
OPINION
No. 04-04-00195-CV
IN THE INTEREST OF T.A.C.W.

From the 131st Judicial District Court, Bexar County, Texas   
 Trial Court No. 2002-PA-02028
Honorable John Gabriel, Judge Presiding (1)
Opinion by:  	Phylis J. Speedlin, Justice
Sitting:	Karen Angelini, Justice
		Sandee Bryan Marion, Justice
		Phylis J. Speedlin, Justice
Delivered and Filed:	July 9, 2004
ABATED AND REMANDED 
	Dwayne Walton ("Walton") appeals the trial court's order terminating his parental rights to
his daughter, T.A.C.W.  We abate the appeal and remand to the trial court for further proceedings.
Background
	The Texas Department of Protective and Regulatory Services (the "Department") petitioned
the court to terminate Walton's parental rights to his daughter, T.A.C.W.  After a bench trial, the
court found that Walton had constructively abandoned the child and that termination of Walton's
parental rights was in the best interest of the child.  The order terminating Walton's parental rights
was signed on January 15, 2004.  Walton filed a motion for new trial on January 28, 2004.  Walton
timely filed notice of appeal on February 3, 2004.  His statement of points on appeal, however, was
not filed until February 26, 2004, after expiration of the 15-day period specified in Section
263.405(b) of the Texas Family Code.  Tex. Fam. Code Ann. § 263.405(b) (Vernon 2002).  Walton
also filed an affidavit of inability to pay the costs of appeal.  On March 12, 2004, the trial court held
a hearing on Walton's motion for new trial, but did not rule on whether a new trial should be granted,
whether Walton's claim of indigence should be sustained, or whether his appeal is frivolous as
required by Section 263.405(d) of the Texas Family Code.  Tex. Fam. Code Ann. § 263.405(d)
(Vernon 2002).
Analysis
	Section 263.405(b) of the Texas Family Code provides that "[n]ot later than the 15th day
after the date a final order is signed by the trial judge, a party intending to appeal the order must file
with the trial court a statement of the point or points on which the party intends to appeal."  Tex.
Fam. Code Ann. § 263.405(b).  Walton's statement of points on appeal was filed after the
prescribed 15-day period.  Subsection (d) of Section 263.405 requires the trial court to hold a hearing
within thirty days of the date the termination order was signed and to determine whether:  "(1) a new
trial should be granted; (2) a party's claim of indigence, if any, should be sustained; and (3) the
appeal is frivolous as provided by Section 13.003(b) of the Texas Civil Practice and Remedies
Code."  Tex. Fam. Code Ann. § 263.405(d).  The trial court did not make the rulings required by
Section 263.405(d).
	It appears from the record that the trial court questioned its jurisdiction to make any ruling
under Section 263.405(d) because of the untimeliness of Walton's statement of points on appeal.
We have not previously addressed the issue of whether we have jurisdiction when an appellant files
a timely notice of appeal, but then files a late statement of points on appeal.  We join our sister courts
in holding that an appeal from a termination order is perfected by the timely filing of a notice of
appeal, and a late-filed statement of points on appeal does not deprive the appellate court of
jurisdiction.  See Tex. R. App. P. 25.1(b); see In re D.R.L.M., 84 S.W.3d 281, 290-91 (Tex.
App.--Fort Worth 2002, pet. denied) (holding appellant's failure to file statement of points on
appeal within fifteen days of the final termination order did not deprive appellate court of jurisdiction
where notice of appeal was timely filed); In re S.J.G., 124 S.W.3d 237, 243 (Tex. App.--Fort Worth
2003, pet. denied) (complete failure to file statement of points on appeal is not a jurisdictional
defect); see also In re T.C., No. 07-03-0077-CV, 2003 WL 21658314 at *2 (Tex. App.--Amarillo
2003, no pet.) (not designated for publication) (filing of a statement of points on appeal does not
affect the appellate court's jurisdiction).
	The purpose of the statutory requirement of a statement of points on appeal is to provide the
trial court with a mechanism to determine whether an appeal is frivolous and thereby reduce or
eliminate unmeritorious parental-termination appeals.  In re S.J.G., 124 S.W.3d at 243; see also In
re M.G.D., 108 S.W.3d 508, 516 (Tex. App.--Houston [14th  Dist.] 2003, pet. denied) (general
purpose of the procedures established by Family Code Section 263.405 is to reduce post-judgment
appellate delays, not to deprive the appellate courts of jurisdiction).  Construing a failure to timely
file the statement of points on appeal as a waiver of all non-jurisdictional appellate issues does not
accomplish the statutory goals of reducing frivolous appeals and post-judgment delays.  See In re
S.J.G., 124 S.W.3d at 243.
	Walton timely filed his notice of appeal, and we hold that our jurisdiction has been properly
invoked.  However, because Section 263.405(a) makes parental-termination appeals subject to the
procedures provided in that section, we may not proceed further in this appeal without the trial
court's ruling as to whether the appeal is frivolous.  See Tex. Fam. Code Ann. § 263.405 (d)(3), (g).
Accordingly, we abate this appeal and remand for a hearing and ruling by the trial court on whether
Walton's appeal is frivolous in accordance with Section 263.405(d)(3) of the Texas Family Code.
See Tex. Fam. Code Ann. § 263.405(d)(3).
							Phylis J. Speedlin, Justice
1.   The Honorable John Gabriel is the presiding judge of the 131st Judicial District Court in Bexar County,
Texas.  However, the Honorable Associate Judge Peter Sakai presided over the hearing, and the Honorable David
Peeples, presiding judge of the 224th Judicial District Court in Bexar County, Texas, signed the order of termination.

