                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00029-CV

            IN THE INTEREST OF A.M. AND E.M., CHILDREN


                           From the 74th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-2778-3


                          CONCURRING OPINION

                                            I.

                   ELBAOR PROSPECTIVE OR RETROACTIVE ANALYSIS

      The Court’s Elbaor analysis does not adequately discuss the relevant factors in

the context of applying its decision “prospectively” on “retroactively.” Elbaor v. Smith,

845 S.W.2d 240, 250 (Tex. 1992). Since the Court’s analysis does not adversely impact its

judgment, I concur. But given the gravity of the issues, I felt a brief comment on the

additional analysis needed might be helpful.

      It is critical to note that Elbaor identifies a factor analysis, and not an elemental

analysis. Id. This means each of the items need not be discussed so it is inconsequential

whether the Court discussed the second factor of the three factor Elbaor analysis. See

McKenna v. State, 209 S.W.3d 233, 238 (Tex. App.—Waco 2006) (Gray, C.J., dissenting)
(discussing the distinction between a factor analysis and an elemental analysis), rev’d,

247 S.W.3d 716 (Tex. Crim. App. 2008). I agree with the Court’s implicit determination

that the second of the three factors is not important to our analysis. The first and third

factors are, however, critical.

           The first factor is:

           whether the decision establishes a new principle of law by either
           overruling clear past precedent on which litigants may have relied or by
           deciding an issue of first impression whose resolution was not clearly
           foreshadowed[.]

Elbaor, 845 S.W.2d at 250. I do not believe the express overruling of prior case law, on

the facts and history of this issue, establishes a new principle on which the litigants may

have relied. And it certainly is not an issue of first impression whose resolution was not

clearly foreshadowed.

           Since the Texas Supreme Court overruled this Court in B.L.D.,1 and, based on its

analysis therein and upon my research, every court that has analyzed the issue has

concluded that a factual sufficiency issue from a jury trial in a termination case must be

preserved by making it a ground in a motion for new trial. TEX. R. CIV. P. 324(b). It is

thus beyond dispute that the disposition of the issue was clearly foreshadowed by the

almost decade of case law development since B.L.D. Thus, I would not weigh the first

factor in favor of prospective application only.

           The third factor provides:

           whether retroactive application of the rule could produce substantial
           inequitable results.

1
    In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

In the Interest of A.M. and E.M.                                                      Page 2
Elbaor, 845 S.W.2d at 250.

        Again, I disagree with the appellant’s and the Court’s determination that

“substantial inequitable results” would be the consequence of retroactive application of

the preservation requirement in this case. The “remedy” for failure of trial counsel to

preserve the factual sufficiency issue has already been established. A “remedy” was

established to avoid the perceived inequitable result on the same day BLD was decided.

Thus, the terminated parent is not without a remedy and so the result is not inequitable.

The remedy? -- an issue that trial counsel provided ineffective assistance by failing to

preserve the factual sufficiency issue. See In re M.S., 115 S.W.3d 534, 549-50 (Tex. 2003)

(decided the same day as In re B.L.D.).

        Appellant argues the first and third Elbaor factors weigh in favor of a prospective

application of this Court’s decision to overrule In re A.P. In re A.P., 42 S.W.3d 248 (Tex.

App.—Waco 2001, no pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267

(Tex. 2002). The Court agrees and, thus, does not apply its new rule to this proceeding.

Because I would weigh both factors as being in favor of a retrospective application,

being a foregone conclusion from the case development in this area of the law, and

because there is not an inequitable result since there is another available avenue for

relief, I would overrule the issue as not being preserved and affirm the trial court’s

judgment. Because this is the same judgment the Court ultimately renders, I concur.




In the Interest of A.M. and E.M.                                                     Page 3
                                              II.

                            USE OF EVIDENCE ON MULTIPLE FACTORS

        I must, however, also note that appellant’s strategy to present this issue as an

unpreserved sufficiency issue rather than an ineffective assistance of counsel issue has

caused the Court to discuss another issue—another issue not preserved, and an issue

that need not even be mentioned under my Elbaor analysis: Whether the evidence in

support of the predicate violation can also be utilized in evaluating the sufficiency of

the evidence in support of the best interest element in a termination case. This really is

the issue appellant wants reviewed. Fortunately, the Court properly declines to address

that issue as not being preserved.

        Accordingly, I respectfully concur.



                                          TOM GRAY
                                          Chief Justice

Concurring opinion delivered and filed on August 9, 2012




In the Interest of A.M. and E.M.                                                    Page 4
