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                                                OPINION

                                           No. 04-08-00016-CV

                          IN THE INTEREST OF N.C.M., J.M.F., and T.L.F.

                      From the 216th Judicial District Court, Kendall County, Texas
                                        Trial Court No. 06-401
                              Honorable Robert Hofmann, Judge Presiding

Opinion by:        Sandee Bryan Marion, Justice

Sitting:          Alma L. López, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 13, 2008

AFFIRMED

           This is an accelerated appeal from trial court’s determination that appellant’s appeal of the

termination of his parental rights to his children was frivolous. We affirm.

                                              DISCUSSION

           On appeal, appellant does not challenge the trial court’s finding that his appeal was frivolous.

Instead, in a single issue, appellant asserts Family Code section 263.405(i) is facially

unconstitutional because it arbitrarily removes a right that other civil litigants have in other appeals,

which is to challenge the legal and factual sufficiency of the evidence on appeal. To sustain a facial

challenge, the party must show that the statute, by its terms, always has and always will operate

unconstitutionally. Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746,
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814 n.94 (Tex. 2005); In re Pensom, 126 S.W.3d 251, 254 (Tex. App.—San Antonio 2003, orig.

proceeding). We conclude appellant has not met this burden.

        The premise of appellant’s argument is that section 263.405(i) is facially unconstitutional

because the expedited timetable set forth in section 263.405 deprives appellate counsel of

meaningful review of the trial record. A party challenging a termination order must file, “[n]ot later

than the 15th day after the date a final order is signed by the trial judge, . . . (1) a request for a new

trial; or (2) if an appeal is sought, a statement of the point or points on which the party intends to

appeal.” TEX. FAM. CODE ANN. § 263.405(b) (Vernon Supp. 2007). Section 263.405(i) prohibits

an appellate court from “consider[ing] any issue that was not specifically presented to the trial court

in a timely filed statement of the points on which the party intends to appeal or in a statement

combined with a motion for new trial.” Id. § 263.405(i). “For purposes of this subsection, a claim

that a judicial decision is contrary to the evidence or that the evidence is factually or legally

insufficient is not sufficiently specific to preserve an issue for appeal.” Id.

        As support for his challenge to section 263.405(i), appellant urges this court to adopt Justice

Vance’s reasoning in his concurring opinion in In re E.A.R., 201 S.W.3d 813 (Tex. App.—Waco

2006, no pet.). In his concurrence, Justice Vance “question[ed] whether subsection 263.405(i), as

applied to certain termination cases–especially those cases involving indigent parents whose

appointed appellate counsel is not the same as appointed trial counsel–passes constitutional muster

because it can operate to deprive appellate review of any issues under its accelerated timetable.”

Id. at 816 (Vance, J., concurring) (considering an “as applied” constitutional challenge). We share

Justice Vance’s concern that appointed appellate counsel, who is often different from trial counsel,



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may not have the time to closely review the trial record to determine whether there are any arguable

points to present for review. See id. at 817; see In re R.M., No. 04-07-00048-CV, 2007

WL 1988149, * 1 (Tex. App.—San Antonio July 11, 2007, pet. denied) (“join[ing] our sister courts

in asking the Legislature to revisit the scope of section 263.405(i).”). And we recognize these

circumstances may result in section 263.405(i) being unconstitutional “as applied” to a specific case

because an “‘as applied challenge’ only requires the challenger to demonstrate that the statute

operates unconstitutionally when applied to the challenger’s particular circumstances.” In re B.S.W.,

87 S.W.3d 766, 771 (Tex. App.—Texarkana 2002, pet. denied); see, e.g., In re S.K.A., 236 S.W.3d

875, 894 (Tex. App.—Texarkana 2007, pet. denied) (holding section 263.405(i) unconstitutional as

applied); In re D.M., 244 S.W.3d 397, 415 (Tex. App.—Waco 2007, no pet.) (same); In re J.O.A.,

No. 07-07-0042-CV, ___ S.W.3d ___, 2008 WL 495324, * 12 (Tex. App.—Amarillo Feb. 25, 2008,

no pet. h.) (same).

       However, a party seeking to invalidate a statute “on its face” bears a heavy burden to

establish that every application of the statute violates the constitution. See Nootsie, Ltd. v.

Williamson County Appraisal Dist., 925 S.W.2d 659, 663 (Tex. 1996). Although we agree with

appellant that appellate counsel often has little to no background on what occurred at trial other than

information obtained from trial counsel or the client, we cannot agree with appellant that these

circumstances automatically result in depriving parents whose parental rights have been terminated

of their due process and equal protection rights. Therefore, we conclude appellant has not

established that section 263.405(i) by its terms, always has and always will operate

unconstitutionally.



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                                CONCLUSION

We overrule appellant’s issue on appeal and affirm the trial court’s judgment.



                                              Sandee Bryan Marion, Justice




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