2005
Tex. Gen. Laws 3464, 3464.
10. U.S. Const. amend. VI; Texas Const., art. I, § 10.
11. Prior to January 1, 1998, if DFPS had been appointed temporary managing
conservator of a child, the court would "establish a date for dismissal of the suit not
later than the second anniversary of the date of the hearing, unless the court has
rendered a final order before the dismissal date."  Act of May 28, 1997, 75th Leg.,
R.S., ch. 603, § 14, 1997 Tex. Gen. Laws 2108, 2126.
12. In 1996, the Texas Sunset Advisory Commission also recommended that there should
be a "12-month deadline for [DFPS] to seek termination of parental rights or return
a child to the family."  Tex. Sunset Advisory Comm'n, Dep't of Protective and
Regulatory Servs., Staff Report 37 (1996).
13. We note that in 2001, the Legislature acknowledged that the 12-month deadline "has
helped to reduce the time children spend in foster care awaiting a trial court decision." 
House Comm. On Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B.
2249, 77th Leg., R.S. (2001). 
14. Moreover, former section 263.402 of the Family Code, like the current version,
provided, "A party to a suit under [Chapter 263] who fails to make a timely motion
to dismiss the suit or to make a motion requesting the court to render a final order
before the deadline for dismissal under this subchapter waives the right to object to
the court's failure to dismiss the suit."  See Act of May 22, 2001, 77th Leg., R.S., ch.
1090, 2001 Tex. Gen. Laws 2395, 2396-97 [hereinafter Former Tex. Fam. Code
Ann. § 263.402] (amended 2007) (current version at Tex. Fam. Code Ann.
§ 63.402(b) (Vernon Supp. 2008))
15. The Amarillo Court of Appeals addressed this issue in In re L.L., 65 S.W.3d 194,
196-197 (Tex. App.--Amarillo 2001, pet. dismissed).  The court of appeals stated
that DFPS was a creature of the legislature and it has the power to impose time
limitations as used in section 263.401.  Id. at 196.  In finding that the section did not
violate the separation of powers clause, the court held that "Texas courts do not
dictate to the Legislature how it should discharge its duty" and that to ignore the
words in the statute would be "an unwarranted judicial disregard for and avoidance
of a clear legislative mandate, which we cannot do."  Id. at 197.  Although we agree
with the opinion's propositions, we believe that further analysis is necessary, which
we have set out above.

