


IN THE INTEREST OF L.L. AND T.Y., MINOR CHIL



NO. 07-00-0545-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL C


NOVEMBER 14, 2001


______________________________



IN THE INTEREST OF L.L. AND T.Y., MINOR CHILDREN



_________________________________


FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;


NO. 97-559,790; HONORABLE JIM BOB DARNELL, JUDGE


_______________________________


Before QUINN and REAVIS and JOHNSON, JJ.
	It being brought to the Court's attention that a reference in our opinion dated
October 23, 2001, to the clerk's record was inaccurate, although not material to our
disposition of the appeal, we withdraw our original opinion and, in lieu thereof, issue the
following opinion.  Our judgment of October 23, 2001 is unaffected.
	Appellant Twila Young challenges the trial court's judgment signed September 8,
2000, following a jury trial, terminating her parental rights as to her daughters L.L. and T.Y.
and appointing the Texas Department of Protective and Regulatory Services (TDPRS)
permanent managing conservator of the children. (1)  Presenting two issues, Young contends
that reversal is required because the trial court had no authority to render the order, and
because the order is a nullity under the provisions of the one final judgment rule.  Based
on the rationale expressed herein, we reverse and remand.
	Young does not challenge the sufficiency of the evidence to support the jury's
findings.  Thus, only the facts relevant for disposition of this appeal will be presented.  On
January 23, 1998, TDPRS filed its petition to terminate the parent-child relationship
between Young and her four children, to wit: two minor sons, J.Y. and D.Y., and two minor
daughters, L.L. and T.Y.  On May 14, 1998, the trial court conducted its first hearing, and
on April 6, 2000, the court signed an order entitled Permanency Hearing Order which,
among other things, determined that pursuant to section 263.306(11) of the Texas Family
Code, the dismissal date of the cause shall be May 14, 2000.  Although the case was set
for trial on April 14, 2000, on that day, Young's counsel filed a motion for continuance and
by order signed May 9, 2000, the case was reset for trial on May 12, 2000.  Then, an
agreement pursuant to Rule 11 of the Texas Rules of Civil Procedure signed by counsel
for TDPRS, attorney and guardian ad litem for the children, CASA, and counsel for Young
was filed on May 11, 2000, which in summary, provided:

	TDPRS was appointed temporary managing conservator of the four
children on May 13, 1997;
	the statutory dismissal date under section 263.401(a) is May 15,
2000;
	the trial setting does not allow sufficient time for the petitioner or
Young to prepare adequately for trial.  The best interest of the
children would be better served by allowing adequate time for trial
preparation; agree that new dismissal date be set as September 15,
2000; and
	waived any objection to suit being continued; waived any right to file
a motion or seek appellate remedy for failure to comply with section
263.401(a).

 
The trial court heard the case as to the biological fathers of the four children on May 12,
2000, and signed an order entitled Interlocutory Decree of Termination of the paternal
rights of the biological fathers of all four children on July 19, 2000.  By order signed July
28, 2000, the case was set for jury trial for September 5, 2000.  
	On September 6, 2000, the trial court signed an order entitled Agreed Final Order
In Suit Affecting the Parent-Child Relationship, signed by Young and her counsel and
others, which appointed TDPRS permanent managing conservator of Young's two sons. 
Then following a jury trial as to termination of parental rights to the two daughters only, on
September 8, 2000, the trial court signed a second order entitled Order of Termination
terminating Young's parental rights to L.L and T.Y. and appointing TDPRS permanent
managing conservator of both girls.  Young's notice of appeal is directed to the order of
September 8, 2000, covering the girls and her brief does not present any issues regarding
the boys.
	By her first issues, Young contends the termination order must be reversed because
the trial court rendered the order beyond the time allowed by section 263.401 of the Texas
Family Code.  We agree.  By sections 102.003(6) and 101.002 of the Family Code, the
Legislature granted TDPRS standing to prosecute actions to terminate parental rights of
minor children.  In proceedings where TDPRS is prosecuting an action to terminate
parental rights the Legislature also mandated that a final order must be entered
concerning the child no later than one year after the department becomes the temporary
managing conservator of a child or the suit must be dismissed.  In Re Neal, 4 S.W.3d 443,
445 (Tex.App.--Houston [1st Dist.] 1999, no pet.).  Section 263.401(a) in part provides:
	the court shall dismiss the suit affecting the parent-child relationship filed by
the department . . . . 

(Emphasis added).  However, the Legislature did not condition the dismissal upon a motion
to dismiss or defer dismissal based upon an agreement of the parties, a finding of good
cause, or the like.  By this Court's opinion published after the rendition of the order
presently under review, we held that a Rule 11 agreement similar to the agreement
presented here did not afford grounds to override the statutory requirement  for dismissal
of the proceeding on grounds of public policy.  In Re T.M., 33 S.W.3d 341, 347 (Tex.App.--Amarillo 2000, no pet.).
	TDPRS argues that because Young did not raise the issue in the trial court, it is not 
preserved for appellate review.  See Tex. R. App. P. 33(a)(1).  Here, however, the issue
implicates the statutory duty of the trial court to dismiss an action and is not concerned
with errors in the course of the proceeding attributable to appellee but not brought to the
attention of the trial court by appellant.  TDPRS's standing to prosecute the action to
terminate parental rights is a creature of the Legislature and the Legislature has the power
to impose time limitations similar to the requirement of section 263.401.  It is not the duty
of the courts to judge the wisdom of the policy choice of the Legislature or to impose a
different policy.  See  Edgewood Independent Sch. Dist. v. Meno, 917 S.W.2d 717, 726
(Tex. 1995).  Under the doctrine of separation of powers among the executive, legislative,
and judicial branches of state government, Texas courts do not dictate to the Legislature
how it should discharge its duty.  Id.  The term "shall dismiss" without any qualifications
or exceptions imposed a mandatory duty on the trial court to dismiss the proceeding, and
the Legislature did not provide for the exercise of any judicial discretion.  Schepps v.
Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983).  Because we are required
to afford meaning to every word in a statute, Chevron Corp. v. Redmon, 745 S.W.2d 314,
316 (Tex. 1987), and cannot ignore the limitation imposed by the Legislature, acceptance
of TDPRS's position would constitute an unwarranted judicial disregard for and avoidance
of a clear legislative mandate, which we cannot do.  Young's first issue is sustained.  Our
sustention of issue one pretermits our consideration of issue two.  Tex. R. App. P. 47.1.
	Accordingly, the judgment of the trial court is reversed and the cause remanded with
instructions to dismiss the action as to L.L. and T.Y. in accordance with section 263.401(a)
of the Texas Family Code.

						Don H. Reavis
						    Justice


Publish. 

1. At the time the judgment was signed the trial court did not have the benefit of our
decision in In Re T.M., 33 S.W.3d 341 (Tex.App.--Amarillo 2000, no pet.).

NO. 07-09-00313-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

JULY
26, 2011
 

 
MELISSA D. LIVELY, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 364TH DISTRICT COURT OF LUBBOCK
COUNTY;
 
NO. 2006-414,580; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
MEMORANDUM OPINION
 
Appellant Melissa D. Lively appeals
from her conviction by jury of two counts of aggravated assault with a deadly
weapon and the resulting sentences of twenty years of imprisonment for each
count.  Appellant contends the trial
court erred in denying her motion to suppress. 
The State cross-appeals, arguing the trial court erred in including an
instruction pursuant to article 38.23 in the jury charge. We will affirm the
trial courts judgment.
            Appellant
was indicted in separate counts for aggravated assault with a deadly weapon[1]
against her two stepsons, Joe Lively and Danny Lively.  She was convicted of both counts.
            Before
trial, appellant filed a motion to suppress evidence Lubbock police officers
found after they entered appellants home without a warrant.  The trial court denied the motion after a
hearing.  Appellant re-urged the motion
at trial and it was again denied.  After
trial, the court issued findings of fact and conclusions of law at appellants
request. Among them were conclusions that the officers, when they entered
appellants home, had probable cause to believe evidence of a crime would be
found in the residence, and that exigent circumstances justified their
immediate entry into the residence for the reasonably-perceived purpose of
providing needed aid or assistance to Danny Lively.[2]
            Appellants
husband Steve A. Lively also was prosecuted for aggravated assault of his sons
with a deadly weapon, based on the same events that led to appellants
conviction.  In his case, he sought to
suppress the same evidence, resulting from the same search, as that addressed
in appellants motion to suppress.  After
his motion to suppress was denied, and after he plead
guilty and a judgment of conviction was entered against him, he appealed his
conviction to this court, asserting error in the denial of his motion to
suppress.  We affirmed his conviction,
finding the trial court did not abuse its discretion by denying his motion to
suppress. Lively v.
State, No. 07-10-00084-CR, 2010 Tex. App. LEXIS 7537 (Tex.App.Amarillo
Sept. 14, 2010, pet. refd) (mem.
op., not designated for publication). 
The Court of Criminal Appeals since has refused the petition for
discretionary review filed by Steve A. Lively. In re Lively, No. PD-1516-10, 2011 Tex.Crim.App. LEXIS 248 (Tex.Crim.App. Feb. 9,
2011). 
In our opinion in Steve A. Livelys appeal, we found the officers had probable cause
to believe the instrumentality or evidence of a crime would be found in the
residence, and that the information gained and observations made during their
encounters with the two boys raised objectively reasonable concerns for the
physical welfare of Danny Lively and others, justifying the warrantless entry
into the residence. Lively,
No. 07-10-00084-CR, 2010 Tex.App. LEXIS 7537, at *4-*5. 

Although the States cases against
appellant and her husband were tried separately, their separate motions to
suppress were heard at the same pre-trial hearing, so the trial court heard the
same testimony on each motion.  As noted,
appellant re-urged her motion at trial, and her appellate brief points out some
differences in the testimony from the suppression hearing and that at
trial.  Having reviewed both the trial
testimony and that at the suppression hearing, we do not find such
inconsistency between them as to require discussion.  Moreover, appellant does not specifically
challenge any of the trial courts findings of fact. The findings of fact
issued in this case are consistent with the factual discussion in our opinion
in the appellants husbands appeal.  Lively, No.
07-10-00084-CR, 2010 Tex.App. LEXIS 7537, at *1-*5. 
Our discussion of the facts, and application of
the law, in that appeal are equally applicable here.  Therefore, for the same reasons we stated
there, we find the trial court did not abuse its discretion by denying
appellants motion to suppress.  See State
v. Ross, 32
S.W.3d 853, 855-56 (Tex.Crim.App. 2000);
Lowrey v. State, 98 S.W.3d 398, 399 (Tex.App.Amarillo 2003, no pet.), citing Guzman
v. State, 955
S.W.2d 85, 87 (Tex.Crim.App. 1997)
(stating standard of
review).  
Appellants brief argues against the
application to these facts of the emergency doctrine that is applicable when
police act in their limited community caretaking role.  See Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App.
2003) (explicating doctrine).  Because we must affirm the trial courts denial of appellants
motion if it was correct on any applicable theory of law, id. at 857, we need not address the
application of the emergency doctrine.
For the reasons discussed, we overrule
appellants sole issue.
States
Cross-Appeal
            The State cross-appeals, arguing the
trial court improperly included an article 38.23[3]
instruction in the jury charge.  Because
we will affirm appellants conviction, it is unnecessary also for us to address
the States cross-appeal, as resolution of the issue would not alter the
outcome of the appeal. See Armstrong v.
State, 805 S.W.2d 791, 793 (Tex.Crim.App. 1991); Hargrove v. State, 774 S.W.2d 771,
772-73 (Tex.App.Corpus Christi 1989, pet. refd) (both declining to address States cross-appeals
when convictions affirmed).
 
We
affirm the judgment of the trial court.
 
                                                                                                James
T. Campbell
                                                                                                            Justice
 
Do
not publish.
            
 




[1] See
Tex. Penal Code
Ann. § 22.02(a)(2) (West 2009).


 
[2] See, e.g., Gutierrez v. State, 221 S.W.3d 680, 685
(Tex.Crim.App. 2007) (describing probable cause and
exigent circumstance requirements for warrantless searches made without
consent).



[3] See Tex. Code Crim. Proc. Ann. art. 38.23
(West 2009).


