


                                                                NO.
12-06-00295-CV
 
IN THE COURT OF APPEALS 
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN THE
INTEREST OF B.G.,         §                      APPEAL FROM THE 217TH
 
C.W.,
E.W., B.B.W. AND J.W.,        §                      JUDICIAL DISTRICT COURT OF
 
CHILDREN   §                      ANGELINA COUNTY, TEXAS
                                                                                                                                                            

MEMORANDUM
OPINION ON REHEARING
            Appellant
Lester Williams filed a motion for rehearing, which is overruled.  The court’s opinion of July 18, 2007 is
hereby withdrawn, and the following opinion is substituted in its place.
            Appellant
Lester Williams appeals the trial court’s postjudgment order denying him a free
record in a conservatorship and termination proceeding brought by the Texas
Department of Family and Protective Services (“DFPS”), Appellee.  In one issue, Williams complains that the
trial court violated his due process rights under the United States and Texas
constitutions when it denied his request for a free record.  We affirm.
 
Background
            Following a bench trial, the trial
court terminated Williams’s parental rights. 
Williams, who had discharged his court appointed trial counsel and acted
pro se at trial, requested that the trial court appoint counsel to represent
him on appeal.  Through his subsequently
appointed appellate counsel, Williams sought a free record based upon Williams’s
indigent status.  The trial court
conducted a posttrial hearing on the matter and issued a written order denying
Williams a free record.  Williams now
appeals that order.




Constitutional Issues
            In his sole issue, Williams argues
that the trial court violated his due process rights under the United States
and Texas constitutions when it denied his request for a free record.  Section 13.003 of the Texas Civil Practice
and Remedies Code governs the provision of free clerk’s records and reporter’s
records to indigent appellants.  See Tex. Civ. Prac. & Rem. Code Ann. §
13.003 (Vernon 2002).  Under section
13.003, a trial court may order that an indigent appellant be provided a free
clerk’s record and reporter’s record only if
 
(1)           an affidavit of inability to pay the cost of the appeal
has been filed under the Texas Rules of Appellate Procedure; and
 
(2)           the trial judge finds:
(A)          the appeal is not frivolous; and
(B)          the [reporter’s record] and the [clerk’s
record] are needed to decide the issue presented by the appeal.
 
 
Tex. Civ. Prac. & Rem. Code Ann. §
13.003(a) (Vernon 2002).  
            Rule
33.1(a) of the Texas Rules of Appellate Procedure states as follows:
 
(a)           In General. As a prerequisite to presenting a complaint
for appellate review, the record must show that:
 
(1)           the complaint was made to the trial
court by a timely request, objection, or motion that:
 
   (A)       stated
the grounds for the ruling that the complaining party sought from the trial
court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context; and
 
   (B)       complied
with the requirements of the Texas Rules of Civil or Criminal Evidence or the
Texas Rules of Civil or Appellate Procedure; and
 
(2)           the trial court:
 
   (A)       ruled
on the request, objection, or motion, either expressly or implicitly; or
 
   (B)       refused
to rule on the request, objection, or motion, and the complaining party
objected to the refusal.
 
 




Tex. R. App. P. 33.1(a).  Here, Williams did not assert his
constitutional complaints at the hearing on his request for a free record.  Therefore, it appears that Williams failed to
preserve error, if any, for appellate review. 
See Tex. R. App. P. 33.1(a);
In re T.L., No. 12-04-00219-CV, 2004 WL 2694600, at *5 (Tex. App.–Tyler
Nov. 24, 2004, no pet.) (mem. op.) (applying rule 33.1 to constitutional
issues).  Further, such error, if any,
would not constitute fundamental error, which would absolve Williams from the
need to properly present it to the trial court.  See Wal-Mart Stores, Inc. v. Alexander,
868 S.W.2d 322, 328 (Tex. 1993) (Fundamental error exists “in those rare
instances in which the record shows the court lacked jurisdiction or that the
public interest is directly and adversely affected as that interest is declared
in the statutes or the Constitution of Texas.”). 
            Williams contends that he properly
complied with rule 33.1 by asserting his constitutional complaints in a motion
for reconsideration filed on September 20, 2006.  We must, therefore, determine if Williams’s
motion to reconsider was sufficient to preserve his issue for appellate review.
            Subchapter E of Chapter 263 of the
Texas Family Code governs final orders in conservatorship and termination
proceedings in cases involving children under DFPS care.  See In re A.J.K., 116 S.W.3d
165, 169-70 (Tex. App.–Houston [14th Dist.] 2003, no pet.).  Section 236.405(d) of subchapter E limits a
trial court’s power to hold a section 13.003 hearing.  See Tex.  Fam. Code Ann. § 263.405(d) (Vernon
2002).  According to section 236.405(d),
a trial court shall hold a section 13.003 hearing “not later than the 30th day
after the date the final order is signed.”  Id. 
            Williams’s motion to reconsider was
filed on September 20, 2006, sixty-four days after the final judgment was
signed.  Therefore, at the time the
motion to reconsider was filed, the trial court had no power to reconsider its
section 13.003 ruling.  In addition,
there is no evidence in the record supporting the proposition that the State
either consented to or requested that the trial court reconsider the
ruling.  Finally, the mere fact that the
section 13.003 hearing occurred does not supply the necessary additional
jurisdiction for a subsequent reconsideration upon motion.  Because chapter 263 limits the trial court’s
jurisdiction of section 13.003 motions, we hold that Williams failed to present
his constitutional complaints to the trial court and, thus, failed to preserve
them for appellate review.  See Tex. R. App. P. 33.1(a); In re
T.L., 2004 WL 2694600, at *5.  We
overrule Appellant’s sole issue.
Disposition
            We
affirm the trial court’s order.1
 
 
                                                                                                    BRIAN HOYLE   
                                                                                                               Justice
 
 
 
Opinion delivered September 19, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
                        
 
 
 
 
 
 
 
(PUBLISH)




1 Williams has listed issues that he anticipates raising on appeal upon
our reversal of the trial court’s order. 
Because these are anticipated issues only, we do not address them here.


